Singh v Minister for Immigration

[2014] FCCA 1778

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1778

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – whether failure to comply with s.359A of the Act – whether Tribunal proceeded in a manner that was not “fair and just” – application dismissed. 

Legislation:  

Migration Act 1958 (Cth), ss.5, 353, 357A, 359AA, 359A, 360, 362B, 375A, 375, 376
Migration Amendment Regulations 2011 (Cth)
Migration Regulations 1994 (Cth)

Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; [2001] FCA 919
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24
SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 252
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZKLG v Minister for Immigration & Anor [2007] FMCA 1460
SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46

Applicant: MALKEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1151 of 2013

Judgment of: Judge Barnes

Hearing date: 26 November 2013

Date of Last Submission: 17 January 2014

Delivered at: Sydney

Delivered on: 8 August 2014

REPRESENTATION

Counsel for the Applicant: Mr P Afshar

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondents: Ms S Cirillo

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1151 of 2013

MALKEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal dated 30 April 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Residence) (Class VB) visa (formerly known as a Skilled – Independent (Class VB) visa). 

2. As discussed further below, the Tribunal found that there was evidence that the Applicant had given or caused to be given to Trades Recognition Australia (TRA), a relevant skills assessing authority, information about the capacity in which he had worked for the Bombay Fusion and New Bombay Fusion Restaurants that was false or misleading in a material particular and hence that he did not meet Public Interest Criterion 4020(1) (PIC 4020).  In reaching this conclusion the Tribunal had regard to information that included a Departmental Minute in relation to an investigation into the restaurants.  

3. In these proceedings the Applicant takes issue with whether the Tribunal gave him clear particulars of the existence of the Minute, the allegations therein and other adverse information.  It is relevant to describe in some detail what occurred while this matter was the subject of review by the Tribunal.

4. The Applicant, Mr Singh, a citizen of India, arrived in Australia in February 2007 as the holder of a student visa.  He applied for a Class VB visa on 8 April 2009 on the basis of a nominated occupation of “Cook”. 

5. Mr Singh provided the Department with a letter from TRA dated 17 October 2008 indicating that his application for a skills assessment as a cook had been successful, an undated letter from Lucille Singh on Bombay Fusion Restaurant letterhead certifying that he had been employed as a cook from 7 January 2008 to 30 June 2008 and another undated letter from Foram Bodana, Manager, on New Bombay Fusion Restaurant letterhead certifying that he had “been working in the capacity of casual cook at NEW BOMBAY FUSION from 1^st July 2008 until date on a student visa, with a work limitation of 20 hours per week and more hours in school holydays (sic) as a cook”. 

6. On 14 July 2010 the delegate wrote to Mr Singh (care of his then representative) inviting his comment on the fact that a departmental investigation was said to indicate that some of the information provided with his visa application (being information provided to TRA to obtain his skills assessment) may be false or misleading and fraudulently obtained. 

7. In a response of 28 July 2010 Mr Singh claimed that all the documents he obtained for his skills assessment were genuine, that he worked at Bombay Fusion and New Bombay Fusion Restaurants as a cook and that this could be verified by attached payslips and group certificates.  He also enclosed a copy of a letter of 27 January 2010 from a Department of Education, Employment and Workplace Relations (DEEWR) senior investigator inviting him to an interview on 22 February 2010.  That letter stated:

   The Investigations Branch is investigating an allegation that in August 2008, an application to Trades Recognition Australia (TRA) submitted on your behalf contained false information, in order to obtain a benefit.  Specifically, it is alleged that a letter of employment purportedly written by Mr Bahadur SINGH on Bombay Fusion letterhead was falsified and submitted to a Commonwealth Government Agency, for the purpose of gaining a successful Skilled Migration Assessment. 

   I suspect that you were the person who acted dishonestly in these circumstances. 

8. Mr Singh advised the Department that he had attended the DEEWR interview on 22 February 2010 and that he had provided “all relevant information”.  He claimed that he had been told that there was “an allegation against the Owner of the restaurant where I worked and he cannot be contacted any more, but it has nothing to do with me as I have gained my work experience as a genuine employment (sic)”. 

9. On 4 August 2010 the delegate wrote to Mr Singh’s advisor, stating that the Department was aware of Mr Singh’s DEEWR interview and also that:

   From the investigations conducted by DEEWR in conjunction with the Department of Immigration and Citizenship, it is clear that individuals such as your client worked at New Bombay Fusion and New Bombay on a paid basis.  What the Department is disputing, however, is the capacity in which the individuals worked.

   Your client’s response includes pay slips and taxation documentation from the Australia Taxation Office which confirms employment.  Information held by the Department indicates that, whilst your client was employed by New Bombay Fusion/Bombay Fusion, it was not in the capacity of Cook as stated in your client’s application to Trades Recognition Australia (TRA).  (Emphasis added).

10. The delegate asked Mr Singh to advise if he maintained that the information he had provided to the TRA was correct.  He was given the opportunity to change any information provided to TRA or to provide further information.  The delegate did not receive a response to this letter.

11. On 20 September 2010 the delegate refused Mr Singh’s application for a Class VB visa.  Relevantly, the delegate referred to the above correspondence and to the fact that there was information that while Mr Singh was employed by Bombay Fusion/ New Bombay Fusion “it was not in the capacity of Cook” as stated to TRA. The delegate found that evidence had become available since the time of the visa application that information (the work reference material) given or used to obtain the skills assessment was false or misleading in a material particular. Hence the delegate was not satisfied that Mr Singh met the then applicable criterion in subcl.885.223(d) in Schedule 2 to the Migration Regulations 1994 (Cth). The delegate observed that while the Applicant had been given the opportunity to comment, he had failed to provide any further documentary or third party evidence to support his “work experience claims as a Cook” with Bombay Fusion/New Bombay Fusion.

Tribunal Review

1. On 23 September 2010 Mr Singh sought review by the Tribunal.  On 16 July 2012 he was invited to attend a hearing on 29 August 2012. 

2. By email dated 28 August 2012 a Tribunal officer asked the Department for a copy of the investigation conducted by it into the Bombay Fusion and New Bombay Fusion Indian restaurants and any other evidence relied on by the delegate in making the decision about Mr Singh’s visa application and that it provide a copy of the investigation report before Mr Singh’s hearing on 29 August 2012. 

3. On 29 August 2012 the Tribunal officer asked the Department to attach any s.375 certificate if relevant.  Section 375 of the Migration Act 1958 (Cth) (the Act) provides that “the Secretary shall not give to the Tribunal a document, or information, if the Minister certifies, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest” for reasons of security, defence, international relations or because it would disclose a Cabinet decision. 

4. At the Tribunal hearing on 29 August 2012 Mr Singh gave the Tribunal a CD of his DEEWR interview of 22 February 2010.  After the hearing, his advisor requested access to “all materials relied upon by the Tribunal with respect to the applicant’s “credibility & skills assessment” said to arise during the hearing of 29/8/2012”.  On 31 August 2012 a Tribunal Officer sent the advisor a copy of information on the Tribunal file. 

5. On 30 August 2012 the Department advised the Tribunal that the “program area” had advised that they did not have any further information or documents to provide in relation to the Singh case and that they did not get “supplied” with investigation reports other than those they initiated (which had not occurred in this case).

6. However on 4 September 2012 the DIAC Acting Manager, NSW Investigations sent the Tribunal a copy of a Minute about the Bombay Fusion Restaurant and a certificate under s.376 of the Act dated 4 September 201 (sic) relating to a Minute.

7. Section 376 of the Act gives the Tribunal a discretion to disclose material in certain documents the subject of certification by the Minister. It is as follows:

   (1) This section applies to a document or information if:

   (a) the Minister:

   (i) has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and

   (ii) has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or

   (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.

   (2) Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

   (a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and

   (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

   (3) Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

   (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

   (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.

8. The s.376 certificate notified the Tribunal that disclosure of any matter contained in a document described as an “Attached Minute” would be contrary to the public interest and that information in the Minute had been given to an officer of the Department in confidence. It stated that s.375A (which provides that certain information shall only be disclosed to the Tribunal) did not apply. The certificate recorded that disclosure of the identified material was subject to the Tribunal’s discretion. It provided “advice” as to the significance of the Minute as follows:

   The document is an internal Minute in relation to an investigation.  This document relays key law enforcement events, alludes to investigation techniques and details persons and witnesses within the investigation’s scope who have not provided consent for this information to be shared beyond the parameters of the investigation.  Please also note that the Minute refers to an attached document listed as a Record of Interview; this is not enclosed.  Express consent has not been given by the client to share the information contained in the Record of Interview beyond the investigation scope.  Further, this matter, according to the Department of Immigration and Citizenship’s [DIAC] latest information, is still an open investigation with The Department of Industry, Innovation, Science, Research and Tertiary Education [Innovation].  Innovation has taken carriage of this matter from Department of Education, Employment and Workplace Relations.  

