Singh v Minister for Immigration and Border Protection
[2021] FCCA 416
•10 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2021] FCCA 416
File number(s): MLG 585 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 10 March 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Skilled (Residence) (Class VB) subclass 886 visa – Notice to Produce – the Tribunal using evidence from a different Tribunal proceeding – whether the Tribunal had regard to the actual evidence in the other Tribunal proceeding – whether it was unreasonable not to consider the actual evidence from the other Tribunal proceeding – whether the Tribunal failed to provide clear particulars in breach of section 359A – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5, 353, 359, 359A, Part 5
Migration Regulations 1994 (Cth) Public Interest Criterion 4020 of Schedule 4
Evidence Act 1995 (Cth) s 91
Cases cited: FUD18 v Minister for Home Affairs [2019] FCA 1858
Kaushik v Minister for Immigration & Anor [2019] FCCA 2850
MZZZW v Minister for Immigration and Border Protection and Anor (2015) 234 FCR 154; [2015] FCAFC 133
Nguyen v Minister for Immigration and Border Protection [2019] FCA 159
Singh v Minister for Immigration and Anor [2018] FCCA 320
Singh v Minister for Immigration and Border Protection [2017] FCA 1443
Number of paragraphs: 79 Date of hearing: 18 and 30 November 2020 Place: Melbourne Counsel for the Applicant: Ms Costello QC Solicitor for the Applicant: FCG Legal Pty Ltd Counsel for the Respondents: Mr McDermott Counsel for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 585 of 2017 BETWEEN: SUKHWINDER SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
10 MARCH 2021
THE COURT ORDERS THAT:
1.The Application filed on 23 March 2017 and amended on 6 November 2020 be dismissed.
2.By 17 March 2021, the Applicant file and serve any material he seeks to rely on and an outline of submissions on the issue of costs.
3.By 24 March 2021, the First Respondent file and serve any material he seeks to rely on and an outline of submissions on the issue of costs.
4.The issue of costs be determined on the papers.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal ('Tribunal') on 27 February 2017. In that decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Residence) (Class VB) subclass 886 ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant in the present matter is an Indian national. He applied for the visa on 31 July 2008. The Applicant applied for the visa on the basis of working as a Pastry Cook. As part of his visa application, the Applicant provided, among other documents, a written reference from Mr K of Bakers Hut. In the reference, Mr K confirmed the Applicant worked more than 900 hours between 2006 and 2008. Also supplied was a skills assessment from Trades Recognition Australia ('TRA').
On 11 October 2012, the Department wrote to the Applicant and invited him to comment on whether he could satisfy Public Interest Criterion 4020 of Schedule 4 to the Migration Regulations 1994 ('PIC 4020'). The Applicant was advised he may have provided a 'bogus document' as defined in section 5 of the Migration Act 1958 ('Act') which would result in his failing to satisfy PIC 4020. The Applicant was informed, inter alia, that another person, CA, had been found guilty of manufacturing and selling work references from Bakers Hut.
The Applicant's representative provided a response and a statement of the Applicant on 9 November 2012.
On 16 September 2014, a delegate of the First Respondent ('delegate') refused to grant the Applicant the visa.
On 6 October 2014, the Applicant applied to the Tribunal for review of the delegate's decision. On 22 June 2015, the Tribunal affirmed the decision under review.
On 17 July 2015, the Applicant applied to this Court for review of the Tribunal's decision. On 6 April 2016, consent orders were made by Judge Harland of this Court which quashed and remitted the decision back to the Tribunal.
On 28 April 2016, the matter was remitted to the Tribunal for re-consideration. On 11 January 2017, the Applicant was invited to attend a hearing at the Tribunal on 2 February 2017.
On 18 January 2017, the Tribunal wrote to the Applicant and invited him to comment on adverse information, being that he provided a bogus document to the First Respondent. On 31 January 2017, the Applicant provided his response and comments to the Tribunal's letter regarding adverse information.
The Applicant attended the hearing at the Tribunal on 2 February 2017. The Applicant provided further submissions to the Tribunal on 8 February 2017.
On 27 February 2017, the Tribunal affirmed the decision not to grant the Applicant the visa.
The Applicant subsequently filed an application in this Court on 23 March 2017, seeking judicial review of the Tribunal's decision. An affidavit was filed in support of the Application, annexing the Tribunal's decision.
The material before the Court in relation to this matter comprises the following. From the Applicant, an amended Application ('Application'), written submissions, supplementary written submissions, an affidavit of the Applicant, and two affidavits of the Applicant's solicitor. From the Minister, a Response, written submissions, two affidavits from the Minister's solicitor and an extract of the audio recordings from the interview and Tribunal hearing in this matter and in another proceeding in the Tribunal, proceeding 1215933, containing the oral evidence of Mr K in that proceeding.
PIC 4020
Relevantly for the present Application, the Tribunal was concerned with whether the Applicant satisfied, inter alia, PIC 4020(1). That regulation provides as follows:
4020
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2A)The applicant satisfies the Minister as to the applicant's identity.
(2B)The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(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.
(4) The Minister may waive the requirements of any or all of paragraphs (l)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
"information that is false or misleading in a material particular" means information that is:
(a)false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information (emphasis in original).
Also relevant to the present matter is the definition of 'bogus document' set out in section 5 of the Act. Relevantly, the definition provides as follows:
“bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly (emphasis in original).
As can be seen from the above, if the Minister 'reasonably suspects' a document is bogus by reference to the criteria in section 5 of the Act, then that will be sufficient for an applicant to fail to satisfy PIC 4020(1).
