Singh v Minister for Immigration & Anor
[2016] FCCA 3232
•14 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3232 |
| Catchwords: MIGRATION – Whether the Tribunal failed to comply with s.359A of the Migration Act 1958 (“the Act”) because it did not comply with s.359AA(1)(b)(ii) and (iii) of the Act – held Tribunal failed to comply with s.359AA(1)(b)(iii) of the Act – Tribunal decision affected by jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359AA Migration Regulations 1994 (Cth), cl.886.225, sch.2, item 4020 |
| Cases cited: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 |
| Applicant: | SATVIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 397 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 8 September 2016 |
| Date of Last Submission: | 8 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 14 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dobbie |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 3 February 2015.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the Applicant for review of the delegate of the First Respondent’s decision.
The First Respondent pay the Applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 397 of 2015
| SATVIR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review in relation to a decision of the (then) Migration Review Tribunal (“the Tribunal”) made on 3 February 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the Applicant a Skilled (Residence) (Class VB) visa (“the visa”).
The Applicant is a citizen of India. The following sets out the relevant background:
a)in his visa application, the Applicant stated that his work experience was as a cook for Café Laksa from 15 August 2006 to 2 September 2007 (CB 10);
b)he also stated in his visa application that he had gained a Skills Assessment on 8 July 2008 from Trades Recognition Australia (TRA) and identified the TRA reference number (ending …729)(CB 9);
c)the Skills Assessment found that the Applicant had satisfied the requirements of 900 hours work experience based on correspondence from a Mr S, executive chef and owner of Café Laksa, that the Applicant had gained work experience for more than 925 hours under his direct supervision (CB 40-45);
d)in December 2008, the Department of Immigration and Citizenship (“the Department”) commenced investigations into the work experience references Mr S had signed. During an interview with Mr S, Mr S stated that the employees who had worked for him in respect of whom he had given reference letters (including the Applicant) did not work a total of 900 hours and that he signed the references because he was paid to do so by a migration agent known as Mr K (CB 109-112). Mr S later confirmed in a written statement dated 3 December 2008 that the Applicant did not work for him 900 hours or more and that he in fact worked around 2 to 3 hours per week. He stated that he was paid by a migration agent, Mr K, $800 to sign the work references (CB 179-181);
e)On 21 February 2013, the Applicant was invited to comment on information that Mr S had said that the Applicant had only worked up to 3 hours a week for six months and that he did not complete the 900 hours work experience (CB 187-191);
f)in response to this invitation, the Applicant submitted a statutory declaration in which he stated that he worked for up to 20 hours per week and gained a total of more than 900 hours of work experience at the café (CB 195-198). He also provided statutory declarations from three individuals:
i)Gurpreet Singh Panjeta (CB 200-203), who said he worked as a part-time cook at the Café for 11 months during September 2006 to November 2007, whilst the Applicant worked as a volunteer;
ii)Gurpreet Singh Sangha (CB 204-205), who said he was a regular customer at the Café during the relevant period; and
iii)Jasvir S Sidhu (CB 206-207) who said he was a regular customer at the Café during the relevant period.
The delegate found that the Applicant did not satisfy cl.886.225 of sch.2 to the Migration Regulations 1994 (“the Regulations”). In particular, the delegate found that the Applicant did not satisfy Public Interest Criterion (“PIC”) 4020.
Subclause 886.225(a) of sch.2 to the Regulations relevantly provided that:
The applicant:
(a) satisfies public interest criterion…..4020.
PIC 4020 relevantly provided:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Sub-section 5(1) of the Act defines a “bogus document” as follows:
… 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.
The delegate found that “the evidence of qualifications provided with your application and submitted to Trades Recognition Australia (TRA) to obtain a favourable skills assessment, is false or misleading in a material particular” and for that reason found the Applicant did not satisfy the requirements in PIC 4020(1). The delegate also found that the Applicant had not identified any substantive circumstances to justify it exercising its discretion to waive PIC 4020(1), under PIC 4020(4) (CB 224).
Tribunal decision
The issue for the Tribunal to determine on review was whether the Applicant met PIC 4020 as required by cl.886.225 of sch.2 to the Regulations for the grant of the visa.
The critical finding of the Tribunal is at [22] of its decision record (CB 305):
The Tribunal gives significant weight to Departmental investigations into this matter and in particular the advice received from Mr [S] when investigators met with him in late 2008, as detailed in the site visit notes and witness statement (which were put to the applicant for comment pursuant to s.395AA of the Act as detailed above). This information clearly indicates that Mr [S] received money from an agent (Mr [K]) to sign work experience letters and although many of them worked at his café, none did so for more than 900 hours. The Tribunal is of the view that if the volunteers had genuinely worked for more than 900 hours – as is claimed by the applicant – Mr [S] would not have backed down, even with limited English, and told the investigators otherwise. The Tribunal notes in this regard that it is sufficient that the Tribunal “reasonably suspects” that the document was bogus, for example, because it was not issued in respect to the applicant or because it is counterfeit or had been altered or was obtained because of false or misleading statement (see Sandhu v Minister for Immigration & Anor [2013] FCCA 491).
The Tribunal noted that the Applicant had provided, in support of his contention that he worked at the café for 900 hours or more, statutory declarations from Manjinder Singh Randhawal, who claims to have worked at the café in the relevant period, and a statutory declaration from the Applicant’s brother-in-law, whom the Applicant lived with when he was working at the café. The Tribunal found that the statutory declaration from Mr Randhawal was fairly general and did not overcome the serious concerns raised by the Departmental investigations. It further found that the Applicant’s brother-in-law’s evidence at the Tribunal hearing was general and vague and did not indicate that the Applicant had worked for over 900 hours at the café in the relevant period (CB 305 at [23]-[24]).
The Tribunal said that it had regard to the Applicant’s oral evidence in which he described the café venue itself and the cuisine provided. It accepted that the Applicant may have worked for some period of time at the café but, given the other concerns with this case, was not satisfied that the Applicant worked at the café for over 900 hours (CB 305-306 at [25])
The Tribunal found that the TRA skills assessment was a bogus document within the meaning of the Act because the Tribunal “reasonably suspects that it was obtained because of a false or misleading statement, namely, the statement in the work reference letter that the applicant completed more than 900 hours’ work experience at Café Laksa, whether or not made knowingly.” The Tribunal found that the Applicant had not completed the work experience, and yet gave the Skills Assessment to the Minister or an officer (CB 306 at [29]). Accordingly, it found that the Applicant did not meet PIC 4020(1).
