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Shah v Minister for Immigration & Anor [2011] FMCA 18 (16 February 2011)

Last Updated: 17 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHAH v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Skilled Overseas Student visa – review of Migration Review Tribunal (“Tribunal”) decision – skills assessment – whether evidence used in assessment was “false or misleading in a material particular” – giving of invitation to attend Tribunal hearing by facsimile transmission – whether “transmission” requires receipt or merely dispatch – degree of clarity required when notifying information pursuant to s.359A(1) of the Migration Act 1958 – ensuring that the relevance of information identified pursuant to s.359A(1) is, as far as reasonably practicable, understood by the recipient – challenge to Tribunal’s factual finding on grounds that there was no evidence for it; that it was illogical or not based on logical or probative material; that it was the product of the application of an incorrect test; that evidence had been overlooked – duty to make enquiries.

PRACTICE & PROCEDURE – EVIDENCE – Facsimile transmission records – presumption of effective dispatch and receipt of electronic communication – presumption that outcome of device or process is demonstrated by documents produced by the device or process.


Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Sainju v Minister for Immigration & Citizenship [2010] FCA 461; (2010) 185 FCR 86
SZOBI v Minister for Immigration & Citizenship (No.2) [2010] FCAFC 151
AZAAD v Minister for Immigration & Citizenship [2010] FCAFC 156
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138; (2008) 172 FCR 1
SZNKO v Minister for Immigration & Citizenship [2010] FCA 297; (2010) 184 FCR 505
MZYFH v Minister for Immigration & Citizenship [2010] FCA 559; (2010) 188 FCR 151
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
SZMNP v Minister for Immigration & Citizenship [2009] FCA 596
MZXKH v Minister for Immigration & Citizenship [2007] FCA 663
Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138
Wang v Minister for Immigration & Citizenship [2007] FCA 488
SZMTJ v Minister for Immigration & Citizenship (No.2) [2009] FCA 486; (2009) 109 ALD 242
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348
Khant v Minister for Immigration & Citizenship [2009] FCA 1247; (2009) 112 ALD 241
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Applicant:
MOHAMMAD ANWER ALAM SHAH

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 50 of 2010

Judgment of:
Cameron FM

Hearing dates:
10 May 2010, 24 June 2010

Date of Last Submission:
24 June 2010

Delivered at:
Sydney

Delivered on:
16 February 2011

REPRESENTATION

Counsel for the Applicant:
Mr B. Zipser

Counsel for the First Respondent:
Mr D. Godwin

Solicitors for the Respondents:
DLA Phillips Fox

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 50 of 2010

MOHAMMAD ANWER ALAM SHAH

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. On 1 June 2007 the applicant applied for a Skilled – Independent Overseas Student (Residence) (Class DD) subclass 880 visa. A delegate of the Minister refused the application on 11 May 2009 on the basis that the applicant did not satisfy cl.880.230 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
  2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
  3. For the reasons which follow, the application will be dismissed.

