Trivedi v Minister for Immigration

[2013] FCCA 400

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRIVEDI & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 400

Catchwords:
MIGRATION – Application for judicial review – Skilled (Provisional) (Class VC) subclass 485 (Skilled-Graduate) visa – where tribunal found false and misleading information given to Trades Recognition Australia – where information false and misleading in a material particular that was relevant to her visa application – whether tribunal’s approach was correct – no error established – application dismissed.

Legislation:  

Migration Act 1958, ss.20(1), 359, 359A

Migration Regulations1994, cl.485.214, 485.221, 485.224, 485.225(a), 485.321, reg.1.03, 2.26B

Khan v Minister for Immigration and Citizenship [2011] FCA 75
Minister for Immigration, Local Government and Ethnic Affairsv Dela Cruz (1992) 34 FCR 348

First Applicant: DIPAL LAHERI TRIVEDI

Second Applicant: LAHERI MADHUSUDAN TRIVEDI

Third Applicant: AARUSH LAHERI TRIVEDI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 1077 of 2012

Judgment of: Judge Jarrett

Hearing date: 3 May 2013

Date of Last Submission: 3 May 2013

Delivered at: Brisbane

Delivered on: 31 May 2013

REPRESENTATION

Counsel for the Applicants: Mr Markwell, directly instructed

Counsel for the Respondents: Mr Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The amended application filed on 4 March, 2013 is dismissed.

2. The applicants pay the first respondent’s costs of the application fixed in the sum of $5400.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1077 of 2012

DIPAL LAHERI TRIVEDI

First Applicant

LAHERI MADHUSUDAN TRIVEDI

Second Applicant

AARUSH LAHERI TRIVEDI

Third Applicant

And

MINISTER FOR IMMGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By their application filed on 7 December, 2012 and amended on 4 March, 2013 the applicants seek to review a decision of a migration review tribunal that affirmed a decision of a delegate of the first respondent to refuse to grant to each of them a Skilled (Provisional) (Class VC) subclass 485 (Skilled-Graduate) visa pursuant to the Migration Act1958 (Cth).

2. The ultimate issue for determination is whether the tribunal made a jurisdictional error when it affirmed the delegate’s decision.  The specific issue raised by the applicants is whether the tribunal made an error when it concluded that the first applicant had given false or misleading information in a material particular that was relevant to her visa application.

The statutory scheme

1. To understand the issues in this application, it is necessary to say something about some of the visa criteria that govern the grant of the relevant visa. 

2. A primary applicant for a Skilled (Provisional) (Class VC) subclass 485 (Skilled-Graduate) visa must, in order to be granted that visa, satisfy the criteria prescribed in part 485 of schedule 2 to the Migration Regulations 1994. The primary criteria are set out in part 485.2 of schedule 2 to the Regulations.

3. For the purposes of this application, the following clauses from part 485 of schedule 2 to the Regulations are relevant:

   485.214The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by relevant assessing authority.

   …

   485.221(1) The skills of applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.

   …

   485.224      The applicant:

   (a)     satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and

   (b)     if the applicant had turned 18 at the time of application — satisfies public interest criterion 4019.

4. Clause 485.214 had to be satisfied at the time of application for the visa and clauses 485.221 and 485.224 had to be satisfied at the time of the decision on the visa application.

5. The expression, relevant assessing authority in the above clauses is defined in regulation 1.03 to mean, “a person or body specified under regulation 2.26B”.  It is common ground that Trades Recognition Australia is a body specified under reg.2.26B as a relevant assessing authority for the skilled occupation of “hairdresser”.

6. The public interest criteria referred to in cl.485.224 are found in part 1 of schedule 4 of the Regulations.  Public interest criteria 4020 relevantly provided at the time of the tribunal’s decision on the applicants’ application:

   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.

   …

   (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 (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.

7. The secondary visa applicants had to satisfy cl.485.321 of schedule 2 to the Regulations, which was in the following terms:

   485.321      The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 485 visa.

Background Facts

1. The facts of the application appear from the material contained in the bundle of relevant documents filed by the first respondent.  The facts are conveniently summarised in the written submissions filed by the first respondent.  The applicants’ Counsel did not suggest that the summary was inaccurate.   The recitation of facts that follows is taken, largely, from that summary and the materials in the bundle of relevant documents.