9. On 6 September 2012 the Tribunal wrote to Mr Singh c/- his advisor under s.359A of the Act (the s.359A letter). It invited him to comment on or respond to certain information by 4 October 2012. The letter set out particulars of the information as follows:

   The Department of Immigration and Citizenship (DIAC) and the Department of Education, Employment and Work Relations (DEEWR) conducted an investigation into Bombay Fusion and New Bombay Fusion in 2010.  The investigation revealed that a large number of applicants for Skilled visas had obtained letters and other documents from Bombay Fusion and New Bombay Fusion to support their claims that they had worked there.  The investigation also revealed that they had paid the owner large sums of money to obtain these documents. 

   During the course of the investigation the owner of these two Restaurants contacted DEEWR, voluntarily attended their office and agreed to be interviewed.  He was interviewed on 17 May 2010.  He stated that Bombay Fusion ceased trading on 30 June 2008, New Bombay Fusion commenced trading on 1 July 2008 and operated until 28 February 2009.  During the interview he identified you and confirmed that you had been employed by him.  He stated that you did deliveries, leaflets, waited on tables and sometimes assisted in the kitchen. 

   This information is relevant to the review because it could lead the Tribunal to the view that you did not work at Bombay Fusion and New Bombay Fusion as a cook from 7 February 2008 to 30 June 2008 and from 1 July 2008 to 7 April 2009 respectively.  If the Tribunal came to this view it would find that you have given, or caused to be given, to an officer of DIAC and to Trades Recognition Australia, a relevant assessing authority, information that is false or misleading in a material particular in relation to your application for the Skilled visa or, alternatively that you obtained the skills assessment because of a false or misleading statement, and, consequently, have given, or caused to be given, to an officer of DIAC a bogus document in relation to your application for the Skilled visa. 

   If the Tribunal came to this conclusion, it would lead the Tribunal to find that PIC 4020 is not met and it would have to affirm the decision made by DIAC.  This would mean that your application to the Tribunal would not be successful and you would not be granted the Skilled visa. 

10. The s.359A letter also stated that as the visa application had not been finally determined as at 2 April 2011 Mr Singh had to meet PIC 4020 at the time of the Tribunal’s decision. The Tribunal invited him to provide information as to any compassionate or compelling circumstances if he sought waiver of this criterion.

11. On 25 September 2012 Mr Singh’s advisor wrote to the Tribunal raising a number of issues in relation to the s.359A letter. The advisor referred to the fact that at the hearing on 29 August 2012 the Tribunal member had said that she had “recently received information” concerning the Applicant’s claims to be a cook and set out his understanding of the chronology of events, including the Tribunal officer’s request to the Department on 28 August 2012 for a copy of an investigation report and the Departmental response of 30 August 2012 indicating the program area did not get supplied with an investigation report.  The advisor asked the Tribunal to identify or provide a copy of “the “recent information” that the Tribunal referred to during the hearing on 29 August [2012] which it was said enlivened “concerns” and “adverse information””. In addition, the advisor asked where he could obtain a copy of the interview with the owner of the two restaurants of 17 May 2010 referred to in the s.359A letter.

12. On 26 September 2012 a Tribunal officer replied that “the adverse information referred to by the [Tribunal] Member was provided by the NSW Investigations Branch of the Department of Immigration and Citizenship and is subject to a s.376 Certificate”. 

13. On the same day Mr Singh’s advisor asked the Tribunal to confirm the date of receipt of the “adverse” information and for a copy of the s.376 certificate.

14. On 27 September 2012 a Tribunal officer wrote to Mr Singh c/- his advisor stating that the Department of Immigration and DEEWR had conducted an investigation into the Bombay Fusion and New Bombay Fusion restaurants and had prepared a “Report”.  It was said that this information had been provided to the Tribunal in relation to a number of other cases before it and that the Tribunal was unable to provide the dates on which this had occurred.  The letter stated that the Tribunal member was aware of the existence of the Report from another case involving the same restaurants and that on 28 August 2012 (the day before the hearing) the Tribunal member had become aware that the Report referred to Mr Singh as well and was relevant to his case.  The letter continued:

    In the Decision Record dated 20 September 2010 the delegate referred to the investigation and to information in the Report.  The Report should have been on the DIAC file provided to the Tribunal in relation to this applicant but was not.  When the Member became aware of this, steps were taken to rectify the deficiency in the file. 

15. The Tribunal officer explained that DIAC had given the Tribunal a copy of the “Report” and a s.376 certificate on 4 September 2012. It enclosed a copy of the certificate of that date described at [17] – [19] above. The Tribunal did not provide the Applicant with a copy of the Minute to which the s.376 certificate related.

16. Mr Singh’s advisor responded on 27 September 2012.  He noted that the Tribunal had not initiated an inquiry to the Department in respect of the interview with the owner of Bombay Fusion prior to the hearing and continued:

    The Section 376 certificate is dated 4 September 201?(2) and refers to a “minute” of file IOF2009/200. 

    Relevantly that certificate refers to “information” given to DIAC in “confidence” to an Officer of the Department. 

    That characterisation is clearly incorrect and you may recall that the 6 September “invitation” referred to an “interview” said to have taken place on 17 May 2010 wherein certain matters were canvassed in relation to a “large number of applicants” who had apparently paid “the owner large sums of money to obtain those documents”. 

    It was also said that the owner “voluntarily” attended DEEWR and agreed to be interviewed. 

    Accordingly, I am of the view that the purported resort to a section 376 certificate by DIAC is either misconceived or an error. 

    Can the Tribunal please ask for permission to release the relevant “Minute” in a redacted form so as to provide a more complete view of the “evidence” that was before it when it issued the 6 September 2012 “invitation”. 

    I can indicate now that if the information is not forthcoming then I will seek access to the relevant document under FOI and pursue the disclose at the AAT, if necessary. 

    It is completely unsatisfactory for the Tribunal to have regard to what at best could be described as a summary of what may have transpired during the course of a comprehensive investigation. 

    This is particularly unsatisfactory given that the Tribunal has been advised on 30 August at 2.12 pm as follows:

    “The program area have advised that they do not have any further information/documents to provide in relation to this case.  They do not get supplied investigation reports other than those initiated, which in this case they did not.”  (Emphasis in original).

    What the Tribunal is asking the applicant to do is respond to what at best is either second hand or incomplete material and be exposed to the risk of a visa refusal and the imposition of a statutory bar on the making of further applications of a period of 3 years. 

    It is on that basis that I request that the Tribunal seek an urgent review of the decision to issue the section 376 Notice and or provide a copy of the relevant minute in redacted form. 

    If the Tribunal is unable to do these things then I will make an FOI request and ask that the Tribunal not proceed to determine the matter until all avenues of appeal in respect of the FOI request have been ventilated. 

1. On 28 September 2012 a Tribunal officer informed Mr Singh that the Tribunal member had considered his request to seek review of the decision to issue a s.376 Certificate. The Tribunal did not respond to the Applicant’s request for access to a copy of the Minute in redacted form but invited him to lodge a request under FOI with the Department “directly”. 

2. On 3 October 2012 Mr Singh’s advisor wrote to the Tribunal enclosing evidence of his FOI request to the Department seeking a copy of the Minute referred to in the s.376 Certificate. He asked the Tribunal to confirm the name of the restaurant “owner” who had been interviewed by the Department and also to confirm that the adverse information and alleged facts and circumstances which gave rise to concerns under PIC 4020 arose out of that interview.  He suggested that the Tribunal “access” the record of interview with the owner to satisfy itself that its summary of the Minute in the s.359A letter was complete and accurate. It was foreshadowed that issue would be taken with both the accuracy and relevance of the summary of the owner’s evidence about the tasks performed by Mr Singh in the restaurant in the s.359A letter.

