Singh v Minister for Immigration
[2015] FCCA 1939
•22 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1939 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal misconstrued and misapplied the law. |
| Legislation: Migration Act 1958 (Cth), ss.5(9), 65, 359A, 368 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Kaur v Minister for Immigration and Border Protection [2014] FCA 281 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 | ||
| Applicant: | GURJIT SINGH | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2339 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 28 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nair |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
A writ of certiorari issue directed to the Second Respondent to quash the decision made on 28 August 2013.
A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to redetermine according to law the application for review of the decision of the delegate of the First Respondent of 10 July 2012 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 2339 of 2013
| GURJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the “Tribunal”) dated 28 August 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) Visa.
With his visa application of 20 August 2009, the Applicant provided a copy of a skills assessment for the nominated occupation of “Cook” from Trades Recognition Australia (“TRA”) dated 19 March 2009. On 26 October 2011 the delegate asked TRA whether the skills assessment was valid or should have been, or was to be, revoked and sought copies of the documents provided by the Applicant. TRA gave the delegate a copy of the information provided by the Applicant in support of his skills assessment. One of these documents was a letter from the Copper Tiffin Restaurant confirming the employment of Mr Singh as a cook on a volunteer basis from December 2007 to October 2008 and outlining his duties. TRA advised the delegate that the Applicant held a valid skills assessment, but that the Copper Tiffin Restaurant was part of a larger ongoing investigation by TRA and the Department (of Immigration).
On 9 November 2011 the delegate asked the Applicant to provide further evidence of his 900 hours of work experience and, if he had undertaken voluntary work experience, evidence of how he had supported himself financially.
On 11 November 2011 the Applicant’s adviser provided the delegate with a copy of the employment reference from the Copper Tiffin Restaurant and a statutory declaration from a family friend in relation to financial support he provided to the Applicant for the period he underwent unpaid training as a cook.
On 21 November 2011 the delegate wrote to the Applicant indicating that it had been brought to the Department’s attention that he may not satisfy Public Interest Criterion 4020 (“PIC 4020”) which required that there be no evidence that the Applicant had given or caused to be given to the Minister or a relevant assessing authority a bogus document or information that was false or misleading in a material particular in relation to the visa application. This concern was put on the basis that it was improbable that an employer would be prepared to provide a written employment reference clearly stating that Mr Singh had been employed in breach of what was said to be New South Wales industrial law in relation to payment for work experience.
On 19 December 2011 the Applicant’s adviser confirmed that the Applicant had undergone unpaid training at the Copper Tiffin Restaurant from December 2007 to October 2008 and suggested that TRA had accepted unpaid training “before they changed the rule from 1 July 2011.”
On 9 June 2012 the delegate again wrote to the Applicant, seeking his comment on what was described as information received by the Department “which indicates that work experience claims from Copper Tiffin are likely to be fraudulent, and that you did not in fact complete your 900 hours of work experience at Copper Tiffin.” This letter explained that 56 other applicants had also claimed to have completed their work experience at Copper Tiffin Restaurant at the same time the Applicant claimed to have completed his work experience. It was suggested that, given the size of the premises, this number of students attending to obtain work experience at the same time was not feasible. The evidence was said to suggest that the Applicant had provided or caused to be provided a bogus document or false or misleading information in relation to the visa application and that he may not satisfy PIC 4020.
On 4 July 2012 the Applicant’s adviser responded, indicating that the Applicant confirmed that he had undergone unpaid training as a volunteer at the Copper Tiffin Restaurant, which was a busy place with a catering business which required extended work hours and plenty of casual trainees. He also claimed that all the evidence submitted to TRA was genuine.
The Delegate’s Decision
On 10 July 2012 the delegate refused the Applicant’s visa application. The delegate was not satisfied that the Applicant had completed 900 hours of work experience at the Copper Tiffin Restaurant. The delegate had regard to the absence of substantive verifiable evidence to support the Applicant’s claimed period of work experience or his claims about financial assistance during the period of work experience. The delegate did not consider the responses to the invitations to comment were substantial enough to discredit information the Department had received in relation to the Copper Tiffin Restaurant. He gave less weight to the documents and information provided by the Applicant than to the information obtained in the departmental investigation.
The delegate was satisfied that a bogus document had been provided to the Department in connection with the application and that the Applicant did not satisfy the requirements of PIC 4020(1), and, in the absence of any submission addressing the waiver provision in PIC 4020(4), was not satisfied that the requirements PIC 4020(1) should be waived. The delegate concluded that the Applicant did not meet the criterion for a Subclass 485 visa in cl.485.224 of Schedule 2 to the Migration Regulations1994 (Cth) (the “Migration Regulations”) that the Applicant satisfy PIC 4020. The delegate noted that he had considered cl.485.224 in the form amended by the Migration Amendment Regulations 2011 (No. 1) (Cth) on the basis that the requirement to satisfy PIC 4020 applied to visa applications made before 2 April 2011 but decided after that date.
Tribunal Review
The Applicant sought review by the Tribunal by application lodged on 12 July 2012.
On 7 March 2013 the Tribunal wrote to the Applicant. The letter commenced by inviting him to comment on information that, subject to his response, the Tribunal considered would be the reason or part of the reason for affirming the decision under review. However, somewhat confusingly, the “particulars of the information” were described as follows:
If the Tribunal finds that you have given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa, the Tribunal may find that you do not meet PIC 4020(1). This requirement may be waived if the Tribunal is satisfied that there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa. You are now invited to provide information you wish the tribunal to consider with respect to such circumstances.
Rather than setting out particulars of information for comment, this part of the letter appears to amount to a request for further information.
Notwithstanding this, the Tribunal letter continued:
This information is relevant because the Tribunal may find that, by submitting the skills assessment and work reference referred to above [sic] you had given, or caused to be given, to the Minister, an officer, or the relevant assessing authority, a bogus document or information that is false or misleading in a material particular in relation to an application for a visa. If the Tribunal so finds, it may not be satisfied that you meet Public Interest Criterion (PIC) 4020, and, if so, you would not satisfy clause 886.225 (sic) which means that you would not meet a requirement for the grant of the visa for which you have applied.
(Emphasis added)
There was no earlier reference in the letter to a skills assessment and/or work reference. The Applicant had not applied for a class of visa that included Subclass 886. Had there been information which enlivened the Tribunal’s obligations under s.359A of the Act this letter would not have met such obligations.