THE NOTICE TO PRODUCE
When the matter came on for hearing, the Applicant sought production of documents pursuant to a Notice to Produce filed with the Court on 16 November 2020 ('Notice'). The Applicant sought under the Notice, various information or documents concerned or connected with another proceeding in the Tribunal numbered proceeding 1215933 ('Proceeding 1215933'). The Minister provided to the Applicant the information sought under category one of the Notice, but otherwise sought that the Notice be set aside.
After hearing argument, I ordered the Minister to produce the documents under the Notice, and indicated I would provide brief reasons in writing for doing so at the time I delivered judgment. What follows are those brief reasons.
The principles governing the validity of a Notice to Produce were summarised by Thawley J in FUD18 v Minister for Home Affairs [2019] FCA 1858 at [23]-[25].
The Minister sought to set aside the Notice principally on two grounds. First, that the Notice was served very late. Second, that the documents sought to be produced did not have apparent relevance to the proceeding.
I accept that the Notice was served very late, less than 48-hours before the final hearing. The affidavit from the Applicant's solicitor, however, indicates that the documents were first sought by the Applicant on 27 October 2020 in correspondence between the parties. In this circumstance, I do not regard the late filing of the Notice as a sufficient reason to set it aside.
Insofar as apparent relevance is concerned, it is necessary to have some regard to the decision of the Tribunal ('Decision'). The Tribunal refused to grant the visa to the Applicant on the basis of evidence given by Mr K in Proceeding 1215933. I have summarised the evidence of Mr K in Proceeding 1215933 later in these reasons.
The Application before the Court ultimately pressed two grounds (Grounds 2 and 3 in the Application, Ground 1 having been abandoned). By Ground 2, the Applicant claims that the Tribunal failed to provide clear particulars of the evidence of Mr K to the Applicant in breach of section 359A of the Act. By Ground 3, the Applicant complains the Tribunal failed to carry out the review reasonably and in accordance with Part 5 of the Act.
There is little doubt that the evidence of Mr K formed a central plank of the Decision. Yet when the matter first came on for hearing before me, I had neither the evidence of Mr K before me in Proceeding 1215933 nor any record of the decision of the Tribunal in Proceeding 1215933.
In view of the above, I formed the view that the documents sought under the Notice were relevant to the proceeding. The adequacy of the section 359A notice could not be assessed without having regard to what the evidence of Mr K was. Further, the Applicant submitted under ground 3 that the Tribunal did not carry out a review that was reasonable in that it, inter alia, transposed evidence and or findings from another matter without properly considering the evidence itself. In order to assess this aspect of the Applicant's claims before me, it is necessary to have regard to the information that the Tribunal had or did not have in relation to Mr K.
For all of the above reasons, I declined to set aside the Notice. The matter was adjourned to allow a period for the documents to be produced, before resuming before me.
PROCEEDING 1215933 BEFORE THE TRIBUNAL
As indicated, the issues in the present proceeding arise from, inter alia, the use and consideration made by the Tribunal in the present matter of the evidence of Mr K given in Proceeding 1215933, and the decision record of the Tribunal in Proceeding 1215933.
Proceeding 1215933 concerned an application for a visa by a person known as Jay Sharma.
The evidence of Mr K in Proceeding 1215933
Mr K did not give evidence in the present proceeding before the Tribunal. Mr K had given evidence in Proceeding 1215933 in relation to persons who had completed more than 900 hours work at Bakers Hut.
In Proceeding 1215933, Mr K gave evidence. There is no formal transcript of that evidence. What follows is my extract of the evidence, having listened to the recording of DK’s evidence. 'TM' denotes the Tribunal Member and 'K' denotes Mr K (starting from 1 hour, 13 minutes and 57 seconds of the recording):
TM:Tell me what it was from the beginning. How you came to know each other etc.
K:I was running Bakers Hut at 90 East Street, Glenroy. We’re a 24 hour bakery, we decided to open up as a 24 hour operation. Now in that perspective, [CA] is a gentleman who lived there and worked in the area. He came through as a customer for a while, and I occasionally seen him here and there, popping in and out of the back, myself, because we were constantly baking, every time I came to the front, I used to see him every now and then.
TM:When was that? What kind of time period were we talking?
K:This is early stages of me opening up the bakery.
TM:Which was when?
K:6-7 years ago, about 6 years ago. Cos I had the bakery….
TM: 2007, is that when you started the bakery?
K: I believe so. My memory with time frames are so all over the place.
TM: Just to clarify that, did you have another bakery before that? Or was that your first foray into bakery?
K: This was my first one, but my father’s been a baker for close to 40 years. [CA] introduced himself from a college that he worked through in the city and he asked me if we, because we knew our operation was a 24 hours operation, he asked if we required any help here. I said, ‘what do you do for a living?’ He said ‘I work at a college, I’m a teacher, so on so forth.’ He goes, ‘I have some voluntary students that need experience in a bakery.’ And he goes, ‘Would you need these people to come through?’ I personally don’t need anyone to come through to pay. But if these people want to come through and give us a hand cleaning and whatever else, because it a constant operation, I seen the beneficial side to it. So I agreed to take on 1-2 people. In the perspective of taking on a couple of people, Jay came through.
TM: Was he your first?
K: Jay, I believe he was my third or fourth but the first and second people that came through, they came once, twice and I never seem them again. Then Jay came through with another gentleman, there was another gentleman that came through with him, just before him, and he finished up
TM: What was his name? Do you remember?
K: I was mentioning it before outside. I think his name was Gurdip, I used to call him Sunny cos they had difficult names for me to pronounce. We ever had two people come through.
At 1 hour, 18 minutes and 50 seconds of the recording, the following occurs:
K:Yeah. Like I stated before, if there was ever two people who came on board who constantly came through to my bakery, and that was Jay himself and this other gentleman, Gurdip or I can’t recall the gentleman’s name. But two other people…
TM:has this other person come before the Tribunal? Gurdip? Do you know?
