Singh v Minister for Immigration

[2019] FCCA 157

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 157

Catchwords:
MIGRATION – Administrative Appeals Tribunal – skilled (provisional) (class VC) (subclass 485) visa – S & S Migration – whether the applicant was defrauded by his undisclosed migration agent.

Legislation:
Migration Act 1958, ss.359C, 360(3) and 363A
Migration Regulations 1994, criterion 4020(1) in Schedule 4

Cases cited:
Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
Maharjan v Minister for Immigration and Border Protection (2017) 161 ALD 203; [2017] FCAFC 213
Singh v Minister for Immigration and Border Protection [2016] FCCA 2236

Applicant: JATINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 368 of 2015

Judgment of: Judge Riley

Hearing dates: 25 September 2018, 16 October 2018 and 12 November 2018

Date of last submission: 12 November 2018

Delivered at: Melbourne

Delivered on: 30 January 2019

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Richard Knowles

Counsel for the second respondent: No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The application filed on 27 February 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 368 of 2015

JATINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”), as it was then known.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a skilled (provisional) (class VC) (subclass 485) visa. 

2. The applicant was assisted in his 485 visa application by S & S Migration, although that fact was not disclosed in his visa application.  The applicant’s details were found when the Minister’s officials searched the offices of S & S Migration.

3. The application to this court was decided adversely to the applicant in Singh v Minister for Immigration and Border Protection [2016] FCCA 2236. However, that decision was overturned by consent by the Federal Court on 21 March 2018. The reason for that was contained in a note to the consent orders, which was in the following terms:

   … the parties consent to the Federal Court of Australia making orders in these terms on the basis that the judgment of the Federal Circuit Court of Australia at first instance is affected by appealable error as the Federal Circuit Court of Australia did not perform the analytical exercise required by Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 and Gill v Minister for Immigration and Border Protection [2016] FCAFC 142.

4. More particularly, the court at first instance erred by not considering whether the applicant had been indifferent to whether the agent acted dishonestly or unlawfully on the applicant’s behalf in applying for the 485 visa. In Gill v Minister for Immigration and Border Protection (2016) 248 FCR 398; [2016] FCAFC 142, the Full Court of the Federal Court said at [48]:

   In our view, the primary judge erred in failing to address a question which was of central significance in the particular circumstances here, namely whether the appellant’s “indifference” or imputed general authority to his agent extended to whether or not the agent’s conduct in assisting the appellant to make his visa application went so far as to include unlawful or dishonest conduct. In our view, it is one thing to conclude, on the basis of relevant evidence, that a visa applicant, having retained the assistance of a migration agent, gives his or her general authority to that agent to do whatever is lawful and proper to achieve the visa applicant’s objective of obtaining a particular visa, as opposed to a visa applicant placing such matters in the hands of a migration agent and being indifferent to whether the migration agent uses lawful or unlawful means to achieve the visa applicant’s objective of obtaining a visa.

5. The rehearing in this court began on 25 September 2018.  However, the matter had to be adjourned part heard at lunch time, as the Minister had advised the court and the applicant that the hearing would only take half a day, and the applicant was required to leave the court at lunch time due to work commitments in the afternoon.  The matter was adjourned for further hearing on 16 October 2018.  However, the applicant was unable to attend on that day due to car trouble arising while he was en route from Adelaide.  The matter was further adjourned to 12 November 2018, when the hearing was completed.

Background

1. The applicant, by a migration agent, applied for a student visa on 30 April 2009.  The student visa was granted on 29 May 2009 and ceased on 11 September 2011. 

2. On 31 August 2011, the applicant applied for the 485 visa via S & S Migration  The applicant was granted a bridging visa on 14 September  2011, and has held a series of bridging visas ever since.  The people involved with S & S Migration, namely, Jeetender Singh Ajjan, Reetika Ajjan and Mahimn Sodhani, all departed Australia on 29 October 2011 and have not returned.  On 16 May 2012, a delegate of the Minister refused the application for the 485 visa.