Background facts

  1. The Tribunal described the subclass 880 visa as an onshore permanent visa for eligible overseas students who have been studying in Australia and have recently completed an Australian degree, diploma or trade qualification. The criteria for the grant of a subclass 880 visa are set out in pt.880 of sch.2 to the Regulations. Importantly for this case, a primary criterion to be satisfied at the time of decision is cl.880.230, which relevantly provides:
  2. The Tribunal set out facts which had been included in the delegate’s decision record:
    1. the applicant’s nominated occupation for the purposes of his visa application was that of cook. Included in his application form was a skills assessment dated 13 April 2007 issued by Trades Recognition Australia (“TRA”), the relevant assessing authority, certifying that the applicant had achieved a successful skills outcome for his nominated occupation. According to the documents in his TRA file, that assessment was based on:
      1. the applicant’s Certificate III in Hospitality – Commercial Cookery qualification issued by Sydney International College of Business; and
      2. his claim of employment at Jet Café in Sydney from April 2006 to “current” (presumably referring to 28 March 2007, the date of his TRA application);
    2. in support of the latter, the applicant had provided to TRA a one-page reference letter and a ten-page job description from Jet Café, both signed by the head chef, Arifur Rahman. The job description listed cooking methods for over twenty dishes and a series of other duties including the checking of reservations, the rotation of staff breaks, dinner session set-up and the checking of staff availability;
    1. on 26 March 2009 two officers from the Minister’s department visited the premises of Jet Café Sydney and spoke to the restaurant’s manager, who stated that:
      1. the applicant had worked at the café from 9 April 2006 to 13 October 2007;
      2. he was employed as a “grade I” restaurant employee, an entry level position which did not involve any kitchen hand or sandwich hand duties. He was never employed as a cook or assistant chef;
      3. his duties consisted of cleaning pots and pans, restocking the kitchen and basic food preparation;
      4. the applicant was not employed to perform, nor did the restaurant manager recall the applicant performing, any of the following tasks: checking of reservations, rotation of staff breaks, dinner session set-up and checking of staff availability;
      5. Mr Rahman had briefly held the position of head chef at the time of the reference, however, he was not responsible for the signing of references. The applicant’s reference from Jet Café was signed in the restaurant manager’s absence; and
      6. had the restaurant manager seen the reference, she would not have allowed it to be submitted because of the inaccurate claims made in it.
  3. Given this information, the delegate found that the information provided by the applicant as part of TRA’s assessment of his skills was false or misleading in a material particular. Consequently, the delegate was not satisfied that the applicant met the requirements of cl.880.230 and he refused to grant him a subclass 880 visa.
  4. On 15 May 2009 the applicant sought a Tribunal review of that decision. In response to the Tribunal’s s.359A notice which put to him the matters set out above in [5], the applicant submitted in a statutory declaration received on 27 October 2009 that:
    1. he joined the restaurant as a kitchen hand but was later promoted to cook;
    2. he worked as directed by his supervisor. When the restaurant was not busy, he returned to his duties as a kitchen hand;
    1. the restaurant manager visited the restaurant twice a week. The day-to-day responsibilities lay with the head chef and assistant manager;
    1. the restaurant manager’s statement to the departmental officers was not true in every particular. She may not have been aware of his cooking responsibilities and may have only seen him working as a kitchen hand; and
    2. the head chef had primary responsibility for supervising the applicant and he was the appropriate person to certify the applicant’s work experience.
  5. By letter dated 4 November 2009 the Tribunal wrote to the applicant to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 23 December 2009 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing the Tribunal might make a decision on his application without further notice. The letter was sent by fax to the applicant’s migration agent. The applicant did not appear before the Tribunal on the day and at the time he was scheduled to appear. In the circumstances, the Tribunal proceeded to make a decision on the review. Subject to the issues raised by the applicant in these proceedings, s.362B of the Act empowered it to do this.
  6. Having considered the evidence before it, the Tribunal was satisfied that the work reference on which TRA’s assessment of the applicant was based contained false and misleading information about his skills and experience as a cook. In making this finding the Tribunal attached greater weight to the evidence provided by the restaurant manager than to the applicant’s claims, noting that the applicant had been given an opportunity to expand on his claims at a Tribunal hearing but had failed to attend. Consequently, the Tribunal found that the applicant did not satisfy the requirements of cl.880.230 and, accordingly, affirmed the decision of the delegate not to grant him a subclass 880 visa.