K: I don’t know. All I know is that the gentleman used to work for Ansett. After that he got his visa, and he was working for Ansett.
At 1 hour, 46 minutes and 54 seconds of the recording, the following occurs:
TM:And also the name of the other applicant, because you’re saying ‘I want you to know there is only two genuine work experience applicants.’
K:Like I said, I can’t, I used to call him Sunny. The gentleman used to relieve me in the mornings. Mum used to come in late, for a while she came in late. Obviously I’m pulling a 15 hour shift. I used to leave him at the front of the shop to sell for me and then mum used to come and relieve him. This was after his experience finished. I’ll chase him up, I’ll get the details for him.
The Tribunal findings in Proceeding 1215933
The Tribunal made its decision in Proceeding 1215933 on 29 September 2014. In its decision in Proceeding 1215933, the Tribunal relevantly recorded Mr K’s evidence as follows (noting that where the Tribunal refers to Mr U, it is a reference to Mr K):
39.Mr U explained that Bakers Hut Bread Supplies was his first bakery although his father had been a baker for close to 40 years. His bakery was a 24-hour operation and [CA] lived in the area and first came to the bakery as a customer. Later he introduced himself as a teacher at a college and asked if he would like some assistance with students who needed voluntary experience in a bakery. He said the while he did not want to employ anyone he saw the benefit in students coming through and assisting with cleaning and basic tasks. He then agreed to take on 1 or 2 people with the applicant being his third or fourth volunteer. He said the first and second people that came through only once or twice and then he never saw them again. Another person named Gurdip (who he called Sunny) were the only people who came through and completed the 900 hours. Mr U confirmed his evidence that only two people ever completed the whole work experience at his bakery and while others came they did not complete the necessary time. He gave evidence that [CA] sent people to his bakery for work experience and this is when he found out “some dodgy stuff was going on”. He said at this stage many people came saying they were sent down but his view was that the bakery was a family business and not a training school. Mr U estimates about 15 people had approached him or his wife. The last time someone came to his house was about 4-5 months ago when a man came arrived with his wife and his child and they were crying and saying their life was over. He said that while he was sorry for them he did not know them and could not verify someone he had never seen before. Mr U said he has not appeared before the Tribunal for any other person. He said both his father and his mother know the applicant.
40.Mr U said he used to supply bread to a chain of nursing homes in Sydenham which he thinks was called Overton Leaf, fruit shops and the Pipeworks Fun Market but then he lost a couple of contracts and his father, who essentially ran the business, starting getting unwell with his legs giving him trouble, so his business started getting much quieter and this is why he did not provide the applicant with ongoing employment. He was also aware it was a long commute to his bakery. He sold the bakery about 4 years ago, in about 2009. By this stage students had stopped coming to the bakery asking for work experience although he estimates that during the peak period he was approached by about 10 people. He now runs a transport business.
At paragraph [66], the Tribunal in Proceeding 1215933 accepted Mr K’s evidence and recorded the following (note the reference to 'Mr U' below is a reference to Mr K):
The Tribunal accepts Mr U's evidence that while he is aware that false Bakers Hut Bread Supplies references were provided by applicants he would only appear in support of a person who had genuinely worked at his business and further, that only 2 students had genuinely completed a minimum of 900 hours' work experience with his business. While he acknowledged that a number of other students did some limited work experience in his business, none of these applicants completed the necessary hours. Mr U named the second student who completed the minimum of 900 hours' work experience and said he had been granted permanent residency and not been subject to any problems due to his work experience at his bakery.
THE INVITATION TO THE APPLICANT TO COMMENT IN THE PRESENT PROCEEDING
On 18 January 2017, the Tribunal wrote to the Applicant and invited him to comment on whether he was capable of satisfying PIC 4020. The letter from the Tribunal set out, at some length, the information the Tribunal considered potentially adverse to the Applicant. It is unnecessary to set out all of the information contained in the letter at this time. It is relevant to this proceeding, however, to note that in the letter, the Tribunal notified the Applicant of Mr K’s evidence in proceeding 1215933 in the following terms:
In an unrelated matter that was before this tribunal, (matter no 1215933), the owner of the Bakers Hut Bakery, gave evidence at the hearing that he met [CA] in 2007 at his bakery. [CA] introduced himself as a teacher at a college and asked if he would like some assistance with students who needed voluntary experience in a bakery. Mr K gave evidence that, while he did not want to employ anyone, he saw the benefit in students coming through and assisting with cleaning and basic tasks. He estimated that about 15 people had approached him or his wife. In his evidence, Mr K stated that, from 2007 until he sold his bakery in 2009, only two volunteers completed the full 900 hours of work experience at Bakers Hut. He provided the names of those two male volunteers (Jay and Sunny). Sunny completed 900 hours of voluntary work experience before Jay. Jay completed his work experience in 2008 and no other volunteer worked at the bakery after him until he sold the bakery in 2009.
The Tribunal, relevantly, explained the significance of this evidence to the Applicant in the following terms:
3. the fact that Mr [K] has given evidence to this tribunal that only two persons, Jay and Sunny, completed 900 hours of work experience with Bakers Hut suggests that no other person, including yourself, achieved 900 hours of work experience with the business.
The information therefore casts doubt on your claim to have genuinely completed at least 900 hours of work experience in your occupation. This in turn supports a reasonable suspicion that the statement that you completed the required work experience in the TRA version is false or misleading, and that you obtained the skills assessment you gave to the Minister’s delegate from TRA because of the false or misleading statement.
The information therefore suggests that you do not meet PIC 4020(1), and subject to the application of the ‘waiver’ in PIC 4020(4), you do not meet PIC 4020 as a whole, and therefore a mandatory criterion for the visa.
