Verma v Minister for Immigration
[2017] FCCA 2079
•1 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VERMA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2079 |
| Catchwords: MIGRATION – Application for judicial review of decision by Migration Review Tribunal (Tribunal) affirming decision not to grant skilled visa – in support of application for skilled visa applicant submitted test results form (TRF) purporting to certify the applicant had achieved the required IELTS scores in a test that was conducted in India – after investigation the British Council, being the body that administered the IELTS test in India, concluded that an imposter sat for the IELTS test and issued a revised TRF representing the applicant did not sit the test – the British Council communicated this information to the Department of Immigration and Citizenship and later in response to a request for information the British Council communicated to the Tribunal its views that an imposter had sat for the IELTS test – the delegate’s decision not to grant skilled visa affirmed because Tribunal was not satisfied there was no evidence the TRF was bogus – whether the British Council owed the applicant a duty to accord him procedural fairness in connection with the investigating it undertook to determine whether the applicant in fact sat for the IELTS test – whether the British Council’s according the applicant procedural fairness conditioned the exercise of the power to grant the applicant a skilled visa – whether opinions communicated by the British Council to the Tribunal constituted probative evidence that the TRF was bogus – no jurisdictional error. |
| Legislation: Constitution, ss.71, 75 Education Services for Overseas Students Act 2000 (Cth), s.19 Federal Circuit Court of Australia Act 1999 (Cth), s.15 Migration Act 1958 (Cth), ss.46A, 65, 97, 116(1)(b), 195A, 359A, 362A, 376, 474, 476 Migration Regulations 1994 (Cth), regs.1.03, 1.15C, 1.23(1B)(b), Schedule 2, cls. 886.213, 885.224, Schedule 4, Part 1, item 4020 |
| Cases cited: Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 R v Panel on Take-overs and Mergers; ex parte Datafin Plc [1986] 1 QB 815 Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 Smith v R [2001] HCA 50 Talukder v Minister for Immigration & Citizenship [2009] FCA 916 Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 Wei v Minister for Immigration and Border Protection [2015] HCA 51 |
| Applicant: | PARSHANT KUMAR VERMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 571 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 28 July 2016 |
| Date of Last Submission: | 28 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Proactive Legal Pty Ltd |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 571 of 2015
| PARSHANT KUMAR VERMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision made by the second respondent (Tribunal) to affirm the decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Residence) (Class VB) visa (Skilled visa).
The requirement of “competent English”
To have been entitled to the grant of a Skilled visa, the first applicant had to satisfy the criterion specified in cl. 886.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). On 7 June 2011, when the applicant applied for the Skilled visa, clause 886.213 of Schedule 2 to the Regulations required an applicant to have “competent English”. Regulation 1.15C of the Regulations provided that a person has competent English if:
the person satisfies the Minister that the person:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A)specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B)in a language test specified by the Minister in the instrument; or
(b)holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
Regulation 1.15C was subsequently amended, but this version continues to apply to the first applicant because the applicant lodged his application for a Skilled visa before 1 July 2012. For ease of expression, in the remainder of these reasons I will refer to the Regulations as they applied to the applicant in the present tense.[1]
[1] The Minister also issued an instrument contemplated by reg.1.15C of the Regulations, but that instrument is not relevant to anything I consider in these reasons.
Another criterion for the grant of a Skilled visa the applicant had to satisfy was that prescribed by cl.885.224 of Schedule 2 to the Regulations. That required the applicant to satisfy Public Interest Criterion 4020 (PIC4020) which relevant provides:
(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.
Reg.1.03 defines “bogus document” as having the same meaning as in s.97 of the Migration Act 1958 (Cth) (Act). Section 97 of the Act, as it applied to the applicant, defined “bogus document” as follows:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
Before the Minister can be satisfied there is no evidence an applicant has given a bogus document, the Minister has to be satisfied there is some evidence in relation to a document that is sufficiently probative to lead to the conclusion that the document is bogus for any one of the three reasons specified in s.97 of the Act.[2] At the very least, that requires the Minister to be aware of the existence of the document said to be bogus, and of information that could reasonably be characterised as evidence that is sufficiently probative to lead to the conclusion that the document is bogus for any one of the three reasons specified in s.97 of the Act.
[2] Talukder v Minister for Immigration & Citizenship [2009] FCA 916, [20] (Edmonds J)
Course of application for Skilled visa
In support of his application for a Skilled visa the applicant provided to the Minister a document titled “INTERNATIONAL ENGLISH LANGUAGE TESTING SYSTEM Test Report Form” (applicant’s TRF).[3] The applicant’s TRF, which is dated 18 May 2011, stated the name of the applicant, contained a photograph purportedly of the applicant, and recorded the results of a test that occurred on 7 May 2011. The applicant’s TRF also recorded a number in a box next to the words “Test Report Form Number” (applicant’s TRF number).
[3] CB17
The IELTS test purportedly referred to in the applicant’s TRF was conducted in New Delhi under the control and supervision of the British Council. On 7 July 2011 Ms Francis, from the “Examinations Services” of the British Council, sent an email to the applicant which stated as follows:[4]
[4] Affidavit of D Gu, annexure “A”, page 7
We have been notified by a Receiving Organisation that has received an IELTS Test Report Form for you that they have a concern about the IELTS Test Report Form you have submitted with your application.
Following these concerns we are writing to notify you that we have decided to further investigate the result you have submitted. Please note that all investigations are wholly independent and are conducted without prejudice. Your result will stand until the investigation has been concluded and we will keep you informed as appropriate.
Should you wish to offer any evidence to support your result please contact your centre within 21 days of the date of this letter. We would be pleased to review all information that you provide.
. . . .
As mentioned by you that you are in Australia at the moment, could you please send me the following docs, via email?
1.Proof of visa and tickets stating the date of your departure from India and arrival in Australia.
2.The Front and back page of you [sic] passport.
3.Two alternative photo IDs approved by the government authorities.
By email sent on 8 July 2011 the applicant provided to Ms Francis the documents she requested in her email of 7 July 2011.[5]
[5] Affidavit of D Gu, annexure “A”, page 8
On 15 July 2011 Ms Francis telephoned the applicant. The telephone conversation occurred after Ms Francis sent an email to the applicant on 14 July 2011 in which she stated that “[w]e have completed our investigations on the documents you sent” and that she would like to have a teleconference with the applicant on the following day.[6] According to the applicant, in their telephone conversation Ms Francis said she was calling the applicant regarding an investigation of the applicant’s IELTS test which he took on 7 May 2011. Ms Francis requested the applicant provide his full name, date of birth, and passport number. The applicant asked Ms Francis “what is this investigation about”, but Ms Francis said she could not tell the applicant at that stage because the “investigation is in the preliminary stage regarding your IELTS test score”.[7]
[6] Affidavit of D Gu, annexure “A”, page 35
[7] Affidavit of applicant, 30.03.2015
On 5 December 2011 IELTS Australia notified the Department of Immigration and Citizenship (as the Department of Immigration and Border Protection was then known) (Department) that the applicant “had been involved in malpractice in regards to [his] test and the results had been cancelled”.[8] On 30 September 2013 the delegate sent a letter to the applicant stating that the Department had received unfavourable information that did not support the applicant’s application.[9] After noting PIC4020, the letter stated:
You provided an IELTS dated 07 May 2011 showing that you received a score of 7 or higher in each band. The IELTS certificate was referred to the relevant authority for verification. We have received information which indicates that the IELTS certificate provided by you is a bogus document as it was procured through fraudulent means.
