Upadhyaya v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 131
Federal Circuit and Family Court of Australia
(DIVISION 2)
Upadhyaya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 131
File number: SYG 698 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 24 February 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass 190 Skilled Nominated (Permanent) visa – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed. Legislation: Migration Act 1958 Cth s 348 , 360
Migration Regulations 1994 Cth cl 190.216 of Schedule 2
Cases cited: Minister for Immigration v Li (2013) 297 ALR 225
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Nathanson v Minister for Home Affairs [2022] HCA 26
Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174
SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submissions: 15 February 2023 Date of hearing: 15 February 2023 Place: Sydney Solicitor for the Applicant: Mr Dobbie Solicitor for the Respondents: Ms Evans ORDERS
SYG 698 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAMESH UPADHYAYA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
24 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant to pay the First Respondents costs fixed in the sum of $ .
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
Introduction
The applicant is a citizen of Nepal. On 30 December 2015 he lodged an application for a Subclass 190 Skilled Nominated (Permanent) visa.
On 20 May 2016, a delegate of the Minister for Immigration (“the delegate”) invited the applicant to comment on adverse information obtained by the Department, as a result of an investigation into the material supplied by the applicant in support of the application. That adverse information included;
•A check with the office of company registrar of the government of Nepal found that the company registration number provided in a reference letter was not registered to Panthee Electronics, but rather, to another company;
•The Department had contacted Mr Nagrenda Panthee (Mr Panthee), the Principal of Panthee Electronics. The information contained in the reference letter (CB 58) about the applicant’s employment and salary at Panthee Electronics was inconsistent with oral information that Mr Panthee told the Department in a telephone conversation. In particular, Mr Panthee told the Department that the applicant had only worked for the company for 4 to 5 years (from 2007 or 2008 to 2013). Further, while the reference letter said that the applicant worked full-time, Mr Panthee stated the applicant worked part-time hours, when work was available; and
•Mr Panthee also disclosed information to the Department about the applicant’s responsibilities at Panthee Electronics that was inconsistent with those responsibilities described by the applicant in his application.
The delegate informed the applicant based on this evidence and information that the Department reasonably suspected that the applicant had provided bogus employment documents with his visa application. The applicant was also informed that it was a requirement for the grant of his visa that he satisfied Public Interest Criterion (PIC) 4020, which required that no evidence that the applicant had given, or cause to be given, to the Minister, the Administrative Appeals Tribunal, a relevant assessing authority or medical officer of the Commonwealth, a bogus document or information that is false and misleading in a material particular in relation to the application.
On 17 June 2016 and on 14 June 2017, the applicant responded to the invitation and provided further registration documents, an additional reference letter from a client of Panthee Electronics, together with copies of an email conversation between the applicant and Mr Panthee, and a statement from Mr Panthee. This email conversation indicated that Mr Panthee had sought to extort $25,000.00 for himself and $2,000.00 for his brother, Mr Ganesh Panthee in order to provide evidence that supported the applicant’s claims as to his employment with Panthee Electronics for a continuous period of 9 years.
On 14 December 2017, the delegate sent the applicant a further invitation to comment on information, which the applicant did.
On 21 February 2018 a delegate refused to grant the applicant his visa. The delegate found that the applicant had given or caused to be given information that was false or misleading in a material particular and consequently, that the applicant failed to satisfy PIC 4020, and therefore did not satisfy cl 190.216 of Schedule 2 to the Migration Regulations 1994 Cth (“the Regulations”).
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). The applicant appeared before the Tribunal on 25 October 2018, represented by his registered Migration Agent. On 26 February 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a Skilled Nominated (Permanent) Visa.
The applicant now seeks judicial review of the Tribunal’s decision.
The Administrative Appeals Tribunal Decision
Given the unusual factual background of the matter, as well as the grounds of judicial review set out below, it is necessary to summarise the Tribunal decision in some detail.