THE DECISION OF THE TRIBUNAL IN THE PRESENT MATTER
The Decision is contained within the Court Book and commences at page 215. In the Decision, the Tribunal:
(a)summarises the issues on review as being whether or not the Applicant satisfied PIC 4020 (at paragraph [6]-[7] of the Decision);
(b)sets out the relevant background, including evidence given by CA and the implication by CA of Bakers Hut in the provision of false work claims (at paragraphs [11]-[15] of the Decision);
(c)set out the invitation to the Applicant to comment on adverse information (at paragraph [18] of the Decision);
(d)summarised the interview conducted by the Tribunal and the answers given by the Applicant during that interview (at paragraphs [21]-[25] of the Decision);
(e)summarised the hearing before the Tribunal from paragraph [26] onward;
(f)set out a series of findings in relation to the evidence of CA, the evidence of Mr K and the similarity in respect of the work references (at paragraphs [45]-[51] of the Decision);
(g)set out its conclusions (at paragraphs [52]-[64] of the Decision);
(h)went on to consider whether the requirements of PIC 4020(1) or PIC 4020(2) should be waived (at paragraph [65] onward of the Decision).
In relation to Mr K and whether the reference was a bogus document, the Tribunal found:
(a)CA admitted to selling false work references and that Mr K had an understanding with CA in relation to references for Bakers Hut (at [45] of the Decision);
(b)Mr K had given evidence in Proceeding 1215933 that from 2007 until he sold his bakery in 2009, only two volunteers completed the full 900 hours of work experience at Bakers Hut, those two being male volunteers named Jay and Sunny (at [47] of the Decision);
(c)even if Mr K was giving evidence to the Tribunal in a matter which involved Jay or Sunny, the Tribunal could not identify any reason why Mr K would omit to identify other individuals. The Tribunal noted that the evidence of Mr K was sufficiently detailed and that the Tribunal would expect that if he had more than two people complete at least 900 hours, then that would have been simple enough to state (at [48] of the Decision);
(d)the Tribunal could not identify any reason why Mr K had a personal interest or other motive not to disclose individuals who had genuinely completed 900 hours, and also stated that it was in Mr K’s interest to stand by each of the references that he in fact signed, including the Applicant's work reference (at [49] of the Decision);
(e)the reference given to the Applicant was 'strikingly similar' to the references produced by CA, but gave this detail little weight (at [50]-[51] of the Decision);
(f)while the Applicant had performed some work experience at Bakers Hut, the evidence of Mr K created a 'reasonable suspicion' that any individual who was not Jay or Sunny did not complete the requisite period of work experience, and further, the Tribunal did not accept the Applicant's arguments as to why Mr K failed to identify the Applicant (at [54] -[57] of the Decision);
(g)Mr K’s failure to identify the Applicant created a reasonable suspicion that the Applicant obtained a skills assessment because of a reference found to contain a false and misleading statement (at [63] of the Decision);
(h)the skills assessment was a 'bogus document' within the meaning of section 5 of the Act and that by providing that document, the Applicant had failed to satisfy PIC 4020(1) (at [64] of the Decision).
THE APPLICATION FOR REVIEW
The Application contains three Grounds of Review. Ground 1 was ultimately not pressed. I deal with each of the remaining grounds of review below, starting with ground 3 first.
Ground 3
The third Ground of Review contained in the Application is as follows:
3.Thirdly, the Tribunal failed to carry out its review reasonably, or in accordance with Part 5 of the Migration Act in forming a reasonable suspicion that the document was "bogus" for PIC 4020 purposes and considering the definition of "bogus document" in s 5 of the Migration Act in that:
Particulars
Instead of carrying out the review in accordance with Part 5, including the power to get information under s 359, summon a person to give evidence under s 363(3), and provide a meaningful hearing under s 360, the Tribunal transposed witness evidence from another proceeding and abdicated its role of weighing evidence of conflicting witnesses with an open mind.
Two principal issues are raised by this Ground. The first issue is whether the Tribunal had regard to the actual evidence given by Mr K in Proceeding 1215933 in reaching its conclusions. The second issue is if the Tribunal did not consider the actual evidence given by Mr K in Tribunal Proceeding 1215933, whether that gives rise to jurisdictional error because it was unreasonable to proceed on that basis, or that proceeding on that basis was not in accordance with Part 5 of the Act.
In Proceeding 1215933, Mr K’s evidence was comprised of the following:
(a)a statutory declaration signed by him on 29 July 2010; and
(b)oral evidence given by him to the Tribunal in Proceeding 1215933.
I have reviewed the statutory declaration and listened to the audio recording of the evidence given by Mr K in proceeding 1215933.
The Minister concedes that no inference can be drawn that the Tribunal actually listened to the audio recording of Mr K’s evidence in reaching its conclusions in the present matter. That concession is appropriately made. There is nothing in the text of the Decision that indicates that the Tribunal listened to the audio recording.
In this matter, I draw the inference that the Tribunal did not listen to the audio recording of Mr K’s evidence. I do so on the basis of the concession given above by the Minister, and also for the reasons that follow.
First, it is clear from the hearing before the Tribunal in the present matter that the Tribunal Member had not considered the actual evidence given by Mr K in Proceeding 1215933. During the course of the hearing, the Tribunal Member commented that he did not know if Mr K 'took an oath'. Further, during the Tribunal hearing, the Tribunal Member said 'Well, let me look up the case where Mr [K] gave the information, but I can tell you now, I don't think that Mr [K] was telling the Tribunal... the things that he said because Jay or Sunny were the persons with the Tribunal case'.