[8] CB43
[9] CB30
The letter informed the applicant he was entitled to comment on this information.
In response to the delegate’s letter dated 30 September 2013 the applicant sent an email to the British Council in which he stated that he needed to “verify my IELTS certificate for immigration purposes”.[10] The applicant provided his name, TRF number, and the date of the test. The British Council responded by email on 1 October 2013 in which it stated the British Council did not verify the IELTS scores because “verification is only done when the university or an immigration office writes an email to us”.[11]
[10] Affidavit of D Gu, annexure “A”, pages 33-34
[11] Affidavit of D Gu, annexure “A”, page 33
On 3 October 2013 the applicant sent an email to the delegate attaching a document titled “To Whom It May Concern”.[12] The applicant there referred to the British Council India’s having informed the applicant in June 2011 that they were undertaking an inquiry, but he heard nothing further. The applicant continued:
Now when you sent me email stating my document is not verified, I have contacted British Council New Delhi Office. But they told me they can’t tell me anything about it. I am also forwarding you that email, which I have got from British Council stating that only authorized institutions can contact them regarding verification of my IELTS test.
So, I tried my level best to provide you whatever evidence can prove my document’s authenticity. Otherwise if possible please send me that information whatever you got regarding my document by which you went to the conclusion of bogus document. So that I can put up this matter with British Council.
[12] CB35-36
On 21 November 2013 the delegate decided not to grant the applicant a Skilled visa because the applicant’s TRF had been fraudulently obtained.[13]
[13] CB41-45
On 22 November 2013 the applicant sent an email to the British Council in India.[14] The applicant referred to his application for permanent residency in Australia having been refused “stating that my TRF is not a genuine document, they stated to me it is a bogus document”. The applicant also referred to the British Council’s having contacted him in July to inquire “about my details and authenticity”, noting he was asked to provide a copy of his passport and proof of residence for India and Australia, which he had provided.
[14] Affidavit of D Gu, annexure “A”, page 32
On 6 December 2013 the applicant lodged an application for review with the Tribunal. On or about 8 August 2014 the applicant provided a lengthy written submission to the Tribunal.[15] The applicant indicated he understood that the reason the delegate did not grant the Skilled visa was that the delegate found it was not the applicant who sat and wrote the exam. The applicant claimed he had provided his candidate number “and all other documentation” the applicant had available to prove his innocence. The applicant said he had made numerous attempts to speak to IELTS centre but, “[t]o date, there has been no evidence put before me to substantiate these claims put against me”. After referring to his dealings with the British Council in July 2011 and November 2013 the applicant said (emphasis in original):
[15] CB61
It is beyond my control to prove my innocence as there is no record on their system of my IELTS. I thought that records were to be maintained for a period of at least seven (7) years so that individuals did not suffer from any unjust situation as mine.
I had prepared, sat and written the IELTS examination in India. I had prepared for the IELTS for approximately eight (8) months and during this time received training for IELTS as well.
Please take into consideration the following factors that I put forward in all honesty:
1.I attended the test centre to legitimately write the test;
2.I completed the test and followed the given instructions to submit the test;
3.My candidate ID . . . . ; and
4.I genuinely wrote the exam and genuinely received the scoring.
I request that the Department of Immigration and Border Protection contact the IELTS centre and to confirm my results.
On 13 August 2014 an officer of the Tribunal made an inquiry of an IELTS database in relation to the applicant’s TRF number. That showed the applicant had achieved an overall band of zero, which, in turn, indicated the applicant did not attempt the IELTS test.[16]
[16] Affidavit of D Gu, annexure “A”, pages 25-26
On 15 August 2014, after the applicant appeared before the Tribunal, the Tribunal sent an email to the Department in which it made the following inquiry in relation to its review of the delegate’s decision:[17]
In the delegate’s decision there is a reference to notification by IELTS Australia to DIBP that the applicant had been involved in ‘malpractice’. It’s not clear what ‘malpractice’ means. The Tribunal can verify that the applicant has been given scores of 0 for the IELTS test but it is not evident when or exactly why the British Council did this. Please provide to the Tribunal a copy of that notification and any other document from the British Council in relation to the IELTS test the applicant purportedly took on 7 May 2011 (e.g. a report on an investigation the British Council undertook.)
[17] Affidavit of D Gu, annexure “A”, page 20.
On 15 October 2014 an officer of the Tribunal sent an email to “IELTS Verification” requesting that the Tribunal be provided with “any records/information you have in relation to the cancellation of the applicant’s IELTS test scores – date of examination 7 May 2011”.[18] The British Council provided an answer to the enquiry by email on 8 November 2014. A copy of the email is in evidence, but it is heavily redacted.[19] That part of the email that is not redacted states that the “scores on this test report form were cancelled because the candidate used an impersonator”.
[18] Affidavit of D Gu, annexure “A”, page 18
[19] Affidavit of D Gu, annexure “A”, page 17
The Tribunal sent to the applicant a letter dated 14 November 2014 in which it provided for the applicant’s comments particulars of information the Tribunal said would be the reason or part of the reason for affirming the delegate’s decision.[20] The Tribunal described the particulars of the information as follows:
[20] CB73
The Tribunal wrote to the British Council to inquire why the results of 7 May 2011 were cancelled. On 8 November 2014 the British Council wrote back to the Tribunal by email:
The scores on this test report were cancelled because the candidate used an imposter.
The applicant did not immediately respond to the Tribunal’s letter. Instead, on 19 November 2014, the applicant made a request pursuant to s.362A of the Act for “[a]ll of the material before the tribunal in regards to my matter including any audio files etc.” (362A request);[21] and on 25 November 2014 the applicant sent to the Tribunal an email that attached a document titled “TO WHOM IT MAY CONCERN”.[22] In that document the applicant said he had been trying to contact the British Council regarding the investigation of the applicant’s IELTS test results of 7 May 2011. The applicant stated the British Council is “not disclosing any information while I provided them all required documents”. The applicant requested that he be provided with the reasons he had not been informed of the notification the Department received in December 2011 until almost two years later in 2013. The applicant also requested a further 30 days to respond to the Tribunal’s letter of 14 November 2014.
[21] CB76
[22] CB78
By letter dated 25 November 2014 the Tribunal provided to the applicant the documents that fell within the 362A request, except documents that it identified as folios 44 to 71 of a particular file. The Tribunal stated that those documents are excluded from release because they are subject to a certificate under s.376 of the Act. The Tribunal further stated that the “relevant email from the British Council, which alleges that you used an imposter, is at folio 71”. The Tribunal also extended to 5 December 2014 the time by which it required a response to its letter of 14 November 2014.