Proceedings in this Court

  1. The grounds of the further amended application were pleaded as follows:

Evidence

  1. Page 140 of the Court Book (“CB”) reproduces the Tribunal’s facsimile transmission log relevant to the invitation to attend the hearing. That transmission log records that at 11:44am on 4 November 2009 the Tribunal’s letter inviting the applicant to a hearing was sent by fax to the agent’s notified facsimile number. It records that the transmission took 3:25 minutes, was eight pages long and that its status was “OK”. Although all pages of the transmission have not been reproduced in the Court Book, the relevant pages have been, namely the covering letter addressed to the applicant’s agent and the letter addressed to the applicant inviting him to the hearing. The entirety of the message is found in exhibit A. Additionally, annexed to the affidavit of Laura Frances Weston affirmed 10 May 2010 is a copy of the “Send Log” for a fax machine at the Tribunal for 4 November 2009. That log records details which corroborate the transmission log reproduced at CB 140.
  2. The applicant’s migration agent, Mr Bahar, affirmed an affidavit on 5 May 2010 in which he deposed that between April 2009 and February 2010 he worked as a migration agent at a business called 4Nations International. During that period he worked with another migration agent, Mr Khatri, and they had two support staff together with five part-time staff. Mr Bahar deposed that a machine which was a printer, photocopier and fax machine hired from Lanier was located in the same room as the office’s reception desk. Mr Bahar deposed that, based on his observations, whenever a document was faxed to 4Nations International the machine made a PDF copy of it and emailed the document to an email address which was the designated destination point in the office for faxes.
  3. Each full-time staff member had an individualised, personal email address at 4Nations International.
  4. All the full-time staff had access to the designated email address for faxes (“DEA”). Mr Bahar deposed that about three or four times each day he checked that address; if there was a fax for him, he would forward it to his personal email address, print it and save it in a folder on his computer. If, when checking, he found a fax for another staff member, he forwarded it to that person’s personal email address. From time to time, other staff members would forward faxes to him. Mr Bahar did not delete faxes from the DEA after forwarding them to their intended recipient.
  5. On or about 3 November 2009 Mr Bahar travelled to Bangladesh, returning on 20 November 2009. Prior to departing for Bangladesh, he asked Mr Khatri to check his emails and to email him about any developments in the matters for which he was the responsible migration agent. While he was in Bangladesh he had access to the internet and to his personal email box at 4Nations International and he checked his email box three or four times a day. While he was overseas Mr Khatri emailed him updates on about five or six occasions but did not tell him about a letter to him from the Tribunal dated 4 November 2009 concerning the applicant’s matter.
  6. Mr Bahar deposed that he was unaware of the existence of the Tribunal’s letter of 4 November 2009 until after the Tribunal handed down its decision on 24 December 2009. Upon becoming aware of it, he spoke to a Tribunal officer who told him that on 4 November 2009 the Tribunal had faxed a letter to him inviting the applicant to a hearing on 23 December 2009. He then checked the DEA, spoke to Mr Khatri and to the two other full-time staff. He was unable to find a record of 4Nations International having received the letter dated 4 November 2009 and he deposed that, as far as he was aware, it had not been received.
  7. The principal of 4Nations International, Mr Khatri, affirmed an affidavit on 7 May 2010. He deposed that the business’s incoming faxes were received as PDF file attachments and received via email in a designed email address which was protected by a password known to the four full-time staff. Mr Khatri deposed that he checked the DEA many times a day and if a fax had arrived for Mr Bahar and Mr Khatri was the first person to see it in the DEA, he would forward the email to Mr Bahar’s personal email address at 4Nations International. Once he was satisfied that the email had been successfully sent to Mr Bahar’s email address, Mr Khatri would then delete the email from the DEA. He deposed that other staff also forwarded emails to Mr Bahar’s personal email address. Upon learning of the Tribunal fax inviting the applicant to a hearing in December 2009, he conducted a search for the fax which, amongst other things, involved looking through the DEA for an email attaching the fax as a PDF document but he could find no record of it having been received. As far as he was aware, the Tribunal’s hearing invitation had not been received by 4Nations International.
  8. In cross-examination, Mr Khatri said that once he learnt of the missing fax he searched through the DEA and checked all the sent emails forwarding faxes to the intended recipients and he also checked the DEA’s trash folder. He checked all his notes to see if there was a record of anything that needed attention and he also checked the email system’s outstanding task list.
  9. Mr Khatri checked the DEA on 24 December 2009 and again on later occasions because he wanted to make sure that nothing had been overlooked. He stated that the fax phone number and the DEA were hosted by a third party service provider and that all the data connected with incoming faxes was maintained by that service provider off-site. After Christmas 2009 Mr Khatri contacted the service provider and asked whether there had been any technical difficulties on 4 November 2009, although it appears that he did not ask if the service provider could give him a print-out of the incoming faxes on the relevant phone number on 4 November 2009. He conceded that it was possible that either of the two other staff members could have deleted the fax although the standing instruction was that they were not to. He also said that if an email had been forwarded, a copy would have been kept in the DEA’s sent box, even if it had been deleted from the inbox.
  10. The Minister read without objection affidavits deposed by Ms Weston on 7 May 2010 and 10 May 2010. Annexed to Ms Weston’s affidavit affirmed 7 May 2010 is a copy of a notice under s.375A of the Act which certified that disclosure otherwise than to the Tribunal of a number of documents, including the statement of the restaurant manager, would be contrary to the public interest. Also annexed to that affidavit are portions of the departmental file including a redacted copy of the restaurant manager’s statement and a letter from the applicant to TRA dated 28 March 2007 enclosing, amongst other things, copies of a reference and a job description on Jet Café letterhead, both of which were in respect of the applicant, dated 10 March 2007 and signed by Mr Rahman.
  11. Ms Weston’s second affidavit, which is considered in more detail later in these reasons, annexes documents relating to the dispatch of facsimiles from the Tribunal and, in particular, the “Send Log” of a fax machine at the Tribunal for the period 30 October 2009 to 4 November 2009 which includes details which corroborate the transmission log reproduced at CB 140.

Ground 1(a) - breach of s.360

Legislation

  1. Section 360 of the Act relevantly provides:
  2. Section 379A relevantly provides:
  3. Section 379C provides:
  4. Section 379G provides:

Submissions

  1. It was the applicant’s case that the faxed invitation to attend the Tribunal hearing was never received by his migration agent, and thus was never properly given, with the result that the Tribunal’s decision is affected by jurisdictional error. The applicant submitted that if 4Nations International did not receive the fax then the Tribunal did not transmit the fax within the meaning of s.379A(5) because the word “transmit” requires or implies receipt. He submitted that if a document is not received, it is not transmitted.
  2. The Minister’s case was that as the invitation was faxed to the applicant’s migration agent, it is taken to have been received by the applicant whether or not the agent actually received it. He submitted that if the Court was satisfied that the facsimile was “transmitted” to the applicant’s migration agent then ss.379A(5), 379C(5) and 379G(1) and (2) have the effect that the applicant will be deemed to have received it. In this regard, the Minister referred to s.161 of the Evidence Act 1995 which relevantly provides:

He also referred to s.147 of the Evidence Act which provides:

147 Documents produced by processes, machines and other devices in the course of business

Consideration

  1. The effect of s.161 of the Evidence Act is that it is to be presumed, unless sufficient evidence to raise doubt about the presumption is adduced, that the fax was sent by the Tribunal from its fax machine when it purports to have been sent and was received at the applicant’s migration agent’s fax number at the completion of the transmission.
  2. In this connection, it can be accepted that neither Mr Bahar nor Mr Khatri saw the fax inviting the applicant to the Tribunal’s hearing. It can also be accepted that they made diligent searches to check whether such a fax had been received but still found no record of it. However, acceptance of their evidence on that point does not lead inevitably to the conclusion that the fax was not received in their office. For instance, they did not produce incoming fax logs or other evidence which demonstrated what faxes were received by 4Nations International on 4 November 2009 and which might have shown that the Tribunal’s fax was not amongst them. Nor was evidence adduced from the two other full time employees of 4Nations International who had access to the DEA and who could have deleted the fax before it was sent to Mr Bahar. Consequently, the possibility remains that the fax was received at 4Nations International but deleted before it could be forwarded to Mr Bahar.
  3. Against this evidence must be considered the evidence produced by the Tribunal’s fax machines as to whether the hearing invitation was, in fact, sent by the Tribunal on 4 November 2009. In this connection I have considered the documents annexed to the affidavit of Ms Weston affirmed 10 May 2010. That affidavit annexes copies of send logs for facsimile machines at the Tribunal. The first of those logs, relating to transmissions from 24 February 2010 to 2 March 2010, records amongst other things three unsuccessful transmissions, two described as “NO ANSWER” and one described as “BUSY”. All the other transmissions in that period are allocated the status “OK”. Also annexed to Ms Weston’s affidavit is a copy of what is described in another annexure as the Tribunal’s send log for the fax machine used to send the fax to the applicant on 4 November 2009. That log identifies that a fax was sent to the applicant’s agent’s fax number at 11:44am on 4 November 2009, that the transmission lasted 3:25 minutes and had a status of “OK”. Those details accord with the details appearing on the transmission log referred to above at [11].
  4. The evidence that Messrs Bahar and Khatri could not find the fax does not go so far as to demonstrate that the transmission or send logs of 4 November 2009 are inaccurate. Further, no attempt was made to demonstrate that the machine recorded fax transmissions as “OK” even if they did not reach their destination and that details contained in the logs were the product of some error in the machine or machines. Given the apparent accuracy of the Tribunal’s fax records, coupled with the fact that the evidence adduced by the applicant did not address the reliability of the Tribunal’s fax machines or the transmission and send logs, I find that the presumption provided by s.147 of the Evidence Act has not been rebutted with the consequence that I find that the Tribunal’s transmission and send logs of 4 November 2009 document the fact that at 11:44am on 4 November 2009 the Tribunal sent an eight page fax to the applicant’s migration agent which advised that the applicant was invited

Indeed, I am satisfied on balance that the fax inviting the applicant to the Tribunal hearing was, in fact, transmitted to the applicant’s migration agent at 11:44am on 4 November 2009.

  1. In light of this finding that the Tribunal’s fax machine produced the outcome recorded by the transmission and send logs and in light of the fact that the applicant’s evidence did not deal with all avenues of enquiry concerning whether the fax was received at 4Nations International, I do not find that the presumption that the fax in question was received at its intended and ostensible destination has been rebutted. In sum, I do not find that the s.161 presumption has been rebutted. This has the consequence that the fax of 4 November 2009 is presumed to have been sent by the Tribunal and received by the applicant, via his migration agent, on 4 November 2009.
  2. The s.161 presumption of dispatch and receipt is an entire concept; if one element of the presumption is displaced then it is displaced in its entirety and it cannot be presumed by means of that section either that the document was sent or that it was received. If I am wrong in concluding that the s.161 presumption has not been rebutted, at least as far as receipt of the fax is concerned, it is necessary to address as a separate issue whether the fax may nevertheless have been sent and not received. Rebuttal of the s.161 presumption, by demonstrating that the fax was not received, does not mean that the fax was not sent or that evidence cannot be led to demonstrate this. In this regard the s.147 presumption still operates with the consequence that it is to be taken that the fax in question was transmitted by the Tribunal as recorded by the transmission and send logs. I have also found as a fact that the fax was sent when the logs record it as having been sent. Accepting that the fax was sent by the Tribunal, the issue then becomes whether ss.379A and 379C have the effect that it will be deemed to have been received even if it was not. It is in connection with this issue that it is necessary to consider the applicant’s submission that the verb “to transmit” where used in ss.379A and 379C means “to send and to receive” as the applicant submitted, not just “to send”.
  3. Between the two hearing days in this matter, the Federal Court delivered its judgment in the appeal from this Court in Sainju v Minister for Immigration & Citizenship [2010] FCA 461; (2010) 185 FCR 86. In that case, the question was whether the words “by transmitting” and “transmitted” in reg.2.55(8) of the Regulations mean “by sending” or “sent”, regardless of whether the document is actually received by the intended recipient. Regulation 2.55(3) provides:

and sub-regs.2.55(5)-(8) provide:

(5) If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.
(6) If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person.
(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(8) If the Minister gives a document to a person by transmitting it by fax, e-mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.
  1. In Sainju’s case Jacobson J held that each of the deeming provisions in reg.2.55 focused upon the physical act of the Minister giving the document to the person rather than on whether the document was actually received, the underlying assumption being that the Minister’s action was sufficient to bring the document to the attention of the person regardless of whether this actually occurred. His Honour concluded in relation to reg.2.55(8) that:

See also SZOBI v Minister for Immigration & Citizenship (No.2) [2010] FCAFC 151 at [18] and [19].