The Tribunal then considered whether the requirements of PIC 4020(1) should be waived under PIC 4020(4). Relevantly, the Tribunal considered the Applicant’s submissions in relation to his business partner as follows (CB 307 at [37]):
It has also been submitted that the Applicant’s Australian citizen business partner, Mr Ravinder Singh, would be adversely affected if the applicant were to leave Australia. At the hearing Mr Ravinder Singh said that if the applicant had to leave Australia he would not be in a position to buy the applicant’s share of the taxi business they co-own. Further, he said that in the current environment it would be difficult to find a buyer, due to industry deregulation which has led to more taxis on the road and a shortage of drivers. The Tribunal accepts that the applicant’s business partner may have to find a new partner for his taxi business if the applicant were to leave and that this may not happen immediately. However, the Tribunal is of the view that it would happen eventually. The Tribunal does not consider that these factors amount to compelling circumstances that affects the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen… that justify the granting of the visa
The Tribunal decided not to exercise its discretion to waive PIC 4020(1). Accordingly, it affirmed the decision under review.
Judicial Review
Ground One
By his amended application filed on 9 August 2016, the Applicant’s first ground of review is:
The Second Respondent committed jurisdictional error by failing to comply with s359A of the Act
Particulars:
(A) The Tribunal failed to comply with s359A of the Migration Act 1958 (‘the Act’) by failing to give to the Applicant clear particulars of the following adverse information, that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision; and failed to ensure, as far as is reasonably practicable, that the Applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the delegate’s decision; and failed to invite the Applicant to comment on or respond to it:
1. The Tribunal did not comply with s359A of the Act in relation to the following information that it considered would be the reason or a part of the reason for affirming the decision under review:
(i) Information that Mr [S] answered ‘yes’ when asked if Mr [K] paid him money to sign employment reference letters, specifying $8,00 or $1, 000 in cash, for each work reference.
(ii) Information that Mr [S], when asked directly if the work experience volunteers worked 930 hours, answered ‘no’.
(iii) Information that Mr [S], in a witness statement, stated:
(a) ‘I can state that none of these students worked 900 hours or more for me’.
(b) ‘These 6 students worked around 2 to 3 hours per week for around 6 months’.
(c) ‘Migration Agent [K] paid me $800 for signing these work references’.
(iv) The Tribunal did not put the above information to the Applicant in compliance with s359AA of the Act. As such, compliance with s359A was mandatory, given that ss359A(3) and 359A(4) did not apply. The failure to comply with s359A constitutes jurisdictional error.
Sections 359A and 359AA provide as follows:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
359AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
They are expressed in the same terms as ss.424A and 424AA of the Act, which apply to reviews conducted by the Tribunal in relation to applications for protection visas. Thus, I am satisfied that reliance can appropriately be made on decisions of the Federal Court in relation to ss.424A and 424AA of the Act in order to elucidate the appropriate construction of ss.359A and 359AA of the Act.
In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 (“SZNKO”), Flick J considered the obligations imposed by these provisions and their interaction between as follows (at [8] to [12]):
8. … Section 424AA “creates no imperative duties; rather, it is an enabling provision which permits the Tribunal, if it wishes, to give particulars at an oral hearing”: SZMUK v Minister for Immigration and Citizenship [2009] FCA 1372 at [22] per Perram J.
9. The evolution of these two provisions has been recounted by Tracey and Foster JJ in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46, 174 FCR 415 at 429 to 430. After having done so, their Honours observed:
[71] The policy and purpose reflected in s 424A is that the Tribunal should be compelled:
(a) To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;
(b) To ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c) To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.
[72] It is evident that the same policy and purpose underpin s 424AA.
Section 424AA is only engaged if there is “information” otherwise falling within s 424A.
10. Section 424A, it will be noted, is expressed in mandatory terms — the Tribunal “must” do those things there specified; s 424AA(a) conveys a discretionary power — the Tribunal “may” give the “clear particulars” there referred to orally to an applicant (SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [24], 103 ALD 589 at 593) and, if it does so, s 424AA(b) then uses the mandatory term “must”. In this way s 424AA(b) attempts to ensure that the “information” communicated orally rather than in writing can be meaningfully addressed. Section 424AA(b)(i), it will be noted, is not an obligation of perfection; it is an obligation to ensure “as far as is reasonable practicable” that an applicant understands the relevance of the “information” in question. Written communication perhaps more readily allows an applicant an opportunity to assimilate information being brought to his attention and to respond; an oral communication of information during the course of what an applicant may regard as a formal hearing may not be susceptible of immediate response or comment. Section 424AA(b)(iii) ensures that an applicant is to be given an opportunity to have “additional time” in which to respond or comment. “[A]dditional time” may be necessary to (for example) collate additional materials to answer the information about which he is being told for the first time or time in which to simply think about what “comment” should be made or how best to “respond”. How much time will be needed will depend upon the nature of the “information” being communicated and an assessment of what is required to meaningfully “comment on or respond”. On occasions, a Tribunal may conclude that the attempts it is making to communicate “information” orally are unsuccessful. In SZMOO v Minister for Immigration and Citizenship [2009] FCA 211 at [30] to [31] it would appear that the Tribunal initially sought to invoke s 424AA but gave up and resorted to communicating the information in writing. See also: SZNLT v Minister for Immigration and Citizenship [2009] FCA 1332 at [40] per Cowdroy J.
11. The procedural requirements imposed by s 424AA(b) remain valuable procedural safeguards.
12. But once the Tribunal has complied with s 424AA it is “relieved of the obligation to comply with s 424A by the provisions of s 424A(2A)”: SZNKX v Minister for Immigration and Citizenship [2009] FCA 1407 at [20] per Lander J.