On 15 April 2013 the Applicant’s adviser wrote to the Tribunal thanking it for its letter of 7 March 2013 and providing what was described as a “submission”. The adviser claimed that the Applicant had undergone training on an unpaid, volunteer basis from December 2007 until October 2008 at the Copper Tiffin Restaurant, that the Copper Tiffin Restaurant was a busy place and had a catering business which required extended work hours and plenty of casual trainees, that the Applicant claimed all evidence submitted to TRA was genuine, that it had been verified by TRA and that voluntary unpaid training was acceptable to TRA at the time of the skills assessment. The adviser also advised that the Copper Tiffin Restaurant had closed and that the Applicant was unable to contact the owner to get a new letter confirming his training period and the number of hours trained.
The Applicant attended a Tribunal hearing on 24 July 2013. The only evidence of what occurred in that hearing is the Tribunal’s account in its reasons for decision.
The Tribunal Decision
In its reasons for decision the Tribunal stated that the issue was whether the applicant met PIC 4020 as required by what it described as “cl.485” (sic). The Tribunal did not specify which clause or subclause within Part 485 of Sch.2 to the Migration Regulations imposed this requirement.
The Tribunal considered whether the Applicant had given or caused to be given a bogus document or information that was false or misleading in a material particular within PIC 4020. In that context, the Tribunal referred to the fact that in support of his visa application the Applicant had provided a positive skills assessment from TRA for the nominated occupation of cook. He had provided evidence to TRA that he had completed 900 hours of work experience with the Copper Tiffin Restaurant. The Tribunal acknowledged that the Applicant’s employment for the period from December 2007 to October 2008 was evidenced by a reference letter signed by a “designated director” of Copper Tiffin Restaurant which stated that Mr Singh worked between December 2007 and October 2008 on an unpaid basis. It recorded that a copy of this letter was also provided to the Department.
According to the Tribunal, at the Tribunal hearing the Applicant said that a friend had helped him to obtain the job at the Copper Tiffin Restaurant and that he took an unpaid job because he needed the experience. He explained that he worked a maximum of 20 hours per week, but that there was no routine to the shifts, as it depended on work requirements. He referred to other people who worked at the restaurant, including the one chef who was always there whenever he worked. He claimed the restaurant could seat between 100 and 150 patrons and that they had a catering business that would cater for 500 to 600 people at functions.
The Tribunal recorded that when asked about his duties, the Applicant said he “did also dishes with another person”, that he sometimes cleaned the oven and the kitchen floor at the end of the evening and that he sometimes helped the chef with vegetables (washing and slicing onions, washing and peeling potatoes, and washing and cutting tomatoes). According to the Tribunal, the Applicant’s evidence was that about 80 per cent of his work was washing up and the balance (helping the chef) was because of his interest in cooking.
The Applicant explained he supported himself with money from India, and that relatives and friends helped him financially.
In considering whether the Applicant satisfied PIC 4020, the Tribunal recorded that he had nominated the occupation of cook, for which the relevant assessing authority was TRA. However the Tribunal then found that the Applicant had made an application for a skills assessment for the purposes of “cl.886.223” (sic). There is no explanation for the Tribunal’s reference to a criterion for a Subclass 886 visa. It was not a subclass within the class of visa for which the Applicant had applied (Class VC).
The Tribunal also recorded that the Applicant had provided to the delegate (and to the Tribunal) a copy of his application to TRA in which he referred to completing 900 hours of work experience at Copper Tiffin Restaurant and that he had also provided a copy of his employment reference.
The Tribunal found that the Applicant relied on his employment at Copper Tiffin Restaurant, and no other employment, to obtain the skills assessment. It continued:
The Tribunal finds that the applicant provided to the relevant assessing authority the employment reference from Copper Tiffin relating to his employment as a cook. The Tribunal finds that such information was given in relation to the applicant for the visa. The Tribunal also finds that such information was relevant to a criterion in cl.886.223 (sic) because that provision requires the visa applicant to obtain an assessment of his skills for the nominated occupation and the skills assessment was issued on the basis of the applicant’s employment at Copper Tiffin. The Tribunal must consider whether information about the applicant’s work experience at Copper Tiffin was false or misleading in the material particular, or whether the employment reference was a bogus document.
Once again, there was no explanation for this reference to cl.886.223. It was not an applicable criterion.
The Tribunal found the Applicant was a “credible and candid witness”. It accepted that he was able to describe in some detail the nature of his employment and the tasks and duties he performed as part of his job. It also accepted that he was frank in his evidence that 80 per cent of his role related to dishwashing with some cleaning and the remainder was assisting the chef in vegetable preparation. The Tribunal was of the view that the Applicant’s oral evidence pointed to his employment at Copper Tiffin Restaurant. However it found that:
His evidence as to his role was in stark contrast to the certification provided, which described a full range of cooking functions. The Tribunal finds he was not, in fact, employed as a cook as claimed and as certified, but as a kitchen hand.
The Tribunal concluded that there was evidence that the Applicant had given, or caused to be given, to the Minister or an officer, information that was false or misleading in a material particular in relation to the application for a visa. It then found at [27] of its reasons that such information “was relevant to cl.485.224”. It did not explain why it reached this conclusion. It was not satisfied that the Applicant met PIC 4020(1).
The Tribunal observed that the Applicant had not identified any compelling circumstances that brought the waiver provision in para.4020(4) of PIC 4020 into play. It was not satisfied on the evidence before it that such circumstances existed. It determined not to waive the requirements of PIC 4020(1). The Tribunal found that the Applicant “[did] not meet PIC 4020” and concluded (without further explanation) that it was not satisfied that the Applicant met “cl.485.224(1)” (sic).
The Tribunal found that, having regard to the application fee, the Applicant had not made a valid application for the other relevant subclass in Class VC (subclass 487). It affirmed the decision not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
The Current Proceedings
The Applicant sought review by Application filed in this Court on 1 October 2013. He now relies on an Amended Application, filed on 28 October 2014 with leave of the Court. There are five grounds in the Amended Application.
Ground One
The first ground is as follows:
The Tribunal misconstrued and misapplied the law in that the Tribunal failed to apply the test for information to be false or misleading in a material particular, which is that the information has to be purposely untrue.
Particulars:
(i) The Tribunal concluded ([27], CB160):
The Tribunal finds that there is evidence that the applicant has given, or caused to be given, to the Minister or an officer, information that is false or misleading in a material particular in relation to the application for a visa. The Tribunal finds that such information was relevant to cl485.224. The Tribunal is not satisfied that the applicant meets PIC 4020(1).