3. On 4 October 2012 the Tribunal refused the request for further particulars. The Tribunal noted that the information requested was subject to a certificate under s.376 and that the Applicant had directly made an FOI request to the Department and stated that “disclosable particulars” of the relevant information had been provided to the Applicant in the s.359A letter.

4. On 12 November 2012 a Tribunal officer wrote to Mr Singh requesting a response to its s.359A letter of 6 September 2012 by 10 December 2012 on the basis that Mr Singh’s FOI request to the Department had been finalised on 30 October 2012. On 12 November 2012 Mr Singh’s advisor advised the Tribunal that he had sought internal review of a decision by the Department to refuse access to the Minute.

5. Eventually, a heavily redacted copy of a Minute dated 8 July 2010 was released to the Applicant, apparently by the Department.  The Department refused to give the Applicant access to a transcript of the DEEWR interview of 17 May 2010 with a “third party”. 

6. The Minute of 8 July 2010 was said to relate to an investigation by DIAC and DEEWR into a number of visa applicants who claimed to have undertaken 900 hours of work experience at 3 named restaurants linked by ownership or management (including Bombay Fusion and New Bombay Fusion).  Part of the Minute referred to “persons … identified as having been employed” and (in an apparent reference to information received from an employer (whose name was not disclosed)) recorded that Mr Singh “did delivery, leaflets, working and assisting in the kitchen”. 

7. Under the heading “Summary/Findings” the Minute states:

   Approximately 47 persons have claimed in TRA applications to have been employed for the requisite 900 hours at Bombay Fusion, New Bombay Fusion and Indioz.  Taking into account the periods of time during which these restaurants are known to have operated, it is implausible that so many applicants could have worked at the restaurants.  Allegations have been received stating that many applicants paid money for their work experience letters and did not ever work at the restaurants.  A number of applicants have been interviewed, and some had made admissions that they were not employed as claimed, and that the (sic) also paid for their work experience letters.  DEEWR is in the process of preparing briefs of evidence for the CDPP in relation to a number of these cases.

8. The Minute concluded that only specified persons (whose names, other than that of Mr Singh, were not disclosed) could be confirmed as having been employed at the restaurants.  Mr Singh was said to have been:  “Employed – did deliveries, leaflets and sometimes assisted in the kitchen”.  While the Minute also referred to an attached copy of a taped record of interview with a person whose name was redacted, the Applicant was not given a copy of this interview.

9. On 19 December 2012 Mr Singh’s advisor wrote to the Tribunal in amplification of his submissions of 25 September 2012 in relation to the documents that “apparently” constituted the “evidence” subject to the s.376 certificate. The advisor submitted that the Minute confirmed that the Applicant was employed at the relevant restaurant, that “The acknowledgment of the employment traverses the assertion that first the applicant did not work at Bombay Fusion and second that he did not work as a cook”, that the fact of Mr Singh’s employment did not appear to be in dispute and that “it is inferred that the applicant was not solely employed as a cook” as the Minute referred to him being “Employed, did deliveries, leaflets and sometimes assisted in the kitchen”. 

10. Mr Singh’s advisor asked the Tribunal to clarify what “in particular” had allegedly led to the conclusion that the claimed work experience evidence constituted a bogus document. He claimed that absent this information he was unable to respond effectively to the s.359A letter. The advisor also sought further details of the “new information” the Tribunal member had referred to at the hearing and of the case that had drawn the Report to the member’s attention. 

11. On 29 January 2013 the Tribunal invited Mr Singh to attend a further Tribunal hearing on 13 February 2013. Mr Singh’s advisor requested a postponement on 29 January 2013 and asked what issues were to be canvassed, what matters were likely to be in dispute and what information, if any, the Tribunal wanted to raise at the hearing that could not be canvassed in a s.359A letter. The Tribunal rescheduled the hearing to 14 February 2013 and in a further hearing invitation of 6 February 2013 advised that at the hearing the Tribunal would be addressing:

    …the issues of the applicant’s employment at the Bombay Fusion Restaurant and the New Bombay Fusion Restaurant, the investigation into his employment at these restaurants and Public Interest Criterion 4020... 

12. In the meantime, on 30 January 2013 the Tribunal asked the Department to provide a copy of the Record of Interview of 17 May 2010 referred to in the Minute and any relevant Certificate.

13. The Courtbook contains a further, undated, s.376 certificate issued by the DIAC Acting Director, National Investigations (Sydney) which relates to what is described as a transcript of an interview where the interviewee was cautioned. It was certified that disclosure “to” the Tribunal of any matter or information in the transcript would be contrary to the public interest; that the information had been given to the Department in confidence and that s.375A of the Act did not apply.

14. The Certificate continued:

    As disclosure of the identified material is subject to the Migration Review Tribunal’s discretion, I provide the following advice in relation to its significance:

    (a) The copy of the transcript was provided to DIAC in confidence by the Department of Education, Employment and Workplace Relations in connection with a joint criminal investigation being undertaken at the time.  The transcript was released under Privacy Principle 11.1(e).  These transcripts are generally only given to the interviewee and the Commonwealth Director of Public Prosecutions as part of a brief of evidence;

    (b) The interviewee was cautioned that he did not have to say or do anything as anything that he did say or do may be given in evidence against him.  An allegation of criminal conduct was put to the interviewee and he was asked questions about what he had done.  During the interview there were questions about his business and persons who had claimed to have been employed by him.  The review applicant is only one of many employees mentioned in this transcript.  The reference to the review applicant is very brief;

    (c) The transcript also reveals an investigation method used in varying forms by many investigative agencies. 

15. On 11 February 2013 Mr Singh’s advisor responded to the Tribunal’s invitation to a further hearing on 14 February 2013. He pointed out that there had already been a hearing and a s.359A letter to which there was said to have been a “formal reply” on 19 December 2012 and continued:

    A number of issues arose concerning the conduct of the matter by the Tribunal and I asked the Tribunal to address some questions that were relevant to this case but I have had no reply. 

    Given the conduct of the Tribunal at the hearing and the failure to make a reply to the questions being asked on behalf of my client, I am assuming that there are no additional adverse matters that the Tribunal wishes to raise with the Applicant.  It is on that basis that we request that this matter be disposed of “on the papers”. 

16. In a reply of 12 February 2013, a Tribunal officer stated that the Tribunal had offered the Applicant a second hearing as there were matters the Tribunal wished to discuss with him as indicated in its letter of 6 February 2013 and that the solicitor’s assumptions as to the circumstances were “not correct” and did not appear to have taken into account the information in the letter of 6 February 2013.  The Tribunal asked the Applicant to complete and return a Response to Hearing Invitation form. 

17. By further letter of 12 February 2013 Mr Singh’s advisor expressed concern that at the proposed second hearing the Tribunal would attempt to “ambush” Mr Singh with statements said to constitute “adverse information” or inferences as to the reliability of his oral evidence.  He asked the Tribunal to put “the issues” and the “investigation into [Mr Singh’s] employment” referred to in its hearing invitation of 6 February 2013 in writing to give the Applicant the opportunity to give a “considered reply” to matters that had arisen since the first hearing.  The advisor stated that Mr Singh apprehended that the Tribunal had misled him as to the information it had said had come to hand immediately prior to the first hearing and suggested that “the current insistence upon an oral hearing is an attempt by the Tribunal to deny [the Applicant] a proper and genuine consideration of his case on its merits”. He asked that any information within s.359A or provided to the Tribunal during the review be provided to the Applicant in writing.

18. Neither Mr Singh nor his representative attended the second scheduled hearing on 14 February 2013.  On 30 April 2013 the Tribunal affirmed the decision of the First Respondent not to grant Mr Singh a Skilled (Residence) (Class VB) visa. 

The Tribunal Decision

1. In its reasons for decision the Tribunal described in detail Mr Singh’s written and oral evidence and the correspondence with his advisor.  The Tribunal stated that it had not responded to the advisor’s last letter of 12 February 2013 because it had not received the requested Response to Hearing Invitation form.  It stated that neither Mr Singh nor his advisor had contacted it to indicate that Mr Singh would not be attending the hearing or to request a postponement and that, despite being given the opportunity to do so, Mr Singh had not provided further evidence or submissions. 