On 26 November 2014 the Tribunal received an email from the British Council. That email is not in evidence, but its contents are described by the Tribunal in its reasons as follows:[23]
In an email the British Council stated that the applicant’s results had been cancelled ‘as it was determined after the release of the TRF . . . that an imposter had taken the test’. The email further advised that because a long time had elapsed since that test, the British Council did not have any hard copy test materials relating to this investigation. The email enclosed two documents: a TRF in relation to an IELTS test undertaken on 7 May 2011 and a test report form in relation to a test undertaken on 23 March 2013 [sic]. Both documents have the applicant’s name and date of birth. Both documents have a passport size photograph of the person who took the test on that day. The email of 26 November 2014 asserts: “I’m sure that you [the tribunal] will agree it is not the same individual in the photos’.
[23] CB128, [38]
The applicant sent a further email to the British Council on 12 December 2014.[24] After providing some background to his dealings with the British Council, the applicant stated that since 2011 he has been communicating with the investigating team to provide the applicant “the evidences or proof for this allegation”, but “[n]o one is ready to provide me”. The applicant then referred to incidents that occurred on 1, 8, and 10 December 2014 involving the applicant, the applicant’s mother, and personnel of the British Council in New Delhi.
[24] CB103
The British Council responded to the applicant’s enquiries by an email sent on 17 December 2014 as follows:[25]
Our records show that you took the IELTS test with us on 12 December 2010, 17 February, 2011 and 07 July 2011 [sic].
Following a query from a receiving organisation regarding the authenticity of your IELTS Test report form . . . pertaining to the test that you took with us on 7th May 2011, using passport ID number . . . ., our team contacted you at that time for further supporting documentation. On investigating the evidence provided, a decision was made under the IELTS rules to cancel this test result due to impersonation.
When you visited our office on the 11th of December 2014 regarding this matter, you were shown your application form for the 7th May 2011 test and your previous test attempts, along with the photographs you had submitted at the time. You confirmed that both individuals in the photographs were you, despite fairly clear evidence to the contrary.
Since you are still challenging our decision we are willing to show you further evidence in a face to face meeting. However, given your agitated behaviour and the threats that were made when you visited the British Council office last week, we can only agree to hold this meeting at the premises of the nearest police station.
[25] CB102
After requesting a further extension of time, the applicant responded to the Tribunal’s letter of 14 November 2014 by an email sent on 5 January 2015.[26] The applicant confirmed what he had told the Tribunal at the hearing of 14 August 2014, namely, that he had undertaken the IELTS test on 7 May 2011, and said he was not satisfied with the particulars provided by the British Council in the email it sent to the Tribunal on 8 November 2014. The applicant said he did not think it fair that the British Council stated the applicant had used an impersonator “only because they merely noted that my two photographs did not match”.
[26] CB94
The applicant made a number of submissions. These included a submission that the applicant’s case was like that considered by the Full Federal Court in Trivedi v Minister for Immigration and Border Protection,[27] a submission that he was unsure how any person who attends an IELTS test could successfully impersonate another person, the British Council lacked transparency and accountability, apparently because the British Council had a record of the photographs of the applicant but not of his test results, the British Council incorrectly stated that the applicant had sat for an IELTS test on 7 July 2011, and that he felt that “certain staff members of the British Council team are lying”. The applicant also sets out in some detail events that occurred at the premises of the British Council in New Delhi on 10 and 11 December 2014, and dealings between the applicant’s mother and personnel of British Council in New Delhi, and between the applicant and such personnel. The applicant also attached what he claimed was another photograph of himself “which also some may conclude is not of me”. The applicant claimed he had showed the photograph to personnel of British Council in New Delhi in December 2014.
[27] [2014] FCAFC 42
By letter dated 28 January 2015, the Tribunal invited the applicant to attend a further hearing before it on 9 February 2015. During that hearing, the applicant confirmed that the two photographs to which the applicant referred in his submission of 5 January 2014 were the photographs that appear in the applicant’s TRF of 7 March 2011 and 23 March 2013 to which the British Council referred in its email to the Tribunal of 26 November 2014. The applicant said the British Council showed him these two photographs in December 2014. [28] The applicant further said that the photograph that appeared on the applicant’s TRF was a photograph of him.
[28] CB130, [47]
Tribunal’s reasons
The Tribunal accepted the applicant’s argument that it would have been preferable had the British Council informed the applicant that the results of the 7 May 2011 test had been cancelled as soon as possible after that occurred. The Tribunal also accepted it had no expertise in facial recognition and, for that reason it could not make its own determination whether it was in fact the applicant who undertook the test. The Tribunal nevertheless found there was before it evidence that the applicant’s TRF was a bogus document because, according to the British Council, it was not the applicant who took the test recorded in the applicant’s TRF. The Tribunal found that the British Council’s determination that a person other than the applicant had undertaken the test “constitutes probative evidence that another person undertook the test”.[29]
[29] CB131, [55]
The Tribunal further found that the British Council’s decision to cancel the results of the 7 May 2011 IELTS test because the applicant used an impersonator:
meant that the TRF given to the Minister or an officer was a bogus documents either because it purports to have been, but was not, issued in respect of the applicant in the sense that the results were issued in respect of the person who undertook the test and that person was not the applicant (s.97(a)); or because it was obtained because of a false or misleading statement, namely, the person who undertook the test made a false or misleading statement that he was the applicant, because on 7 May 2011 the person who undertook the test, either impliedly or expressly, falsely claimed to the British Council that he was the applicant (s.97(c)).
First ground of application
The applicant relies on three grounds of application. The first is as follows:
The Tribunal decision was affected by a breach of natural justice or procedural fairness.
Particulars
(a)Conduct of the British Council in India in not informing the applicant of the reasons why, and the information upon which, the published results of his IELTS test, taken in New Delhi in May 2011 may be cancelled before they were actually cancelled.
(b)The conduct of the British Council in not informing the applicant of the reasons why, and the information upon which, the published results of his IELTS test, taken in New Delhi in May 2011 may be cancelled before the records of its investigations were destroyed.
(c)The conduct of officers of the Department of Immigration and Border Protection, in not informing the applicant of the allegation that he had not taken an IELTS test in New Delhi on 7 May 2011, and that an impersonator had taken the test in his name, prior to the British Council’s records of its investigations into his IELTS test being destroyed.