3. On 4 June 2012, the applicant applied to the Tribunal for review of the delegate’s decision. 

Proceedings before the delegate

1. By letter dated 27 March 2012, the delegate advised the applicant that one of the requirements for a 485 visa is that he satisfy public interest criterion 4020(1) in Schedule 4 to the Migration Regulations 1994.  That criterion required that there be no evidence before the Minister that the applicant had given or caused to be given to the Minister a bogus document or information that was false or misleading in a material particular in relation to the application for the visa.

2. The delegate’s letter then said:

   It is alleged that your 485 application, currently under consideration by the Department, was lodged with the assistance of a business known as S & S Migration, who have been found to, have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.

   In addition, as part of your application you answered ‘yes’ to the question ‘have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?’  Further, in your application you provided the following reference indicating a successful skills assessment TRA10/971488465. This reference was referred to TRA for verification. TRA have no record of providing you this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.

3. The delegate’s letter then invited the applicant to comment on the information provided and invited the applicant to explain any compelling or compassionate circumstances affecting the interests of an Australian citizen or permanent resident that would justify the waiver of public interest criterion 4020.

4. The applicant did not respond to the delegate’s letter within the 28 days that had been specified in the letter, or at any later time.  The delegate refused the visa on 16 May 2012 and notified the applicant of the decision on that day. 

The proceedings before the Tribunal

1. On 4 June 2012, the applicant applied to the Tribunal within the permitted time for review of the delegate’s decision.  By letter dated 8 June 2012, the Tribunal acknowledged the applicant’s application for review. 

2. By letter dated 23 April 2014, the Tribunal invited the applicant to comment on information that may be the reason for affirming the delegate’s decision.  That information was that:

   a)Trades Recognition Australia had no record of providing the skills assessment included in the applicant’s 485 visa application; and

   b)Documents or information relating to the applicant had been found in the offices of S & S Migration, and that entity had been found to have lodged visa applications that contained false or misleading information.

3. The Tribunal required the applicant’s response by 19 May 2014. The applicant did not provide a response within the specified time and nor did he seek an extension of time. In the circumstances, the Tribunal determined that it had no power to permit the applicant to appear before the Tribunal: s.359C, s.360(3) and s.363A of the Migration Act 1958 and Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40.

4. Consequently, the Tribunal determined the application without affording the applicant a hearing.  The Tribunal found that:

   a)the applicant’s visa application contained false or misleading information consisting of the TRA skills assessment;

   b)the information was relevant to a criterion for the visa;

   c)the applicant, through his agent, had given the information to the Minister;

   d)therefore, there was evidence that the applicant had given information to the Minister in relation to his 485 visa application that was false or misleading in a material particular;

   e)there were no compelling or compassionate circumstances justifying the waiver of public interest criterion 4020(1); and

   f)in any event, there was no valid skills assessment before the Tribunal, so the applicant did not satisfy an essential criterion for the 485 visa.

Ground 1

1. The first ground of review in the application filed on 27 February 2015 (“the application”) is:

   I submit that the application has been decided unfairly and I was dodged by a 3rd party with my visa application.

2. By this ground, in effect, the applicant alleges that he and the Tribunal were defrauded by S & S Migration with the consequence that his 485 visa application was invalid and of no effect.

3. The Full Court of the Federal Court said in Maharjan v Minister for Immigration and Border Protection (2017) 161 ALD 203; [2017] FCAFC 213 at [113]:

   … the appellants will bear the onus of proving that the fraud alleged was a fraud perpetrated on the first appellant: that is, that she was neither complicit in it nor “indifferent” to it, in the limited sense explained in Singh and Gill. The appellants will also need to prove that the submission of those fraudulent documents … “stultified” the visa application and determination processes for which the Migration Act provides. …

4. The applicant relied on an affidavit he affirmed on 23 September 2018.  In that affidavit, he took issue with the government permitting Mr Ajjan to be a registered migration agent when he was a ruthless and dishonest person.  The applicant said in his affidavit that:

   a)he answered an advertisement for S & S Migration;

   b)Mr Ajjan indicated that he could obtain a working visa [for the applicant] through the operation of the subclass 485;

   c)Mr Ajjan manufactured a false TRA skills assessment showing that the applicant was an automotive electrician when in fact he had completed an automotive mechanic course;

   d)Mr Ajjan created a false address on the application form;

   e)the applicant was not given access to his 485 visa application form;

   f)the applicant was deceived and totally lied to by Mr Ajjan;

   g)Mr Ajjan asked him to sign a blank paper;

   h)Mr Ajjan did not ask him for any substantiating documents;

   i)the applicant was promised a working 485 visa; and

   j)the applicant had no knowledge of what Mr Ajjan had submitted and nor was he complicit.