(ii) Clause 485.224 contained in schedule 2 of the Migration Regulations 1994 provides that the applicant must satisfy a number of public interest criteria including PIC 4020. (CB117)
(iii) PIC 4020(1) provides that there is no evidence that the applicant has given, or caused to be given, information that is false or misleading in a material particular.
(iv) PIC4020(5) specifically provides as follows:
In this clause: information that is false and misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
(v) It is clear that the Tribunal determined the issue of materiality on the basis that the information said to be false or misleading “was relevant to cl.485.224”, that is, relevant to the criteria which imposes the requirement that PIC 4020 be satisfied. This is circular logic. It is a misconstruction and misapplication of the law. The Tribunal failed to apply the proper legal test, and accordingly the Tribunal’s purported decision is vitiated by jurisdictional error.
Counsel for the Applicant pointed out that the concept of false or misleading in a material particular within PIC 4020 includes an element of materiality (see PIC 4020(5)). It was submitted that this required that the false or misleading information be of moment or of significance and relevant to the purpose for which it was given (see Kaur v Minister for Immigration and Border Protection [2014] FCA 281 at [43] per Wigney J), and not merely false or misleading in a trivial or inconsequential respect.
However it was submitted that in this case at [27] of its reasons the Tribunal had determined the issue of materiality on the basis that the information said to be false and misleading “was relevant to clause 485.224”, notwithstanding that in the form of the Migration Regulations applicable to the Tribunal decision this criterion merely imposed the requirement that PIC 4020 be satisfied. It was submitted that such circular logic and construction was so wide as to catch any information said to be false and misleading, without any need for materiality. It was also said to be contrary to the approach of Buchanan J (with whom Allsop CJ and Rangiah J had agreed) in Trivedi & Ors v Minister for Immigration and Border Protection & Anor (2014) 220 FCR 169; [2014] FCAFC 42 at [49] accepting that PIC 4020 is directed to information or documents that are purposely untrue. It was submitted that, consistent with the approach taken in Trivedi, the notion of materiality had to relate to something outside the criterion which required the visa applicant to meet PIC 4020.
The Applicant submitted that it should be assumed that when the Tribunal referred to the criterion in cl.485.224 of Sch.2 to the Migration Regulations it meant to refer to this criterion in the form that was applicable to the Applicant’s visa application, notwithstanding that this meant that it had engaged in circular reasoning and failed to apply the proper legal test in relation to materiality. In support of this proposition it was pointed out that the delegate had referred to cl.485.224 in the form that applied to the Applicant’s visa application and submitted that there was nothing in the Tribunal reasons for decision to indicate that the Tribunal had intended to refer to some other criterion.
At the same time, contrary to any contention that the Tribunal’s reference to cl.485.224 at [27] of its reasons was merely a typographical error and should have been a reference to the criterion which required the Applicant to obtain a skills assessment, Counsel for the Applicant acknowledged that the Tribunal may not have appreciated that a later version of cl.485.224 introduced before the time of the Tribunal decision (which, in para.(1), required that an Applicant’s skills for a nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation) did not apply to the Applicant’s visa application. It was submitted that if that was case, the Tribunal could be seen as having applied an incorrect criterion. However, the Tribunal’s ultimate conclusion (at [29]) was that it was not satisfied the Applicant met cl.485.224(1).
The First Respondent acknowledged that the Tribunal’s reasons were not expressed with perfection, but submitted that while there were errors in the Tribunal’s references to various criteria, such errors were merely errors of expression, not errors which went to jurisdiction.
It was acknowledged that at [27] of its reasons the Tribunal found that the information relating to the Applicant’s certification as a cook was false and misleading and that this information was relevant to cl.485.224 of Sch.2 to the Migration Regulations. It was also acknowledged that cl.485.224, in the form applicable to the Tribunal’s decision in relation to the Applicant’s visa application, required the Applicant to satisfy certain public interest criteria, including PIC 4020.
It was ultimately clarified that the applicable criterion that required the Applicant to obtain a skills assessment in the applicable version of the Migration Regulations was in fact cl.485.221 (to which the Tribunal did not refer).
However, the First Respondent submitted that the Tribunal’s reference (at [27] of its reasons) to cl.485.224 had to be understood in light of the fact that by the time of the Tribunal’s decision cl.485.224 had been amended, and the amended clause 485.224 incorporated a requirement that an Applicant obtain a skills assessment (in cl.485.224(1). While this amendment (introduced by the Migration Legislation Amendment Regulation 2013 (No. 1) (Cth) Sch.2 (item 9)) only applied to visa applications made on or after 2 March 2013, and therefore did not apply in the Applicant’s case, the First Respondent submitted that given the nature of the information said to be false and misleading, it was quite clear that the Tribunal had found that the information was material because it was relevant to the criterion which required the Applicant to obtain a skills assessment.
The First Respondent conceded that the Tribunal’s reference to cl.485.224 could be seen as an error. It was also conceded that the Tribunal had also made erroneous references in its findings to cl.886.223. However it was submitted that the Tribunal had made these errors in a context that made it plain that the information in question was relevant to the visa criterion which required the Applicant to obtain a skills assessment. The First Respondent contended that, so understood, there was no circularity in the Tribunal’s reasoning, as the false information was clearly relevant to a substantive visa criterion. It was suggested that it appeared that the Tribunal had simply confused the numbering of the relevant criterion.
Counsel for the First Respondent acknowledged that in essence his contention was that the Court should infer that when the Tribunal referred to cl.485.224 it in fact had in mind cl.485.221 of the applicable version of Part 485 of Sch.2 to the Migration Regulations, because this was in fact the criterion which required the Applicant to obtain a skills assessment. This argument was maintained notwithstanding that the Tribunal also referred, incorrectly, to an inapplicable criterion in cl.886.223 for a Subclass 886 visa, expressly found that the information was relevant to cl.485.224 but at the same time reached an ultimate conclusion that the Applicant did not meet PIC 4020 and was not satisfied that he met cl.485.224(1). It was contended that neither the reference to cl.886.223 or to cl.485.224 was an error of substance and that a mere error of expression did not amount to a jurisdictional error (see Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303; [2010] FCAFC 51 at [26] and [48]).
The First Respondent also submitted that insofar as the Applicant had referred to Trivedi (in which it was held that PIC 4020 was directed towards documents that were “purposely untrue”) it was not necessary that the Applicant himself knew that the information was untrue, but was sufficient that someone held the relevant purpose. It was also submitted that the Tribunal’s decision indicated that it was aware of the relevant test and that in this case the information provided in support of the Applicant’s skills assessment (especially the reference from Copper Tiffin Restaurant) was so factually different to the facts found by the Tribunal that it was very unlikely to have been produced accidentally or innocently (see Trivedi at [33]) so that it was open to the Tribunal to find that the Applicant did not meet PIC 4020.