2. In its findings and reasons the Tribunal stated that what was in issue was whether Mr Singh met PIC 4020 as required by cl.885.224 in Schedule 2 to the Migration Regulations. The Tribunal rejected the contention that PIC 4020 did not apply. It recorded that while at the time of the visa application the relevant time of decision criterion was cl.885.223 in Schedule 2 to the Migration Regulations, after the Applicant sought review by the Tribunal the Regulations were amended by the Migration Amendment Regulations 2011 (No. 1) (Cth) (SLI No.13 of 2011), cl.885.223 was repealed and PIC 4020 was introduced to apply to applications made, but not finally determined, by 2 April 2011. The Tribunal found that PIC 4020 applied to Mr Singh’s application as it was not “finally determined” within the meaning of s.5(9) of the Migration Act as at 2 April 2011.

3. The Tribunal also rejected the contention that TRA, the relevant assessing authority for Mr Singh’s nominated occupation of cook, had not been validly approved.  The Tribunal was satisfied that Legislative Instrument IMMI 12/068 was valid and that the relevant assessing authority for the nominated occupation of “cook” was TRA (notwithstanding that TRA had not been approved as a relevant assessing authority at the time the information was provided by the Applicant to TRA or at the time TRA had provided the skills assessment). 

4. The Tribunal then considered whether Mr Singh met the requirements of PIC 4020 in Schedule 4 to the Migration Regulations. PIC 4020 relevantly provides that:

   (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.

   …

   (3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

5. Clause 4020(4) provides for waiver of these requirements in specified compassionate or compelling circumstances.  Under cl.4020(5) “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.

6. The Tribunal found that it was not in dispute that the Applicant had given or caused to be given to TRA work references in relation to his work experience as a cook at the Bombay Fusion Restaurant and New Bombay Fusion Restaurant in support of his application for a skills assessment.  He also provided copies to the Department and in his visa application he claimed he had worked at these restaurants as a cook.

7. Based on correspondence between the delegate and the Applicant referred to in the delegate’s decision, the Tribunal found that the Applicant had been aware since receipt of the delegate’s letter of 14 July 2010 which referred to the departmental investigation that there was an issue as to whether he had provided information to TRA that was false or misleading in a material particular.  It noted his response of 28 July 2010.  The Tribunal also found that since at least the Department’s further letter of 4 August 2010 the Applicant had also been aware that there was an issue in relation to the capacity in which he had worked at the restaurants. 

8. The Tribunal found that, notwithstanding Mr Singh’s oral evidence at the Tribunal hearing that he had no idea why the Department had refused his visa application, he had been aware since approximately the date of the delegate’s decision (20 September 2010) of the basis on which the Department had refused his visa application, that is, that evidence had become available that information given or used to obtain his skills assessment was false or misleading in a material particular.

9. The Tribunal stated that at the hearing on 29 August 2012 it had informed the Applicant of the issues before it and that the provisions of PIC 4020 applied to him. It referred to its letter of 6 September 2012 explaining why PIC 4020 applied and to the fact that it had given him the opportunity to respond to or comment on information under s.359A of the Act.

10. The Tribunal also recorded that it had invited Mr Singh to a further hearing to “give him another opportunity to give evidence and present arguments relating to the issues arising in his case”, but that he did not attend.  The Tribunal stated that Mr Singh had not informed it that he would not be attending the hearing or sought a postponement.  It was satisfied that the Applicant was aware that PIC 4020 applied and of what the issues were in his case and that he had “been given every opportunity and considerable time to provide evidence to the Tribunal and present arguments relating to the issues in his case”. 

11. The Tribunal considered the evidence relied on by Mr Singh, including his own evidence, a record of an interview between himself and investigators from the Department and DEEWR conducted on 22 February 2010 and documentary evidence he had provided to the Department and to TRA, to support his claim that he was employed as a cook at the Bombay Fusion Restaurant and New Bombay Fusion Restaurant. 

12. The Tribunal found that Mr Singh’s evidence at the Tribunal hearing about the date on which he commenced employment at the Bombay Fusion Restaurant was inconsistent with the evidence in his visa application.  It accepted that this could have been a clerical error.  The Tribunal found, however, that Mr Singh’s evidence in the DEEWR interview of 22 February 2010 that he commenced working at the Bombay Fusion Restaurant in April 2007 was inconsistent with his evidence to the Tribunal that he commenced working there in July 2007.  It acknowledged that he claimed he continued to work as a cook when the restaurant changed its name on 1 July 2008 and that he did not claim to have been a paid employee in any capacity other than as a cook.  The Tribunal had regard to the fact that in his DEEWR interview Mr Singh had claimed he was employed until March or early April 2009 despite the fact that the investigator had raised with him evidence that the restaurant had closed in January 2009.  It recorded that while the Applicant had stated that he had cleaned benches, chopped vegetables, prepared food and used the tandoor oven, he had not mentioned other duties.  He claimed that he had not paid the owners or managers of the restaurants for work reference letters. 

13. The Tribunal considered the documentary evidence provided by the Applicant, but did not accept that the details on the payslips, group certificates and superannuation contribution statement supported his claim that he worked at the two restaurants “as a cook” because there was no job description on any of these documents. 

14. The Tribunal gave “limited weight” to the signed undated work reference letters on Bombay Fusion Restaurant and New Bombay Fusion Restaurant letterhead which referred to the Applicant’s work as a cook and to duties he performed.  It observed that the first reference did not indicate the position in the restaurant of the author or how she had knowledge of the Applicant’s duties and that the Applicant’s evidence was that the signatory was the owner but that she never came to the restaurant.  The Tribunal found that the second reference, signed by a named person described as “manager”, did not indicate how the writer had knowledge of what the Applicant did in the kitchen of the restaurant.  The Tribunal gave a photograph of the Applicant in a chef’s uniform no weight, as there was no evidence as to when and where the photograph was taken, who took the photograph or why it was taken. 

15. The Tribunal then considered the evidence that had been relied upon by the delegate to find that information given by the Applicant to obtain his skills assessment was false or misleading in a material particular.  The delegate had recorded that this information included the outcome of an investigation by the Department and DEEWR into the two restaurants.  The Tribunal stated that the details of the outcome of this investigation were not on the Department file it received, that it took immediate steps when it became aware of this and that it subsequently obtained a copy of the Minute dated 8 July 2010 which was said to summarise the outcome of the joint investigation and to indicate that “there was evidence that the Applicant was not employed as a cook” at either restaurant. 

1. After referring to the s.359A letter of 6 September 2012, the Tribunal continued:

   In view of concerns subsequently raised by the applicant’s migration agent, the Tribunal took steps to satisfy it (sic) that the details in the Minute dated 8 July 2010 were accurate insofar as they referred to the applicant. The Tribunal asked for and received a record of interview between the investigators from the Department and DEEWR and a primary witness in the investigation. Having considered the record of interview, the Tribunal is personally satisfied that the Minute dated 8 July 2010 is accurate insofar as it refers to the applicant and that the information contained in the s.359A letter to the applicant dated 6 September 2010 is accurate.

2. The Tribunal stated that this record of interview was subject to a s.376 certificate and that the information therein was “non disclosable information” for the purposes of s.359A(4) of the Act. However it observed that there was nothing in the record of interview relating to the issue of the capacity in which the Applicant worked at the restaurants that was any different to what had already been disclosed to the Applicant in the Tribunal’s s.359A letter of 6 September 2012.

3. The Tribunal addressed the advisor’s requests for additional information and clarification and for what was described as “further evidence that was not disclosable” or “information that was irrelevant” and continued:

   In the Department’s Decision Record dated 20 September 2010, provided by the applicant to the Tribunal, the delegate referred to the investigation conducted by the Department and DEEWR into the Bombay Fusion Restaurant and the New Bombay Fusion Restaurant and to information obtained during the course of that investigation.  The Tribunal was aware of the existence of a Minute (Report) in relation to the investigation into the Bombay Fusion Restaurant and the New Bombay Fusion Restaurant as the Department had provided copies of it to the Tribunal in relation to a number of other cases before the Tribunal (differently constituted) involving these two restaurants. 

   On 28 August 2012, the Tribunal read the Minute dated 8 July 2010 and became aware that it referred to the applicant and was relevant to this case.  As mentioned above, the Minute should have been on the Department’s file provided to the Tribunal in relation to this applicant but was not.  When the Tribunal became aware of this, immediate steps were taken to rectify the deficiency in the file.  The Tribunal subsequently received a copy of the Minute dated 8 July 2010 from the Department for inclusion in its file.  These circumstances were explained to the applicant in a letter dated 27 September 2012.  In view of the above, the Tribunal is satisfied that it has provided to the applicant information that is disclosable and relevant to the issues arising in his case. 