2. The first applicant is a citizen of India.  On 15 December, 2009 she lodged with the Department of Immigration and Citizenship an application for a subclass 485 visa.  In that application, she included her husband and, after his birth, her son.  They are the second and third applicants to this application respectively. 

3. In support of her application, she submitted to the Department a positive skills assessment from Trades Recognition Australia, dated 21 July, 2009 for her nominated occupation of “hairdresser”.  She had applied to the TRA for the skills assessment on 7 July, 2009.  In her application for the skills assessment the first applicant indicated that she had been awarded an “Australian Qualification (AQF111)” and had “completed the necessary period of directly related employment”, being 900 hours of employment. 

4. Accompanying her application to TRA was a letter dated 20 June, 2009 from the manager of a hairdressing salon, Highlights Hair and Makeup Salon.  The applicant said that she had been employed by that salon from April, 2008 to July, 2009.  The letter from the manager of the salon, Mr Ching Mercado, relevantly provided: 

   This is to certify that Dipal Trivedi has been working with Highlights Hair and Makeup from April 2008 til date.  Dipal has been working as a hairdresser on average about 20 hours a week on a part time basis.  She has completed more than 900 hours of work experience.

   Dipal works independently, performing a full range of hairdressing services on a variety of clients in an operating hairdressing salon situation within accepted time restraints.

5. On 12 August, 2011 the Department wrote to the first applicant seeking her comments on information that suggested to the Department that she might not satisfy public interest criterion 4020 in schedule 4 to the Regulations.  The information that concerned the Department was that on 21 and 24 March, 2011 the Department conducted an investigation into the salon that: “raised serious concerns as to whether the first applicant ever undertook work experience as a hairdresser there.”  The Department noted the fact that her employer: “was unable to identify her as a past employee.”

6. On 16 August, 2011 the first applicant sent to the Department a copy of a letter from Mr Mercado dated 15 August, 2011 in which he said that the first applicant worked: “as a volunteer hairdresser on average about 20 hours a week on a part-time basis” and that she had “completed more than 900 hours of work experience as a volunteer.”   Mr Mercado also said that he had not been able to identify her as a “past volunteer” due to a misunderstanding of the questions that were asked of him by the investigating officials. 

7. A delegate of the Minister refused to grant the subclass 485 visas to the applicants on 15 September, 2011. The delegate concluded that the first applicant did not satisfy public interest criterion 4020 as she had provided information to TRA that was false or misleading in a material particular. The delegate found that the first applicant had never been employed by the salon in her nominated skilled occupation. Her failure to satisfy public interest criterion 4020 meant that she could not satisfy cl.485.224(a) of schedule 2 to the Regulations. She thereby failed to meet the primary visa criteria.

8. Because the first applicant failed to meet the primary criteria for the grant of a subclass 485 visa, the delegate was bound to find that the second and third applicants did not meet cl.485.321 of schedule 2 to the Regulations as secondary visa applicants.

9. The applicant’s applied for review of the delegate’s decision by a migration review tribunal on 19 September, 2011.

10. On 13 June, 2012, the tribunal sent to the applicants a letter pursuant to ss.359 and 359A of the Act.  The letter sought copies of the first applicant’s TRA application, employment reference and independent and verifiable evidence of her employment as a hairdresser at the salon.  It also sought information as to whether, and if so why, the tribunal should waive compliance with PIC 4020 (which it had power to do: PIC 4020(4)).  By the letter, the applicant’s attention was drawn to the information in the Department’s file about the investigation into the first applicant’s employer, which the tribunal considered would, subject to the applicant’s comments, be the reason or part of the reason for affirming the delegate’s decision.

11. The first applicant responded on 20 July, 2012 through her migration agent.  Amongst other things, she confirmed that she had worked for over 900 hours as a trainee hairdresser from April, 2008 to June, 2009. 