5. The applicant said in cross-examination on 25 September 2018 that:

   a)Mr Ajjan told him that he would apply for a work visa, not a 485 visa;

   b)he learned about S & S Migration through friends;

   c)he also learned about S & S Migration through pamphlets handed out on the street;

   d)he went to their offices twice, two or three days apart;

   e)both visits were in late August 2011 and before 31 August 2011;

   f)the first visit took 30 to 45 minutes;

   g)he only spoke to Mr Ajjan for five or 10 minutes, and the rest of the time he was in the waiting room;

   h)during the first visit, Mr Ajjan did not say anything about a 485 visa but he said he would apply for a working visa;

   i)when shown paragraph 10 of his affidavit in which the applicant said that Mr Ajjan promised him a working 485 visa, Mr Ajjan told the applicant he applied for a working visa;

   j)the applicant wanted a skilled visa, but not at that time, as he did not have the required documents;

   k)he knew at the time that he needed a TRA skills assessment for a 485 visa;

   l)Mr Ajjan did not ask the applicant to provide a TRA skills assessment;

   m)the only documents Mr Ajjan asked for were the applicant’s passport and his mother’s, father’s and brother’s names and dates of birth;

   n)he did not think it was too good to be true;

   o)he signed a blank form, which Mr Ajjan said he would fill in later;

   p)he trusted Mr Ajjan because Mr Ajjan is Indian;

   q)he did not know what would be put in the form;

   r)Mr Ajjan said it was a work visa form;

   s)contrary to the applicant’s affidavit, Mr Ajjan did not say he would get the applicant a working 485 visa;

   t)he went to Mr Ajjan to get his student visa extended;

   u)Mr Ajjan told him at the first visit not to get a student visa, but to get a work visa and then PR;

   v)he did not know that he had applied for a 485 visa until he got the refusal letter;

   w)his second visit to Mr Ajjan lasted two minutes;

   x)in that time, Mr Ajjan said sign here and give the payment at the reception;

   y)he gave Mr Ajjan a copy of his passport at the second visit;

   z)he spent a total of about 10 minutes with Mr Ajjan across two visits;

   aa)he did not speak to anyone else at the office, apart from the receptionists;

   bb)he paid $2,500 in cash and did not get a receipt;

   cc)a few days after the second visit, Mr Ajjan sent the applicant an email with the subject, work visa, which said that the applicant had been granted a bridging A visa with full time work rights;

   dd)he did not remember whether he had been granted that visa as a consequence of having applied for a skilled visa;

   ee)the email was from [email protected], which was the email address of S & S Migration;

   ff)he received the email and attachment (exhibit 1) on 5 September 2011;

   gg)the attachment was a letter from the Department dated 1 September 2011;

   hh)he read that letter when he received it [the letter referred to the applicant’s application for a general skilled migration visa];

   ii)he understood that he would have the bridging visa until his application for a general skilled migration visa was decided;

   jj)he understood that the general skilled migration visa would be on the basis of his previous study;

   kk)he did not understand at that time that he was applying for a skilled 485 visa;

   ll)he only read the parts of the letter from the Department that mentioned bridging visa, permission to work and permission to travel;

   mm)he thought the reference to skills related to what he had studied;

   nn)he did not give Mr Ajjan any documents relating to his study;

   oo)it was clear that he read the letter pretty carefully because he understood from the letter that he needed to apply for a bridging B visa for permission to travel;

   pp)although he read the letter carefully enough to pick up the point about the bridging B visa, he did not read it carefully enough to understand that he had applied for a general skilled migration visa;

   qq)he knew that he could use the TRN number on the letter to check the status of his visa application;

   rr)he checked the status of his visa application a number of times using the Visa Entitlement Verification Online System (“VEVO”);