   On 19 December 2012, the Tribunal received a letter from the applicant’s migration agent enclosing a copy of the Minute dated 8 July 2010 which had been released to the applicant by the Department with exempt material deleted.  The Minute dated 8 July 2010, prepared by the investigators from the Department and DEEWR following the investigation into the Bombay Fusion Restaurant, the New Bombay Fusion Restaurant and Indioz Restaurant, indicates the following:

   ·   A number of informants had provided information to the Department and DEEWR that students were paying large sums of money to the owners of these restaurants for letters and other documents to support their claims to have worked there. 

   ·   48 visa applicants were identified as having claimed to have undertaken work experience at these restaurants. 

   ·   47 applicants for skills assessments to TRA claimed to have been employed for the requisite 900 hours at these restaurants. 

   ·   The investigators found that, in view of the period of time these restaurants had been in operation, it was implausible that so many applicants could have worked at these restaurants. 

   ·   Allegations had been received that many applicants paid money for their work experience letters and did not work at these restaurants.  Several applicants were interviewed and some made admissions that they were not employed as claimed and had paid for their work experience letters. 

   ·   The investigators identified those applicants who had actually worked at these restaurants and the applicant in this case was one of them.  The investigators obtained evidence that the applicant in this case was employed to do deliveries, leaflets, wait on tables and sometimes assist in the kitchen. 

4. The Tribunal considered the advisor’s submission of 19 December 2012 that the Minute acknowledged the Applicant’s employment at the Bombay Fusion restaurant and that it was “inferred” that he was “not solely employed as a cook”.  The Tribunal found that this submission was “disingenuous”.  It stated that there was never any issue as to whether the Applicant was employed by the restaurants, but that the issue had always been the “capacity” in which he was employed.  It rejected the proposition that the Minute “inferred” that the Applicant “was not solely employed as a cook”, given that the Minute indicated that evidence was given to the investigators that the Applicant was employed “to do deliveries, leaflets, wait on tables and that he “sometimes assisted in the kitchen”” as had been put to the Applicant in the s.359A letter.

5. The Tribunal recorded that when the Applicant was asked about his duties at the restaurants in his DEEWR interview, he had stated that he cleaned the benches, chopped vegetables, prepared food and used the tandoor oven, but that he had not mentioned doing deliveries, leaflets, waiting on tables and sometimes assisting in the kitchen. 

6. The Tribunal found that, having considered all the evidence, the inconsistencies in the Applicant’s evidence raised concerns in relation to his reliability and credibility as a witness.  It found that the evidence obtained by the departmental and DEEWR investigators “from a number of different sources” was persuasive.  It accepted the evidence given to the investigators by the “primary witness” in relation to the capacity in which Mr Singh was employed at the restaurants and placed more weight on this evidence than on Mr Singh’s evidence. 

7. The Tribunal accepted that Mr Singh had worked at the restaurants, that some of his duties (that is doing deliveries and leaflets) involved him working away from the restaurant and that the duty to wait on tables involved him working with customers.  However it did not accept that “sometimes assisting in the kitchen” equated to “being employed as a cook”.  The Tribunal was not satisfied that Mr Singh was employed at the Bombay Fusion Restaurant and the New Bombay Fusion Restaurant “as a cook”. 

8. The Tribunal stated that there was no issue that Mr Singh had given or caused to be given, information and documents (including details of his work experience and a work reference letter) to TRA, the relevant assessing authority, in support of his application for a skills assessment as a cook.  The Tribunal concluded that as it had found that Mr Singh was not employed as a cook, the information in the reference letter on Bombay Fusion Restaurant letterhead about his skills and experience as a cook was false or misleading at the time it was given to TRA.  The Tribunal was satisfied that TRA had relied on this evidence to issue Mr Singh with a favourable skills assessment and that the information in the letter was “of moment and significance and relevant to the purpose of obtaining a favourable skills assessment”.  The Tribunal was also satisfied that the Applicant’s purpose in providing this letter to TRA to obtain a favourable skills assessment was to meet a criterion for a skilled visa (cl.885.222) and that the false or misleading information was relevant to the visa criteria that may be considered by the decision-maker (whether or not the decision was made because of that information).  

9. In light of these findings the Tribunal concluded that the Applicant had given, or caused to be given to TRA, a relevant assessing authority, information that was false or misleading in a material particular in relation to his visa application.  It was not satisfied that he met PIC 4020(1). 

10. The Tribunal recorded that, despite being invited to do so, the Applicant had not provided any information or made any submissions in relation to whether a waiver of the requirements of PIC 4020 was warranted.  As there was no evidence before it of circumstances of the kind contemplated by PIC 4020(4) the Tribunal determined not to waive the requirements of PIC 4020(1). 

11. The Tribunal concluded that as Mr Singh did not meet the requirements of PIC 4020 he did not satisfy cl.885.224 in Schedule 2 to the Migration Regulations. It affirmed the decision of the delegate not to grant Mr Singh a Skilled (Residence) (Class VB) visa.

This Application

1. Mr Singh sought judicial review of the decision of the Tribunal by application filed on 24 May 2013.  He now relies on one ground in a Further Amended Application filed on 26 November 2013 which is as follows:

   The Second Respondent failed to afford the applicant procedural fairness. 

   Particulars

   a) The Second Respondent failed to give to the Applicant clear particulars of the existence of the “Minute” and the allegations set out therein, which the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review, in contravention of the requirements of s359A of the Migration Act 1958. 

   b) The Second Respondent proceeded to make the decision without providing to the Applicant clear particulars of additional adverse information, on which the Second Respondent intended to rely. 

2. As explained in the Applicant’s written submissions filed on 19 November 2013 there are two aspects to this ground: first that the Tribunal failed to comply with s.359A of the Act and therefore fell into jurisdictional error and second that the Tribunal denied the Applicant procedural fairness by proceeding to make its decision in circumstances where the Applicant’s solicitor had sought additional clarification from the Tribunal and the Applicant had not been given the opportunity to provide evidence in support of his claims.

Section 359A Issue

1. The Applicant submitted first that the Tribunal had fallen into jurisdictional error by failing to comply with s.359A of the Act in relation to the disclosure to the Applicant of the existence of the Minute of 8 July 2010 and the “allegations” therein (see SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 and SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26).

2. Section 359A(1) of the Act relevantly requires the Tribunal to “give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.

3. Submissions in relation to this aspect of the ground were complicated by the fact that prior to the hearing the Applicant had relied on a ground in an Amended Application filed on 17 September 2013 that made no reference to s.359A of the Act. However in pre-hearing written submissions the Applicant contended that the Tribunal had failed to comply with its procedural fairness obligation in s.359A of the Act. It was submitted that the “information” in question consisted of the existence of the Minute and the statement in the Minute that the Applicant waited at tables and sometimes assisted in the kitchen and that the Minute and its contents “formed the central basis” for the Tribunal’s decision.  The Applicant contended that the Tribunal fell into error in that it had failed to disclose to him the fact that the Minute existed or its contents, prior to or at any time during the Tribunal hearing and had “unfairly” proceeded to elicit information from him while he was unaware of this central piece of evidence. This was also said to offend the s.357A(3) requirement that the Tribunal “act in a way that is fair and just”.  It was submitted that the “correct course” would have been for the Tribunal to comply with its s.359A obligations before or at the outset of the Tribunal hearing.

4. At the hearing Counsel for the Applicant sought (with the consent of the First Respondent) to rely on a Further Amended Application which was said to clarify the grounds on which the Applicant relied.  Leave was granted.

5. Counsel for the Applicant explained that the “information” said to enliven s.359A of the Act was the existence of the Minute, the general statements therein that the two restaurants at which Mr Singh worked had been the subject of a Departmental investigation and that it had been found that certain other people had provided money to the restaurants in return for work references submitted in support of their visa applications, as well as the specific “information” in the Minute consisting of the identification of Mr Singh as having been employed to do “delivery, leaflets, waiting and assisting in the kitchen” and the finding of the investigation that he was “Employed – did deliveries, leaflets and sometimes assisted in the kitchen”.