12. The tribunal conducted a hearing on 15 August, 2012 at which the applicants appeared.  They were represented and an interpreter was present.

The tribunal’s decision

1. On 9 November, 2012, the tribunal affirmed the delegate’s decision.  Critically, the tribunal found that:

   a)the information in the first applicant’s application to TRA was relevant to the criterion in cl.485.221 of schedule 2 to the Regulations;

   b)the information given by the first applicant included Mr Mercado’s reference letter;

   c)the information in the letter was information which concerned her employment as a hairdresser at Mr Mercado’s establishment;

   d)the information was false and misleading. 

2. The tribunal found that the first applicant was a credible witness.  It considered that the departmental investigation into the first applicant’s employer was insufficient to allow it to find that she had given information that was false or misleading in a material particular, and gave the site visit report prepared by the Department “no weight”.

3. However, the tribunal construed the reference letter from Mr Mercado as implying that the first applicant “had worked independently and performed the full range of duties of a hairdresser throughout the period of her employment from April 2008”. 

4. The applicant’s oral evidence before the tribunal was that she had only been working independently as a hairdresser for a short period of time, and had been engaged in training and work experience for much of the nine-month period to which the work reference related.  She said that she was not performing the full range of hairdressing duties until approximately eight months after she commenced employment at the salon, and that it took her between six and eight months to begin to work independently. 

5. The tribunal compared the implication that it drew from the reference letter with the first applicant’s oral evidence and found that the oral evidence contradicted the reference letter.  The tribunal placed weight on the fact that the letter said nothing to indicate that the first applicant: “only commenced working as a hairdresser and worked independently, performing the full range of hairdressing services several months after commencing employment”. 

6. The tribunal found that the reference letter from Mr Mercado was false or misleading at the time that it was given by the first applicant to TRA because of the inconsistency between it and the first applicant’s oral evidence.  The tribunal determined that the letter was false or misleading in that it conveyed an incorrect impression that the applicant had 900 hours work experience as a hairdresser, performing the duties of an independently operating hairdresser.  The tribunal, as I earlier recorded, found that the first applicant was a credible witness.  Having regard to the truthfulness of the first applicant, it decided that the reference letter was false and misleading at the time that it was given to TRA.

7. Having found that the letter was false or misleading at the time that it was given to TRA, the tribunal considered whether it was false or misleading in a material particular and it concluded that it was.  The letter was given for the purpose of obtaining a skills assessment in connection with the first applicant’s nominated skilled occupation. 

8. The tribunal did not consider it necessary to determine whether, had the reference letter accurately reflected the position regarding the first applicant’s employment, TRA’s decision would have been any different. 

9. The tribunal considered that in the circumstances of the case, it should not waive the requirements of public interest criterion 4020(1) under the provisions of public interest criterion 4020(4). Because the tribunal was not satisfied that the first applicant met public interest criterion 4020 and thereby did not satisfy cl.485.224 of schedule 2 to the Regulations, the decision under review was affirmed.

Grounds of Review

1. The amended application for review contains five grounds.  I will deal with them seriatim. 

2. The first ground contends that the tribunal asked itself the wrong question.  The applicants submitted that the tribunal made an error of law, which amounts in the circumstances of this case to a jurisdictional error.  The applicants submit that the tribunal asked only if the work reference from the salon was false or misleading, and not whether it was false or misleading in a material particular.  The applicants contend that the tribunal did not seek to establish “the degree of materiality of the claims in the work reference to the visa application”, and thus, did not “ask the right question in deciding whether the work reference was false or misleading in a material particular.” 

3. It was necessary for the tribunal to consider whether the information said to have been false or misleading was false or misleading in a material particular at the time it was given to TRA.  That is the requirement of public interest criterion 4020(1).  The tribunal’s reasons for decision reveal that the tribunal did indeed ask itself whether the information in the letter from Mr Mercado was false or misleading at the time that it was given to TRA.  That was the first part of the exercise in which the tribunal needed to engage.  The tribunal answered that question of fact against the first applicant because it accepted her oral claims which the tribunal thought were inconsistent with the implication to be taken from the reference letter.

