Singh v Minister for Immigration
[2018] FCCA 3201
•9 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3201 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – skilled visa – bogus document – Applicant seeks impermissible merits review – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.357A, 359AA, 359A, 363 Migration Regulations 1994 (Cth), Schedule 2, cls.485.224, 886.225 |
| Cases cited: Re Minister for Immigration Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 Trivediv Minister for Immigration and Border Protection (2014) 220 FCR 169 |
| Applicant: | SURINDERPAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 718 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 2 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 9 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lo Piccolo |
| Solicitors for the Applicant: | Singh & Co Lawyers |
| Counsel for the First Respondent: | Mr McDermott |
| Solicitors for the First Respondent: | The Australian Government Solicitor |
ORDERS MADE 2 NOVEMBER 2018
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 718 of 2017
| SURINDERPAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 10 April 2017, the Applicant filed an application seeking judicial review of two decisions of the Administrative Appeals Tribunal (‘the Tribunal’). By those decisions, both dated 17 March 2017, the Tribunal affirmed two decisions of the First Respondent (‘the Minister’) to refuse the Applicant visas on the basis that he did not satisfy public interest criterion 4020 (‘PIC 4020’) in Schedule 4 to the Migration Regulations 1994 (‘the Regulations’).
On 15 October 2018 the Applicant filed an amended application raising two grounds of review which are set out below:-
“1. The decisions of the Tribunal amount to denial of natural justice for the following reasons;
(i) The Tribunal did not accept the applicant’s 2007 diary as authentic. In the absence of expert handwriting evidence, it was not open to the Tribunal to infer that the entries had been made with the same pen or at the same time.
(ii) The Tribunal incorrectly took into account a letter of offer from Axilleon Cakes. The applicant says that this letter is entirely irrelevant. There is no evidence that it was created with applicant’s consent nor that it was ever lodged with the Department. Further, it bears no link to applicant’s either visa application.
(iii) The applicant was not put on notice as to Mr Kordemir’s evidence nor given any opportunity to challenge it. The Tribunal has provided limited reference to the content of his evidence in its s.359A letter dated 20 January 2017. The Applicant should have been provided with a copy of the decision and all oral or written evidence given in that proceeding by Mr Kordemir.
2. The Second Respondent erred by taking into account irrelevant material that affected its exercise of power.
Particulars
2.2 The Second Respondent relied upon a letter of offer from Axilleon Caffe Cake Shop (paragraphs 20 and 51). That letter was produced in response to the Second Respondent’s Summons to Produce.
2.3 That letter bears no relationship to the Applicant’s subclass 485 or 886 visa application. The letter of offer is not relevant to the issue of whether the Applicant meets PIC4020 as required by cl.485.224 and cl.886.225, namely whether there is no evidence that the Applicant has given, or caused to be given, to the Minister a bogus document that is false or misleading in relation to the application for the visa.
2.4 The Second Respondent fell into error when it had regard to the letter in concluding that the work reference was a bogus document.”
In the Applicant’s outline of submissions filed 22 October 2018, the Applicant stated further to the above grounds:-
“…6. It is respectfully submitted that the Tribunal’s decisions are attended by jurisdictional error in the following respects by:
6.1 failing to accord natural justice to the Applicant:
6.1.1 The Tribunal did not accept the applicant’s 2007 diary as authentic. In the absence of expert handwriting evidence, it was not open to the Tribunal to infer that the entries had been made with the same pen or at the same time. The applicant should have been put on notice that the Tribunal had serious reservations about the authenticity of the diary entries.
6.1.3 The applicant was not put on notice as to Mr Kordemir’s evidence nor given any opportunity to challenge it. The Tribunal has provided limited reference to the content of his evidence in its s.359A letter dated 20 January 2017. The Applicant should have been provided with a copy of the decision and all oral or written evidence given in that proceeding by Mr Kordemir.
6.2 taking into account irrelevant material that affected its exercise of power, namely, a letter of offer from Axilleon Caffe Cake Shop (paragraphs 20 and 51).”