The Applicant submits that, contrary to the Tribunal’s assertion in its decision record that it put the information to the Applicant in accordance with s.359AA of the Act (CB 303 at [14] and CB 304 at [16]), the Tribunal failed to comply with the mandatory requirements under s.359AA of the Act.
As developed by Counsel for the Applicant at the hearing, the Applicant’s complaints are twofold:
a)firstly, that the Tribunal failed to orally invite the Applicant to both comment on or respond to the information: sub‑s.359AA(1)(b)(ii) of the Act; and
b)secondly, that the Tribunal failed to advise the Applicant that he may seek additional time to comment on or respond to the information: sub-.359AA(1)(b)(iii) of the Act.
In circumstances where the Tribunal failed to comply with those requirements and where the Tribunal chose not to invite the Applicant to comment or respond to the ‘adverse’ information under s.359A of the Act, the Applicant submits that the Tribunal fell into jurisdictional error.
The Applicant relies on the following extracts from the transcript of the hearing[1] (T28 to T29-5):
[1] Annexure A to the affidavit of Chloe Ryu affirmed on 9 August 2016.
MS BURNS: Okay. Just before I bring them in to give evidence, I just wanted to put to you some information about the site visit notes on - that we've touched on a little bit before, on 3 December 2008. So when Departmental officers visited Café Laksha and they spoke to the owner then. There is some notes on the Department file. Your representative has, I think, through FOI, had a look at those notes and in the submission some parts of that has been referred to. I just wanted to pull out, I guess, some of the bits in those notes that I think might be relevant to your case. And then you can have a - you can have a chance to comment on them. And, again, I haven't made up my mind about this. It's just - I just want to be transparent about what the information and evidence is before me.
So according to the site visit notes - I won't go into all the details. But - so Mr [S] answered yes when asked if Mr [K] had paid him money to sign the references. And he specifically said he received about $800 or $1000 in cash for each work reference. So that was - that was one point. And when he was asked directly whether you and the others that he mentioned did work at his café he - they did not work 930 hours he answered no. There's also a hand written witness statement apparently from Mr [S] dated 3 December 2008. And in paragraph it states, “I can state that none of these students worked 900 hours or more for me.” In paragraph 11 it states, “There's six students” - so that's including you, “worked around two to three hours per week for around six months.”
And again he says in the witness statement that, “Migration agent [K] paid me $800 for signing these work references.” Now, I know we've touched on some of this during the course of the hearing. But I just wanted to sort of say to you that I guess out of all the site visit notes and the witness statement from your former employer, that's probably the most relevant. Because that information, depending on your comments and depending on how I see all this evidence, it could lead me to doubt that you actually worked at the café for more than 900 hours. And I guess that's the key point. It's not that you worked there for some period of time. It's that worked for more than 900 hours, because that's what the work experience letter said and that's what you needed to get a positive skills assessment from TRA.
So that's key. And - and if - if I find that that was the case, that you didn't work for 900 hours then that will lead me to conclude that the TRA skills assessment was a bogus document. That would be the reason or part of the reason for affirming the decision under review. Again, I don't think any of this information that I've just told you about is particularly new to you. But do you want to comment on it - on that information over and above - you've already provided comments, but anything else you want to say? And in doing so do you also want to have a short break and discuss this with your representative or I can also have a written submission, you know, whatever way you're comfortable in commenting on that information.
MR .........: Do you want to - can we have a short break.
MS BURNS: Adjournment? Yeah, how much time do you want?
MR .........: Five minutes, is that - - -
MS BURNS: That's fine. Do you want 10 just to...
MR .........: Five should be fine.
MS BURNS: Five all right. We'll just adjourn it for five minutes. So just go outside. Knock on the door when you're ready. I'll wait here.
MR .........: Sure. Okay.
The Applicant submits that the Tribunal failed to comply with the obligations under s.359AA of the Act because the Tribunal did not invite the Applicant to “comment on or respond to information”. The Applicant submits that it is evident from the transcript (extracted above) that the Tribunal only asked the Applicant to comment on the information and did not ask the Applicant to respond to the information, and thereby failed to comply with the mandatory obligation contained in sub-s.359AA(1)(b)(ii) of the Act. In support of this submission, the Applicant relies on the decision of Justice Jagot in in Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233 (“Saba Bros”) and, in particular, her Honour’s consideration of the meaning of the phrase “comment on or respond to information” at [30] to [32]:
30. Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: “comment on or respond to” the information in the case of s 359A(1)(c), and “the comments or the response” in the case of s 359C(2)(b). This indicates that an applicant may either “comment on” or “respond to” the information in the invitation, or both comment on and respond to the information. The choice – to comment, respond or both – is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines “to comment” as “to make comments or remarks [upon]”; by contrast, “to respond” is simply “to answer in speech or writing; to reply”. An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.
31. It is true that s 359C(2)(b), read with s 359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response.
32. Nothing in the context of or purpose underlying the relevant provisions indicates that the word “respond” should be given other than its ordinary and natural meaning of “to answer” or “to reply”. As Saba Bros submitted, the option of responding to (as opposed to commenting on) information under s 359A was inserted into the Migration Act by the Migration Amendment (Review Provisions) Act 2007 (Cth). If, as the Minister contended, a “response” requires an applicant expressly to state a position in relation to the information, the distinction between comment and response introduced by Parliament in 2007 would be rendered redundant.
The Applicant particularly draws on the decision in Shrivastava v Minister for Immigration and Border Protection [2015] FCCA 483 (“Shrivastava”), where Cameron J stated (at [22]-[26]):
22. Although the words “comment on” and “respond to” mean much the same thing, their differences can be material. For instance, in the context of s.359A Jagot J said in Minister for Immigration & Citizenship v Saba Brothers Tiling Pty Ltd (2011) 194 FCR 11:
It is true that s.359C(2)(b), read with s.359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response. (at 18 [31])
23. Under s.359AA the situation is somewhat different. This is because, at a Tribunal hearing, anything said and any gesture expressed by an applicant to the Tribunal in reply to a notification of adverse information pursuant to that section would amount to a response. In fact, anything other than complete silence and physical immobility could be a response. Because inviting a content-free response to adverse information serves no purpose, I conclude that s.359AA, unlike s.359A, is concerned solely with responses which are substantive in nature and that s.359AA requires the Tribunal, upon notification of adverse information at its hearing, to afford an applicant an opportunity, by the medium of an invitation to respond, to make a response of that sort.