4. I accept the first respondent’s argument that having found that the information in the letter was false or misleading when given to the TRA, the Tribunal then determined that it was false or misleading in a material particular because it related to the skills and experience that she had as a hairdresser, which in turn was relevant to the skills assessment that she was required to have applied for at the time she applied for her visa.  It was thus relevant to one of the criteria that the tribunal needed to consider for the purposes of the first applicant’s application.

5. The information about the nature and extent of the work that the applicant had been doing at the salon was clearly relevant to the skills assessment for which she had applied to TRA.  It was something which bore upon the assessment to be carried out by it. 

6. I accept the respondent’s submissions that the reference letter was clearly relevant to cl.485.221.  It was relevant to the assessment of the suitability of the first applicant’s skills for her nominated skilled occupation.  The first applicant relied upon that information to obtain a positive skills assessment from TRA.  It was information which might have influenced the conclusion reached by TRA and was thereby material to the visa criteria and in particular cl.485.221. 

7. The applicants argue that the tribunal ought to have established the “degree of materiality” of the claims made or implied in the reference letter.  Presumably, the submission means the degree of materiality of the claims made or implied to the criteria to be considered by the tribunal.  Given that TRA was to undertake a skills assessment that required the first applicant to demonstrate work over a period of time, the reference was clearly relevant and the tribunal approached the application on that basis.  The letter was found to be false and misleading in that it carried a false impression about the first respondent’s work over the requisite period of time – a matter which in other words was a material particular.

8. The applicants’ reliance upon Minister for Immigration, Local Government and Ethnic Affairsv Dela Cruz (1992) 34 FCR 348 does not assist their argument. That case considered s.20(1) of the Act. In the course of their judgment, their Honours of the Full Court said:

   The expression "false in a material particular" appears in many statutes, both in this country and overseas. It has been discussed in R v Lord Kylsant [1932] 1 KB 442; Murphy v Griffiths [1967] 1 WLR 333; [1967] 1 All ER 424; R v Mallett [1978] 1 WLR 820; R v M [1980] 2 NSWLR 195; R v Brott [1988] VR 1. In the last mentioned case, Brooking J pointed out that the concept is well understood. As his Honour said (at 11): "an assertion that a document is false is to be taken as an assertion that it is false in a material particular." The term "material" requires no more and no less than that; the false particular must be of moment or of significance, not merely trivial or inconsequential.

   Section 20(1) does not apply to statements that are merely false or misleading; there is the added requirement that the statement must be false or misleading in a material particular. In the context of s 20(1), a statement will be false or misleading in a material particular if it is relevant to the purpose for which it is made: see Jovcevski v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, Lockhart J, 12 October 1989). A statement will be relevant to that purpose if it may — not only if it must or if it will — be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made.

1. That approach was applied by Moore J in Khan v Minister for Immigration and Citizenship [2011] FCA 75 at [23]-[26].

2. The tribunal’s task, at least at this part of the exercise, was to apply public interest criterion 4020(1), but having regard to both limbs of the definition of “information that is false or misleading in a material particular” in public interest criterion 4020(5).  I accept that the tribunal did just that.  

3. In my view, the first ground relied upon by the applicants reveals no jurisdictional error.

4. The second ground raised by the applicants is that the tribunal took into account an irrelevant consideration.  The applicants argue that cl.485.221 requires that the first applicant have a valid TRA skills assessment.  The first applicant, it is argued, submitted a valid, positive skills assessment in accordance with the requirements of the Regulations.  She followed the appropriate requirements to satisfy the TRA and obtain the relevant skills assessment. 

5. The applicants argue that the tribunal has gone beyond the requirements imposed upon the first applicant to secure a valid skills assessment and has taken into account a consideration not necessary to satisfy the TRA requirements. 