Background
The Applicant is a national of India. He first arrived in Australia on 28 July 2006 holding an Indian passport and a (Class TU) student visa that ceased on 31 August 2008. The Applicant was granted a further student visa in August 2008 that ceased in March 2009. He has held various bridging visas since 2007. The Applicant has departed and re-entered Australia since he first arrived. He is married to an Indian national who resides in India. For years he has worked in Australia as a taxi driver.
On 23 November 2008, the Applicant lodged an application for a Skilled (Provisional) (Class VC) (Subclass 485) visa (‘the 485 visa’).
On 23 April 2009, the Applicant lodged an application for a Skilled (Residence) (Class VB) (Subclass 886) visa (‘the 886 visa’).
On 2 June 2009, the Applicant provided evidence to the Department of Immigration and Border Protection (‘the Department’) of a skills assessment from Trades Recognition Australia (‘TRA’) in the nominated occupation of pastry cook. That skills assessment was dated 29 April 2008. It was provided in support of the Applicant’s applications for the 485 visa and the 886 visa.
The TRA skills assessment was issued on the basis of documents, including a work reference made on behalf of Bakers Hut Bread Supplies (‘Bakers Hut’) signed by Mr Deniz Kordemir as “Head pastry chef/Owner”, stating that the Applicant had completed 1020 hours work experience in the period from 20 March 2007 until 15 March 2008.
On 18 October 2012, a delegate of the Minister for Immigration and Border Protection (‘the delegate’) refused to grant the 485 visa on the basis that the Applicant did not satisfy the requirements of cl.485.224 of Schedule 2 to the Regulations. The delegate found that the Applicant gave the Minister ‘a bogus document’, being the skills assessment issued by TRA. The delegate indicated in the delegate’s decision record that he reasonably suspected that the skills assessment was obtained because of a false statement made to TRA, whether or not made knowingly, about the Applicant’s claimed work experience at Bakers Hut.
On 25 November 2014, a delegate of the Minister refused to grant the 886 visa on a similar basis, namely that the Applicant did not satisfy cl.886.225 of the Regulations. The delegate found that the Applicant gave the Minister a ‘bogus document’, being the TRA skills assessment.
On 7 November 2012, the Applicant had applied for a review of the delegate’s decision in respect of the 485 visa, to the (then) Migration Review Tribunal. Following a hearing before the Migration Review Tribunal, on 21 January 2015, the Migration Review Tribunal affirmed the decision on 9 February 2015. The Applicant then applied for judicial review of the decision of the Migration Review Tribunal of 9 February 2015. On 3 May 2016, the Court made an order by consent remitting the matter to the Tribunal. The reason for remittal was that the Migration Review Tribunal failed to give clear particulars of certain information under s.359A of the Migration Act 1958 (Cth) (‘the Act’). The information was evidence given by the proprietor of Baker’s Hut in an unrelated matter.
On 2 December 2014, the Applicant had meanwhile sought merits review of the delegate’s decision of 25 November 2014. Thus, as at 3 May 2016 both visa applications (the 485 and 886) were before the Tribunal.
Tribunal Review
The Tribunal was constituted by the same member in relation to both reviews, and at the Applicant’s request, the Tribunal “combined the hearings” in each review pursuant to s.363(2) of the Act.
On 20 January 2017, the Tribunal issued an invitation pursuant to s.359A of the Act in both reviews (‘the s.359A of the Act letter’).
The Applicant appeared before the Tribunal on 1 March 2017 to give evidence and present arguments in both matters. The Applicant confirmed that he wanted the Tribunal to have regard to his evidence in both matters, including the evidence he gave the Migration Review Tribunal at the hearing in January 2015.
At the hearing on 1 March 2017, the Tribunal also received oral evidence from four witnesses of the Applicant.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The Applicant was also represented in relation to the reviews by his registered migration agent. The registered migration agent made submissions before, during and after the hearing.
The submissions made after the hearing were in writing and dated 14 March 2017.
Tribunal Decision
On 17 March 2017, the Tribunal affirmed both delegate’s decisions. It issued separate but almost identical Statement of Decision and Reasons (‘the Decision Records’). All paragraph references below can be read with either decision.