24. Further, because “response” is a wider concept than “comment” (Saba Bros at 18 [30]), an applicant is not restricted under s.359AA merely to offering commentary on adverse information. He or she is entitled to put more substantial material before the Tribunal, perhaps evidence in rebuttal of the adverse information which the Tribunal has notified, although the Tribunal may not grant additional time to gather evidence which an applicant does not already have in his or her possession.
25. It can therefore be seen that the obligation imposed by s.359AA to invite an applicant to “respond to” adverse information is a substantive procedural fairness obligation. Such obligations must be observed when the appropriate circumstances obtain, as they did in this case: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294. Because, as the transcript reveals, the Tribunal failed to invite the applicant to make a response to the information about the “chief manager”, inviting him only to make a comment, it failed to observe a strict requirement of the Act with the consequence that its review was affected by jurisdictional error.
The Applicant also submits that the Tribunal failed to advise the Applicant that he could seek additional time to comment on or respond to the information: sub-s.424AA(b)(iii) of the Act.
The Applicant relies on Justice Flick’s elucidation of the obligations under sub-s.424AA(b)(iii) of the Act in SZNKO, as follows (at [31]):
The statement that the present Appellant need not “comment on those things today”, if he preferred not to, reverses the requirement imposed by s 424AA(b)(iii). If s 424AA(a) is invoked, s 424AA(b)(iii) imposes a requirement that an applicant be positively advised that he may seek additional time in which to respond. How that advice may be effectively communicated may be left to be resolved by reference to the facts and circumstances of individual cases. But compliance is not achieved by a statement which merely implicitly conveys to an applicant that he may seek and be given “additional time”. Nor can non-compliance with s 424AA(b)(iii) necessarily be excused or cured by reason of “additional time” in fact being extended. Non-compliance with s 424AA(b)(iii) may not in all cases be equated with a consideration of whether there may be discretionary reasons for refusing relief.
Reliance is also placed on the Full Court decision in SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 (“SZTGV”) , where Perram, Jagot and Griffiths JJ stated at [55]-[56]:
55. The extracts from the transcript set out above disclose that the Tribunal asked the appellant’s representative whether she wished to “make a submission today” or “rely on your submission that’s dated 14 June” or “did you want time to put something in writing”. These questions were not put to the appellant’s representative in the immediate context of the information under s 424A. Nor were they understood by the appellant’s representative to relate to that information. Later in the hearing, the appellant’s representative sought and was granted more time in respect of a mental health issue which she wished to explore.
56. If s 424A(1) had applied to the information in the present case, then we would not be satisfied that the Tribunal complied with s 424AA(b)(iii). In the context in which it arose (which was not the information which the Tribunal put under s 424A) asking the appellant’s representative whether she wished to “make a submission today” or “rely on your submission that’s dated 14 June” or “did you want time to put something in writing” did not satisfy the requirement that the Tribunal advise the appellant that he may seek additional time to comment on or respond to the information. The questions asked did not involve the Tribunal in advising the appellant of anything. The fact that the appellant’s representative did not seek an adjournment of the hearing under s 424AA(b)(iv), contrary to the Minister’s submissions, does not mean that s 424AA(b)(iii) would have been satisfied on the facts of this case. The failure to advise the appellant as required by s 424AA(b)(iii), had s 424A(1) applied, would have meant that the Minister could not succeed in the argument that the Tribunal did not need to comply with s 424A(2) because it had complied with s 424AA.
As to whether the Tribunal had complied with sub-s.359AA(1)(b)(iii) of the Act, Cameron J said in Shrivastava at [27]-[29]:
27. What the Tribunal relevantly did in this case was to ask the applicant:
a) if he wanted to comment on the adverse information straight away;
b) whether he would like a “little break” to think about the adverse information; and
c) whether he would like to comment in writing on the adverse information.
28. The second of the Tribunal’s questions suggested the availability of a small amount of additional time to formulate a comment at the hearing while the third suggested the ability to make post-hearing written submissions. Although the availability of additional time was implicit in those questions, the section required more than that. It required the Tribunal to advise the applicant that he could seek extra time to provide comments or a response. It did not do that. Additionally, what the Tribunal said also implied that the applicant was entitled to additional time, which was not the case. Whether he would be given additional time was a matter for the Tribunal to decide and so the Tribunal’s questions implicitly misrepresented the situation to the applicant.
29. The Tribunal failed in discharging the imperative duty imposed on it by s.359AA(b)(iii) with the consequence that its decision was affected by a second error going to jurisdiction.
In oral submissions, Counsel for the Minister accepted that, in light of the authorities referred to above, the Tribunal was required to invite the Applicant to both comment on, and respond to, the relevant information.
The Minister submits, however, that it is evident from the transcript that this is what the Tribunal conveyed to the Applicant. The Minister relies on the judgment of Justice Flick in SZNKO where his Honour said at [29]:
Compliance with s 424AA(b)(iii) and/or (iv), does not require a Tribunal Member to repeat the very words employed in s 424AA(b)(iii) in some ritualistic or “parrot-like recantation”. Indeed, cases may be envisaged where to do so may not meaningfully convey to an applicant the opportunity sought to be secured by those provisions. Compliance with those provisions must necessarily depend upon the facts and circumstances of the claims being advanced before the Tribunal, the ability of any particular applicant to properly avail himself of the opportunity to be heard before the Tribunal, and the limited procedural protections prescribed by the Commonwealth legislature.
The Minister also notes that in SZTGV the Full Court said, referring to the decision of Flick J in SZNKO (at [31]-[32]):
31. His Honour continued at [31] as follows:
If s 424AA(a) is invoked, s 424AA(b)(iii) imposes a requirement that an applicant be positively advised that he may seek additional time in which to respond. How that advice may be effectively communicated may be left to be resolved by reference to the facts and circumstances of individual cases. But compliance is not achieved by a statement which merely implicitly conveys to an applicant that he may seek and be given “additional time”. Nor can non-compliance with s 424AA(b)(iii) necessarily be excused or cured by reason of “additional time” in fact being extended. Non-compliance with s 424AA(b)(iii) may not in all cases be equated with a consideration of whether there may be discretionary reasons for refusing relief.