Insofar as the reference to cl.485.224 indicated that the Tribunal was applying a version of the criteria for subclass 485 that did not in fact apply, the First Respondent contended that, provided it was accepted that what the Tribunal found was that the information was relevant to a criterion that required a skills assessment, such error could not have affected the outcome of the review. It was submitted that the same decision would have been inevitable if the proper version of this part of the Migration Regulations had been referred to by the Tribunal and that on this basis the Court should exercise its discretion to refuse relief even if the error amounted to jurisdictional error because the error could not have made any difference.
In supplementary submissions the First Respondent drew the Court’s attention to various authorities in relation to the discretion to refuse relief in circumstances where a jurisdictional error was said not to be material on the basis that it had no effect on the substantive outcome (see Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 at 145; Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [56] and [171]; SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609; [2007] HCA 26 at [29] and [87]-[89]; and Kabir v Minister for Immigration and Citizenship (2010) 118 ALD 513; [2010] FCA 1164 at [51]-[52]).
The First Respondent submitted that either the error could be seen as not so important that it could be said to go to jurisdiction or it could be regarded as such that it had no impact and that therefore relief should be refused. It was acknowledged that, on one view, a new Tribunal could take a fresh view about whether or not the material was false or misleading in material particular (and that in that sense a different outcome was possible), but submitted that the mistaken reference to the wrong criterion could not possibly have made any difference to this Tribunal’s reasoning.
Consideration
PIC 4020 in Schedule 4 to the Migration Regulations is (relevantly) as follows:
4020 (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.
Counsel for the First Respondent provided the Court with supplementary submissions and copies of the applicable Migration Regulations after the hearing. It was clarified that under the version of Part 485 of Sch.2 to the Migration Regulations applicable as at 10 July 2012 (the date of the delegate’s decision), cl.485.224(a) (set out at [10] above) required the Applicant to satisfy, inter alia, PIC 4020. It was as follows:
485.22 Criteria to be satisfied at time of decision
…
485.224
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and
(b) if the applicant had turned 18 at the time of application – satisfies public interest criterion 4019.
This requirement was introduced by reg.5 and Item 3 of the Migration Amendment Regulations 2011 (No. 1) (Cth) and applied to visa applications made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 (Cth) (the “Act”)), before 2 April 2011 and to visa applications made on or after 2 April 2011. It is not in dispute that this version of Part 485 therefore applied to the Tribunal’s consideration of the Applicant’s visa application. In addition, in the applicable version of the Migration Regulations, cl.485.221(1) (which was not referred to by the delegate or the Tribunal) imposed a time of decision criterion that the skills of the applicant for the applicant’s nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation.
The Applicant lodged his application for review by the Tribunal on 12 July 2012. The Tribunal decision was not made until 28 August 2013. In the interim, a further amendment to Part 485 of Sch.2 to the Migration Regulations was introduced by reg.4 and Schedule 2 (Item 9) of the Migration Legislation Amendment Regulation 2013 (No. 1) (Cth). By these amendments, Part 485 adopted a new format, in which the previous “time of application” and “time of decision” criteria were replaced with primary criteria, including a requirement (in new cl.485.216) that the applicant satisfy public interest criteria including PIC 4020. New cl.485.224 was as follows:
485.22 Criteria for Graduate Work stream
…
485.224
(1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation.
(2) If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a visa, the qualification was obtained as a result of studying a registered course.
Thus, while new cl.485.224(1) imposed a requirement that the skills of the applicant for the applicant’s nominated skilled occupation had been assessed by a relevant assessing authority as suitable for that occupation, the requirement to satisfy PIC 4020 was in new cl.485.216(1). The Tribunal did not refer to cl.485.216. Moreover, these amendments applied only to visa applications made on or after 23 March 2013 (see Schedule 6 to Item 1) and hence did not apply to the Tribunal’s consideration of the Applicant’s visa application.
It is also relevant to note that Part 886 of Sch.2 to the Migration Regulations imposed criteria in relation to a subclass of permanent residence visas (Class VB) known as Skilled-Sponsored visas. Part 886 of Schedule 2 was repealed with effect from 1 July 2013, that is, before the date of the Tribunal decision of 28 August 2013. There is no evidence that the Applicant had applied for such a visa.
The visa application form lodged by the Applicant on 20 August 2009 was expressed to be an application for a “Skilled Graduate (Temporary) Class VC (Subclass 485)” visa. This class of visa was subsequently described as the Skilled (Provisional) Class VC visa.
The delegate found that the Applicant did not satisfy the criterion in cl.485.224 of Schedule 2 to the Migration Regulations which, in the form applicable to the Applicant’s visa application, imposed a “time of decision” requirement that the Applicant satisfy specified public interest criteria (including PIC 4020).
As the delegate understood, the April 2011 amendment to cl.485.224 which required satisfaction of PIC 4020 was applicable, as the visa application had been made, but not finally determined, before 2 April 2011. The delegate concluded that PIC 4020 was not satisfied on the basis that the Applicant had provided a bogus document to the Department (of Immigration) in connection with the visa application. Hence the Applicant was found not to meet the requirements of cl.485.224. The delegate did not address the concept of information that is false or misleading in a material particular or the requirement in PIC 4020(5) that the information be “relevant” to any of the criteria the Minister may consider when making a decision on an application.
Somewhat unhelpfully, in its reasons for decision the Tribunal initially referred generally to the requirements of “cl.485” and the attachment to the decision setting out relevant parts of the Migration Regulations consisted only of a copy of PIC 4020. The Tribunal stated that what was in issue was whether, at the time of decision, the Applicant satisfied PIC 4020.
Confusingly (and incorrectly), the Tribunal went on to find that the Applicant had sought a skills assessment for the purpose of cl.886.223 and that the information he provided to TRA from Copper Tiffin Restaurant was relevant to the criterion in cl. 886.223 because that provision required him to obtain an assessment of his skills for the nominated occupation. However the criterion in cl.886.223 was not a criterion the Tribunal could consider when making a decision on Mr Singh’s application. Subclass 886 was a subclass of a class of visas called Class VB. However Mr Singh had not applied for a Class VB visa, but rather for a Class VC visa. Moreover Part 886 of Sch.2 to the Migration Regulations was repealed from 1 July 2013 and was not in effect at the time of the Tribunal decision. The Tribunal’s references to cl.886.223 were references to an inapplicable criterion.