After setting out some background at paragraph 6 of the decision record, the Tribunal noted that the applicant needed to meet PIC 4020 as required by cl 190.216 of the Regulations for the grant of the visa. This includes that there is:
no evidence, that the applicant has given, or caused to be given, to the Minister… a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.
The Tribunal stated that the issue for determination was whether the applicant had given or caused to be given a bogus document or information that was false and misleading in a material particular relating to his work history. If the answer to that question was ‘Yes’, the Tribunal would then be required to decide whether not the requirements of PIC 4020 should be waived.
At paragraph 13 of its decision, the Tribunal set out the background to the matter. When the applicant lodged his visa application, he claimed and provided documentary information to confirm, that he had relevant work experience as an audio-visual technician with Panthee Electronics in Nepal from September 2004 to November 2013, the period of about nine years. The applicant claimed that he left Nepal in 2013 to come to Australia. Shortly afterwards, the owner of the business, Mr Panthee, began to contact the applicant trying to convince him to return to Nepal and employment with the business.
At the same time, the applicant stated that he started to request a work reference from Mr Panthee. One was not immediately provided and he continued to request the reference up until 2015, when one was provided, signed and dated 24 June 2015 (CB 58). The applicant stated that the reason he had trouble obtaining the reference is because Mr Panthee did not want to give the reference, in the hope that the applicant would return to Nepal and work for Mr Panthee.
At paragraph 14 of its decision, the Tribunal noted that inconsistent information had been provided by Mr Panthee when he was contacted by Departmental Officers as part of a compliance check. The applicant responded to a notice sent to him by the Department and included in his response that “he was not surprised to read your email and I was expecting something like this to happen”. The Tribunal noted the allegation that Mr Panthee asked the applicant to send him $25,000.00 and to send Mr Ganesh Panthee, $2000.00.
At paragraph 16 of its decision, the Tribunal noted that the Department was provided with a series of troubling emails between the applicant and Mr Panthee, where it appears that Mr Panthee was attempting to extort money from the applicant. The Tribunal noted the applicant’s oral evidence to the Tribunal was that whilst Mr Panthee had been trying to blackmail him, he maintained that the work reference from Mr Ganesh Panthee was correct as regards to the information contained therein, in relation to the period of his employment.
At paragraph 20 of its decision, the Tribunal noted that additional references had been provided from clients of Panthee Electronics which attest that the applicant, as an employee of the business, had worked on various projects during the period 2005 through to 2013.
Most significant in the Tribunal’s mind was a reference from Mr Ganesh Panthee, who claimed to be the accountant at the business. That reference (CB 179) claimed, that if contacted, he would attest the applicant worked for the business for the nine-year period 2005 to 2013.
At paragraph 21 of its decision, the Tribunal found that for references provided insight into the work the applicant is said to have done for the Company for brief periods of time in 2005, 2010 and 2013. The Tribunal accepted that the applicant did the work described in those references. The Tribunal then stated as follows:
Mr Ganesh Panthee works for Panthee Electronics and, because of serious credibility concerns about the owner of Panthee Electronics, who is Mr Ganesh Panthee’s brother, the Tribunal does not consider evidence from him would be reliable. No additional evidence was provided to the Tribunal from him.
At paragraph 22 of its decision, the Tribunal stated that it was inclined to accept the applicant worked for Mr Panthee at some time or at times, and that he did work for the companies that provided references at the times indicated. It was not satisfied however that can be reliably said that the applicant worked there for nine consecutive years, from 2005 - 2013, as indicated in the work reference. This was because of concerns relating to the credibility of both the applicant and Mr Panthee. Considering all of the relevant evidence, the Tribunal was not satisfied that the request for payment for the work reference was not paid and that the information contained in the work reference was reliable.
At paragraph 26 of its decision, the Tribunal noted that for a document to be found to be bogus, under the “relatively undemanding test” of reasonable suspicion, no more is needed to show that there is “evidence” of the sort referred to in PIC 4020(1). The Tribunal concluded on the evidence available, it had a reasonable suspicion that the letter from Mr Panthee written in July 2015 was a bogus document, taking into consideration other relevant supporting documentary and oral evidence.