6. The applicants argue that, by looking at the material given to the TRA to support the application for the skills assessment, the tribunal has made an error because all that was relevant for the tribunal’s purposes was the fact of the application for a positive skills assessment (at the time of making the application) and the existence of a positive skills assessment (at the time of making the decision on the application).  That the first applicant had applied for and then received a positive assessment for TRA was all that ought to have concerned the tribunal.  The applicants argue that it was immaterial that there was an allegedly false statement about the type of work that was completed by the applicant at the salon, and which was a basis for granting the skills assessment.

7. The applicants argue that the irrelevant consideration taken into account by the tribunal was “the type of work and skill level the Applicant obtained whilst undertaking work already accepted as relevant and relate work experience”.

8. Moreover, the applicants argue that the tribunal, in its decision, “dissected” the duties undertaken by the applicant in her employment at the salon and it was inappropriate for the tribunal to do that.  It was not relevant to consider the nature and extent of her duties, because all that was relevant was that she had received a positive skills assessment.

9. In my view, this ground has no merit because it was clearly relevant for the tribunal to consider whether the information that had been given to TRA for the purposes of performing the skills assessment was false or misleading in a material particular.  That was an enquiry demanded by public interest criterion 4020(1).  It was in the course of that enquiry that the tribunal had cause to consider the nature and extent of the work performed by the first applicant.  It was an enquiry mandated by authority: Khan v Minister for Immigration and Citizenship (above). At [28] – [29].

10. Moreover, I accept the respondent’s argument that the applicants’ argument misstates what it was that the tribunal did in this case.  The tribunal considered and applied public interest criteria 4020(5) to determine whether the information given to TRA was false or misleading in a material particular.  Paragraph 53 of the tribunal’s reasons for judgment reveal that it based its finding of falsity in the reference letter on inconsistencies between that information and the first applicant’s oral evidence.  The tribunal was not focused so much on the duties undertaken by the applicant whilst she was employed at the salon, but rather, the perceived inconsistency between her evidence given orally before the tribunal and the implication that the tribunal saw arising from the reference letter. 

11. I accept that for the applicants to take issue with the falsity of the information contained in the reference letter so as to submit that it “was not substantial enough to be a material particular” is to take issue with the tribunal’s assessment of that information and, in particular, the weight to be given to it.  Those matters are matters entirely for the tribunal.

12. In my view, this ground reveals no jurisdictional error.

13. The third ground of review relied upon by the applicants is that the tribunal reached a mistaken conclusion about the meaning of the reference letter.

14. The transcript of the tribunal hearing shows that the tribunal member put to the first applicant in the hearing that the reference letter said that the first applicant “worked independently performing a full range of hairdressing duties.”  As the applicants’ correctly point out the reference letter provided that the first applicant “works independently performing a full range of hairdressing services” (my emphasis).

15. I accept that there is a difference between the statement put by the tribunal member to the first applicant and the words of the reference letter.  I accept, as the first applicant submits, that the statement that the first applicant “works independently performing a full range of hairdressing duties” is an honest statement, because at the time of the writing of the letter, that is what the first applicant was doing.  But intention to mislead is not to the point.

16. The tribunal has clearly implied from the reference letter (as is set out at paragraph 53 of the decision record) that the first applicant had worked for 900 hours as an independent hairdresser.  The letter does not expressly say that but rather states she works as a hairdresser, and worked 900 hours undertaking work experience in this capacity, thus leading to the assertion that when the reference was written, she was working independently.

17. The first applicant submits that the application to TRA included the employment reference, as well as education and employment documentation.  From that material it would have been apparent to the tribunal that to begin as an unsupervised hairdresser would have been unrealistic.  The applicants argue that for the tribunal to draw the inference that it did was to employ guesswork and was to reach a mistaken conclusion, resulting in a jurisdictional error by the tribunal.