32. Although the Minister submitted that SZNKO was wrongly decided, the general propositions which Flick J identifies at [29] and [31] do nothing more than reflect the terms of the relevant provisions and orthodox principles. No doubt, the result turned on the particular facts, and reasonable minds might differ about those facts, but his Honour’s statements of general application are persuasive.
The Minister submits that it is relevant that the Applicant was represented at the hearing by a migration lawyer. It is argued that it is apparent from the exchange that the Applicant is told by the Tribunal member that, before he comments on or responds to the information, he can have short break and discuss this with his representative. The Tribunal member indicated to the Applicant that he could make a submission in writing or in any way he felt comfortable. In these circumstances, the Minister submits, the Tribunal complied with sub‑s.359AA(1)(b)(ii) of the Act.
Consideration
I will deal firstly with the Applicant’s submission (relying on the decision in Shrivastava) that the failure of the Tribunal to use the words “comment on or respond to” when talking to the Applicant, with respect to information falling within the description of sub‑s.359AA(1)(a) of the Act, means that the Tribunal failed to comply with its mandatory obligation contained in sub-s.359AA(1)(b)(ii) of the Act and thereby fell into jurisdiction error.
If Shrivastava is said to stand for the proposition that the mandatory requirements of sub-s.359AA(b)(ii) of the Act can only be met where a Tribunal member, having complied with sub-ss.359AA(1)(a) and (b)(i) of the Act, uses both words “comment” and “respond”, then I disagree. In my opinion, the mandatory requirements of sub‑s.359AA(1)(b)(ii) of the Act are met where a Tribunal member meaningfully conveys to the Applicant that he is being invited to provide a comment or remark, or make observations on the information, or to provide an answer or reply: see Saba Bros at [30] (extracted in full at [23] above). I reject any notion that a resort to ritualistic incantation of that subsection is required before the Tribunal can be said to have satisfied the mandatory requirements of sub‑s.359AA(1)(b)(ii) of the Act. In my opinion, the observation of Justice Flick in SZNKO at [29] (extracted in full at [30] above), in relation to sub‑s.359AA(1)(b)(iii) of the Act, applies equally to sub‑s.359AA(1)(b)(ii) of the Act. I have reached this view for the reasons set out below.
Firstly, the requirements of sub-s.359AA(1)(b)(ii) of the Act must be construed in context. In SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46, Tracey and Forster JJ said as follows (at [71]-[72]):
71. The policy and purpose reflected in s 424A is that the Tribunal should be compelled:
(a) To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;
(b) To ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c) To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.
72. It is evident that the same policy and purpose underpin s 424AA.
Thus, the evident purpose of the provisions is to give the Applicant a reasonable opportunity to comment on or to respond to the “adverse” information. What is a “reasonable opportunity” must depend on the particular circumstances of each case. Its content will vary from case to case. The nature of the obligation on the Tribunal was considered by Bromberg J in MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 to be a “meaningful opportunity” (at [33]):
33. For the Tribunal properly to invoke the facility provided by s 424A(2) and proceed orally under s 424AA rather than in writing under s 424A, it must provide to the visa applicant “clear particulars” of any information that the Tribunal considers would be the reason, or part of the reason, for affirming a decision that is under review. Additionally the Tribunal must ensure that, as far as is reasonably practicable, the visa applicant understands why the information is relevant to the review and the consequences of the information being relied upon for the decision under review: s 424AA(a) and (b)(i): and see Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 per Branson, Finn and Bennett JJ at [31]. Thereafter, the visa applicant must be given a “meaningful opportunity” to comment and respond to the information, including by seeking additional time and, if the Tribunal considers it reasonably necessary, through an adjournment of the hearing: s 424AA(b)(ii)-(iv) and SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 per Flick J at [23] and [27].
(my emphasis)
What is a reasonable or meaningful opportunity to comment on or respond cannot have any fixed content. The content of those concepts can only derive from the circumstances in which that opportunity must be provided.
Secondly, it cannot be assumed that an Applicant appearing before the Tribunal will understand the niceties of the distinction between the words “comment” and “respond”. This is particularly true where the Applicant requires the assistance of an interpreter in their own language. It is, in my view, manifestly clear that if a Tribunal member simply repeats the phrase “comment on or respond to”, an applicant may well not understand what he/she has been invited to do. Thus, it could not be said that the applicant has been given a reasonable or meaningful opportunity to comment on or respond to the information. In my opinion, providing an applicant with a reasonable or meaningful opportunity to comment on or respond to the information requires the Tribunal to be attuned to the applicant’s circumstances, the nature of the information in question and the responses given by an applicant. The invitation can be conveyed by a variety of questions; such as, “is there anything to say about that?”, “what do you have to say about… (referring to the information)”, or “this is your chance to let me know what you think/say about the …(information)”. It may also be that a meaningful opportunity requires the Tribunal to repeat, or later return to, the questions where it is evident from the applicant’s responses that he/she does not understand that they are being invited to comment on or respond to the information.
Turning to the extract relied on by the Applicant (extracted at [22] above), there is no dispute that the Tribunal member gave clear particulars of the information, namely:
a)site visit notes dated 3 December 2008 which record Mr S saying that Mr K paid him money to sign work references and that the Applicant and others had not worked 900 hours or more; and
b)a statement by Mr S that none of the students (including the Applicant) worked 900 hours or more.
The Tribunal member preceded the identification of the information by noting that the Applicant’s migration agent had already obtained this information.
There is also no dispute that the Tribunal took steps to ensure that the Applicant understood why the information was relevant to the review.
In this context, the Tribunal member said:
So that's key. And - and if - if I find that that was the case, that you didn't work for 900 hours then that will lead me to conclude that the TRA skills assessment was a bogus document. That would be the reason or part of the reason for affirming the decision under review. Again, I don't think any of this information that I've just told you about is particularly new to you. But do you want to comment on it - on that information over and above - you've already provided comments, but anything else you want to say?