  1. Regulation 2.55 is similar to ss.494B and 494C of the Act, which deal with the Minister giving documents to a person. In Sainju’s case, Jacobson J referred to ss.494B and 494C’s similarity to reg.2.55 and said that the Act and the Regulations’ use of identical expressions suggested that those expressions have the same meaning in ss.494B and 494C as they do in reg.2.55. Sections 494B and 494C are relevantly identical to ss.379A and 379C which are the provisions relevant to this case. By analogy with Jacobson J’s reasoning in Sainju’s case, I conclude that if the Tribunal faxes a document to an applicant or his agent or authorised representative, s.379C(5) deems the document to have been received at the end of the day on which the Tribunal sends it.
  2. In the circumstances, I find that the invitation to attend the Tribunal’s hearing was given to the applicant by fax on 4 November 2009 and that this satisfied the requirements of s.379A(5) with the result that the invitation is taken to have been received by the applicant at the end of that day.
  3. Consequently, I find that it has not been proved that the Tribunal failed to invite the applicant to its hearing in accordance with s.360 of the Act.

Ground 1(a) – denial of procedural fairness

  1. The applicant referred to the following passage in the Tribunal’s decision:

He submitted that one reason for the Tribunal’s finding that evidence had become available indicating that he had given false and misleading information to TRA was because he failed to attend the Tribunal’s hearing. The applicant submitted that the question whether such an inference should be drawn in light of his failure to attend the hearing amounted to an “issue arising in relation to the decision under review”. He submitted that the Tribunal should have raised this issue with him prior to making its decision and its failure to do so involved a denial of procedural fairness.

  1. The right under s.360 is to be invited to a hearing in order to address the issues relevant to the decision under review and to have the Tribunal identify those issues if they are not apparent from the delegate’s decision. The primary obligation is to extend the invitation; the secondary obligation is to alert the applicant to the issues which may be determinative of the review. The Act does not require the Tribunal to identify possibly determinative issues prior to the hearing which it proposes to hold: AZAAD v Minister for Immigration & Citizenship [2010] FCAFC 156 at [39]. The Tribunal’s duty to alert an applicant to issues which are not apparent from the delegate’s decision is a corollary of its hearing with the consequence that if an applicant does not attend the Tribunal’s hearing he or she forfeits the right to be notified of those issues.
  2. But in any event, the applicant’s submission misunderstands the meaning of “issue” where that word is used in s.360. An “issue” for the purposes of that provision is a factual matter, a finding in respect of which may be determinative of the review: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. An issue is a matter “in question”: cf SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 per Besanko J at 29 [115]. In this case the matters in question were concerned with whether false or misleading information had been used in the assessment of the applicant’s skills. The applicant’s failure to attend the hearing was not an issue in that sense.
  3. For these reasons, the allegation that the Tribunal breached s.360 by failing to alert the applicant to a purported issue associated with his failure to attend the Tribunal hearing is not made out.

Ground 2 - breach of s.359A

Legislation

  1. Section 359A relevantly provides:

Applicant’s submissions

  1. In its s.359A(1) notice of 1 October 2009 which invited the applicant to comment on or respond to information, the Tribunal identified the relevant information in the following terms:

As noted above at [7], the s.359A notice put the matters summarised above at [5] to the applicant. The Tribunal identified the relevance of the information in the following terms:

This information may indicate that information you gave to Trades Recognition Australia (TRA) as part of TRA’s assessment of your skills is false and/or misleading in material particulars, in which case you would not meet the requirements of cl.880.230 (also attached).
  1. The applicant alleged that the Tribunal failed to notify him of relevant information “clearly” and that this was relevant to the discharge of its obligations under s.359A(1)(a) and (b).
  2. In his oral submissions the applicant said that the Tribunal would not comply with its duty under s.359A(1)(a) if it simply provided a quantity of information and did not identify which of that information would be the reason or part of the reason for the Tribunal affirming the decision of the delegate. He submitted that the paragraph’s requirement that the Tribunal provide clear particulars of the relevant information required it to isolate and specify those pieces of information which met the statutory criterion. He submitted that if this was not done, an applicant would have to try to identify which aspects of the notified information the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.
  3. In his updated written submissions the applicant submitted that the Tribunal had failed to identify with a degree of precision the evidence obtained from the restaurant manager which it considered would be a reason for finding that information “given or used as part of the assessment of the applicant’s skills [was] false or misleading in a material particular”. The applicant submitted that the Tribunal had to identify the particular information or evidence given by the restaurant manager on which it relied, saying that it was insufficient merely to provide him with a summary of the entire interview. He also submitted that the Tribunal’s statement that “information you gave to TRA as part of TRA’s assessment of your skills is false or misleading in material particulars” was vague and merely a re-statement of the statutory test in cl.880.230(1) rather than the “clear particulars” which s.359A(1)(a) required. He submitted that the Tribunal was required to identify the particulars of the information that was alleged to be false or misleading in a material particular which, he submitted, it had not done.
  4. The applicant submitted that s.359A requires the Tribunal to disclose information that makes the opportunity to “comment ... or respond ...” a meaningful one: SZNKO v Minister for Immigration & Citizenship [2010] FCA 297; (2010) 184 FCR 505. He said that to understand why the information in question was relevant to the review, it was insufficient for the Tribunal to merely identify the information and refer to the statutory test. He submitted that in order to comply with s.359A(1)(b), the Tribunal had to explain why the information:
    1. was false or misleading; and
    2. was false or misleading in a material particular,