The Tribunal noted in paragraph 16 of the Decision Records the following:-
“The following matters were confirmed by [the Applicant] at the hearing on 1 March 2017. [The Applicant] gave the Department a copy of the skills assessment in support of his visa applications. The skills assessment, which was positive, was issued on the basis that, among other things, [the Applicant] completed 900 hours’ work experience. The work experience was voluntary. The skills assessment was issued on the basis of documents including a work reference made on behalf of Bakers Hut Bread Supplies (the “work reference”), a bakery located in the northern Melbourne suburb of Glenroy. [The Applicant] obtained the work reference from the employer and gave it to TRA. The work reference, ostensibly signed by Mr Deniz Kordemir as “Head Pastry Chef/Owner” of Bakers Hut Bread Supplies, states that [the Applicant] completed 1020 hours’ work experience in the period from 20 March 2007 to 15 March 2008.”
In August 2012, October 2014, June 2014, December 2014 and April 2015, the Tribunal issued invitations to comment pursuant to s.359A of the Act to the Applicant to which the Applicant responded. In respect of these proceedings, and on 20 January 2017, the Tribunal issued further invitations pursuant to s.359A of the Act in the Skilled (Provisional) (Class VC) (the 485 visa) matter and in the Skilled (Residence) (Class VB) (the 886 visa) matter, being the matters that were before the Tribunal. The Applicant responded to those further invitations in February 2017.
As set out in paragraph 20 of the Decision Record, the Tribunal noted that the s.359A of the Act invitations issued to the Applicant on 20 January 2017, contained common elements with the previous invitations but went further, especially in relation to evidence given to the Migration Review Tribunal by Mr Kordemir in an unrelated case. Because of the importance of that, the Tribunal determined it was convenient to set out the material parts of the latest invitation issued pursuant to s.359A of the Act in the 485 visa matter. The Tribunal indicated that the information referred to the activities of a person named Carmine Amarante. The Tribunal noted a relevant order made by the County Court of Victoria and provided a copy of the order to the Applicant. The Tribunal then set out the relevant parts of the invitation, being “the particulars of the information”, as follows:-
·“Mr Amarante has admitted to being involved in creating fraudulent documents for migration purposes. The documents include work reference letters by approximately 40 different employers. On 21 April 2011 Mr Amarante made a statement to police (attached [to the Tribunal’s letter]) in which he stated that he created the fraudulent documents for students to use in their attempts to obtain “PR” (permanent residency) in Australia. He said he created the false work reference letters to show that the student had completed 900 hours of work in a trade. He said that the fraudulent documents were used by international students in support of skills assessment applications submitted to TRA (Trades Recognition Australia) and that the skills assessments were subsequently used in support of General Skilled Migration visa applications lodged with the Department of Immigration
·In the police statement Mr Amarante further stated that Bakers Hut Bread Supplies was one of the businesses involved in providing false work reference letters to students in order for them to obtain skills assessments from TRA for skilled visa applications. Mr Amarante stated that Deniz Kordemir from Bakers Hut Bread Supplies was one of the employers who agreed for him to sign work reference letters on his behalf. Mr Amarante said that all the employers knew that the students were not going to complete the full 900 hours as the students had already paid for the reference prior to commencing any voluntary work experience. Mr Amarante said he had an agreement with the employers that they would verify false employment claims if TRA or the Department of Immigration checked the information
·The ‘Agreed Summary of Material Facts’ in the County Court proceeding (attached [to the Tribunal’s letter]) indicates that the period when Mr Amarante was engaged in the fraudulent activities described above coincides with the period when you claim to have undertaken work experience at Bakers Hut Bread Supplies: 20 March 2007 to 15 March 2008
·Evidence obtained on the execution of a warrant at Mr Amarante’s premises 29 September 2009 by AFP (Australian Federal Police) includes a letter of offer by or on behalf of Axilleon caffe cake shop dated 6 January 2009 with your name and date of birth
·In an unrelated case before the MRT (Migration Review Tribunal) (MRT case number 1215933), a person identified as Deniz Kordemir, the owner of the Bakers Hut Bread Supplies, gave oral evidence to the MRT at a hearing held on 25 July 2013. In particular, Mr Kordemir told the MRT that he met Mr Amarante at the bakery in or about 2007. Mr Amarante introduced himself as a teacher at a college. He asked Mr Kordemir if he would like assistance from students who needed to obtain voluntary work experience in a bakery. The MRT inquired about the number and names of any volunteers who completed 900 hours or more of work in his business. Mr Kordemir told the MRT that a number of people approached him for work experience including 15 or so people who had approached him or his wife at his home. Some people attended the business but did not stay for more than a few hours. Mr Kordemir gave evidence that from 2007 until he sold the bakery in 2009 there were only two volunteers who completed the full 900 hours of work experience. They left the business in 2008. Mr Kordemir provided to the MRT the names of those two (male) volunteers: Jay and Gurdip (Sunny).”