Parties’ submissions
In his written submissions counsel for the applicant submits that the British Council itself was under a duty to accord procedural fairness to the applicant which the British Council failed to fulfil, and that had the consequence of infecting the Tribunal’s decision with jurisdictional error, even though the Tribunal was not at fault. In oral address counsel for the applicant submitted that although none of the cases on which he relies is “on all fours with the one here”, they do suggest that “non-statutory bodies are subject to judicial review if they exercise public law functions”. Counsel further submitted there is “no reason why they should not be”. Counsel asked rhetorically: if the government “proposes to give power to a non-government body, or devolve a function on a non-government body for the purposes of Commonwealth legislation, be that body in Australia, Slovenia . . . why should there not be a means for an individual to obtain redress if there’s an abuse of power which affects the decision to which the individual is subject”?[30]
[30] T11.25
Counsel for the Minister accepted that the denial of procedural fairness may vitiate a decision even where the decision-maker is not at fault. Counsel submitted, however, that before the Tribunal’s decision can be held to have been made in breach of any duty to accord procedural fairness, it must be established that the unfairness inhered in the Tribunal’s processes; and that cannot, in the circumstances of this case, be established. Counsel further submitted that the decisions of the British Council are not amenable to judicial review because it is not a body created by Australian law, it is not subjected to the direction of the Minister or any other public authority, and it does not perform any Australian governmental function or exercise any power conferred by a Commonwealth statute.
Issues
Ground 1, and the submissions counsel for the applicant has made, rely on the acts and omissions of two actors or classes of actors for claiming the Tribunal’s decision was infected by jurisdictional error due to the applicant’s having been denied procedural fairness. The first actor is the British Council; and the applicant here makes two submissions. First, the applicant submits the British Council itself came under a duty to afford the applicant procedural fairness. The applicant particularly relies on the decision and reasoning of the English Court of Appeal in R v Panel on Take-overs and Mergers; ex parte Datafin Plc.[31] The applicant’s second submission is that, whether or not the British Council was under a duty to accord the applicant procedural fairness, the Minister’s exercise of the power under s.65 of the Act, and hence the Tribunal’s exercise of the Minister’s powers on review, to grant or not to grant to the applicant the Student visa for which he applied, was conditioned on the British Council’s having accorded the applicant procedural fairness.
[31] [1986] 1 QB 815
The second actor or class of actors on which the applicant relies is that of officers of the Department. As with his reliance on the acts or omissions of the British Council, the applicant submits that officers of the Department were under a duty to accord the applicant procedural fairness or, if not under any such duty, the Minister’s exercise of the power under s.65 of the Act was conditioned on officers of the Department having accorded procedural fairness to the applicant.
The following two issues arise:
a)Did the British Council or officers of the Department come under a duty to accord the applicant procedural fairness?
b)Whether or not the British Council and officers of the Department come under a duty to accord the applicant procedural fairness, was the decision of the delegate under s.65 of the Act, and the decision of the Tribunal when reviewing the delegate’s decision, conditioned on the British Council and the officers of the Department having accorded the applicant procedural fairness?
Amenability of British Council to judicial review by this Court
As I have already noted, the applicant particularly relies on Datafin for submitting the British Council was under a duty to accord the applicant procedural fairness. It is, therefore, necessary to examine that case, and its reception in Australia.
The issue in Datafin was whether a decision made by the Panel on Take-overs and Mergers (Panel) was liable to judicial review. The Panel was an unincorporated association without legal personality that comprised of twelve persons appointed by a number of associations or committees whose members were participants in the London securities markets. The Panel had no statutory, prerogative, or common law powers, but it had functions assigned to it by the City Code on Take-overs and Mergers (Takeovers Code). The Takeovers Code itself did not have the force of law, but, rather, constituted a set of rules which participants in the securities markets were expected to follow. The Takeovers Code provided sanctions for non-compliance, such as the withholding of admission of shares into the official list of the London Stock Exchange; and the Panel had the power to inquire into, and determine whether the rules had been complied with and, if not, what sanctions should be imposed or recommended. The Takeovers Code, and its administration and enforcement by the Panel, were supported by government policy, and “central government has incorporated the panel into its own regulatory network built up under the Prevention of Fraud (Investments) Act 1958 and allied statutes, such as the Banking Act 1979”.[32]
[32] [1986] 1 QB 815 at page 836
The Court of Appeal held that the Panel was liable to judicial review. Sir John Donaldson said:[33]
In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction [to grant certiorari], but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction.
. . . . [The Panel] is without doubt performing a public duty and an important one. This is clear from the expressed willingness of the Secretary of State for Trade and Industry to limit legislation in the field of take-overs and mergers and to use the panel as the centrepiece of his regulation of that market. . . . At least in its determination of whether there has been a breach of the code, it has a duty to act judicially. . . . Its source of power is only partly based upon moral persuasion and the assent of institutions and their members, the bottom line being the statutory powers exercised by the Department of Trade and Industry and the Bank of England.
[33] [1986] 1 QB 815 at page 838
In the course of dealing with the submission that the sole test of whether a body of persons is subject to judicial review is the source of its power, and in particular, whether the source is legislation or the prerogative, Lloyd LJ said:[34]
I do not agree that the source of the power is the sole test whether a body is subject to judicial review . . . . Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review . . . .
But in between these extremes there is an area in which it is helpful to look not just at the sources of power but at the nature of the power. If the body is exercising public law functions, or if the exercise of its functions have public law consequences, then that may . . . be sufficient to bring the body within the reach of judicial review. It may be said that to refer to “public law” in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we have referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other.
[34] [1986] 1 QB 815 at page 847
Datafin, therefore, stands for the principle that “a decision of a private body which was not made in the exercise of a statutory power may be amenable to judicial review if the decision is, in a practical sense, made in the performance of a “public duty” or in the exercise of a power which has a “public element”.[35]
[35] CECA Institute Pty Ltd v Australian Council for Private Education and Training [2010] VSC 552 at [77] (Kyrou J)
The authority of Datafin in Australia is not settled. In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd Basten JA, sitting in the Court of Appeal of the Supreme Court of New South Wales, reviewed Australian cases that referred to Datafin and concluded “there is an absence of authority in Australia addressing the question of whether or not Datafin applies”.[36] On the other hand, in CECA Institute Pty Ltd v Australian Council for Private Education and Training, Kyrou J held that Datafin applied in Victoria:[37]
In my opinion, the Datafin principle represents a natural development in the evolution of the principles of judicial review. Indeed, it is a necessary development to ensure that the principles can adapt to modern government practices. The last 20 years or so have seen a growing tendency by the legislature and the executive to out-source important governmental functions to private organisations. As this trend is unlikely to abate, the Datafin principle is essential in enabling superior courts to continue to perform their vital role of protecting citizens from abuses in the exercise of powers which are governmental in nature.
[36] [2010] NSWCA 190 at [81]
[37] [2010] VSC 552 at [99]
It is important to be clear about the nature of the principle or principles considered in Datafin. In the words of Kyrou J in CECA, Datafin was concerned with the amenability to judicial review of decisions made by private bodies. Here “judicial review” denotes the supervisory jurisdiction possessed by superior courts of record that has as its source the jurisdiction the Court of King Bench once exercised over inferior courts and tribunals by the grant of prohibition, certiorari, and mandamus. In Australia “judicial review”, in this sense, refers to the “supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus)” which “was, and is, a defining characteristic of those courts”.[38] Thus, the principles considered in Datafin are concerned with jurisdiction, and in particular, the extent of the inherent jurisdiction of a superior court of record, such as State Supreme Courts, to engage in judicial review of decisions made by private bodies.