Second, in the Decision, the Tribunal states firmly that Mr K’s oral evidence was that only two persons, Jay and Sunny, completed the relevant hours of work experience in the bakery (see paragraph [47] of the Decision). That is not necessarily an accurate summary of what Mr K said. What Mr K said, inter alia, was that 'Jay came through with another gentleman' and 'I think his name was Gurdip, I used to call him Sunny'. A feature of Mr K’s evidence was that he could not remember the name of the person other than Jay. Accordingly, the summary of Mr K’s evidence in the Decision is not a completely accurate reflection of what Mr K said to the Tribunal in Proceeding 1219533. Rather, the Tribunal's summary of Mr K’s evidence bears a closer relationship to the findings of the Tribunal in Proceeding 1219533 (see for example, paragraph [39] of the decision in Proceeding 1219533).
While I have found that the Tribunal did not consider the audio recording of the evidence of Mr K, it is apparent that the Tribunal was aware of the substance of Mr K’s evidence in Proceeding 1219533. In the absence of considering Mr K’s oral evidence, I draw the inference that the Tribunal in the present matter had regard to the decision record in Proceeding 1219533. I draw that inference on the basis of what follows. First, the Tribunal clearly had regard to the findings in Proceeding 1215933. In the absence of examining Mr K’s evidence directly, the material relied on by the Tribunal, it seems to me, could only have come from the decision record in Proceeding 1219533. Second, the Tribunal's description of Mr K’s evidence bears some similarity to the way in which the Tribunal explained Mr K’s evidence in the decision record in Proceeding 1219533. Third, the Minister conceded the likely possibility of this having occurred, having regard to the contents of Mr Cunynghame’s affidavit and also the reference by the Tribunal Member in the current proceedings where he indicated that he would 'look up the case where Mr [K] gave the information'.
In view of what I have stated above, the issue that then arises is whether the failure by the Tribunal to consider the audio recording of Mr K’s evidence, and instead rely on the decision record in Proceeding 1219533, gives rise to jurisdictional error. The Applicant contends that jurisdictional error has occurred for reasons that include, among others, the following:
(a)If the Applicant had been informed of the actual evidence of Mr K rather than the conclusions of the Tribunal in Proceeding 1219533, the Applicant could have made the argument, among others, that there were imperfections in Mr K’s memory. It was submitted that the Applicant was denied that opportunity because of the Tribunal's failure;
(b)It was unacceptable for the Tribunal in the present matter to have its conclusion dictated to by the conclusions reached by the Tribunal in Proceeding 1219533;
(c)The Tribunal clearly accessed at least the decision record in Proceeding 1219533. Having done so, it was unreasonable for the Tribunal not to have regard to the audio recording of the evidence. Or, put another way, having accessed at least part of the file in Proceeding 1219533, section 359 of the Act required the Tribunal to have regard to the information in the file which included the audio recording, and not just the conclusions recorded in the decision record.
I propose to deal with the first point above before considering the contentions in respect of unreasonableness or a breach of section 359 of the Act.
The Applicant submitted that had he been properly informed as to the nature of the evidence of Mr K, he could have made submissions, inter alia, to the following effect. Mr K remembered the wrong name, and it could have been him and Jay (and not Sunny and Jay) that did the work experience. Alternatively, Mr K was mistaken and three people completed the relevant work experience, not two individuals. Or further, if Mr K could not easily recall the name of the other person, and could not recall the timeframe, then perhaps he could not have recalled the correct number of people who completed 900 hours of work experience.
I accept that the Applicant may have submitted any or all of the above. However, the following needs to be borne in mind. First, the Applicant had been on notice about Mr K’s adverse evidence for a long time: since October 2012. Second, having listened to the audio recording of Mr K’s evidence, it is apparent to me that while Mr K may have acknowledged some difficulty with timeframes or correctly identifying the proper name of the individual other than Jay, he was able to identify that other individual by the name he called him (Sunny), and by reference to other facts about that person (such as previous work with Ansett). Third, the Applicant having been on notice could have requested the Tribunal to subpoena Mr K to give evidence, but did not do so. In the circumstances, the Applicant was not denied the opportunity to make submissions because of the alleged failure of the Tribunal.
Further, while the Applicant seeks to make much of what he says are essentially the imperfections in the evidence of Mr K, in my view, any imperfections such as may exist, are ones without substance. The evidence of Mr K was clear that being only two persons named Jay and Sunny worked the requisite 900 hours.
There is then the contention by the Applicant that it was unacceptable or unreasonable for the Tribunal to have its conclusion dictated by findings made by the Tribunal in another matter. The Applicant suggested that some guidance as to the role and function of the Tribunal could be distilled from the decision of the Full Court of the Federal Court of Australia in MZZZW v Minister for Immigration and Border Protection and Anor (2015) 234 FCR 154; [2015] FCAFC 133 (Tracey, Murphy and Mortimer JJ) ('MZZZW').
MZZZW arose from a situation in which a matter had been remitted to the then Refugee Review Tribunal. Following remittal, the second Tribunal member to hear the matter extensively copied passages from the decision of the first member to hear the matter and included those passages in her reasons. The Full Court allowed the appeal by the applicant in that case and concluded that the second Tribunal member had not formed her own independent views about the matter.
In the course of its reasoning, the Full Court commented on the role and function of the Tribunal. At paragraph [60], the Full Court stated:
As Beazley J stated in Huluba, merits review involves considering an application for review, and the arguments and claims put forward in it, "afresh". In SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 at [20] - to which we refer below - Flick J spoke of a reconstituted tribunal being called upon to "resolve afresh the claims made". That does not mean the merits review decision-maker considers matters uninstructed by what has gone before, whether at first instance or in other review applications which have not finally determined the merits review process. In our opinion "afresh" is simply a shorthand way of saying "with fresh eyes", and is intended to encapsulate the essence of merits review, and indeed its strength in any robust process of administrative decision-making: namely, that within the limits of the applicable law, a new decision-maker brings her or his own perspectives, approach and reasoning to the claims made by an applicant for review.