The invitation also set out in detail why it was that the information was relevant to the review, in particular, that the Tribunal may find that there was evidence that the Applicant had given or caused to be given to the Minister or other relevant person a ‘bogus document’ and that if the Tribunal made that finding:-
“it may find that you do not meet the requirements of subclause 4020(1) because the Tribunal could not be satisfied that there was “no evidence” that you have given, or caused to be given, to the Minister or other relevant person a bogus document (as defined by section 5(1) of the Act) in relation to the application for the visa; and
…the Tribunal may find that [the Applicant did] not meet the requirements of public interest criterion 4020 and so [did] not meet clause 485.224 of the Regulations.”
The invitation in the 886 visa matter was in substantially the same terms but among other things, contained the relevant clause number for subclass 886.
As set out in paragraph 24 of the Decision Records, the Tribunal found that the issue in the reviews was whether the Applicant met PIC 4020 as required by cls.485.224(1) and 886.225 of the Act for the grant of the visas.
The Tribunal set out the legal framework for PIC 4020, referring to Trivediv Minister for Immigration and Border Protection (2014) 220 FCR 169 and, in particularly, in paragraph 26 of the Decision Record setting out the following:-
“The term ‘information that is false or misleading in a material particular’ is defined in cl.4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in cl.4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of a visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.”
The Tribunal noted that there was evidence before it as set out in the s.359A of the Act letter that linked the Applicant’s work reference to extensive fraudulent activities committed by Mr Amarante. This included the “unambiguous information” before the Tribunal that from 2007 until 2009, when Mr Kordemir sold the bakery, there were only two volunteers, whom he named, who completed the full 900 hours of work experience, and neither of those volunteers was the Applicant.
The Tribunal noted the Applicant’s submission before it that the Applicant did work as a volunteer for Bakers Hut and that the Applicant did complete over 900 hours work. The Tribunal noted that the Applicant’s response as to the linkage of his work reference to extensive fraudulent activities committed by Mr Amarante was his own evidence of his work, his 2007 diary, and the evidence of his witnesses.
At paragraphs 30 to 52 of the Decision Record, the Tribunal considered the information the Applicant had provided to the Department and the Tribunal in response to various invitations to comment and the evidence the Applicant gave at the Tribunal hearing. The Tribunal made the following findings about the Applicant’s evidence as accurately set out in the First Respondent’s written submissions:-
a)the Applicant had provided inconsistent evidence about whether and how the Applicant knew Mr Amarante;
b)the Applicant had not mentioned the 2007 diary or produced witness statements until January 2015;
c)there were minor discrepancies in the Applicant’s evidence and that of his witnesses relating to hours and location of work (amongst other matters);
d)the witnesses’ evidence was “quite limited” and involved a “lack of precision”;
e)there was a discrepancy in the Applicant’s evidence about when he started driving taxis, although this was insufficient for the Tribunal to conclude whether he was driving taxis regularly, if at all, during the relevant period;
f)it had “serious reservations” about the 2007 diary for several reasons, including the appearance of the diary;
g)the method of calculating the amount of hours worked at Bakers Hut “cast doubt” on the weight given to this evidence;
h)it was concerned about the appearance of the ‘Royal Baker’s’ letter;
i)the Axilleon letter found in Mr Amarante’s possession indicated that the Applicant had involvement with Mr Amarante beyond him being a teacher from whom the Applicant sought advice;
j)there were aspects of the Applicant’s evidence which were unreliable.