The Tribunal at paragraph 27 of its decision, then set out the reasons for its concerns as to the credibility of Mr Panthee. The Tribunal concluded that it was hard to reconcile any of the representations made by Mr Panthee as reliable.
Accordingly, at paragraph 30 of its decision, the Tribunal concluded that the reference given by Mr Panthee was a bogus document that contained false and misleading information. The Tribunal was not convinced that the applicant worked for Mr Panthee from September 2004 to November 2013. This was information that went to a material particular as defined in PIC 4020.
Having made a decision that PIC 4020 was not met, the Tribunal went on to consider whether the requirements of PIC 4020 should be waived. It concluded they should not be and accordingly affirmed the delegate’s decision not to grant the applicant his visa.
Grounds of Judicial Review
The applicant relies upon the amended Grounds of judicial review that were filed with the Court on 16 January 2023, along with written submissions. The Court notes that leave is required to rely upon these amended grounds. The Court notes that no objection is made by the first respondent. In these circumstances the Court granted leave to rely upon the following grounds (reproduced verbatim):
Ground One
The second respondent failed to comply with s 360 of the Act, by failing to accord the applicant procedural fairness in relation to an issue arising in relation to the decision under review.
Particulars
a) In determining whether the applicant undertook the work experience he claimed to have undertaken at Panthee Electronics, (the business) the applicant provided a letter from Mr Ganesh Panthee, the businesses accountant cooperating the applicant claimed work experience at the business.
b) The Tribunal stated in its decision at [21] ’Panthee works for Panthee Electronics and, because a serious credibility concerns about the owner of Panthee Electronics, who is Ganesh Panthee’s brother, the Tribunal does not consider evidence from him would be liable”.
c) The Tribunal failed to accord the applicant procedural fairness by failing to inform the applicant that it did not consider that evidence from Mr Ganesh Panthee would be reliable, merely because the sibling relationship between Mr Ganesh Pantheee and the owner of the business.
Ground Two
Not pressed
Ground Three
The Second Respondent’s decision was legally unreasonable, such that it failed to conduct the review required by s 348 of the Act.
Particulars
a) The Tribunal’s decision is legally unreasonable.
b) The Tribunal had fought evidence (from United Nepal Engineering Consultancy; Department of Automobile and m with Mechanical Engineering; Vertical Telecoms; Mr Suni Giri (the evidence) that the applicant worked for the business installing equipment for clients of the business in 2005, 2010 and 2013. The tribunal also had a letter from Ganesh Panthee, the businesses’ accountant corroborating the applicants claimed work experience of the business.
c) The tribunal accepted that the applicant worked for the business as an employee installing equipment as set out in that evidence, and that he had also worked for the business at “some time” or at “times”.
d) Despite those findings, the Tribunal, found the applicant did not work for the entire period as claimed. To so find, having regard to the evidence, and by also not considering the corroborating evidence of Mr Ganesh Panthee, was legally unreasonable, such that it failed to conduct the review required by s348 of the Act.
Ground Four
Not pressed.
Consideration
Ground one is an allegation of failing to afford procedural fairness, by failing to inform that applicant that the Tribunal did not consider the evidence of Mr Ganesh Panthee reliable, merely because he was the brother of Mr Panthee and the principal of Panthee Electronics.
On behalf of the applicant, it was submitted that subject to materiality, and depending upon the particular circumstances of the case, the failure to afford procedural fairness can constitute jurisdictional error: (see; Nathanson v Minister for Home Affairs [2022] HCA 26 at [30] – [33]). In Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174 at [38] – [45] the Full Court of observed at [43] that “the particular facts and circumstances, are important in determining whether or not there has been procedural fairness.”
It was submitted that it was procedurally unfair for the Tribunal not to put the applicant on notice that the evidence of Mr Ganesh Panthee that was corroborative of the applicants claimed employment was considered by the Tribunal to be unreliable, merely because of his sibling relationship.