After making such incorrect references, the Tribunal returned to a consideration of whether the Applicant met the criteria for a Subclass 485 visa. It understood that for the purposes of PIC 4020 it must consider whether the information about the Applicant’s work experience at the Copper Tiffin Restaurant was false or misleading in a material particular in relation to the Applicant’s application for a visa (cf. PIC 4020(5)(b)). However, the Tribunal found, without explanation, that such information (in the Copper Tiffin reference) was “relevant to cl.485.224” in circumstances where the applicable version of cl.485.224 merely required the Applicant to satisfy public interest criteria, including PIC 4020. On this basis the Tribunal found that it was not satisfied that the Applicant met PIC 4020(1).
The Applicant submitted that it should be inferred that the Tribunal’s reference to cl.485.224 was to the version of that criterion which was in fact applicable to the Applicant’s visa application. Insofar as any inference can be drawn as to the intention of the Tribunal this should be the starting point.
The First Respondent submitted however that the Court should infer that when the Tribunal referred to cl.485.224 in this part of its reasons, while it intended to refer to the applicable version of Part 485 it in fact had in mind cl.485.221(1) which required that the Applicant’s skills for the nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation. In the alternative, it was suggested, in effect, that the Tribunal mistakenly assumed that the 2013 version of cl.485.224 (which contained such a skills assessment requirement) was applicable.
In the particular circumstances of this case, and having regard to the lack of clarity in the Tribunal decision, I am not persuaded that it should be inferred that the Tribunal intended to refer to cl.485.221 in this part of its reasons for decision. There is no reference in the Tribunal’s reasons for decision (or in the delegate’s decision) to cl.485.221. The fact that it would have been open to the Tribunal to assess materiality by reference to the requirements of cl.485.221 is not such as to satisfy me that it should be inferred that the basis for this aspect of the Tribunal’s decision was that the information provided was relevant to the criterion in cl.485.221 or to an unidentified criterion that required a skills assessment. The Tribunal’s reference to an inapplicable criterion of that nature (cl.886.223) merely compounded the lack of clarity. Nor am I satisfied that it should be inferred that the Tribunal referred to cl.485.224 at [27] of its reasons for decision because it proceeded on the mistaken basis that the 2013 amendments were applicable, but that this indicated that it intended to address a criterion that required the Applicant’s skills to be assessed. While such an inference might have some force if the Tribunal’s only reference to cl.485.224 had been in this part of its reasons, its ultimate conclusion that the Applicant did not meet PIC 4020 and its consequential lack of satisfaction that the Applicant “[met] cl.485.224(1)” supports the inference that the Tribunal proceeded on the basis that cl.485.224 required the Applicant to satisfy public interest criteria, including PIC 4020.
In the particular circumstances of this case I am not satisfied that it should be inferred that at [27] of its reasons the Tribunal found that the information said to be false or misleading was relevant to a criterion that required a skills assessment.
At no point in its reasons for decision did the Tribunal describe the nature or content of the criterion it referred to as cl.485.224. It had earlier referred generally to the requirements that the visa applicant meet PIC 4020 “as required by cl.485 for the grant of the visa.” Insofar as the Tribunal intended to apply the applicable version of cl.485.224 (which required the Applicant to satisfy public interest criteria, including PIC 4020) its reasoning in this part of its decision was circular and it failed to apply the proper legal test. If it had been applying some other version of cl.485.224 it applied an inapplicable criterion and its ultimate conclusion would have been inexplicable. I am not satisfied that in this case it should be inferred that the Tribunal found that the false or misleading information was relevant to a criterion that required a skills assessment so that its reference to cl.485.224 could not have made any difference to its reasoning. The reasons for decision are not such as to enable such an inference to be drawn.
I am not persuaded that the Tribunal’s reference to cl.485.224 at [27] of its reasons was a typographical error or a mere error of expression which did not amount to a jurisdictional error or that such error was so unimportant that it did not go to its jurisdiction.
The notion of materiality for the purposes of PIC 4020(1) is defined in PIC 4020(5). Relevantly, under cl.4020(5)(b) information that is false or misleading in a material particular “means” information that is “relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information”. It was a misconstruction and misunderstanding of the applicable law for the Tribunal to determine the relevance of the information given by the Applicant about the nature of his employment for the purposes of PIC 4020(1) by reference to the applicable version of cl.485.224 which simply required him to satisfy public interest criteria, including PIC 4020.
Moreover, I am not persuaded that that the Court should refuse relief in the exercise of its discretion on the basis that such error could have made no difference to the Tribunal’s reasoning and could not have affected the outcome.
Withholding relief on a discretionary basis because an error could have made no difference to the result is a “rarity”, as Kirby J pointed out in Aala at [131] (and see Stead at 145). As stated in SZBYR at [59] per Kirby J:
The result of Aala is that, whilst establishment of the preconditions for this form of relief will ordinarily entitle a party to the relief, there will always remain a residual discretion to be exercised judicially…in the nature of discretionary remedies, much will depend on the facts and circumstances of the particular case.
The jurisdictional error in issue in this case was fundamental to the Tribunal’s exercise of its powers. It is the case that it consisted of a misconstruction of a statutory provision, rather than a denial of procedural fairness. However it is also relevant that, as the First Respondent conceded, on a forward-looking approach, on redetermination by the Tribunal a different outcome would be possible (cf. Kabir at [54]).
In the particular circumstances of this case I am not satisfied that relief should be withheld.
Ground Two
The second ground in the Amended Application is as follows:
Ground 2: The Tribunal exceeded its jurisdiction by making findings and taking into account findings not authorised by law.
Particulars:
i. The Tribunal ([26], CB 160) made a finding that the applicant “was not in fact employed as a Cook as claimed and as certified, but as a kitchen hand”. The Tribunal made this finding on the basis of the Tribunal’s assessment of the duties of the applicant (see [19], [25], CB 159, CB 160).
ii. The Tribunal was not empowered to nominate an occupation, nor was the Tribunal empowered to provide a skills assessment, nor was the Tribunal empowered to assess the skills of the applicant. The Tribunal purported to make a decision outside the limits of the functions and powers conferred on the Tribunal and did something which the Tribunal lacked the power to do.
iii. The Tribunal exceeded its jurisdiction in assessing the applicant as being a kitchenhand rather than a cook. The Tribunal has further exceeded its jurisdiction by taking this purported finding – that the applicant was a kitchenhand – into account.