In particular, in reference to the grounds of application before the Court, in paragraphs 47 and 48 of the Decision Records, in respect of the Applicant’s diary, the Tribunal found as follows:-
“47. In relation to [the Applicant’s] diary, [the Applicant] told the Tribunal that he had been able to locate a diary for 2007 but he could not locate a notebook which recorded the balance of his entries of days and hours worked at Bakers Hut Bread Supplies. The diary entries in 2007 were not signed by the employer. The Tribunal observed at the hearing that while a different coloured pen was sometimes used, the neatness and consistency of the handwriting suggested that the entries could have been made at the same time. [The Applicant] denied that he did that. His representative submitted that if the diary had been an “after-the-event fabrication”, it was “surprising that [the Applicant] did not produce a 2008 diary”. The representative further submitted that in the absence of expert handwriting evidence the Tribunal would not be entitled to infer that the entries had been made with the same pen or at the same time. The Tribunal has serious reservations about the authenticity of the diary, not merely because of the appearance of the entries. The purpose of the diary would have had as a contemporaneous record is doubtful given that [the Applicant’s] evidence is that it was his own record – which he mostly kept at home – and that it was not signed by the employer so as to be a record also for the employer. Further doubt is cast on the matter by [the Applicant’s] evidence as to how the 1,020 hours was calculated: see immediately below. The Tribunal also considers that the Applicant did not give a satisfactory explanation for not providing it or even mentioning the diary, for instance in 2012 when the Department first invited him to comment on information to the effect that the work reference was fraudulent. He simply blamed his agent.
48. Both at the MRT hearing in January 2015 and the Tribunal hearing this month there was discussion about how the 1,020 hours calculated. As the evidence was ultimately clarified, [the Applicant] said that he worked from his diary to arrive at the figure but, on the other hand, Mr Kordemir signed the work reference on the basis of accepting what [the Applicant] told him: that he had worked for approximately 20 hours per week for one year.”
The Tribunal weighed the evidence before it carefully noting the passage of time on the Applicant’s and his witnesses’ evidence and noting the Applicant’s “imperfect English”. It also weighed the submissions made by the Applicant that Mr Amarante and Mr Kordemir’s evidence was “tainted”, “unreliable” and “untested”. The Tribunal also acknowledged the “seriousness of the consequences” of an adverse finding for the Applicant.
As set out in paragraph 53 of the Decision Records, the Tribunal nevertheless found:-
“The cumulative effect of the factors set out above – in particular the information set out in the s.359A invitations issued on 20 January 2017, which information points towards a link between [the Applicant’s] work reference and Mr Amarante’s fraud, fraud that Mr Amarante specifically admitted involved businesses including Bakers Hut Bread Supplies and employers including Mr Kordemir – is that the Tribunal reasonably suspects that the skills assessment was obtained because of a false or misleading statement, whether or not made knowingly, the statement being that [the Applicant] worked for 900 hours or more at Bakers Hut Bread Supplies.”
The Tribunal considered that there were objective circumstances, as set out in its Decision Records, upon which its reasonable suspicion was founded and that the objective circumstances could not properly be characterised as mere surmise or conjecture.[1]
[1] Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220, [82]-[87] (Flick and Rangiah JJ).
Ultimately, the Tribunal was not satisfied that there was no evidence that the Applicant gave or caused to be given to the Minister a bogus document being the skills assessment. That meant that the Applicant did not satisfy PIC 4020(1).