[38] Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, at [98]
It should be apparent, however, that the issue considered and decided in Datafin is of limited or no relevance to the jurisdiction of a federal court that has been created pursuant to s.71 of the Constitution, such as the Federal Circuit Court of Australia, to engage in judicial review. The extent to which any such federal court has jurisdiction to engage in judicial review depends on the nature and scope of the judicial power of the Commonwealth provided for by Chapter III of the Constitution, and on the scope and nature of the jurisdiction Parliament, consistently with the Constitution, chooses to confer on the federal court. And that brings me to the jurisdiction of this Court that has been invoked by the application for judicial review that is before me.
The jurisdiction that has been invoked is that conferred by s.476 of the Act. Subsection 476(1) provides that this Court “has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. Paragraph 75(v) of the Constitution provides that the High Court has jurisdiction in all matters in “which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”. The jurisdiction conferred on this Court by s.476(1) of the Act, therefore, is not a general jurisdiction to engage in judicial review; it is a jurisdiction encased within a number of limitations.
First, it is subject to the limitation inherent in the grant of jurisdiction itself; it is limited to “migration decisions” as that expression is defined in the Act. At the time the applicant applied for a Skilled visa, “migration decision” was defined in s.5 of the Act to mean “a privative clause decision”, or “a purported privative clause decision”, or “a non-privative clause decision”. A “privative clause decision” was defined in s.474(2) of the Act to mean “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)”. A “non-private clause decision” was defined in s.474(6) of the Act to refer to the decisions identified in s.474(4) and (5), none of which is relevant to the issues I have to decide.
The next limitation, or rather set of limitations, is that which surrounds s.75(v) of the Constitution. First, there is the nature of the remedies provided for by s.75(v) of the Constitution, namely, mandamus, prohibition, and injunction. This Court has the power under s.15 of the Federal Circuit Court of Australia Act 1999 (Cth) to issue other remedies, including the writ of certiorari, in relation to migration decisions, but only if its jurisdiction has properly been invoked by an application in relation to a migration decision in which one of the remedies provided for in s.75(v) of the Constitution is sought.[39] Second, there is the class of persons against whom the remedies provided for by s.75(v) of the Constitution may be granted, namely, the class of persons who answer the description of “officer of the Commonwealth”. A somewhat large variety of persons have been held to be “an officer of the Commonwealth”; but the cases have held that institutional respondents fall outside that description.[40] There has been discussion about the possibility of s.75(v) of the Constitution applying to persons who, although not officers of the Commonwealth, perform governmental functions that have been outsourced to them;[41] but there is no authority that supports such extension of s.75(v). Third, there is a territorial limitation to the granting of the remedies provided for by s.75(v) of the Constitution. That question does not appear to have been previously considered in relation to s.75(v). Under the common law, however, it has been held that the prerogative writs of certiorari, prohibition, mandamus, and habeas corpus run within, and only within, the Crown’s dominions.[42]
[39] See R v District Court; Ex parte White (1966) 116 CLR 644 at page 655 where Windeyer J, speaking of the High Court’s jurisdiction under s.75(v) of the Constitution, said: “It is at least questionable whether certiorari to quash proceedings of an inferior tribunal can issue from this Court as a substantive remedy not ancillary to some proceeding otherwise within the original jurisdiction of the Court.”
[40] See M Aronson, M Groves, G Weeks Judicial Review of Administrative Action and Government Liability, Sixth edition (2017), Thomson Reuters, at [2.150] and [2.160]
[41] See, for example, J Boughey and G Weeks “‘Officers of the Commonwealth’ in the Private Sector: Can the High Court Review Outsourced Exercises of Power?”, (2013) 36 UNSW Law Journal 316
[42] See, for example, Rex v Cowle [1759] EngR 93; (1759) 2 Burr 834; 97 ER 587 where Lord Mansfield, dealing with the question whether a writ of certiorari lay to the corporation justices of Berwick, said (at 97 ER 587 pages 599-600): “Writs, not ministerially directed, (sometimes called prerogative writs, because they are supposed to issue on the part of the King,) such as writs of mandamus, prohibition, habeas corpus, certiorari, are restrained by no clause in the constitution given to Berwick: upon a proper case, they may issue to every dominion of the Crown of England. . . . To foreign dominions, which belong to a prince who succeeds to the throne of England, this Court has no power to send any writ of any kind.” This position was affirmed in relation to certiorari in Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067
I return to the applicant’s submission that the British Council owed the applicant a duty to accord him procedural fairness. To the extent the applicant relies on Datafin, the relevant question is whether the British Council, by engaging in the conduct on which the applicant relies for claiming it failed to accord the applicant procedural fairness, is amendable to judicial review by this Court.
In my opinion it is not. First, I am not satisfied the acts or omissions of the British Council on which the applicant relies for claiming it failed to accord the applicant procedural fairness is a “migration decision” for the purposes of s.476 of the Act because it is not a “privative clause decision”, as defined in s.474(2) of the Act. None of the acts or omissions of the British Council on which the applicant relies can be said to have been “made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)”. Second, the British Council is not an officer of the Commonwealth. And third, there is no evidence before me that suggests the British Council is located in Australia such that it would be amenable to any writ this Court may issue.
I next turn to the question of whether, although the British Council may not be amenable to judicial review, nevertheless the valid exercise of the Minister’s power under s.65 of the Act to grant or refuse to grant the applicant a Skilled visa was conditioned on the British Council according procedural fairness to the applicant.
Cases on which applicant relies
Counsel for the applicant relies on a number of cases for the submission that it was a condition to the due exercise of the Minister’s power to grant or not to grant the applicant the Skilled visa that the British Council afford the applicant procedural fairness. The first case is Wei v Minister for Immigration and Border Protection.[43]
[43] [2015] HCA 51
In Wei a delegate of the Minister purportedly cancelled the plaintiff’s student visa pursuant to s.116(1)(b) of the Act because a requirement of the plaintiff’s student visa had not been met. The requirement was that the plaintiff be enrolled in a “registered course” as that expression is defined by the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act). Section 19 of the ESOS Act required institutions that were registered providers of courses of education to provide to the Secretary of the Department of Education and Training (Secretary) prescribed information in a form approved by the Secretary about each holder of a student visa who was enrolled in a “registered course”. The form approved by the Secretary consisted of registered education providers inputting the prescribed information into an electronic database known as the Provider Registration and International Student Management System (PRISMS). The ESOS Act permitted the Secretary to give information obtained or received for the purposes of the ESOS Act to an agency of the Commonwealth that is responsible or otherwise concerned with immigration. The Secretary made available to officers of the Department the information contained in PRISMS.
The delegate cancelled the plaintiff’s student visa after the delegate searched PRISMS for the purpose of determining whether the plaintiff was registered in a course, but the result of that search showed the plaintiff was not so registered. PRISMS did not record the plaintiff was registered, however, not because the plaintiff was not enrolled in a registered but because, so Gageler and Keane JJ found, the education provider failed to input those details into PRISMS.