The Applicant pointed out that under s.65 of the Act the Minister is either to grant a visa upon the making of a valid application if satisfied that the criteria for the visa have been met (and the grant is not otherwise prevented by the circumstances specified in the section) or otherwise, if not so satisfied, is to refuse the visa. In Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor (2014) 309 ALR 209; [2014] HCA 24 Crennan, Bell, Gageler and Keane JJ stated (at [34]):
The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts – to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) – depending on the existence of one or other of two mutually exclusive states of affairs (or "jurisdictional facts”) – the Minister's satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister's non-satisfaction of one or more of those matters. The decision is not made, the duty is not performed, and the application is not determined, unless and until one or other of those legally operative acts occurs: that is to say, unless and until the Minister either grants the visa under s 65(1)(a) or refuses to grant the visa under s 65(1)(b). The Minister grants a visa by causing a record of it to be made.
It was submitted that in this case it was for the Applicant to nominate his occupation and to obtain and provide a relevant skills assessment from the relevant assessing authority, which in this instance was TRA. TRA gave the Applicant a positive skills assessment for the occupation of “cook” and when the delegate specifically asked TRA whether the skills assessment had been revoked, TRA advised that the Applicant held a valid successful skills assessment for the occupation of cook and that the outcome has been finalised and deemed successful on 19 March 2009, albeit that TRA also advised that the Copper Tiffin Restaurant was part of an ongoing investigation.
Counsel for the Applicant contended that there was no evidence that TRA had revoked the Applicant’s skills assessment. It was submitted, however, that the Tribunal had found that the Applicant was not in fact employed as a cook (as certified) but as a kitchen hand, on the basis of the Tribunal’s own assessment of the duties that he performed. The Applicant submitted that the Tribunal was not empowered to nominate an occupation, to provide a skills assessment or to assess the skills of the Applicant and that to the extent that it had purportedly done so the Tribunal had exceeded its jurisdiction. It was submitted that the Tribunal had also exceeded its jurisdiction by taking into account its purported finding that the Applicant was a kitchen hand and that by acting in this way the Tribunal had purported to make its determination in relation to PIC 4020 without having to make and consider findings about particular information that was materially false and misleading.
It was submitted that as Hayne J remarked in Aala (at [163]):
…There is a jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do…
In oral submissions it was explained that the Applicant’s contention was not that the Tribunal could not go behind a skills assessment, in the sense of examining the basis on which the skills assessment came about or the circumstances in which it occurred. It was acknowledged that this was clear from the notion of a bogus document and that it would have been open to the Tribunal to look at the circumstances in which the skills assessment came about and to have considered, in particular, whether this was because of information that was false or misleading in a material particular. It was submitted however that the Tribunal had in fact assessed the Applicant’s skills as those of a kitchen hand and had found on that basis that he had breached PIC 4020, rather than having regard to whether the employment reference which he provided was false or misleading in a material particular. The Applicant submitted that there was a limit on the Tribunal’s jurisdiction and that it was not entitled to make its own assessment of the Applicant’s skills.
As the First Respondent submitted, the Applicant’s contention mischaracterises the findings of the Tribunal. The Applicant was required to obtain a skills assessment from the relevant assessing authority for the nominated occupation. The Tribunal proceeded on the basis that this was a requirement, albeit that it did not apply the correct criterion in this respect. Reading its decision as a whole, it appears that the Tribunal did not doubt that the Applicant satisfied the requirement that he obtain a skills assessment from TRA, the relevant assessing authority. Although the Tribunal’s final reference to cl.485.224(1) is confusing, it acknowledged that the Applicant had provided a positive skills assessment to TRA. It correctly saw that the issue was whether any information relied on by the Applicant was false or misleading in a material particular.
PIC 4020 entitled the Tribunal to scrutinise the information provided to the Minister, an officer or a relevant assessing authority in order to consider whether there was “no evidence” the Applicant had given information that was false or misleading in a material particular. The Tribunal’s finding that the information given or caused to be given to the Minister or an officer by the Applicant was false and misleading was within its jurisdiction.
In that context, the Tribunal’s finding that the Applicant was employed as a kitchen hand was an intermediate finding that was necessary for it to reach the conclusion that the information the Applicant provided was false or misleading. It was, in essence, a finding that the Applicant did not do the range of cooking tasks which the Copper Tiffin Restaurant reference said that he had done.
In this respect, the Tribunal was not purporting to exercise the function which the Migration Regulations delegated to TRA (see Islam v Minister for Immigration & Anor [2010] FMCA 379 at [21] and [32]). I am not satisfied that in this part its decision it was purporting to find that the Applicant did not satisfy the criterion that required a skills assessment or that a person who did the duties attested to in the reference was not a cook. Rather, the Tribunal found that while the reference the Applicant provided suggested that he worked as a cook, in fact he did not perform such duties and hence did not work as a cook, but rather worked as a kitchen hand. For that reason it concluded that the reference was false and misleading.
It is apparent, reading the Tribunal decision fairly and as a whole, that the Tribunal understood and had regard to the fact that the Applicant provided a copy of his employment reference from Copper Tiffin Restaurant in support of his application for an assessment of his skills for the nominated occupation of cook and that he also provided the Department with a copy of the reference from Copper Tiffin Restaurant relating to his claimed employment as a cook.
The Tribunal’s reference to the “certification provided” is clearly a reference to the Copper Tiffin Restaurant employment reference, which the Tribunal stated described a full range of cooking functions. It was open to the Tribunal to have regard to what it regarded as contrary oral evidence of the Applicant about the tasks he performed. It was also open to the Tribunal to form the view that the Applicant’s work experience at the Copper Tiffin Restaurant was, in essence, that of a kitchen hand rather than that of a cook and that in that context the employment reference, which described a full range of “cooking functions”, was false or misleading. This ground is not made out.
Ground Three
Ground Three in the Amended Application is as follows:
Ground 3: The Tribunal failed to review the decision of the delegate as required. The Tribunal failed to set out any findings on material information said to be false or misleading.
i. The Tribunal arrived at its purported decision solely on the basis of the applicant having breached PIC 4020, that is, having given information that was false or misleading in a material particular through the employment reference provided by the applicant to TRA.
ii. The Tribunal did not set out its findings on what particulars of information in the employment reference were false or misleading and purposely untrue.
iii. It can, and should, be inferred from the absence of references to, or findings with respect to, such particulars of information, that the Tribunal did not consider such particulars to be material. The Tribunal did not consider the requirement to specifically consider such particulars of information and to make relevant findings to be an integral part of the Tribunal duties. This failure by the Tribunal is jurisdictional error.