6. It was pointed out that, as the Tribunal had acknowledged in its reasons for decision, although the Minute was not initially in the Applicant’s departmental file, prior to the hearing the Tribunal had become aware of and had read a copy of the Minute in relation to the investigation into the Bombay Fusion and New Bombay Fusion Restaurants as it had been provided to it in relation to other Tribunal cases.  The Applicant submitted that it could be concluded that as at 28 August 2012 the Tribunal had become aware that the Minute referred to him, that it was relevant to his review and that it contained information that would be part of the reason for the decision in relation to PIC 4020. 

7. The Applicant contended that in circumstances where the Tribunal became aware of the relevance of the “Minute” to the Applicant’s review application generally before 28 August 2012 and became aware of the specific references to the Applicant in the Minute on that date, the Tribunal had contravened s.359A of the Act by not disclosing the existence and the contents of the Minute to the Applicant prior to or, at the latest, at the start of the Tribunal hearing.

8. The Applicant submitted that this was a denial of procedural fairness because he was put in the position of giving oral evidence in relation to matters that had not been disclosed to him and such evidence was then used against him in the Tribunal’s reasons for decision. 

9. The Applicant relied on Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; [2001] FCA 919 and SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 252 in support of the proposition that the Tribunal’s obligation to comply with s.359A was enlivened, at the latest, on 28 August 2012 when it determined that both general and specific information in the Minute in relation to the Departmental and DEEWR investigation was relevant to the issues on review and therefore that it would “be the reason, or a part of the reason, for affirming the decision that is under review”. 

10. In essence, the Applicant submitted that, given the importance of the Minute and its contents, the Tribunal was required to disclose this information to him before it elicited oral evidence about his work at the two restaurants. On this basis it was contended that the Tribunal had failed to comply with s.359A notwithstanding that the subsequent s.359A letter of 6 September 2012 did put the particulars of the information in question to the Applicant.

11. At the hearing, Counsel for the Applicant also sought and obtained leave to file a transcript of the Tribunal hearing to establish that the Minute and its contents had not been raised with the Applicant by the Tribunal during the Tribunal hearing.  Leave was granted on the basis that the Applicant was to clarify which part of such transcript (if any) was relied on in support of ground 1(a) in the Further Amended Application.

12. In post-hearing submissions the Applicant contended that it was apparent from the transcript of the Tribunal hearing that the Minute and its contents were not raised at the hearing and submitted that it could not be said that there was disclosure in accordance with s.359AA to “remedy” the Tribunal’s failure to comply with s.359A of the Act. It was submitted that having regard to the centrality of the contents of the Minute as a matter of fairness the Tribunal should have disclosed the existence of the Minute and its contents to the Applicant prior to the hearing or at the hearing before the Tribunal elicited evidence from him. 

13. The Applicant referred to several parts of the transcript of the Tribunal hearing in support of these submissions.  In particular, the Applicant referred to the fact that at the hearing his advisor had raised with the Tribunal the fact that there was no “report” from the Department or DEEWR concerning his work references.  Issue was taken with the fact that the Tribunal had not mentioned the existence of the Minute or its contents at the hearing, but had proceeded to elicit evidence from the Applicant (including in relation to tasks he performed at the restaurant).  This was said to have meant that the Applicant was “in the dark” in relation to the source and context of the allegations against him whilst giving such evidence. 

14. The Applicant also pointed out that at the hearing his advisor had raised the fact that he had not received a s.359A letter. It was acknowledged that at the hearing the Tribunal had indicated that if there was adverse information it would discuss it with the Applicant at the hearing (transcript p.24), but that when the Tribunal began to explain that there was adverse information, the Applicant’s solicitor took issue with the absence of pre-hearing notification of such information (transcript p.25). The Applicant took issue with the Tribunal’s explanation that it had just received the information, given that in its reasons for decision the Tribunal had admitted to prior knowledge of the Minute from previous matters. It was submitted that this was not a proper justification for the Tribunal’s failure to raise these matters with the Applicant prior to eliciting oral evidence from him (whether in writing before the hearing, or at the outset of the hearing or in writing following an adjournment of the hearing). 

15. In support of the proposition that there was a failure to comply with s.359A, the Applicant contended that s.357A(3) of the Act should be read as an “overlay” on the Tribunal’s obligations concerning the conduct of a review and that the conduct of the Tribunal could not be considered “fair and just” as it had elicited evidence from the Applicant without disclosing the Minute or its contents, despite being aware of the significance of the Minute.

16. The Applicant acknowledged that at the Tribunal hearing his advisor had asked the Tribunal to notify him in writing of adverse matters and that this subsequently occurred. However the Applicant submitted that the s.359A letter of 6 September 2012 did not “remedy” the Tribunal’s contravention of s.359A as it was “too late”. In submissions in reply the Applicant clarified that it was not contended that the letter of 6 September 2012 failed to meet any requirements of s.359A other than the asserted temporal requirement.

17. The First Respondent submitted that the s.359A letter of 6 September 2012 met the Tribunal’s obligations under s.359A of the Act and that s.359A did not impose an obligation to put information within s.359A(1) to an Applicant at a certain time. It was contended that there need not be immediate compliance with s.359A upon its enlivening: SZKLG v Minister for Immigration & Anor [2007] FMCA 1460 at [33]. The First Respondent submitted that while Al Shamry at [38] and SRFB (which dealt with the analogous requirement in s.424A of the Act) confirmed when such obligation was enlivened, nothing in those cases suggested that there was a specific time for compliance with s.359A. Rather, it was submitted that s.359A simply “describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case”( see SAAP at [68]).

1. The First Respondent also pointed out that a Tribunal may now comply with s.359AA in lieu of s.359A of the Act. It was submitted that there was nothing in the Act to suggest that the invocation of s.359AA was mandatory in particular circumstances (see SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46 at [103] in relation to the interpretation of s.424AA).

2. The First Respondent submitted that the question of whether s.357A(3) contained a substantive requirement, breach of which would amount to jurisdictional error, did not have to be determined in this case because the Tribunal’s conduct of the review was “fair and just”.  Issue was taken with the Applicant’s contentions that due to “the centrality” of the contents of the Minute the Tribunal’s conduct was not fair and just and that the Applicant was “in the dark” while the Tribunal elicited evidence from him. 

3. It was pointed out that at the start of the Tribunal hearing the Applicant had admitted, through his solicitor, that he was aware of the substance of the information which he later came to know was contained in the Minute.  In addition the First Respondent pointed to the fact that the delegate’s decision record referred to the departmental investigation.  It was contended that any reasonable reading of the delegate’s decision record indicated that one of the issues before the Tribunal (as a hearing de novo) would be whether the Applicant had given information that was false or misleading in a material particular. Moreover, at the Tribunal hearing the Tribunal had put to the Applicant that the Department had accepted that he worked at the restaurants, but not as a cook. It was submitted that this proposition was entirely consistent with the substance of the information that the Applicant would later come to know was contained in the Minute and that it was put to him at the hearing clearly and not so as to confuse or trick him as well as in the subsequent s.359A letter.

4. Furthermore, it was submitted that once the Applicant had been invited to comment upon the information in question in response to the s.359A letter (as well as after his solicitor had obtained a redacted copy of the Minute) he was in a fair position, if he wished, to add to the evidence that he had already given, either in writing or at the proposed second hearing which he declined to attend. In all the circumstances there was said to have been no failure to comply with s.359A of the Act or lack of fairness in the manner in which the Tribunal proceeded.

Consideration

1. Under s.359A(1) of the Act the Tribunal “must… give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”.

2. The Act specifies (see s.359A(2)) the method by which this is to be done (in writing in accordance with s.359A or by a method prescribed if the applicant is in immigration detention). However s.359A(3) provides:

   The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA. 

3. Section 359AA states that the Tribunal “may” give an applicant clear particulars of information that is within s.359A(1) “orally” during Tribunal hearing at which an applicant is appearing because of an invitation under s.360 of the Act. If the Tribunal chooses to proceed in this manner it must comply with the s.359AA(b) obligations which are as follows:

   (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii) orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. 

4. In this case no issue was taken with the content of the s.359A letter of 6 September 2012. Rather, it was submitted that the Tribunal was obliged to comply with s.359A before the hearing or, at least, before the Tribunal questioned the Applicant about his work at the restaurants.

5. The crux of the Applicant’s claim appears to be that the Applicant was taken by surprise by the Minute and the content of the Minute and that it was unfair that he had been required to give oral evidence to the Tribunal in relation to matters in the Minute that had not already been disclosed to him. 