but it had not done this.

  1. The applicant also said in his oral submissions that the Tribunal did not discharge its duty under s.359A if its notice included information which was uncontroversial. In this regard he referred to the uncontentious fact that he had been employed by the Jet Café, information which was included in the s.359A notice. He submitted that the inclusion of such matters distracted from the information which was truly relevant, wasted time and energy and led to him not having a proper or satisfactory understanding of the task presented by the notice. He submitted that this amounted to practical unfairness to him.
  2. He also submitted that the matters identified in the notice did not demonstrate that he had failed to comply with cl.880.230. In this regard, he pointed to the duties identified by the delegate and quoted by the Tribunal in the s.359A(1) notice and submitted as an example that it would not be uncommon for a person working in a kitchen, even as a kitchen hand, to check how many people were booking for lunch or dinner in order to work out how much food to cook. His argument was that his prior representation to that effect could not be false or misleading. He also submitted that at least one of the particulars in the s.359A(1) notice was incorrect. In this regard, he submitted that the job description which he had supplied to the department under cover of his letter dated 19 October 2007 stated that one of his tasks was to “set up night session” whereas the s.359A notice referred to “set up dinner session and check staff availability”. He further submitted that the factual statement “mid noon rotating staffs [sic] on breaks” was ambiguous and was neither false nor misleading.

Consideration

Section 359A(1)(a)