   ss)apart from the email from S & S Migration on 5 September 2011, he had  no further contact from or with them;

   tt)he only started using VEVO to check the status of his visa application at the end of 2015, after he learned he had applied for a 485 visa;

   uu)he did not ask S & S Migration for further information;

   vv)when it was put to him that Departmental records showed that someone had checked the status of his visa application on VEVO in May 2012, [after the delegate had sent the letter dated 27 March 2012 and before the delegate’s decision on 16 May 2012], it was not the applicant who checked VEVO and it must have been Mr Ajjan;

   ww)when it was put to the applicant that the people involved with S & S Migration had left Australia on 29 October 2011 and they had no reason to check VEVO on the applicant’s behalf, it must have been the agent who checked;

   xx)the applicant applied for a bridging B visa in September 2011 so that he could travel to India for three months;

   yy)when applying for the bridging B visa, he was told by the Department to check his emails;

   zz)he checked his emails once per week;

   aaa)he received by email on about 27 March 2012 the letter from the delegate but he did not read it;

   bbb)he knew at that time that the people associated with S & S Migration had left Australia amidst allegations of fraud;

   ccc)notwithstanding that context, he did not read the letter from the delegate; and

   ddd)when asked why he did not read the letter, he had no answer.

6. In cross-examination on 12 November 2018, the applicant said that:

   a)he did not try to call or email S & S Migration between the receipt of the bridging visa on 5 September 2011 and the delegate’s decision on 16 May 2012;

   b)he did not know until after the delegate’s decision on 16 May 2012 that the people associated with S & S Migration had left Australia;

   c)if he had read the delegate’s letter dated 27 March 2012, he would have known that he could have withdrawn his application;

   d)when it was put to the applicant that he had not read the delegate’s letter dated 27 March 2012 because he was indifferent as to whether the information provided was true or false, he had not given any information, Mr Ajjan had given the information, he was trying to find Mr Ajjan and if he did not care about the truthfulness of the information in his application why would he have applied to the court;

   e)he read the email containing the delegate’s decision dated 16 May 2012;

   f)he read that email but not the earlier one because the 16 May 2012 email was a refusal notice;

   g)he did not read the delegate’s decision record because he was in stress; and

   h)he did not receive the letter from the Tribunal dated 23 April 2014 even though it was addressed to his correct address.

7. The Minister relied on an affidavit affirmed by Siobhan Emily Hill on 20 September 2018.  In paragraph 20 of that affidavit, the words (being the last recorded date on which the applicant accessed the VEVO system) were struck out by consent.

8. Ms Hill said in her affidavit:

   15. The Department maintains an online system to give visa holders, employers and other registered organisations access to visa entitlements and status information 24 hours a day. This online system is known as Visa Entitlement Verification Online (VEVO).

   16.VEVO provides visa holders with information about their current visa status, including visa class and subclass, visa grant and expiry dates, visa grant number and any conditions associated with the granted visa (for example, rights to work or study).

   17.A visa holder can log in to the VEVO system via the Department’s website by providing the VEVO interface with their Transaction Reference Number (TRN), visa grant number, visa label or their password, along with their date of birth, passport number and country of passport.

   18.Whenever a visa holder logs into VEVO to check her or his visa status, a record is created in that visa holder’s ICSE records. The Permission Request is named ‘Enforcement-Visa Holder Verification’ and logged in ICSE. This record identifies the date of the check and the visa holder to which the check relates. A separate record is created if the visa holder’s visa status is checked by a third party, such as an employer. Any third party (such as an employer or sponsor) must request access to VEVO, which can only be granted by the Department. Where such a third party accesses a VEVO record, that access is separately logged in ICSE.

   19. Each time a visa holder accesses VEVO, VEVO will show the details of the visa that is in effect. On 18 September 2018, I spoke with Ms Kirsty Hassell, the VEVO Helpdesk Manager. Ms Hassell stated that because there is no ‘Transfer Password to eBusiness’ event show (sic) within the Permission Request, the applicant did not create a password to access VEVO. On 20 September 2018, Ms Hassell advised that the only way to access VEVO up until November 2012 was by using a password or using the TRN relating to a visa that was in effect. Ms Hassell stated that, as the General Skilled Migration visa has not been granted, the only way the applicant could access VEVO up until November 2012 was by using the TRN from his Student visa. It is not possible to say how the applicant accessed VEVO after November 2012.