Further, at paragraph [66], the Full Court stated:
Taking all the circumstances into account, including reading the reasons published by Member Boddison as fairly as we can, we are not satisfied Member Boddison brought an independent mind to the consideration of the appellant's claims. She failed to discharge the statutory task imposed on the Tribunal to consider an applicant's claims on review for itself, afresh (as we have explained that term) and to make the decision which the Tribunal, as constituted, considers the correct and preferable one The Tribunal's task includes exposing the reasoning of that Tribunal, as constituted, for making material findings of fact and setting out the material on which those findings are based, not the reasons of some other decision-maker. Necessarily, a conclusion of this kind involves the Court forming an overall impression, and it is one on which it is possible reasonable judicial minds might differ. However, we have reached a clear and unanimous opinion that, having failed to perform the task imposed by the statute, the Tribunal's decision must be set aside.
MZZZW is of limited assistance in the context of the present matter. First, MZZZW was concerned with a review under Part 7 of the Act, whereas the present proceeding concerns a review under Part 5. Secondly and more significantly, however, the facts in MZZZW were very different. That was a case concerned with what might be described as wholesale copying of the reasons of a previous Tribunal. That has not occurred in the present matter. In the present matter, what the Tribunal has done is use findings of a previous Tribunal in relation to a narrow question of fact i.e. who worked 900 hours at Bakers Hut.
I have not been able to identify, nor was I taken to, any superior court authority which deals with what the Court is confronted with here: whether the use by a Tribunal of a finding of fact by a previous Tribunal is unreasonable, and/or whether the use of that finding without regard to direct evidence which underpinned the earlier finding is unreasonable. I note that there is a decision by Judge Lucev of this Court in Kaushik v Minister for Immigration & Anor [2019] FCCA 2850. Lucev J was there dealing with a much broader range of review grounds. Lucev J ultimately, however, dismissed the application before him. He did so in circumstances where the Tribunal had regard to evidence given, and findings made, by an earlier Tribunal about inconsistent and vague evidence by an individual who operated a restaurant in which the 900 hours were claimed to have been worked.
In terms of considering the issue, it seems to me that the relevant place to start is to apply the principles relating to unreasonableness and to record at least two aspects of those principles. First, that the standard to be satisfied before unreasonableness is to be found is a stringent one. Second, that assessing what is reasonable ultimately involves considering the context.
The context in this matter was that the Tribunal was concerned with whether the reference relied on by the Applicant was a 'bogus document' for the purposes of section 5 of the Act. Critically, a document will be bogus if the Minister 'reasonably suspects' the document is caught by the definition in section 5 of the Act. The touchstone for considering the present controversy is whether what was before the Tribunal could give rise to a reasonable suspicion that the reference was a bogus document.
The other relevant context that requires mention is that the Tribunal is an administrative body that is not bound by the rules of evidence. Section 353 of the Act speaks to the Tribunal's way of operating, and gives to it a greater freedom in relation to its processes. The Tribunal is not bound by, for example, section 91 of the Evidence Act 1995 as this Court is.
The Tribunal in the present matter had the benefit of earlier Tribunal proceedings regarding Mr K and the persons who had completed 900 hours work experience at Bakers Hut. Findings had been made about those matters by the earlier Tribunal. Further, what were said by the Applicant to be imperfections in the evidence of Mr K I have found to be imperfections without substance and his evidence to be reasonably clear.
This is not a case where the Tribunal simply adopted and applied Mr K’s evidence without considering other material before it. The Tribunal actively engaged with the Applicant's evidence. The nature of the Applicant's evidence in support of his claim was set out and acknowledged by the Tribunal at [30] and [31] of the Decision. The Tribunal accepted that the Applicant had completed 'some hours of work experience at Bakers Hut'. The Tribunal also considered the similarity between the Applicant's work reference and the [CA] version, but placed little weight on that fact.
Finally, the Applicant was clearly on notice about the importance and effect of Mr K’s evidence and had the opportunity to request he be summoned. On the significance of such an opportunity, see Siopis J in Singh v Minister for Immigration and Border Protection [2017] FCA 1443 at [136] - [137].
There is then the issue of whether the approach by the Tribunal in the present matter resulted in the Tribunal contravening section 359 of the Act.
Section 359 of the Act provides that the Tribunal may get any information that it considers relevant, however, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. While I have been prepared to infer that the Tribunal had the decision record in Proceeding 1219533 before it, I do not make a finding that the Tribunal had the audio recording of Mr K’s evidence before it, or that it accessed the entire file in Proceeding 1219533. That is because there is no evidence to support such a finding, and I consider there to be little basis on which an inference could be drawn as to those matters.
Accordingly, the Tribunal did not contravene section 359 of the Act. The Tribunal had before it the decision record in Proceeding 1215933 and considered it. There is no evidence to suggest it had other material before it that it failed to consider.
In view of the matters recited above, the approach by the Tribunal was one that was reasonable and was open to it. It was open to the Tribunal to, among other things, reach a conclusion that there was a reasonable suspicion that the Applicant's work reference was a bogus document. While the Tribunal had regard to earlier findings about Mr K’s evidence, it also considered that evidence in the context of the case before it, including by considering evidence given by the Applicant. The Tribunal did not abdicate its role in weighing the evidence nor did it conduct the review in a manner that does not accord with Part 5 of the Act. In my view, this ground of review must be dismissed.