(my emphasis)
The Tribunal’s questions to the Applicant cannot be considered in a vacuum. The Applicant was aware of the information and had, in fact, already responded to the information (see 2e) and f) above). In that context, the Applicant was asked whether he wanted to comment on the information and whether he wanted to say anything else. This latter question, in my view, amounts to an invitation to respond or reply.
Further, it is relevant that the hearing was adjourned very shortly after the Tribunal member made these statements and, upon resumption of the proceedings, the following exchange occurred (at T29.17 to T29.27):
MS BURNS: Okay. Now, was there any comments you wanted to make on that information at this stage?
MR……….: We’d really be relying on the written submissions that we’ve already provided and the oral evidence that the applicant’s already given, which covers the issues raised
MS BURNS: Yeah
MR …: I guess the only additional information that we’d bring to your attention is what we’ve included in the submission is that we’re not entirely sure how reliable the notes are for the site visit…
There is then recorded on transcript, submissions made by the Applicant’s migration agent, regarding the unreliability of the site visit notes and adjournment in proceedings. There can be no doubt that in the circumstances of this case, the Applicant was given a reasonable opportunity to comment on or respond to the adverse information.
In those circumstances, I am satisfied that the Tribunal complied with sub‑s.359AA(1)(b)(ii) of the Act.
Turning to the Applicant’s further ground that the Tribunal did not comply with sub-s.359AA(1)(b)(iii) of the Act.
In SZTGV, the Full Court dismissed the appeal because it found that that the information fell within the exceptions to the requirements imposed by s.424A of the Act, because the Applicant gave the information to the Tribunal. However, it considered whether, in circumstances where sub-s.424A(1) of the Act applied, what was said by the Tribunal at the hearing met the requirements of sub-s.424AA(1)(b)(iii) of the Act (see the relevant paragraph extracted in full at [27] above).
Whilst these observations may be described as obiter, they are compelling and impose strict requirements on the steps required to be taken by the Tribunal in complying with sub.s-424AA(1)(b)(iii) of the Act. It is evident that nothing less than a clear statement that conveys to an Applicant that he/she may seek further or additional time will be sufficient. The Full Court in SZTGV approved the general propositions set out by Justice Flick in SZNKO at [29] and [31]. At [29], where his Honour said that sub‑ss.424(1)(b)(iii) and (iv) of the Act did not oblige a Tribunal member to ritualistically repeat parrot-like the words in those sub‑sections. Further, and uncontroversially, that compliance must depend on the facts and circumstances in each case. However, at [31], in the circumstances of that particular case, his Honour said:
The statement that the present Appellant need not “comment on those things today”, if he preferred not to, reverses the requirement imposed by s 424AA(b)(iii). If s 424AA(a) is invoked, s 424AA(b)(iii) imposes a requirement that an applicant be positively advised that he may seek additional time in which to respond. How that advice may be effectively communicated may be left to be resolved by reference to the facts and circumstances of individual cases. But compliance is not achieved by a statement which merely implicitly conveys to an applicant that he may seek and be given “additional time”. Nor can non-compliance with s 424AA(b)(iii) necessarily be excused or cured by reason of “additional time” in fact being extended. Non-compliance with s 424AA(b)(iii) may not in all cases be equated with a consideration of whether there may be discretionary reasons for refusing relief.
In this case, the following exchange occurred (T28.40 to T29.6):
MS BURNS: …And in doing so do you also want to have a short break and discuss this with your representative or I can also have a written submission, you know, whatever way you're comfortable in commenting on that information.
MR .........: Do you want to - can we have a short break.
MS BURNS: Adjournment? Yeah, how much time do you want?
MR .........: Five minutes, is that - - -
MS BURNS: That's fine. Do you want 10 just to...
MR .........: Five should be fine.
MS BURNS: Five all right. We'll just adjourn it for five minutes. So just go outside. Knock on the door when you're ready. I'll wait here.
MR .........: Sure. Okay.
It seems to me that the following occurred. Having invited the Applicant to comment on or respond to the information, the Tribunal member:
a)asked the Applicant if he wanted a short break;
b)informed the Applicant he could make a written submission;
c)referred somewhat generally to the Applicant doing whatever he felt “comfortable in commenting on the information”;
d)the Applicant’s migration agent asked for a short break;
e)the Tribunal member referred to this as an “adjournment”; and
f)the Applicant’s migration agent informed the Tribunal that five minutes was sufficient.
I have formed the view that the Tribunal adopted an approach which lacked the critical aspects necessary to meet the requirements under sub‑s.359AA(1)(b)(iii) of the Act.
Asking the Applicant if he wanted a “short break” or that he could make a written submission, did not amount to advising him that he could seek additional time. The concept of “additional time” is broader than the notion of an adjournment during the proceedings or the opportunity to make written submissions: SZTGV at [56].
Saying to the Applicant that he could do whatever he felt comfortable doing, cannot be said to have conveyed that he could seek additional time. It is meaningless in context.
There is, of course, the fact that the Applicant was represented by a migration agent, who, after a short break, informed the Tribunal that the Applicant would rely on the written submissions provided to the Tribunal and the Applicant’s oral evidence.
It is apparent that the questions were put to the Applicant in the immediate context of the information under s.359AA of the Act. It is apparent that the Applicant’s representative understood these questions related to the information, because the representative addressed the Tribunal, after the short break, about the probative value of the information.
On the other hand, the failure of a representative to take positive steps to seek additional time does not in and of itself mean that sub‑s.359AA(1)(b)(iii) of the Act is satisfied. The obligation under that subsection is a positive obligation to advise the Applicant that he can seek additional time.
At most, in this case, the Tribunal advised the Applicant that he could have a short break and discuss matters with his representative or make a written submission.
On balance, I am not satisfied that the Tribunal conveyed to the Applicant that he could seek additional time to comment on or respond to the information. Accordingly, I am not satisfied that the Tribunal complied with sub-s.359AA(1)(b)(iii) of the Act, and therefore I find that its decision was affected by jurisdictional error.