   …

   21. According to the computer systems of the Department there were visa status checks (noted as EVO Visa holder enquiry), on each occasion, undertaken in the name of the applicant using the VEVO system on:

   -13, 14, 26, 28 May 2009

   -11 September 2011

   -14 December 2011

   -2, 25 April 2012

   -1, 3, 4, 6, 7, 8, 9, 10, 11, 13 May 2012

   -11 January 2018

   -8, 9, 10, 11 , 12, 13, 16, 21 April 2018

   -6, 7, 9, 13, 22 May 2018

   -11 July 2018.

1. In cross-examination, the applicant put to Ms Hill that he had checked VEVO on 20 February 2017 but the record provided by Ms Hill did not include that date. The record of the VEVO search on 20 February 2017 was tendered to the court and became exhibit 2.  Ms Hill confirmed that the VEVO records she had annexed to her affidavit did not indicate that the applicant had checked VEVO on that date.  Ms Hill said that she did not know who could have checked the applicant’s records on VEVO other than the applicant.  Ms Hill said that the VEVO system had one type of entry if a visa holder checked their own information and a different type of entry if a migration agent checked.  However, Ms Hill confirmed that an agent could have appeared to the VEVO system to be the applicant himself, if the agent used identifiers such as the applicant’s visa grant number, or a passport number.

2. In re-examination, Ms Hill said that the VEVO records she provided as annexure SEH-4 to her affidavit were not migration agent checks. She said exhibit 2 was a migration agent check rather than a visa holder check.  That explained why the date of 20 February 2017 did not appear in her list of the dates when the applicant, as a visa holder, checked VEVO.

3. As mentioned above, the applicant has the onus of proving that he was not indifferent to whether his agent acted dishonestly or unlawfully in applying for a visa for him.

4. There are a number of matters that tend to suggest that the applicant was not entirely truthful in his evidence to the court and that he knew that Mr Ajjan had dishonestly applied for a 485 visa on his behalf.  They are as follows.

5. The issues about the VEVO checks, in themselves, are irrelevant.  There was no evidence that, if the applicant had checked VEVO, he would have seen that Mr Ajjan had applied for a 485 visa on his behalf. However, the applicant’s refusal to admit that he had checked VEVO, when it is simply implausible that anyone else would have checked on his behalf, tends to suggest that the applicant was not telling the court the truth. 

6. In his affidavit, the applicant said twice, quite frankly, that Mr Ajjan told him that he could get him a working 485 visa, but in his oral evidence, the applicant insisted that Mr Ajjan did not promise him a 485 visa but a visa the applicant described as a working visa. The applicant’s written and oral evidence on this point cannot both be true.  The applicant offered no explanation for the discrepancy.

7. The applicant acknowledged that he received the letter from the Department dated 1 September 2011 relating to his bridging A visa.  He said he read it carefully enough to know that if he wanted to travel outside Australia and return, he needed to get a bridging B visa, which he did get.  However, he claimed that he did not understand from that letter, which referred clearly to the applicant’s application for a general skilled migration visa, that he had applied for a 485 visa.  He said that he thought the reference in the letter to skills was a reference to his study.  While accepting that visa classes can be very confusing, and while accepting that the letter dated 1 September 2011 did not refer specifically to a 485 visa, it is implausible that the applicant, in all of his circumstances, would not have read the letter properly and understood what it meant.

8. The applicant claimed that he did not read the delegate’s email dated 27 March 2012, in which the delegate:

   a)noted expressly and repeatedly that the applicant had applied for a 485 visa;

   b)advised the applicant that S & S Migration had been found to have lodged visa applications containing false and misleading information; and

   c)advised the applicant that the TRA skills assessment lodged with his visa application was not verified by TRA.

9. The applicant conceded that he received that email.  He was not able to give any explanation for not reading it.  Given that the applicant had applied for a visa of some sort, and that he presumably wanted a visa, it is implausible that he would not have read an email from the delegate that obviously concerned the visa he had applied for.