  1. In this case, the “reason, or a part of the reason, for affirming the decision that is under review” was that information given or used as part of the assessment of the applicant’s skills had been false or misleading in a material particular. The question which the applicant’s allegation raises is, therefore, what did the Tribunal consider, at the time the s.359A notice was sent, was information which, unless it was persuaded to the contrary by the applicant, would be the reason or part of the reason for affirming the delegate’s decision that the applicant had not satisfied cl.880.230: MZYFH v Minister for Immigration & Citizenship [2010] FCA 559; (2010) 188 FCR 151. The Court is to determine the question in advance of, and independently from, the Tribunal’s reasoning: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at 1195 [17]; and to do so objectively from the available evidence which, in appropriate cases, may include the Tribunal’s reasons: SZMNP v Minister for Immigration & Citizenship [2009] FCA 596 at [53].
  2. In drawing the s.359A(1) notice in this case the Tribunal had to identify the information which had been submitted by the applicant as part of the TRA assessment process, particularise evidence which had subsequently become available indicating that information given or used as part of the skills assessment process was false or misleading in a material particular and ensure, as far as was reasonably practicable, that the applicant understood why the information contained in the notice would be relevant to the review and the consequences of it being relied on in affirming the delegate’s decision.
  3. Based on the Tribunal file which is exhibit A, the Court Book which is exhibit B, and Ms Weston’s affidavit of 7 May 2010, at the time the Tribunal sent the s.359A notice it had no more evidence than the delegate had had. It can therefore be inferred that the information grounding the delegate’s refusal of the visa was considered by the Tribunal to be information which met the criteria of s.359A(1)(a). The dispositive relevance of the information particularised in the s.359A notice is borne out by the Tribunal’s decision to prefer the information given by the restaurant manager over the information provided by the applicant, including his response to the s.359A(1) notice. Subject to the discussion below at [59], I conclude that, viewed objectively, the information contained in the notice was information which the Tribunal considered at that time would, unless the applicant persuaded it otherwise, be the reason or a part of the reason for affirming the decision of the delegate.
  4. As to the question whether the Tribunal had particularised that information clearly as required by s.359A(1)(a), in its notice the Tribunal first referred to and quoted from the reference and job description signed by the head chef which the applicant had submitted to TRA. By doing so it identified the relevant information submitted by the applicant as part of the skills assessment process which, wholly or partly, might have been false or misleading. In particular it referred to a number of duties mentioned in that job description.
  5. Having identified the relevant set of information, it then identified the possibly false or misleading sub-set of that information by referring to the delegate’s summary or paraphrase of what the restaurant manager had said about the applicant’s role and tasks at the Jet Café. By doing so it specified information which not only contradicted what the applicant had submitted to TRA but also challenged the head chef’s authority to sign the reference and job description and the authoritativeness of his statements in those documents.
  6. As already recorded, the applicant submitted that the Tribunal had to identify the particular information given by the restaurant manger on which it relied, submitting that it was insufficient merely to provide a summary of the entire interview. Whether or not information is identified with sufficient specificity for the purposes of s.359A(1) of the Act will be a matter of fact, degree and context depending on the circumstances of the case: MZXKH v Minister for Immigration & Citizenship [2007] FCA 663 at [18]. The test is an objective one, although one which must take the surrounding circumstances into account. As Tracey J said in MZXKH’s case:
  7. The Tribunal did not quote the restaurant manager or undertake its own summary or paraphrasing of what he or she had said, but at the time the matter was before the Tribunal the restaurant manager’s statement was subject to a s.375A certification. Section 375A(2)(b) provides that if such a certificate is provided to the Tribunal, it is required to do everything necessary to ensure that the relevant document and information are not disclosed to any persons other than the presiding Tribunal member. Given that, in this case, the Tribunal was unable to provide to the applicant any information contained in the restaurant manager’s statement which had not already been disclosed, it could do no better than to repeat the information from the manager’s statement which the delegate had considered dispositive and to refer to the information which the applicant had provided to TRA as the context in which the restaurant manager’s evidence had significance. Moreover, the fact that information is summarised or paraphrased does not mean that it is not clearly particularised. In this case, the burden of what the restaurant manager relevantly said was clear, notwithstanding the applicant’s specific complaints which will be considered shortly. In the circumstances, the information provided by the manager was particularised with sufficient clarity for the purposes of s.359A(1)(a).
  8. As to the applicant’s submission that the Tribunal had simply provided him with bulk information and should have, but had not, identified which of that information would be the reason or part of the reason for affirming the delegate’s decision, this assumes that some of the information particularised in the s.359A(1) notice was not, in fact, considered by the Tribunal at the time it sent its notice to meet that criterion. There is no basis for such an assumption and for the reasons given earlier, I do not accept this submission. Subject to the discussion below at [59], I have concluded that the Tribunal considered that unless it was persuaded to the contrary, all the information contained in the s.359A(1) notice would be the reason, or part of the reason for affirming the delegate’s decision. Consequently, the applicant was not required to sort out relevant information from irrelevant information and suffered no injustice or prejudice on this score.
  9. Further on the subject of the applicant supposedly being distracted from the information which was truly relevant by the inclusion of information which was not in issue, namely his employment at the Jet Café, the relevant information contained in the s.359A notice was that the restaurant manager had said that the applicant had worked at the café from 9 April 2006 to 13 October 2007, whereas the applicant had told TRA that he had worked at the Jet Café from April 2006 to “current”, his TRA application form being dated 28 March 2007. Both these items of information were particularised in the s.359A notice. The significance of this information lay not in there being any issue as to the fact that the applicant had been employed at the Jet Café, nor probably in the differences in the detail as to dates, but in it identifying the circumstances in which the other particularised information had relevance to the Tribunal’s considerations. It was information which was properly included pursuant to the Tribunal’s obligations under s.359A(1)(b). For that reason, its inclusion was unexceptionable. Moreover, the applicant’s response to the s.359A(1) notice reveals that he implicitly recognised it as such and was not distracted from addressing the issues presented by the differences between the information he gave TRA concerning his skills and experience and what the restaurant manager said on that subject.
  10. The applicant also submitted that, to the extent that the Tribunal had identified information given to TRA as potentially false or misleading, at least one item of the information which it identified was incorrect. In this regard he said that the job description which he had supplied to the department under cover of his letter dated 19 October 2007 stated that one of his tasks was to “set up night session” whereas the s.359A notice referred to “set up dinner session and check staff availability”. However, the expression “set up night session” was contained in the job description which the applicant provided to the department under cover of his letter of 19 October 2007, whereas the Tribunal correctly quoted what had been contained in the job description attached to the letter to the TRA of 28 March 2007. I do not find that the particularisation of information in the s.359A notice was flawed in the manner submitted by the applicant.
  11. Finally, the applicant’s submission that aspects of his job description as provided to TRA were not false or misleading invites the Court to disagree with the Tribunal’s factual finding. As explained later in these reasons, it was open to the Tribunal to prefer the restaurant manager’s description of the applicant’s duties over the applicant’s and to conclude on that basis that the applicant’s description was false and misleading in a material particular. Consequently, this submission does not disclose jurisdictional error on the Tribunal’s part.