In essence, the Applicant submitted that the Tribunal erred in failing to specify in its reasons the particular information in the Copper Tiffin Restaurant employment reference that it considered purposely untrue. In support of this ground the Applicant referred to s.368 of the Act which provides that where the Tribunal makes its decision on a review, it must make a written statement that sets out its decision, the reasons for the decision and its findings on any material questions of fact and refers to the evidence or other material on which the findings of fact were based.
The Applicant contended that the Tribunal had arrived at its purported decision solely on the basis that the Applicant gave information that was false or misleading in a material particular and hence breached PIC 4020 and that it was required to set out its findings as to the information said to be false or misleading in a material particular. It was submitted that the requirement that the false or misleading information be material meant that the particular information must be of moment or significance, and not merely trivial or inconsequential, given that PIC 4020 was not directed to innocent, unintended or accidental matters and that an element of fraud or deception was necessary in order to attract its operation (see Kaur at [43] per Wigney J).
It was submitted that the information in the Copper Tiffin Restaurant employment reference that the Applicant was employed as a cook, or the use of the words “in his capacity as a cook” could not in itself be of moment or significance, as it merely described the title given by the employer to the Applicant’s role. The Applicant submitted that what was of moment or significance were the particulars of the information in relation to the details of the duties performed by the Applicant.
It was acknowledged that the Tribunal had stated that the Applicant’s evidence as to his role “was in stark contrast to the certification provided which described a full range of cooking functions”, but contended nonetheless that the Tribunal had failed to set out its findings on what particulars of information in the employment reference were false or misleading and purposely untrue. It was submitted that the fact that serious consequences followed from the application of PIC 4020 (see Trivedi at [32]) underscored the importance of the Tribunal setting out specific particulars and specific findings in relation to information within the employment reference that the Tribunal considered purposely untrue. The Applicant submitted that in the absence of references to, or findings with respect to, such particulars of information, it could and should be inferred that the Tribunal did not consider such particulars to be material.
Insofar as the Tribunal did not specifically refer to particulars of information and make relevant findings, it was said to have fallen into jurisdictional error (see McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 in relation to s.430 (the analogue of s.368 in relation to decisions of the Refugee Review Tribunal) at [69] and also see Gaudron J at [35]).
In oral submissions Counsel for the Applicant addressed in some detail the content of the employment reference and the duties described as being carried out by the Applicant in support of the proposition that the Tribunal should have referred to the particulars of the employment reference so that it was clear that the information said to be false and misleading in a material particular was detailed.
This ground is not made out. As the First Respondent submitted, the Tribunal sufficiently addressed the information that was found to be false or misleading. In its reasons for decision it described the Applicant’s evidence at the hearing about his duties at Copper Tiffin Restaurant (in particular that 80 per cent of his role related to dishwashing with some cleaning and the remainder was assisting the chef in vegetable preparation). The Tribunal then held that the Applicant’s oral evidence about his role (that is, the nature of his employment and the tasks and duties he performed as part of his job) was in stark contrast to the certification provided (the employment reference) “which described a full range of cooking functions.”
The Tribunal was not required to engage in a line by line analysis of the employment reference to determine which particular statements were false. While in some cases the falsity of particular information will only become apparent after a detailed explanation, this is not such a case. It was sufficient, having set out the Applicant's oral evidence that his work involved washing dishes and, to a limited extent, preparing vegetables, for the Tribunal to refer, in contrast to the wide range of cooking duties described in the reference. The inconsistency between the applicant's oral evidence and the written reference was obvious and, given that the Tribunal accepted the Applicant's oral evidence as correct, the falsity of the written reference required no further explanation.
This is not a case in which the Tribunal's general statement as to the falsity of the employment reference supports a conclusion that it did not consider the specific details of the reference to be material (see Yusuf at [69]). In any event, insofar as the Applicant relied on the Tribunal’s obligations under s.368 in support of this ground, a failure to comply with such an obligation is not, in itself, jurisdictional error (see Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 at [46] and [47]).
The Applicant did not rely on any argument that the Tribunal had failed to consider whether the employment reference was “purposely untrue” in the sense considered in Trivedi. Moreover, while PIC 4020 is concerned only with false information that is material (rather than trivial), the threshold of materiality is determined by PIC 4020(5) which refers to information that was “false and misleading at the time it was given” and that is relevant to a visa criterion (as considered above in relation to Ground One).
In the particular circumstances of this case, the fact that the Tribunal did not analyse the Copper Tiffin Restaurant employment reference in specific detail is not such as to lead to the conclusion that there was no consideration of material falsity in the employment reference for the purposes of PIC 4020, given the Tribunal's findings about the stark contrast between the Applicant's evidence as to his role and the certification’s reference to a “full role of cooking functions.” This ground is not made out.
Ground Four
Ground Four in the Amended Application is as follows:
Ground 4: The Tribunal did not accord the appellant (sic) procedural fairness. The Tribunal did not give the appellant (sic) a sufficient opportunity to give evidence, or make submissions, about the determinative issue arising in relation to the decision under review, that is, whether the information in the employment reference was purposely untrue such that the applicant was caught by PIC 4020.
Particulars:
(i) The applicant was and can only be said to have been on notice that the only issue on review was the period he had claimed to have worked, or whether he had worked, at Copper Tiffin.
(ii) The applicant was not on notice that the purposely untruthfulness of the details of his employment and whether that meant he was employed as a kitchen hand rather than as a cook was an issue, and, in fact, the determinative issue, arising in relation to the decision under review.
(iii) The applicant was not given the opportunity to ascertain this was the determinative issue.
(iv) The Tribunal did not accord the appellant (sic) procedural fairness. The Tribunal did not give the appellant (sic) a sufficient opportunity to give evidence, or make submissions, about what turned out to be the determinative issue arising in relation to the decision under review, that is, whether the information in the employment reference was purposely untrue such that the applicant was caught by PIC 4020.
In support of this ground Counsel for the Applicant referred to the fact that the delegate had put the Applicant on notice of concerns about whether an employer would have provided a reference stating that he had not been paid for his work experience (which was said to be in breach of NSW industrial law). Such concern was not maintained in the delegate’s decision. In addition, the delegate had raised concerns about information that some 56 other applicants also claimed to have completed work experience at the Copper Tiffin Restaurant at the same time as the Applicant. The delegate refused the visa on the basis that he was not satisfied that the Applicant had completed the claimed period of 900 hours of work experience at the Copper Tiffin Restaurant and found that he had provided a bogus document.
It was submitted that, as a result, the Applicant was only on notice that the issue on review was the “period” he had claimed to have worked, or whether he had worked, at the Copper Tiffin Restaurant but that he was not on notice that whether he was employed as a kitchen hand, rather than as a cook, was the determinative issue in relation to the decision under review.