Gageler and Keane JJ found the delegate’s decision to cancel the plaintiff’s visa was made in jurisdictional error. Their Honours held that the due performance of s.19 of the ESOS Act was a “condition of the valid exercise of a decision-making power conferred by the Act”[44] (in this case being the power conferred by s.116(1)(b) to cancel a visa). The basis of their Honours’ conclusion was their construing s.19 of the ESOS Act as imposing an “imperative” or “mandatory” duty, the breach of which would result in the invalidity of a purported exercise of power conferred by the Act that depended on or required its due performance. Their Honour’s construction of s.19 of the ESOS Act, in turn, was based on their Honours’ view that the purpose of the statutory scheme of which s.19 of the ESOS Act formed part would be advanced by construing it as imposing an “imperative” or “mandatory” duty, and to construe s.19 otherwise would be manifestly unjust to the plaintiff.
[44] [2015] HCA 51 at [23]
Nettle J also concluded that the delegate’s decision to cancel the plaintiff’s visa was affected by jurisdictional error. His Honour, however, did not agree that the delegate made a jurisdictional error only because the education provider failed to communicate to PRISMS accurate information concerning the status of the plaintiff’s course registration, and the delegate basing his decision on the resulting inaccurate information in PRISMS.
The second case on which the applicant relies is Plaintiff M61/2010E v The Commonwealth of Australia.[45] Section 46A(1) of the Act provided that an application for a visa was not a valid application if made by an “offshore entry person” as that expression was defined by the Act. Subsection 46A(2) authorised the Minister, if he or she thought it was in the public interest to do so, to determine s.46A(1) did not apply to an application by an “offshore entry person”. The Minister, however, decided to establish a process whose aim would be to advise the Minister whether Australia owed protection obligations to “offshore entry persons”. The process involved officers of the Department assessing whether each “offshore entry person” was a person to whom Australia owed protection obligations and, if the officers concluded Australia did not owe such obligations, then the “offshore entry persons” had the opportunity to apply for a further assessment by an independent reviewer. The intended purpose of the advice that was to be provided by this process was to assist the Minister to make a decision either to exercise the power under s.46A(2) of the Act to permit such persons to apply for a visa or otherwise to exercise the power under s.195A of the Act.
[45] [2010] HCA 41; (2010) 243 CLR 219
The High Court held that persons who were to provide assessments of Australia’s protection obligations came under a duty to accord procedural fairness to each of the “offshore entry persons” they assessed. The source of the duty was “the Minister’s decision to consider whether power should be exercised under either s 46A or s 195A”.[46] That gave rise to a duty to accord procedural fairness because the Minister’s decision:[47]
directly affected the rights and interests of those who were the subject of assessment or review. It affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete. . . . [O]nce it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. . . . The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers.
[46] [2010] HCA 41; (2010) 243 CLR 219, [76]
[47] [2010] HCA 41; (2010) 243 CLR 219, [76], [77], [78]
The third case on which the applicant relies is Minister for Immigration and Citizenship v Maman.[48] The Tribunal in that case affirmed a decision of a delegate of the Minister not to grant the applicant a partner visa. It did so by relying on an independent expert’s report that concluded the applicant was not the victim of domestic violence. The expert relied on a letter the sponsor had sent to the Department on which a previous expert had relied. The letter from the applicant’s sponsor had not been disclosed to the applicant. Under reg.1.23(1B)(b) of the Regulations, when considering a non-judicially determined claim of domestic violence, the Minister was required to seek an independent expert’s opinion, and, once obtained, was required to take the independent expert to be correct. After he became aware of the sponsor’s letter, and that the independent expert had relied on it, the applicant requested the Migration Review Tribunal (MRT) to request a further expert opinion. The MRT refused to do so. A judge of this Court set aside the MRT’s decision because the independent expert failed to accord the applicant procedural fairness, and the MRT failed to take into consideration that the independent expert had failed to accord procedural fairness to the applicant. On appeal to the Full Federal Court, the Minister accepted the independent expert owed the applicant a duty to accord procedural fairness. The Minister submitted, however, that the duty did not require the independent expert to disclose the letter from the sponsor and, in any event, even if the independent expert was so required, the MRT was under no duty to consider whether the independent expert had afforded the applicant procedural fairness such that the MRT’s failure to consider that matter went to the Tribunal’s jurisdiction.
[48] [2012] FCAFC 13
The Full Federal Court held the independent expert had failed to accord the applicant procedural fairness. The opinion of the independent expert, therefore, was not an opinion that was formed according to law; and, for that reason, there was no “opinion” on the basis of which the MRT could validly have made its decision. In the words of Flick and Foster JJ:[49]
The conclusion that there is no “opinion” which satisfied the requirements of reg.1.23(1B)(b) or (1C), it is further concluded, also has the consequence that the decision of the Tribunal itself is vitiated by jurisdictional error. This conclusion as to the procedurally flawed nature of the “opinion” given by each independent expert, has the consequence that it vitiates all that follows thereafter. This conclusion, it is respectfully considered, follows from:
·the conclusiveness ascribed by reg. 1.23(1C) to the “independent expert’s opinion”;
·the limited opportunity given to a party to a domestic relationship to contribute to or participate in the formation of an “opinion” which so immediately affects that party’s interests; and
·the absence of any attempt on the part of the Legislature to exclude or limit the application or content of the common law rules as to procedural fairness.
[49] [2012] FCAFC 13 at [65]
The fourth case on which the applicant relies is R v Criminal Injuries Compensation Board; Ex parte A.[50] In that case, the House of Lords held that the decision of the Criminal Injuries Board was the product of an unfair hearing because, though no fault of the Board, information that was favourable to the applicant for compensation was not put before the Board.
Did the British Council’s according procedural fairness condition the Minister’s exercise of power under s.65?
[50] [1999] 2 AC 330
The cases on which the applicant relies have a common theme. The administrative decisions with which those cases were concerned depended in some way on some other person doing or not doing something. The relevance of the other person’s acts or omissions to the decisions in question, however, differed. In Wei and Maman the other person was found to have been under a legal duty to act in a particular way but failed to do so; and the validity of the decision in question depended on the other person performing his or her legal duty. In Plaintiff M61/2010E, as in Wei and Maman, the other person, being the independent assessor, was also under a legal duty to act, but failed to act, in a particular way; but the exercise of the power in association with which the independent assessor owed the duty to act was not amenable to certiorari or mandamus, although conduct based on the exercise of the power that relied on an unlawful recommendation by an independent assessor was liable to be restrained by injunction. In Ex parte A the decision miscarried, not because the other person was under a duty to act in a particular way, but because the omission of the other party led to the decision in question being unfair.
The question is whether these cases are sufficiently analogous to the facts that are before me. In my opinion they are not analogous, or sufficiently analogous, to compel the conclusion the Tribunal made a jurisdictional error because the British Council failed to do that which the applicant claims it failed to do.