Ground Two
As I have found that the Tribunal’s decision was affected by jurisdictional error, it is not strictly necessary for me to consider the second ground of review. However, in the event I am wrong in relation to the first ground of review, I shall proceed to deal with the second ground.
The Applicant’s second ground of judicial review is as follows:
The Tribunal failed to conduct the review required by s348 of the Act because it failed to have proper regard to the evidence before it, or it failed to consider a claim or an integer of a claim:
(i) The Tribunal failed to have regard to the following given in support of the Applicant’s claim that he had undertaken the work experience claimed:
(a) A statutory declaration by Gurpreet Singh Panjeta, dated 5 March 2013.
(b) A statutory declaration by Gurpreet Singh Sangha, dated 11 March 2013.
(c) A statutory declaration by Jasvir S Sidhu, dated 4 March 2013.
(d) The above declarations were evidence that corroborated the Applicant’s claim in relation to having undertaken the work experience. Failure to have regard to it constitutes jurisdictional error.
(ii) In support of why the waiver contained in subclause 4020(4) should be exercised, the Applicant claimed that his business partner, Mr Ravinder Singh would be adversely affected if the delegate’s decision was affirmed.
(a) It was put to the Tribunal that the Applicant and Mr Ravinder Singh had bought a taxicab together, for $45000, and that money was still owing on it; that the monthly operating expenses were approximately $4000 per month; that Mr Ravinder Singh could not afford to buy out the Applicant’s share of the lease; that giving up the lease would result in a major financial loss to Mr Ravinder Singh, that his family is reliant on the income from the taxi leasing arrangement and that losing income from leasing the taxi licence would be a ‘significant financial hit’. At the hearing before the Tribunal, Mr Ravinder Singh confirmed that he could not run the business by himself and that he would suffer financially.
(b) The Tribunal’s reasons disclose that rather considering the integers of the claim and the evidence before it, it only considered whether Mr Ravinder Singh would be able to find a new business partner. Its failure to have proper regard to the claim, its component integers and the evidence before it constitutes jurisdictional error.
The Applicant submits that the Tribunal failed to properly consider the evidence before it or claims, and integer of claims, being:
a)his claim that he had undertaken work experience in excess of 900 hours at Café Laksa, because it failed to have regard to three statutory declarations provided by the Applicant; and
b)his claim that his business partner, Mr Ravinder Singh would be adversely affected because it only considered whether Mr Singh would be able to find a new business partner.
The Applicant relies on a decision of Judge Manousaridis in SZURJ v Minister for Immigration and Border Protection [2016] FCCA 1771 at [22]-[23]. It is unnecessary, for the purpose of the disposition of this ground of review, to set out the extract from his Honour’s judgment in full.
The Applicant submits that it is evident from the Tribunal decision record that the Tribunal did not properly consider the Applicant’s claim or integer of claim when it described the statutory declaration of Manjinder Singh Randhawal as fairly general (CB 305 at [23]). I note here that the reference to a statutory declaration from Manjinder Singh Randhawal in the decision record is clearly an error and that, in context, the Tribunal intended to refer to a statutory declaration from Gurpreet Singh Panjeta, as this is the only deponent provided by the Applicant who worked at the café. The other two deponents said they were customers at the café.
The Applicant argues that the statutory declaration of Gurpreet Singh Panjeta could not be described as “fairly general”. The Applicant points to paragraph 6 of the statutory declaration (CB 201) where Mr Panjeta says:
… I state that he has definitely worked more than 3 hours a week, I recall and state that he worked there upto 20 hours a week and I also state that the duration of his above stated volunteer work with cafe Laksa … was at least one year.
The Applicant’s submissions in support of his claim that the Tribunal failed to properly consider the evidence or claim or integer of claim on the basis that the statutory declaration was, contrary to the finding of the Tribunal, not general is, in my opinion, simply an attempt to engage the Court in impermissible merits review. The Tribunal was perfectly entitled to describe the critical part of the statutory declaration put in support of the Applicant’s assertion that he did work more than 900 hours during the relevant period, as “fairly general”. Paragraph 6 of Mr Panjeta’s statutory declaration relied on by the Applicant says no more than that the Applicant worked more than three hours, and up to 20 hours, a week over the relevant period. This could mean that the Applicant worked less than 900 hours or more than 900 hours.
The Applicant also submits that the failure of the Tribunal to refer at all, in its decision record, to the statutory declarations of Gurpreet Singh Sangha and Jasvir S Sidhu amounted to a failure to consider material evidence critical to the Applicant’s claim. The Applicant concedes that, as those deponents were customers rather than fellow employees at the café, there may have been an issue with the cogency of the evidence. Nevertheless, it is asserted that the Tribunal’s failure to even consider the statutory declarations fell within the category of jurisdictional error. The Applicant relies specifically on the observation of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, where his Honour said at [111] to [112]:
111. In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
112. As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.
This submission of the Applicant is easily dealt with. When regard is had to the statutory declarations of Gurpreet Singh Sangha and Jasvir S Sidhu, it is immediately apparent that the cogency of their evidence is extremely limited. All that is said by Gurpreet Singh Sangha is that, whilst he was a regular customer at the café during August 2006 to September 2007, he met and saw the Applicant on a regular basis as an employee for a period of more than one year. This deponent authorised the Applicant to use the statutory declaration in support of his claim that he worked at the café for period of more than one year (CB 204). The statutory declaration of Jasvir S Sidhu deposed to almost exactly the same matters.
In these circumstances, I am satisfied that the failure of the Tribunal to refer to or consider the two statutory declarations does not amount to the Tribunal overlooking cogent evidence which can be said to be material to the Applicant’s claim that he worked more than 900 hours at the café. In fact, these two statutory declarations contained no evidence in relation to this claim.
The second body of evidence, or claim or integer of claim, which the Applicant asserts that the Tribunal failed to properly consider, was the evidence given by Mr Ravinder Singh, the Applicant’s partner in a taxi business. This evidence was given to persuade the Tribunal to exercise its discretion to waive the requirements of PIC 4020(1) on the basis of the existence of compassionate or compelling circumstances affecting the interests of an Australian citizen: PIC 4020(4)(b).