It was submitted that it was required to do so in order to discharge its obligations under
s 360 of the Act before it could make a decision under s 348 of the Act. It was further submitted that the issue of the sibling relationship was material to the outcome of the matter.
On behalf the first respondent, it was submitted that the first and third grounds are premised upon a central contention the Tribunal erred by finding the evidence of Mr Ganesh Panthee would not be reliable “merely” because of the sibling relationship with Mr Panthee. It was submitted the Tribunal found that his evidence would not be reliable for the following reasons:
a) because he worked for Panthee Electronics;
b) due to the serious credibility concerns regarding Mr Panthee as the owner of the business; and
c) noting that Mr Ganesh Panthee was Mr Panthee’s brother.
It was submitted that the findings in this regard should be considered in the context of Mr Panthee directing the applicant to pay money both to him and Mr Ganesh Panthee to secure favourable reference documents. In that context it is unsurprising the Tribunal commented on the objective closeness of Mr Ganesh Panthee and his brother in reaching its conclusion that Mr Ganesh Panthee’s evidence was also unreliable.
It was further submitted that ground one is misconceived and conflates the concept of general procedural fairness clear requirements in s 360 of the Act. The dispositive issue before the Tribunal was whether the applicant met PIC 4020(1). The applicant was on notice that this was the dispositive issue from the delegate’s decision as well as the Tribunal’s questioning at the hearing. Further, it is well established that procedural fairness does not require the Tribunal to give an applicant a running commentary on what it thinks about the evidence that is given. To adopt such a course would run a serious risk of conveying and impression of prejudgement: (see; SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]).
Section 360 of the Act merely requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That section does not require the Tribunal to provide a complete answer to during the hearing, or a running commentary on its consideration of the matters, under review. The Court agrees with the first respondent’s submission that the ground is misconstrued. The applicant was clearly on notice as to the dispositive issues of the matter, being the reliability of the evidence he had provided in relation to whether not he had worked at Panthee Electronics continuously for a period of nine years. Ground one has no merit.
Ground two is an allegation that the finding that Mr Ganesh Panthee’s evidence was not reliable, is legally unreasonable.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: (see; Minister for Immigration v Li (2013) 297 ALR 225 (Li) at [28]), or where a decision has been made that lacks an “evident and intelligible justification”: (see; Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see; Li at [30] and [113]).
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Similarly to ground one, it is submitted that the Tribunal could not dismiss Mr Ganesh Panthee’s verification merely because of his sibling relationship to Mr Panthee. The Court does not accept that this properly characterises the conclusion of the Tribunal. At paragraph 22 of its decision, the Tribunal concluded that it could not be reliably said that the applicant worked at Panthee Electronics as claimed, for a 9 year period. This conclusion was due to concerns relating to the credibility of both the applicant and Mr Panthee (emphasis added).
The Court is satisfied that the evidence of Mr Panthee was wholly unreliable and that no weight could be placed upon it. There was clear and reliable evidence before the Tribunal that Mr Panthee had sought to extort money from the applicant for both himself and Mr Ganesh Panthee. It is significant to note that whilst the letter from Mr Ganesh Panthee was before the Tribunal, he was not called to give evidence, nor was any further material supplied by the applicant from him.
Ultimately however, the dispositive issue in the matter is set out at paragraph 26 of the decision record. The Tribunal found that it was the letter from Mr Panthee written in July 2015 was bogus and therefore the applicant did not meet the requirement PIC 4020(1). The Court is satisfied that the Tribunal gave comprehensive reasons why it considered the evidence of the applicant’s work for Panthee Elctronics was unreliable and that it was reasonably entitled to discount Mr Ganesh Panthee’s statement, noting that he was not called to give evidence and that evidence tested before the Tribunal.
The Court is satisfied that the Tribunal was entitled to come conclusion that it did, based on the evidence that was before it, and for the reasons it gave. Ground three has no merit.
CONCLUSION
Accordingly, in the circumstances, the application must be dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 24 February 2023
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