As set out in paragraph 61 of the Decision Records, the Tribunal then went on to consider the remaining issue, which was whether the requirements of cl.4020(1) or (2) should be waived, and set out the Applicant’s evidence in relation to the waiver. The Tribunal concluded that the Applicant did not satisfy PIC 4020 for the purposes of cls.485.224(1) or 886.225 of the Regulations. The Applicant did not satisfy the criteria for any other subclasses in the relevant visa classes and accordingly, the Tribunal affirmed the decisions not to grant the Applicant the visas.
Consideration
The Applicant raises as the first ground of review that the Applicant was denied procedural fairness for either of two reasons:-
a)firstly, the Applicant contends he was denied procedural fairness because:-
“The Tribunal did not accept the applicant’s 2007 diary as authentic. In the absence of expert handwriting evidence, it was not open to the Tribunal to infer that the entries had been made with the same pen or at the same time…”
i)this ground cannot succeed;
ii)section 357A(1) of the Act provides that Division 5 of the Act is:-
“… taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”;
iii)sections 359AA and 359A of the Act provide for the provision of particulars of certain kinds of information. Doubts about the authenticity of documents do not constitute “information” and, as submitted by the First Respondent, it is not therefore necessary to comply with those provisions because “information” does not include “the existence of doubts, inconsistencies, or the absence of evidence”;
iv)it was open to the Tribunal to have doubts about the diary evidence without rebutting evidence. The Tribunal rejected the Applicant’s diary evidence for reasons additional to the handwriting concerns of the Tribunal;
v)the Tribunal put to the Applicant all those matters of concern to it in respect of this part of the Applicant’s evidence, and gave the Applicant an opportunity to comment by way of response to the concerns had by the Tribunal concerning that evidence.
b)secondly, the Applicant contends he was:-
“…not put on notice as to Mr Kordimer’s evidence nor given any opportunity to challenge it. The Tribunal has provided limited reference to the content of his evidence in its s.359A letter dated 20 January 2017. The Applicant should have been provided with a copy of the decision and all oral or written evidence in that proceeding by Mr Kordimer.”;
i)this ground of judicial review is rejected. The Tribunal is not required to provide to the Applicant every document before it, as opposed to particulars of relevant information. Procedural fairness to the Applicant requires that he be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review of which the Applicant was not already on notice;[2]
ii)it is clear that the s.359A of the Act letter provided sufficient particulars to the Applicant to comply with the Tribunal’s statutory obligations. Indeed, the Applicant had ample opportunity to respond to the information about Mr Kordimer, information which was known to him for some considerable period of time including having been discussed at an earlier Tribunal hearing in 2015. Further, the Applicant’s representative made extensive submissions in respect of Mr Kordimer’s evidence, all of which was clearly considered by the Tribunal.
[2] Re Minister for Immigration Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, [141] (McHugh J).
The Applicant claims further jurisdictional error in stating that the Tribunal erred by “taking into account irrelevant material that affected its exercise of power”.
This ground cannot succeed.
As was submitted by the First Respondent, the Tribunal’s use of the letter of offer from Axilleon Caffe Cake Shop was logical and reasonable, it forming part of the evidence before the Tribunal. The Tribunal was clearly aware the letter of offer did not relate to Bakers Hut where the Applicant had claimed to have acquired work experience. The Tribunal relied upon the letter of offer to show that the Applicant had “involvement with Mr Amarante that went beyond Mr Amarante merely being a teacher from whom [the Applicant] sought advice.”[3]
[3] Decision Records 51.
The Tribunal taking into account this piece of evidence was also relevant to the question of its determination to have a reasonable suspicion, rather than mere conjecture or surmise. To that extent, the Tribunal was clearly cognisant of the requirement for there to be “‘objective circumstances’ upon which the ‘reasonable suspicion’ of the Tribunal”[4] could be founded. That being the case:-
“It would be an impermissible intrusion into the fact-finding task entrusted to the Tribunal alone for a court conducting judicial review to impugn an assessment founded upon a number of factors merely because the court had reservations as to one of the facts relied upon.”
[4] Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220, [86].
The Applicant is really seeking impermissible merits review in respect of this ground.
The Court concludes that no jurisdictional error attends the decision of the Tribunal and the application should be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 9 November 2018
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