The issue before the Tribunal was whether the opinion the British Council communicated to the Tribunal that an imposter had undertaken the IELTS test on 7 May 2011 constituted evidence that the applicant had given to the Minister a “bogus document”. In particular, the question was whether the opinion of the British Council constituted evidence that the applicant’s TRF was a bogus document. That required the Tribunal to consider whether the opinion of the British Council was sufficiently probative to lead to the conclusion that the applicant’s TRF was a bogus document for any one of the three reasons specified in s.97 of the Act.
It is true that, at least for most purposes, the Regulations require the Minister to treat test results that the British Council records in documents that it issues, such as the applicant’s TRF, as conclusive evidence. The Regulations, however, assign no such status to other communications from the British Council. In particular, the Regulations did not require the Minister or the Tribunal to treat the British Council’s opinion that an imposter had sat for the IELTS test on 7 May 2011 as conclusive, or as anything more than information the Tribunal was required to consider for the purpose of determining whether it was probative evidence that the applicant’s TRF was a bogus document for any one of the three reasons specified in s.97 of the Act.
This distinguishes the case before me from Maman, Plaintiff M61/2010E, and Wei. In Maman the Regulations required the decision maker to accept the opinion of the third person. In Plaintiff M61/2010E the administrative scheme the Minister established in a practical sense required the Minister to accept the opinion of the independent assessor. And in Wei the decision maker was required to act only on the basis that the other person had performed the statutory duty imposed on that person. In the case before me, however, the opinion of the British Council was no more than an item of information which the Tribunal was not required to accept; rather, the Tribunal’s obligation was to assess the information for the purpose of determining whether it constituted probative evidence that the applicant’s TRF was a bogus document for any one of the three reasons specified in s.97 of the Act.
There is another reason why the facts of the case before me are materially distinguishable from the cases on which the applicant relies. Unlike those cases, the Tribunal in the case before me was required by s.359A of the Act to give to the applicant particulars of the British Council’s opinion to the extent the Tribunal considered the opinion would be the reason or part of the reason for affirming the delegate’s decision. That implies that the Tribunal’s decision was not conditional on the British Council’s according the applicant procedural fairness because the Tribunal itself was bound to provide to the applicant particulars of the opinion the British Council formed about who had undertaken the IELTS test on 7 May 2011 and afford the applicant an opportunity to make submissions.
There is one final matter to note. The applicant assumes that procedural fairness in the circumstances of this case required the disclosure to the applicant of the records of the investigations the British Council undertook that led to its concluding the test of 7 May 2011 was undertaken by an imposter. I do not accept that assumption.
The nature and extent of the duty to afford procedural fairness was recently restated by the High Court in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI:[51]
[C]ompliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a “practical injustice”
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.
[51] [2016] HCA 29 at [82], [83]
The Tribunal disclosed to the applicant the opinion of the British Council that an imposter had sat the IELTS test on behalf of the applicant. The Tribunal also disclosed the basis on which the British Council had formed that opinion, namely, the comparison of photographs purportedly of the applicant. The applicant therefore had an opportunity to make submissions to the Tribunal that showed it was he who had undertaken the test on 7 May 2011. The applicant certainly asserted he did undertake the test, and he provided some evidence, in the form of another photograph, which he claimed was of him. The applicant, however, provided no other evidence that it is reasonable to suppose would have been available to him to provide had he in fact undertaken the exam. For example, the applicant gave no evidence about the circumstances in which he booked the exam, about the payment or payments that were made for the test, an account of where the examination was held, the time at which it was held, his attending the place where the examination was held at the time it was held, the procedure that was followed immediately before, and during the examination, whether he provided or was provided documents during the examination, or about how he came into the possession of the applicant’s TRF. It is true the Tribunal did not disclose to the applicant records the British Council had generated in the course of the investigation that led to its concluding an imposter undertook the 7 May 2011 test. The applicant does not submit, however, and there is nothing to suggest, that the Tribunal had access to, or relied on such documents.
In my opinion, therefore, the Tribunal’s decision to review the delegate’s decision not to grant the applicant a Skilled visa was not conditioned on the British Council according the applicant procedural fairness.
Did the Departmental officers’ according procedural fairness condition the valid exercise of the delegate’s power under s.65?
The applicant does not submit it was the delegate who owed a duty of procedural fairness to the applicant. The applicant submits it was officers of the Department who failed to accord the applicant procedural fairness, and the failure consisted in their not informing the applicant of the British Council’s opinion that an imposter had undertaken the test of 7 May 2011 before documents the British Council generated in the course of the investigation were destroyed. I do not accept this submission.
First, the duty to accord procedural fairness attaches to a power which, when exercised, is capable of adversely affecting the interests of a person. As was said in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI:[52]
The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.
[52] [2016] HCA 29 at [75]
The applicant does not identify the power which the Departmental officers exercised or were required to have exercised which attracted the duty to accord procedural fairness on which the applicant relies and which he submits the Departmental officers failed to perform. In my opinion, there was no power exercisable by the Departmental officers that gave rise to a duty by them to afford the applicant procedural fairness the applicant alleges they were required to afford to the applicant.
Second, the Departmental officer’s acts or omissions are not matters that can be said to have conditioned the delegate’s or the Tribunal’s exercise of power. There is nothing in the Act or Regulations that impose a duty on Departmental officers to communicate to the applicant the Department’s receipt of adverse opinions from the British Council before the British Council destroyed records relevant to the opinions. And there is nothing in the Act or the Regulations that require the Minister or the Tribunal to be satisfied that Department officers had performed any such duty before the Minister or the Tribunal on review could exercise their powers.
In my opinion, therefore, the Tribunal’s decision to review the delegate’s decision not to grant the applicant a Skilled visa was not conditioned on officers of the Department having communicated to the applicant the adverse opinion of the British Council.
Conclusion
For these reasons, ground 1 fails.
Ground 2
Ground 2 is as follows:
The Tribunal erred in failing to review the delegate’s decision according to law.
Particulars
(a)The Tribunal effectively delegated the task of finding whether the applicant had used an impersonator to sit his IELTS test on 7 May 2011, and therefore whether there was evidence of his having produced a “bogus document” within the meaning of PIC 4020 read with s.97 of the Migration Act, to the British Council
Read literally, this ground assumes the Tribunal’s task included determining whether the applicant had used an impersonator to sit the IELTS test on 7 May 2011, and, therefore, whether there was evidence of his having produced a “bogus document” within the meaning of PIC 4020 read with s.97 of the Migration Act, to the Minister. That was not a task the Tribunal was required to undertake; its task was limited to determining whether there was no evidence the applicant’s TRF was a bogus document.[53]
[53] Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312 at [77] (Wigney J)
Perhaps the contention the applicant intends to make is that the Tribunal did not even consider whether there was evidence that the applicant’s TRF was a bogus document, but simply relied on the opinion of the British Council. If that is the contention, I do not accept it. The Tribunal in terms found that the British Council’s determination that another person undertook the test constituted probative evidence that another person undertook the test.[54]
[54] CB131, [55]
Ground 2, therefore, also fails.