Ground 2
The second Ground of Review contained in the Application is as follows:
2.Secondly, the Tribunal failed to provide clear particulars of the evidence of Mr [K] in breach of s 359A. Without giving the applicant the context of what Mr [K] such as any questions Mr [K] was asked to adduce the evidence that only Sunny and Jay did the 900 hours, it was unreasonable for the Tribunal to use the evidence as it did.
The notice given by the Tribunal to the Applicant under section 359A of the Act is contained within the Court Book at pages 183-188. Set out below is an extract from the notice:
Invitation to comment on or respond to information
The Tribunal has information that it considers would, subject to any comments or response you make, be the reason, or part of the reason, for affirming the decision that is under review. The purpose of this letter is to invite you to comment on or respond to the information, which is contained in the Tribunal file and supplied by the Department and Trades Recognition Australia (TRA).
The information
The information is as follows:
1.An investigation was conducted into Mr [CA], formerly a teacher at Della International College. Mr [CA] admitted to being involved in creating fraudulent documents for skilled migration purposes which included work reference letters from approximately 40 different employers. Mr [CA] gave a police statement where he stated that he created these fraudulent documents for students to use in their attempts to obtain permanent residency in Australia. He stated that he created the false work reference letters to show that the student had completed 900 hours of work in a trade.
2.In the police statement made by Mr [CA] dated 21 April 2011; Mr [CA]stated that Bakers Hut Bread Supplies was one of the businesses that was involved in providing false work reference letters to students to obtain skills assessments from TRA for skilled visa applications. Mr [CA] stated that he had been employed at Della International College from the beginning of 2006 until November or December 2007. When he was working there, the owners approached him and asked if he could help them out by arranging placements for international students at various employers and help them get their 900 hours voluntary work experience so that they could obtain permanent residency. Mr [CA] stated that Mr [K] had electronic copies of all the false work references he manufactured concerning Bakers Hut Bread Supplies. Mr [CA] also stated that [Mr K] from Bakers Hut was one of a group of employers that agreed for him to sign work reference letters on his behalf. He stated that these employers would read the first few paragraphs of a copy of the work reference and could see that the work experience dates were prior to any student intending to start work. Mr [CA] stated 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. He had an agreement with the employers that they would verify false employment claims if TRA or the Department of Immigration and Border Protection (the Department) checked;
3.In the police statement, Mr [CA] made reference to the search of his residence on 29 September 2009 by AFP officers and Department of Immigration Investigators where they located about 1025 documents on a USB stick he possessed. He confirmed that he falsified these work references by creating the businesses’ letterheads and using the written job descriptions that he obtained from various migration agents. He stated that these documents were used by international students in support of skills assessment applications submitted to TRA, and these assessments were then subsequently used in support of General Skilled Migration visa applications lodged with the Department of Immigration. Mr [CA] stated that he supplied the fraudulent documents and was paid a fee per document;
4.In a County Court of Victoria document entitled ‘Agreed Summary of Material Facts’ it is stated that [CA]’s offending commenced in November 2006 when he was a teacher at Della International College (Della), at [34] and takes in the period when you, in your own work reference letter, claims to have worked at Bakers Hut (December 2006 to January 2008) (f.71) and also the period when you obtained your positive skills assessment and applied for the visa;
5.The Department has provided a redacted copy of a Bakers Hut work reference which was found by police in Mr [CA]’s possession during a search of his residence at folio 67 of the tribunal file (the [CA] version) and the substantive portions of the document are identical in text and layout as your work reference letter submitted to the Department at Department file folio 24 (the TRA version);
6.In an unrelated matter that was before this tribunal, (matter no 1215933), the owner of the Bakers Hut Bakery, gave evidence at the hearing that he met Mr [CA] in 2007 at his bakery. Mr [CA] introduced himself as a teacher at a college and asked if he would like some assistance with students who needed voluntary experience in a bakery. Mr [K] gave evidence that, while he did not want to employ anyone, he saw the benefit in students coming through and assisting with cleaning and basic tasks. He estimated that about 15 people had approached him or his wife. In his evidence, Mr [K] stated that, from 2007 until he sold his bakery in 2009, only two volunteers completed the full 900 hours of work experience at Bakers Hut. He provided the names of those two male volunteers (Jay and Sunny). Sunny completed 900 hours of voluntary work experience before Jay. Jay completed his work experience in 2008 and no other volunteer worked at the bakery after him until he sold the bakery in 2009.
The issues on review
A major issue on review is whether the skills assessment you gave to the Minister’s delegate is a bogus document. If it is a bogus document, as defined in s.5, you may have breached PIC 4020(1) by giving it to the Minister’s delegate.
It may be a bogus document (as defined in s.5) if the tribunal reasonably suspects that it was obtained because of a false or misleading statement in the work reference you gave to TRA. At the time, TRA required you to demonstrate that you had completed at least 900 hours of work experience in your occupation before issuing you with a favourable skills assessment.
The question for the tribunal is whether the statement in the TRA version of the work reference, that you completed more than, or at least, 900 hours of work experience in your occupation, is false or misleading.
Whether you in fact complete the 900 hours of work experience required by TRA is an important question for the tribunal: if at least 900 hours of work experience in the nominated occupation had been completed, then any reference stating that fact would not contain a false or misleading statement and would not be a bogus document, no matter who drafted it or who signed it. However, if you did not complete at least 900 hours of work experience, then any reference stating that fact might contain a false or misleading statement and if TRA issued the skills assessment because of that statement, it could be said that the skills assessment was a bogus document as defined in s.5.
The threshold set by s.5 regarding whether the skills assessment is a bogus document is one of reasonable suspicion. So long as the evidence supports a reasonable suspicion that you had not completed the required work experience (making the statement given to TRA in your work reference letter false and misleading), it could be said that the skills assessment issued by TRA is a bogus document.