18. The tribunal characterised that reference as follows (in paragraph 53 of the tribunal’s reasons):

    53. The applicant informed the Tribunal in her oral evidence that she was not performing the full range of hairdressing duties for the first 6-8 months; or a few months, of her employment. She explained that she only did limited type of work at first and was supervised by Mr Mercado, who trained her in all aspects of the work. She claims that she did not work independently at least for the first few months. In the Tribunal's view, and contrary to the applicant's submissions, that evidence· contradicts the employment reference that was relied upon for the TRA assessment. The copy of the reference which the applicant provided to the Tribunal states that the applicant had been working since Apri1 2008 till date and has been working as a hairdresser. It states that the applicant works independently performing a full range of hairdressing services on a variety of clients. The reference describes the applicant's skills and knowledge which includes the full range of hairdressing duties. There is nothing in the employment reference to indicate that the applicant only commenced working as a hairdresser and worked independently performing the full range of hairdressing services several months after commencing employment. Instead, the employment reference implies that the applicant worked independently and performed the full range of duties of a hairdresser throughout the period of her employment from April 2008. This is not what the applicant claims to have been doing in her oral evidence to the Tribunal. The Tribunal finds that the employment reference was, in that respect, false or misleading.

19. In my view, the terms of the reference letter are ambiguous.  A preferable construction of that letter may not have been the construction that the tribunal applied to it, but that is not to say that the construction cast on the letter by the tribunal was not open to it.  It was a construction which was, on the face of the document, open.

20. However, it seems to me that once the applicant gave oral evidence any ambiguity in the terms of the reference letter might have been seen to have been removed.  Rather than decide that there was an inconsistency between the applicant’s oral evidence and the implication which the tribunal chose to draw from the letter, the preferable view might have been that the applicant’s evidence was consistent with an interpretation of the letter which was as equally open as that applied by the tribunal.

21. Notwithstanding that, the tribunal was entitled to place weight on the fact that the qualification put by the first applicant on her work experience in her oral evidence was not referred to expressly in the letter.  It was entitled to treat what the applicant said orally as inconsistent with what appeared in the reference letter. 

22. The tribunal has not reached a mistaken conclusion.  It has reached a conclusion which others might not have reached, but that says nothing to the point.  There is no error of law by a decision maker reaching a wrong conclusion about the facts where those facts cannot be characterised as a “jurisdictional” facts.  The conclusion reached by the tribunal was one which was open to it on the evidence before it. 

23. This ground of review is not made out. 

24. The fourth ground of review is summarised in the applicants’ written submissions  by saying that the Tribunal:

    …has read the reference in a frame of mind so as to justify disqualification of the applicant’s claims.  It (sic) is regard, it is submitted, that the decision‑maker has not interpreted the reference on a simple, plain meaning basis.

25. The applicants argue that to draw the implication that I have referred to above, in the way in which the tribunal did, was to act illogically and irrationally.  The applicants argue that no logical or rational decision‑maker would have come to the same conclusion as the tribunal. 

26. However, having regard to the test of illogicality or irrationality set out in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [131], it is clear, in my view, that there is no illogicality or irrationality in the relevant sense.

27. Reasonable minds might well differ on the construction of the letter provided by the applicant’s employer.  Reasonable minds might well differ about whether the applicant’s oral evidence was inconsistent with that letter.  But that evidence does give rise to different processes of reasoning and does give rise to the possibility that different but reasonable minds might differ in respect of the conclusions to be drawn from that evidence. 

28. In my view, the tribunal’s decision in this case was not illogical or irrational. 

29. The final ground relied upon by the applicants was that the Tribunal had made an erroneous finding and:

    …thus made an error of law amounting to a jurisdictional error.

    The erroneous finding was:

    …in establishing the employment reference as a material particular, insofar as the applicant’s actual position whilst undertaking training is immaterial so long as she has worked doing hairdressing duties.

30. This ground of review does not give rise to any jurisdictional error on the part of the tribunal.  I agree with the respondent’s submissions that it seeks to call into question the tribunal’s assessment of the evidence before it and the merits of its findings on whether the information in the letter was false or misleading in a material particular.  There is overlap between this ground of review and the others referred to above.

Conclusion

1. None of the grounds of review relied upon by the applicant are made out.  The tribunal’s decision is not attended by any jurisdictional error, although the decision arrived at by the tribunal might not necessarily have been the only decision open to it on the evidence.  That is, however, insufficient for this application to succeed. 

2. The application filed on 7 December, 2012 must be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  31 May 2013