6. First, there is no temporal requirement in the Act in relation to the s.359A obligation. Indeed, while the Tribunal must give clear particulars of information within s.359A(1), it may do so “in the way [it] considers appropriate in the circumstances”. There is no statutory obligation on the Tribunal to comply with s.359A before the Tribunal hearing or, more generally, immediately upon becoming aware of the information that it considers would be the reason or part of the reason for affirming the decision under review (see SZKLG at [33]).

7. Moreover, since 2007 the Tribunal has had the option of putting information in s.359A(1) to an Applicant orally at a hearing in accordance with s.359AA of the Act. Section 359AA does not require this to be done before the Applicant is questioned about matters to which such information relates.

8. Insofar as the Applicant sought to rely on Al Shamry and SAAP, these decisions related to whether a provision such as s.359A captured information provided by the Applicant to a third party before the Tribunal review, not to the wider issue of whether there was a temporal requirement in relation to a s.359A letter. In addition, these cases predated the 2007 amendments to the Migration Act which inserted s.359AA. Those amendments were, as the Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 stated:

   …designed to ensure that applicants are still provided with procedural fairness while providing flexibility to the Tribunal in how they meet their obligations.

9. In other words, it is for the Tribunal to choose whether to put information to an applicant orally or in writing. If the Tribunal chooses to put information to an applicant orally in accordance with s.359AA (and meets the procedural requirements of that section), this avoids the need for it to put the information in writing in accordance with s.359A (see s.359A(3)). Conversely, if the Tribunal does not put information that enlivens s.359A(1) to an applicant orally under s.359AA it must put the information to the applicant in writing in accordance with s.359A of the Act. These alternatives leave it open to the Tribunal to determine, in a particular case, whether to utilise the s.359AA procedure at the hearing or to send a s.359A letter to the Applicant (either before or after the hearing).

10. It has not been established that the Tribunal was required by the Migration Act to put information in and about the Minute to the Applicant in writing prior to the Tribunal hearing.

11. Nor is there any inference to be drawn that in the particular circumstances of this case it was required under the Act to put such information to the Applicant in writing (or, for that matter, orally), prior to eliciting oral evidence from him about his employment and duties.  Insofar as the conduct of the Tribunal must be “fair and just”, such a requirement was met in this case. Hence, even if in some circumstances disclosure of certain information before a Tribunal hearing or questioning may be required as a matter of procedural fairness or in satisfaction of any s.357A(3) obligation, this is not such a case.

12. What was central in this instance was not the fact of the Minute, but rather that there was information before the Tribunal that Departmental and DEEWR investigations indicated that while Mr Singh was employed in the restaurants, it was not in the capacity of cook. 

13. Prior to the Tribunal hearing the Applicant was aware of the fact that one of the two restaurants in which he had claimed to have been employed as a cook was being investigated.  Mr Singh was made aware of the relevance of these matters from the correspondence between the delegate and his advisor and from the delegate’s decision.  He stated in his letter to the delegate of 28 July 2010 that he had attended an interview on 22 February 2010 at the DEEWR Investigations Branch in Sydney at which he had been informed of “an allegation against the Owner of the restaurant where I worked” but that it did not have anything to do with him.  On 4 August 2010 the delegate referred to the Departmental and DEEWR investigations and clarified that the issue in question was not whether the Applicant had worked at the restaurants but rather the capacity in which he worked at the two restaurants and, importantly, that the information held by the Department indicated that the Applicant was not employed as a cook.  This correspondence also put the Applicant on notice that there was an issue about the accuracy of the information he had provided to the TRA about the capacity in which he had worked at the restaurants.  Moreover in his reasons for decision the delegate referred to the investigation and to information that while Mr Singh was employed by the restaurants it was not in the capacity of cook. 

14. At the start of the Tribunal hearing the Applicant’s advisor himself raised the fact that the central issue was that as a result of a departmental investigation, evidence had been found that the information Mr Singh had used to obtain his skills assessment was false or misleading (transcript p.4, lines 39-45).  Notably, this was a reference to the delegate’s decision which made the point that the issue was the capacity in which the Applicant worked at the restaurants. 

15. The advisor also raised with the Tribunal the fact that there appeared to be no report of such investigation on the file (transcript p.5, lines 12-22 and p.6, lines 14-21) and indicated that the transcript of the Applicant’s interview with DEEWR was not part of the departmental file.

16. Thus, prior to the Tribunal questioning the Applicant about his employment and tasks he had performed, the Applicant was on notice that one of the issues that he would have to address was whether he had been employed in the two restaurants as a cook or in some other capacity. 

17. In addition, as the Tribunal raised in broad terms at the hearing and explained in its reasons for decision, it was only on the day before the hearing that it had become aware the Minute (provided to the Tribunal in other matters) referred to the Applicant and was relevant to this case.  It then sought a copy of the Minute for the Applicant’s file.  This was not provided to it until 4 September 2012. 

18. The Applicant relied on his skills as a “cook” to meet the skills assessment criterion for the visa for which he had applied. He was aware at the time of the Tribunal hearing that there was an issue (see transcript p.17, line 38 to p.18, line 13) as to the capacity in which he had worked at the restaurants. In these circumstances, the fact that the Tribunal asked the Applicant questions about his work at the restaurants, his job description and title and the work he actually did (and about the interview with DEEWR the CD of which his advisor had given to the Tribunal) before complying with s.359A (or putting information to him in accordance with s.359AA) is not indicative of a lack of fairness. The proposition put to and accepted by the Applicant at the hearing that the Department accepted that he worked at the restaurants, but not as a cook, was entirely consistent with the substance of the information in the Minute. There is nothing in the transcript of the hearing to support any suggestion that the Tribunal’s questioning took the Applicant by surprise or was conducted in a way that was designed to or did confuse or trick him such as to raise a concern that the Tribunal acted in a way that was not fair or just.

19. In this case the Tribunal sent a s.359A letter to the Applicant after the hearing. Notably, having regard to the Applicant’s contentions about fairness, this occurred in circumstances where at the Tribunal hearing (albeit after questioning the Applicant) the Tribunal member started to explain the s.359AA procedure, but was interrupted by the Applicant’s advisor before she described the particular information that enlivened s.359A(1) of the Act. When the advisor took issue with the fact that the Tribunal had not sent the Applicant a s.359A letter before the hearing “so we can prepare for the hearing, rather than have to hear the allegations, go away and then respond” (transcript p.25), the Tribunal member indicated that she had just received the information.  After an adjournment, the Tribunal stated (transcript pp.26-27):

    TRIBUNAL MEMBER:  Mr Singh, as I mentioned before the adjournment, I have some information that could be adverse to you and I want to flag that with you.  Now, I can do one of two things.  I can raise it with you now and give you time to comment on or respond if you wish and then you can either do that now or you can ask for time to do that.  Or alternatively, I can write to you after the hearing and give you – put it to you in writing and then give you time to respond in writing.  Which would you prefer?

20. In other words, the Tribunal attempted to put information to the Applicant in accordance with s.359AA of the Act. When the Applicant indicated that he preferred to have the information put in writing, this is what occurred – the Tribunal gave him clear particulars of relevant information (including in relation to the Minute) in its s.359A letter of 6 September 2012. No issue is taken with the adequacy of those particulars.

21. Moreover, the time for reply to the s.359A letter was extended. During that time the Applicant obtained a (redacted) copy of the Minute. Hence he had ample opportunity to raise with the Tribunal any concerns or comments about the Minute or its contents as part of his response to the s.359A letter. The Applicant had ample time to respond to the s.359A letter after a redacted copy of the Minute was obtained by his advisor. He was also offered the opportunity to add to the information he had already given at the proposed second hearing.

22. Even if in some circumstances fairness might impose a temporal requirement in relation to s.359A, this is not such a case. This aspect of the ground of review is not made out.

Additional Adverse Information Issue

1. The second particular to the ground of review in the Further Amended Application is that the Tribunal denied the Applicant procedural fairness in that it proceeded to make its decision without providing him with clear particulars of additional adverse information on which it intended to rely.

2. Insofar as this particular appeared to allege a further breach of s.359A of the Act, Counsel for the Applicant explained that this was not what was intended. Rather it was contended that the Tribunal’s conduct in proceeding to make the decision without providing “further clarification” to the Applicant of “any” additional adverse matters was a denial of procedural fairness in circumstances where the Tribunal had indicated that there were such matters to be discussed at the proposed second hearing and the Applicant’s solicitor had (in particular in his letter of 12 February 2012) sought particulars of such information.  It was submitted that in circumstances where the Applicant was “justifiably” apprehensive about being confronted by the Tribunal with “additional adverse materials” at a second hearing, the conduct of the Tribunal was unfair and unjust.  Reference was made to Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18.