How the information is relevant
The information above is relevant to the issues on review in the following ways and for the following reasons:
1.if you had genuinely completed the required work experience at Bakers Hut, you would expect to receive a work reference suitable for your visa application from Bakers Hut management and would have no need to approach [CA] or anyone else outside Bakers Hut for such a document;
2.the fact that the [CA] version is identical in content to the TRA version of the work reference suggests that [CA] wrote and produced the document at a time when you were in need of such a document for your skills assessment and at a time after he admits to have commenced producing such documents in connexion with Bakers Hut and other employers;
3.the fact that Mr [K] has given evidence to this tribunal that only two persons, Jay and Sunny, completed 900 hours of work experience with Bakers Hut suggests that no other person, including yourself, achieved 900 hours of work experience with the business.
The information therefore casts doubt on your claim to have genuinely completed at least 900 hours of work experience in your occupation. This in turn supports a reasonable suspicion that the statement that you completed the required work experience in the TRA version is false or misleading, and that you obtained the skills assessment you gave to the Minister’s delegate from TRA because of the false or misleading statement.
The information therefore suggests that you do not meet PIC 4020(1), and subject to the application of the ‘waiver’ in PIC 4020(4), you do not meet PIC 4020 as a whole, and therefore a mandatory criterion for the visa.
If the tribunal relies upon the information as described above, subject to any comments or response you make to this letter, the information would be the reason, or part of the reason, for affirming the decision under review not to grant you the visa.
•You are invited under s.359A to give comments on or respond to the above information orally at an interview to be held at 2 pm on 2 February 2017. (emphasis in original)
The Applicant's submission having regard to the extract above, and the evidence given by Mr K, is that section 359A of the Act required the Tribunal to convey what Mr K had said in evidence in Proceeding 1215933 which was that his memory of the timeframes was all over the place, and that he could not remember the name of the other individual (apart from Jay) who worked the 900 hours. Had that been done, it is contended the Applicant could have made submissions including submissions previously outlined at paragraph [49] above.
In Nguyen v Minister for Immigration and Border Protection [2019] FCA 159, O'Callaghan J summarised the principles in relation to section 359A of the Act. I adopt that summary which is set out in paragraph [28] of His Honour's reasons, which is reproduced below:
The relevant principles in relation to s 359A (and s 359AA and cognate provisions in other parts of the Act), may be summarised as follows:
(1) The particulars that must be provided are particulars of “information”, which does not extend to particulars of “subjective thought processes or determinations” or the “existence of doubts, inconsistencies or the absence of evidence” (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [23]-[28]; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]).
(2) The information must be information that “would be the reason, or a part of the reason, for affirming the decision that is under review” (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]).
(3) The information in question should in its terms involve a “rejection, denial or undermining” of the review applicant’s claims relevant to the visa criteria in question: (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [22]).
(4) The relevant criteria depends on the Tribunal’s “consideration”, that is, its opinion, that certain information would be the reason, or part of the reason, for affirming the decision under review (Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [24]; SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 at [33]).
(5) The section speaks of information which “would”, not which “could” or “might”, be the reason, or part of the reason, for affirming the decision under review (Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [25]).
(6) The requirement to give information may not extend to a requirement to disclose the entirety of any document in which the information is contained. How much, if any, of the surrounding context in which the information appears must also be disclosed will depend upon the facts and circumstances of the particular case (SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [23]; referred to with approval in SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 at [27], [32]).
(7) The information that is provided must be sufficient to enable the applicant to meaningfully respond or comment to it (SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [23]).
(8) Breach of the duty to accord procedural fairness on the part of the Tribunal constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments (Hossain v Minister for Immigration and Border Protection 92 ALJR 780 at [30], [46], and [72]; Minister for Immigration and Border Protection v SZMTA and Anor; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 at [2]).
I have outlined earlier in these reasons the findings made by the Tribunal in relation to Mr K’s evidence. I have also made findings that Mr K’s evidence was clear and not imperfect as contended by the Applicant. I rely on those findings here. There was no material difference between what is contained in the section 359A notice and Mr K’s evidence.
To the above, I also add the following. There is no requirement on the Tribunal to provide an entire evidentiary record or set out an entire evidentiary record within a notice given under section 359A. The Applicant had been on notice of Mr K’s evidence for a very long time. Moreover, the Applicant had made detailed submissions about Mr K’s evidence in the lead up to the hearing. See, for example Court Book pages 197, 201. The Applicant also had the opportunity to answer questions by the Tribunal at the interview about Mr K’s evidence: see paragraph [24] of the Decision. Finally, the Applicant had the opportunity to request the Tribunal to summon Mr K.
In Singh v Minister for Immigration and Anor [2018] FCCA 320, Judge Hartnett, as she then was, was required to consider whether a section 359A notice given to a visa applicant that contained particulars relevantly identical to the particulars contained in the notice currently before the Court, was sufficiently clear. Judge Hartnett held that the letter in that matter provided sufficient particulars to the Applicant to comply with the obligation contained in section 359A of the Act. It does not appear that Judge Hartnett had before her the direct evidence of Mr K that I now have before me. Nevertheless, Judge Hartnett found not only that the letter complied with the Act, but that the applicant had known about the information for some considerable period of time and that extensive submissions had been made by the applicant's representative in respect of the evidence of Mr K.
When all of the above matters are considered, the Tribunal did not fail to provide clear particulars as required by section 359A of the Act. Nor did the Tribunal act unreasonably in its approach.
For all of the above reasons, I dismiss Ground 2 of the Grounds of Review.
The Application is therefore dismissed. I will make orders for the parties to file material prior to the costs being determined on the papers.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 10 March 2021
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