Ground 3
Ground 3 is as follows:
The Tribunal erred in its construction and application of the word, “evidence” in PIC 4020.
Particulars
(a)The Tribunal relied on the opinion or determination of the British Council in India in determining whether the applicant had produced a bogus document to the Minister’s Department.
(b)The determination or opinion was not “evidence” within the meaning of that provision.
The meaning of “evidence”, as used in PIC 4020, was considered by Edmonds J in Talukder v Minister for Immigration & Citizenship.[55] His Honour said:[56]
In my view, the word ‘evidence’ is used, in contradistinction to the word ‘information’, which is also used in the clause, to impose a requirement that, whatever facts are conveyed by the material relied upon to establish that the information given to meet the requirements of item 1128CA(3)(k) of Schedule 1 was false or misleading in a material particular, are sufficiently probative to lead to that conclusion.
[55] [2009] FCA 916
[56] Talukder v Minister for Immigration & Citizenship [2009] FCA 916 ,[20]
Two questions arise. First, what information did the Tribunal conclude constituted “evidence” that the applicant’s TRF was a bogus document? Second, was that information sufficiently probative to lead to the conclusion that the applicant’s TRF was a bogus document?
The information the Tribunal considered as evidence that the applicant’s TRF was a bogus document was the “British Council’s determination that another person undertook the test”.[57] It is not entirely clear what the Tribunal meant by “determination”. On a narrow reading, it could be said the Tribunal intended to refer to the determination the British Council made in 2011. In my opinion, however, the Tribunal used the word “determination” to refer, not only to the British Council’s determination of 2011, but to statements the British Council made in the emails it sent to the Tribunal on 8 and 26 November 2014. That is so because the Tribunal itself inquired of the British Council about the circumstances in which it had previously determined the applicant did not sit for the 7 May 2011 test, and the Tribunal set out in its reasons the responses contained in the British Council’s emails of 8 and 26 November 2014.[58]
[57] CB131, page 55
[58] CB127-128, [31], [38]
Was the information that constituted what I have found the Tribunal considered to be the “British Council’s determination” probative evidence? In answering that question, there are two matters that should be noted. The first is that it was for the Tribunal to determine whether the “British Council’s determination” was probative evidence. That, of course, does not mean the Tribunal had a complete freedom to characterise information as probative evidence; but it does mean that the relevant question before me is whether it was reasonably open to the Tribunal to find that the “British Council’s determination” was probative evidence. Second, it is necessary to have in mind the nature of the “British Council’s determination”. It was an opinion.
An opinion, at least for most purposes, is an inference drawn from observed or assumed facts.[59] An opinion is capable of constituting evidence – that is, information on the basis of which some other fact may be found to exist. More particularly, an opinion is capable of constituting an assertion on the basis of which that which is asserted by the opinion may be found to exist. The probative value of an opinion depends on a number of matters. One is whether the opinion is based on what the person expressing the opinion perceived, and the person cannot communicate what he or she perceived except by expressing an opinion.[60] Where an opinion can conveniently be separated from the facts on which it is or purports to be based, the weight that could rationally be accorded to the opinion will depend on whether the facts on which it is based are true and whether the facts, assuming they are true, are reasonably capable of supporting the opinion. And where the opinion is or purports to be an opinion that calls for expertise, its probative value will depend on whether the person who expresses it has the relevant expertise.
[59] Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths at [29010]
[60] See, for example, s.78 of the Evidence Act 1995 (Cth)
The following two matters, then, may be noted about the “British Council’s determination”. First, the “British Council’s determination” was not a bare opinion. The British Council also communicated to the Tribunal the matters on which the British Council said it relied for concluding the applicant did not undertake the IELTS test on 7 May 2011. Those matters largely consisted of a comparison of photographs. Thus, there was material before the Tribunal that permitted it to assess whether the opinion the British Council expressed was one that was based on probative material and, for that reason, conclude the British Council’s opinion itself was probative.
Second, it is open to infer, and I do infer, that the Tribunal itself considered the two photographs the British Council provided to the Tribunal, as well as the photographs the applicant had submitted. I further infer that the photographs at the very least were capable of raising a doubt about whether, as the applicant claimed, all photographs were of the applicant, that the Tribunal itself had such doubts, and that there were reasonable grounds for the Tribunal holding these doubts. I base these inferences on the following:
a)The British Council informed the Tribunal the two photographs it provided to the Tribunal were of two different individuals.
b)The applicant himself provided a photograph which he claimed was of himself and which he accepted “some may conclude is not of me”.[61]
c)The Tribunal was not satisfied that all photographs the applicant claimed were of him were in fact of the applicant. That follows from the Tribunal’s stating it was unable to make its own determination whether the photographs in truth depicted one person, the applicant, or two (or more) persons.
[61] CB95.4
Given the Tribunal’s doubts about whether the photographs depicted but one person, as the applicant claimed, or two, as the British Council claimed, it was reasonably open to the Tribunal to conclude the “British Council’s determination” was one that was reasonably available to the British Council on the material that was before it and, for that reason, conclude the opinion itself was probative evidence of the applicant’s TRF being a bogus document.
It could be said that the opinion conveyed by the “British Council’s determination” added nothing to the material on which that opinion was based because it may have been equally open to the Tribunal to itself identify the matters on which the “British Council’s determination” relied as probative evidence of the applicant’s TRF being a bogus document. But that the “British Council’s determination” may not have added anything to the material on which that opinion was based did not mean it was not reasonably open to the Tribunal to consider the opinion conveyed by the “British Council’s determination” to be probative evidence. If the “British Council’s determination” were tendered as evidence in a court of law, it would probably be excluded by the rule against opinion evidence.[62] That, however, would not be because the opinion expressed by the “British Council’s determination” would have no probative value. It would be excluded because the opinion would be superfluous; and it would be superfluous because the court itself would be in as good a position as the British Council to form the opinion that is conveyed by the “British Council’s determination”. That it is the superfluous nature of non-expert opinion that accounts for the rule against opinion evidence is a point made by Wigmore (emphasis in original):[63]
The true theory, then, of the opinion rule, in the sense we are here to use, is simply that of the exclusion of supererogatory evidence. It is not that there is any fault to find with the witness himself or the sufficiency of his sources of knowledge or the positiveness of his impression; but simply that his testimony, otherwise unobjectionable, is not needed, is superfluous.
[62] See, for example, Smith v R [2001] HCA 50
[63] J H Wigmore, Evidence in Trials at Common Law, 3rd ed, Little Brown & Co., Boston, 1940, Vol 7 § 1988 page 11
The Tribunal, of course, is not bound by the rules of evidence. Given the “British Council’s determination” was based on evidence it was reasonably open to the Tribunal to conclude was probative evidence, it was reasonably open to the Tribunal to regard as probative evidence the opinion the British Council expressed on the basis of that evidence. Ground 3, therefore fails.
Disposition
I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 1 September 2017
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