It was submitted that nothing in the Tribunal's letter of 7 March 2013 (apparently intended to be an invitation to comment or respond to information under s.359A of the Act) could have alerted the Applicant to this issue and that the Applicant had not been given a sufficient opportunity to give evidence or make submissions about what turned out to be the determinative issue in the sense required in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63.
Counsel for the Applicant submitted that it could be inferred from the Tribunal's account of what occurred at the hearing that the Tribunal's description was a complete account of the important matters raised at the hearing and that as it did not refer to the Tribunal raising this issue with the Applicant, it was open to the Court to infer that this issue was either not discussed or not considered material and hence that the Tribunal did not give the Applicant a sufficient or meaningful opportunity in relation to addressing the determinative issue.
It is the case that the delegate’s decision was not such as to put the Applicant on notice of an issue about the nature of his work (as distinct from whether he had worked at the Copper Tiffin Restaurant and, if so, for what period of time).
The rather uninformative and confused Tribunal letter of 7 March 2013 did not make it clear that all issues relating to the Applicant’s claimed employment at Copper Tiffin Restaurant were in issue (SZBEL at [47]). That letter adopted the format of a s.359A letter, but in fact asked the Applicant to provide information on matters relevant to waiver. Then, somewhat confusingly, it referred to “information” being relevant because the Tribunal may find that by submitting the skills assessment and work reference referred to “above” (when in fact there was no such earlier reference to a work reference or skills assessment), the Applicant had given a bogus document or information that was false and misleading in a material particular in relation to his application for a visa. Moreover the letter referred to the possibility that the Applicant would not satisfy cl.886.223 when subclass 886 was not a subclass of a class of visa for which he had applied.
However, while I do not accept that the Applicant must be taken to have been on notice that all issues relating to his claimed employment at Copper Tiffin Restaurant were in issue on the basis of the delegate's decision and the Tribunal’s letter of 7 March 2013, in this case the Applicant has simply not met the evidentiary burden in relation to what occurred at the Tribunal hearing.
As the First Respondent pointed out, there is no transcript of the Tribunal hearing in evidence, notwithstanding that the Applicant (who at all has times been legally represented) had the opportunity to put such evidence before the Court. I am not persuaded that the Tribunal's brief account of the Applicant's evidence at a hearing that (according to the hearing record) went for an hour and twenty minutes, is such that it should be inferred that it was, in essence, a complete account of all that was important that was said at the hearing. It has not been established that the Tribunal failed to put the Applicant on notice of a dispositive issue during the hearing in the manner contended for by the Applicant. This ground is not made out.
Ground Five
Ground Five in the Amended Application is that:
The Tribunal ignored relevant material which affected its purported exercise of jurisdiction. The Tribunal failed to take into account relevant considerations.
Particulars:
(i) The determinative issue for the Tribunal was whether the applicant performed the range of duties described in the employment reference.
(ii) The Tribunal accepted that the restaurant was “a busy place”, that it seated between 100 to 150 persons, that the restaurant also operated a catering business, catering for 500 to 600 persons and that there was another person there “doing dishes”.
(iii) This evidence were (sic) clearly material to the determinative issue before the Tribunal. The issue of whether one chef could perform all the cooking functions needed for the size and type of business described (and accepted by the Tribunal) clearly arises on these facts.
(iv) It is clear that the Tribunal did not take these facts (or considerations) into account when deciding the determinative issue. This is jurisdictional error.
The Applicant submitted that it was clear from the Tribunal's statement of reasons that it accepted his evidence as to the name of the chef of the Copper Tiffin Restaurant, his evidence that such person was the only chef there, and also that the chef was at the restaurant whenever the Applicant worked. It was also said to be clear that the Tribunal accepted the Applicant's evidence that the restaurant could seat between 100 and 150 patrons and had a catering business catering for 500 to 600 people at functions. The Applicant had also, through his adviser, suggested that Copper Tiffin Restaurant was a busy place and was involved in a catering business. It was further submitted that the Applicant had claimed, and that the Tribunal had accepted, that there was only one other person working in the kitchen and that the Applicant “also did dishes” with this person.
The Applicant submitted that as the determinative issue for the Tribunal was whether the Applicant had performed the range of duties described in the employment reference, these facts that the Tribunal had accepted were clearly material to this determination. In particular, it was contended that the issue of whether one chef could perform all the cooking functions needed for the style and type of the business described (and accepted by the Tribunal) clearly arose on such facts so that such material was capable of affecting the determination of the Tribunal.
Hence, it was submitted that the Tribunal ought to have had regard to such facts as relevant or material considerations. It was submitted that the circumstances in which the Applicant carried out his duties were clearly relevant to what he may have been required to do.
The Applicant submitted that in light of s.368 of the Act it was to be inferred from the absence of reference to or findings with respect to these particular matters or in relation to the circumstances in which the Applicant carried out his duties that the Tribunal did not consider such matters to be material. It was submitted that in basing its determination only on what was said to be the stark contrast between the Applicant's evidence as to his role and the certification, which describe a full range of cooking functions, the Tribunal had fallen into error in the manner discussed in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 at [14] in that it ignored material that was clearly relevant to its determination.
This ground is not made out. The Tribunal set out the Applicant's evidence (including on the issues referred to in support of this ground), which it accepted as credible. While its findings and reasons were brief, it was open to it to refer to the Applicant’s oral evidence as to his role and to find that such evidence was in stark contrast with the certification provided which described a full range of cooking functions. It cannot be inferred that the matters relied on in this ground were overlooked, particularly given that the Tribunal accepted the Applicant’s oral evidence as credible (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]). Rather, the Tribunal’s finding turned on its views as to the nature of the Applicant’s work at Copper Tiffin Restaurant.
Moreover, even if the particularised evidence was overlooked, it has not been established that the particular items of evidence about the type of business and the chef were of sufficient importance to the Tribunal decision that overlooking or failing to refer to such evidence in its findings and reasons would amount to a jurisdictional error (cf. Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99; [2013] FCA 317 at [70]-[71]).
Given the Applicant's oral evidence, which the Tribunal found was to the effect that he did not perform tasks ordinarily associated with that of a cook as described in the employment reference, it has not been established that the Tribunal failed to take into account a relevant consideration or relevant material in a manner constituting jurisdictional error on the basis contended for by the Applicant.
Conclusion
However as Ground One is made out the matter should be remitted to the Tribunal for redetermination according to law.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 22 July 2015
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