The Applicant submitted that the following relevant claims and evidence were before the Tribunal in relation to Mr Ravinder Singh:
a)in written submissions dated 12 August 2014, provided by the Applicant’s migration agent to the Tribunal under the heading “Compelling Circumstances,” it was relevantly submitted that (CB 264-265):
73. Further, the Review Applicant is in a business partnership with an Australian citizen, Ravinder Singh, in the leasing of a taxi cab licence. The two share all of the expenses of leasing and operating a taxi in a 50% split and have signed the lease agreement on that basis. Monthly operating expenses are approximately $4,000.
74. Ravinder Singh is not in a position to take over the entire lease himself. Giving up the lease will be a major financial loss to him. Ravinder Singh and the Review Applicant have known each other for almost 10 years. The two operate a joint bank account together that shows their income and outgoings (attached). There is not another person that Ravinder Singh trusts to enter into a partnership with that is able to do so at this time.
75. Ravinder has a young family; 2 children in school and a wife who works part-time. They are reliant on the income that Ravinder provides from the leasing arrangement with the Review Applicant. Losing the income from leasing a taxi licence, even if he were to find employment as a driver for someone else, would be a significant financial hit.
b)In evidence given by Mr Ravinder Singh at the Tribunal hearing as follows:
(T26.35):
MS BURNS: And when you said fifty-fifty, what did you – what did you buy?
S SINGH: Like, I have to pay, like, as a car we bought it. We bought a car, like,35’ish, 35 I think like a couple of years ago. We had a loan about 45 grand and then we’re still paying off that one. And then plus we have to pay the lease, plus we have to pay the insurance, plus we have to maintain all the cabs wear and tear and plus we have to pay the depot fees.
(T36 to T36.45)
R SINGH: Yes, we do have the partnership in one taxi. Yeah. We do as partners, yeah.
…
MS BURNS: So if he had to leave Australia; if Mr Singh had to leave Australia what would be the impact on your business?
R SINGH: Because it’s very, like, you know, it’s very difficult to run the taxi business now. There’s a lot of driver shortage and ---
MS BURNS: why is that do you think?
R SINGH: Because the government put a lot of taxis recently, the last three or four months.
MS BURNS: Is this – sorry, Mr Singh, is this what you were talking about, about deregulating the ---
…
MS BURNS: If – if Mr Singh had to leave would you be able to keep ---
R SINGH: No. I can’t because, you know ---
MS BURNS: --- running the business by yourself or could you buy out the other 50 per cent?
R SINGH: No, No. Like, now if [unclear…] taxi or anything, because the time is coming very difficult. So got to get out from taxi business otherwise..…
MS BURNS: How long have you been in the taxi business for? Since 2008 or before?
R SINGH: Last – 1999.
(T37.20 to T37.45)
MS BURNS: Okay. So it would impact on you financially if he had to leave?
R SINGH: Of course, yes. Yeah.
MS BURNS: And do you think it would be hard to find not only drivers but also possibly another owner ---
R SINGH: Yes, other offsider, yeah.
MS BURNS: --- 50 per cent owner, partner?
R SINGH: Yeah.
MS BURNS: For the same reasons?
R SINGH: Because we do understand each other. It’s very difficult doing - doing business with someone you don’t know, you know. We’ve established a business for a long time.
MS BURNS: And your business together, has it been doing reasonably well financially?
R SINGH: It’s doing okay now because the government deregulate the taxis the future is coming, like, very difficult.
The Applicant submits that the Tribunal’s consideration of this evidence is disclosed at [37] of its decision record (CB 307):
It has also been submitted that the applicant’s Australian citizen business partner, Mr Ravinder Singh, would be adversely affected if the applicant were to leave Australia. At the hearing Mr Ravinder Singh said that if the applicant had to leave Australia he would not be in a position to buy the applicant’s share of the taxi business they co-own. Further, he said that in the current environment it would be difficult to find a buyer, due to industry deregulation which has led to more taxis on the roads and a shortage of drivers. The Tribunal accepts the applicant’s business partner may have to find a new partner for his taxi business if the applicant were to leave, but this may not happen immediately. However, the Tribunal is of the view that it would happen eventually. The Tribunal does not consider that these factors amount to compelling circumstances that affects the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen… that justify the granting of the visa.
The Applicant argues that this reasoning reveals that the Tribunal misunderstood or overlooked the Applicant’s evidence about the deleterious impact on the Applicant’s business partner’s financial and personal circumstances. It is argued that the Tribunal focused only on whether the Applicant’s business partner would ultimately be able to find another business partner, and not his claims and evidence about the financial and personal impact on the Applicant partner’s business.
The Applicant submits that the Tribunal’s reasoning reveals an absence of an intellectual engagement regarding the evidence of the financial and personal impact on the Applicant’s partner, were the Applicant to leave Australia, and consequently the Tribunal exercise of jurisdiction miscarried.
The Minister submits that it is evident that the Applicant’s claim and the evidence before the Tribunal was that, because it would be difficult for Mr Singh to replace him as a business partner, Mr Singh would suffer financial difficulties.
The Minister submits that the Tribunal’s decision record discloses that the Tribunal accepted that Mr Singh would have to find a new business partner, and that this may not happen immediately. In this way, the Tribunal addressed the evidence that the Applicant’s business partner would suffer financial difficulties if the Applicant returned to India.
I agree with the Minister. A fair characterisation of the Applicant’s evidence is that, in the absence of a business partner, Mr Singh (an Australia citizen) would suffer significant financial difficulties which would adversely impact on Mr Singh’s personal circumstances. The critical part of the Applicant’s claims and evidence was that Mr Singh would have difficulty finding a business partner.
Once the Tribunal dispensed with the Applicant’s claim and evidence regarding Mr Singh’s inability to find an alternative business partner, it is evident that the claim that Mr Singh would suffer financial and personal difficulties, so as to amount to compelling circumstances, fell away.
I find that no jurisdictional error arises on this ground.
Conclusion
For the reasons set out in this Judgment, writs will be issued quashing the decision of the Second Respondent and directing the Second Respondent to determine the matter according to law. An Order will also be made requiring the First Respondent to pay the Applicant’s costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 14 December 2016
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