3. The Applicant did not identify particular adverse information that it was said had to be put to him.  Indeed, Counsel for the Applicant submitted that while the Tribunal decision did not identify any particular additional adverse information on which it could be said that the Tribunal had intended to rely at the time of the invitation to the second hearing, any hearing or invitation to a hearing would not have been a “substantive opportunity” for the Applicant to respond to any such information because he was not given advance notice of such additional adverse information.  It was contended that a lack of fairness stemmed from the fact that the Tribunal did not respond to the Applicant’s request for particulars of such additional adverse information. 

4. The First Respondent submitted that insofar as the Applicant intended to contend that he was denied procedural fairness in that he “had not been given the opportunity to provide evidence in support of his claims”, no particulars of such alleged denial of procedural fairness had been supplied.  In any event, it was submitted that neither the ground of review as pleaded, nor any additional contention to this effect was made out.

5. It was submitted that this ground of review was based on a mistaken factual premise and a misunderstanding of the provisions in the Act and that no jurisdictional error arose from the Tribunal’s conduct. The First Respondent acknowledged that there was no contention in this case that the Tribunal had failed to comply with s.360 of the Act, but submitted that it was relevant that the Tribunal could indicate to an applicant that everything he or she had said in support of his or her application was in issue in a number of ways (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at [47]). The First Respondent also submitted that the Applicant’s expressed concern in relation to being “ambush[ed]” at the proposed second hearing had to be seen in light of the provisions of the Migration Act which contemplated the provision of “clear particulars of information” to the Applicant either in writing or in accordance with s.359A or orally in accordance with s.359AA of the Act.

6. In addition, the First Respondent took issue with the advisor’s contention in the letter of 19 December 2012 to the Tribunal that he was “unable to effectively respond” to the Tribunal’s s.359A letter of 6 September 2012 without clarification of what had led to the conclusion that the “claimed work experience” was a bogus document. It was submitted that the Tribunal’s s.359A letter had plainly confirmed that the issue before the Tribunal was the claim to TRA about the capacity in which the Applicant had been employed in the restaurants.

7. It was pointed out that the Tribunal had invited the Applicant to a second hearing in circumstances where it had provided him with disclosable particulars of adverse information in the s.359A letter, confirmed in its letter of 4 October 2012 that it had done so and had received no substantive response from the Applicant to its s.359A letter beyond the letter of 19 December 2012. Moreover on 12 February 2013 the Tribunal had confirmed that a second hearing had been scheduled because there were matters the Tribunal wished to discuss with the Applicant, as had been indicated in its letter of 6 February 2013.

8. It was submitted that in the circumstances of this case the impugned conduct of the Tribunal in making its decision on the review without responding to the Applicant’s request for written particulars of issues was not “unfair” such as to constitute or give rise to a jurisdictional error. 

1. It was also submitted that, consistent with s.362B of the Act, the Tribunal did not have to take any further action to allow the Applicant to appear before it, given his failure to appear at the second hearing scheduled for 14 February 2013.

Consideration

1. This aspect of the ground of review is somewhat opaque.  In essence it appears to reflect the fact that in the hearing invitation letter of 6 February 2013 the Tribunal indicated that at the proposed second hearing it would be addressing the issues of the Applicant’s employment at the restaurants, the investigation into that employment and PIC 4020, but that it did not provide his solicitor with written particulars of such matters before the proposed hearing, notwithstanding that the solicitor asked the Tribunal to put “the issues” and “the investigation” to the Applicant in writing. 

2. It was open to the Tribunal to preserve some independence in the manner in which it chose to conduct its review. Insofar as this ground is intended to involve a contention that the Applicant was not given the opportunity to provide evidence in support of his claims, this is not made out. The Applicant had ample opportunity to provide evidence, either in writing or orally. The Applicant has not identified any information that enlivened a further s.359A obligation beyond that referred to by the Tribunal in the s.359A letter of 6 September 2012 and its subsequent elaboration. The Applicant was afforded additional time to reply to the s.359A letter, including after he received a redacted copy of the Minute.

3. No breach of s.360 is asserted. There was no general obligation on the Tribunal to raise “issues” with the Applicant in writing (as distinct from the obligation to put dispositive issues to him orally at the hearing in accordance with SZBEL).  Nor have any issues been identified which the Tribunal failed to raise with the Applicant. 

4. As the First Respondent submitted, the Applicant’s request (through his solicitor) that the Tribunal put the “issues” to him in writing could be viewed as a request that the Tribunal forego its chosen method of conducting the review and assessing the Applicant’s credit in favour of a method that allowed the Applicant more time to prepare his answers without, or before, being interviewed at the second hearing.  The Applicant has not cited any authority in support of the proposition that the Tribunal is required to provide an applicant with some reduction of the “issues” to be addressed at a hearing to writing in advance of the hearing. There was no express statutory obligation on the Tribunal to comply with the Applicant’s request of 12 February 2013 to provide particulars of such issues in writing or (as discussed above) to put any further information that enlivened a s.359A(1) obligation to the Applicant in writing rather than raising it orally under s.359AA at a further hearing.

5. No particular adverse information has been identified in this case such as to make the Tribunal’s failure to give particulars in writing before the proposed second hearing indicative of a lack of fairness, whether in the sense considered in Li or otherwise. 

6. It is the case that the Tribunal did not disclose or release to the Applicant the transcript of the Departmental investigators’ interview with the owner of the restaurants at which Mr Singh worked. However the (redacted) Minute referred to relevant aspects of the interview as put to the Applicant in the s.359A letter. No issue was taken with the adequacy of these particulars. Rather, the Applicant appeared to submit that the conduct of the Tribunal was a general breach of procedural fairness on the basis that there must have been further adverse information because the Tribunal scheduled a second hearing and referred to the issues of the Applicant’s employment, the investigation and PIC 4020 in its hearing invitation of 6 February 2013. Reference was made to the requirements that the Tribunal act “according to substantial justice” and in a manner that is “fair and just” (ss.353 and 357A) as grounding such an obligation to afford the Applicant procedural fairness. 

7. It is the case that s.357A requires the Tribunal to act in a way that is “fair and just”.  However, as the First Respondent submitted, the nature of this obligation is to be discerned having regard to the context and provisions of Division 5 of Part 5 of the Act.  As stated in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [58]:

   …what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review.  The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5.  The act may be the exercise of a discretion, as in the present case.  What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.  

8. Sections 359A and 360 do not support the conclusion that as a matter of fairness issues and/or information must be put to an Applicant in writing before being canvassed as a hearing. Moreover, any potential unfairness caused by the Applicant not being informed in advance of any particular (unidentified) additional adverse information would have been remedied if he had attended the second hearing before the Tribunal in February 2013. He could have sought an adjournment or additional time to respond to any such information if he found that he was not in a position to do so at the hearing itself (see Li). If there was information subject to s.359A put to him under s.359AA the Tribunal would have been obliged to comply with s.359AA(b).

9. It has not been established that the Tribunal’s failure to give written particulars in advance of the hearing of “any” (unspecified) adverse information relating to the issues it proposed to discuss at such hearing involved a lack of procedural fairness. There is nothing in the material before the Court, including the Tribunal decision, to indicate that there was particular adverse information within s.359A beyond that referred to in the s.359A letter of 6 September 2012.

10. The evidence before the Court, including the Applicant’s request (through his advisor) for written disclosure of issues in advance of the proposed second hearing is not such as to establish that the Tribunal’s failure to accede to such request amounted to a denial of procedural fairness.  No breach of procedural fairness has been demonstrated by the Tribunal not providing the Applicant with clear particulars of unidentified “additional adverse information” either in advance of the date for the proposed second hearing or otherwise before making its decision. 

11. The Applicant chose not to attend the proposed second hearing. Under s.362B of the Act the Tribunal did not have to take any further action to allow the Applicant to appear before it or to give evidence or present arguments in relation to the issues arising in relation to the decision under review.

12. This aspect of the ground is not made out.  As no jurisdictional error has been established the application must be dismissed.  

I certify that the preceding one-hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  8 August 2014