10. If the applicant had read the email from the delegate dated 27 March 2012, which in all the circumstances of this case, I find he did, he would have known that Mr Ajjan had applied for a 485 visa on his behalf. The applicant would also have known that he could have withdrawn his application for the 485 visa.  The fact that the applicant did not withdraw his application for the 485 visa tends to suggest that he wanted the 485 visa, and that he knew that Mr Ajjan had applied for a 485 visa on his behalf.

11. The fact that the applicant did not respond to the delegate’s letter saying that Mr Ajjan had deceived him and he had not intended to apply for a 485 visa tends to suggest that that claim is a matter of recent invention.

12. The applicant conceded that he read the notification dated 16 May 2012 that his visa had been refused, but claimed that he did not read the decision record that showed the reasons for the refusal.  The refusal notification states clearly that the applicant had applied for a 485 visa.  The decision record sets out the reasons for the refusal, including that the TRA skills assessment lodged with the 485 visa application was false and misleading.  The applicant told the court that he did not read the decision record because of stress.

13. It is implausible that the applicant would not have read the decision record, which explained why he did not get the 485 visa, especially as he then went on to file an application for review in the Tribunal.

14. The applicant claimed that he did not receive the letter from the Tribunal dated 23 April 2014, in which the Tribunal advised the applicant that:

    a)TRA had no record of the skills assessment lodged with his visa application;

    b)documents relating to the applicant had been found at the office of S & S Migration, which had been found to have lodged false and misleading information with the Department; and

    c)if the applicant did not provide a response in writing by 19 May 2014, or request an extension of time, the applicant would lose the right to appear before the Tribunal.

15. The applicant conceded that the letter dated 23 April 2014 from the Tribunal was addressed to his correct address.  He offered no explanation for not receiving that letter.  In all the circumstances of this case, it is implausible that the applicant did not receive that letter and implausible that he did not read it and understand it.

16. The fact that the applicant did not respond to the Tribunal’s letter saying that Mr Ajjan had deceived him and that he had not intended to apply for a 485 visa tends to suggest that that claim is a matter of recent invention.

17. The applicant also claimed that Mr Ajjan asked him to sign a blank visa application form, and Mr Ajjan filled in the rest of the details later.  This claim is confusing, because the visa application was lodged electronically, and not signed.  However, if it is true, the very fact that the applicant was prepared to sign a blank visa application form suggests that he was indifferent to the truth or otherwise of the contents of the form.

18. The applicant admitted that he knew at the time his visa application was lodged that he did not have the necessary skills assessment to qualify for a 485 visa.

19. All in all, I consider that the applicant has been dishonest in his evidence to the court.  I consider that the applicant’s dishonesty extended to his visa application.  I consider that the applicant was very well aware that Mr Ajjan applied for a 485 visa on his behalf and that he did not qualify for the visa because he did not have a skills assessment and was not in a position to get one.  I consider that the applicant was complicit in Mr Ajjan’s dishonesty in making the 485 visa application on the applicant’s behalf.

20. It follows that the applicant was not dodged, and that applicant’s 485 visa application is valid.  Ground 1 is not made out. 

Ground 2

1. The second ground of review in the application is:

   The decision made by the Tribunal member and Immigration Department Officials is made contrary to Natural Justice.

2. To the extent that this ground challenges the decision of the delegate, this court has no power to review that decision.  It is true that the Tribunal did not give the applicant an oral hearing.  However, the Act did not permit the Tribunal to give the applicant an oral hearing, in circumstances where the applicant had not replied to the Tribunal’s letter dated 23 April 2014.  Moreover, the Tribunal set out relevant matters to the applicant in that letter and sought his comment.  In that manner, the Tribunal did afford the applicant procedural fairness, to the extent that it was permitted to do so by the Act.  This ground is not made out.

Ground 3

1. The third ground of review in the application is:

   The Tribunal and Department have not applied procedural fairness to the applicant’s circumstances.

2. This ground is essentially the same as ground 2.  It is not made out for the same reasons.

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed with costs.  As the hearing took a somewhat unusual course, I will hear the parties on the question of costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  30 January 2019