Section 359A(1)(b)

  1. The Tribunal’s s.359A(1) letter was in two parts, the letter itself and an attachment which set out information taken from the delegate’s decision record which is paraphrased above at [5] and has already been discussed in the context of the Tribunal’s obligations under s.359A(1)(a). In the letter the Tribunal invited the applicant to comment on or respond to “information that the Tribunal considers would, subject to any comments or response you make, be the reason, or a part of the reason, for affirming the decision that is under review”. It continued:
  2. The issue currently relevant for consideration is whether the Tribunal’s letter ensured, as far as was reasonably practicable, that the applicant understood why the information in question was relevant to the review. The letter made plain the consequences of it being relied upon in affirming the delegate’s decision.
  3. The applicant submitted that the Tribunal had to do more than merely refer to the information and the statutory test; it also had to explain why the information was false or misleading or false or misleading in a material particular.
  4. The first point to be made in connection with this submission is that the Act does not require the Tribunal to give the explanation which the applicant submits is necessary. What is required by s.359A(1)(b) is that, as far as reasonably practicable, the Tribunal ensures that the applicant understands why the information in question is relevant to the review. The facts of this case are distinguishable from those considered in Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 where the notification letter did not explicitly state the relevance of the information which it cited. In this case, the relevance of the information which the Tribunal particularised was that it might, as the Tribunal stated, indicate that information which the applicant had given to TRA as part of its assessment of his skills was false and/or misleading in material particulars. Consequently, to that extent, the Tribunal discharged its obligation under s.359A(1)(b).
  5. In this regard, it should be observed that, subject to the condition of practicability, the Tribunal’s duty to ensure that the applicant understands the information’s relevance imports a subjective element which is not present in s.359A(1)(a). That is to say, the paragraph requires consideration of whether the applicant, in fact, understood the relevance of the information and, if he or she did not, whether the Tribunal had done all that was reasonably practicable to ensure that he or she did. Consequently, the applicant’s reference to SZNKO’s case is misconceived. There, Flick J was concerned with the Refugee Review Tribunal’s (“RRT”) failure to particularise relevant information and thus with s.359A(1)(a)’s equivalent in RRT proceedings, not with s.359A(1)(b)’s equivalent. His Honour’s statement that the provision of “clear particulars” pursuant to s.359A(1) requires:

must be understood in the context of his later statement that:

A meaningful opportunity to “comment ... or respond” in the present proceeding required the disclosure of information that was withheld. (at 513 [27])

Flick J was not saying that the Tribunal’s satisfaction of its obligation under s.359A(1)(b) was dependent on the clarity of the information notified under s.359A(1)(a). His Honour was saying that an applicant would not be able to make a meaningful comment on or response to notified information if he or she was not given all the relevant information.

  1. However, the clarity and detail of information provided pursuant to s.359A(1)(a) may be sufficient to lead to the situation where the Tribunal has complied with s.359A(1)(b), without giving the explanation which that paragraph contemplates. Even if the Tribunal fails to take independent steps under s.359A(1)(b) to ensure that an applicant understands why particularised information is relevant to the review, that relevance may be self-evident from the information itself: Minister for Immigration & Multicultural Affairs v SZGMF at [41]; Wang v Minister for Immigration & Citizenship [2007] FCA 488 at [29]. As Flick J said in SZMTJ v Minister for Immigration & Citizenship (No.2) [2009] FCA 486; (2009) 109 ALD 242 in relation to the RRT’s equivalent of s.359A(1):
  2. In this case, the evidence does not support a conclusion that the applicant did not understand why the information notified to him was relevant to the review. For instance, although the applicant made several submissions about the supposedly confusing nature of the particularised information, those submissions were unsupported by any evidence from him that he had been confused. Rather, his response to the s.359A notice indicated that he was under no misapprehension that the critical issue was the truthfulness of the assertion by the head chef that he, the applicant, performed the duties of cook or assistant chef in the course of his employment. In his response to the s.359A notice, the applicant relevantly said:
  3. This response by the applicant to the s.359A notice demonstrated that he was fully aware that the issue was whether or not he worked as a cook and assistant chef at the Jet Café. He dealt with that issue by providing reasons why the chef’s assertion that he performed in those roles was to be believed and why the restaurant manager’s assertion that he was not employed in those roles was not to be believed. These arguments demonstrate that the Tribunal had succeeded in ensuring that the applicant knew why the information notified to him was relevant to the review.

Ground 3 – Tribunal’s principal factual finding erroneous

  1. The applicant alleged that the Tribunal fell into jurisdictional error by finding that “the work reference on which TRA’s assessment of the applicant was based contained false and misleading information about the applicant’s skills and experience as a cook”. He identified the following passage from the Tribunal’s reasons as the “Central Finding”:
  2. The applicant supported the allegation of jurisdictional error by reference to a number of particularised matters.

No evidence – particular 3(a)

  1. The first particular of the allegation was that there was no evidence for the Tribunal’s finding that the work reference on which the TRA’s assessment of the applicant had been based contained false and misleading information about his skills and experience as a cook. He submitted that it appeared that the only two representations in the documents signed by the head chef which could have troubled the Tribunal were:
  2. The applicant pointed to the fact that cl.880.230(1) refers to “evidence” (and not to “information”) becoming available to show that information given or used in the skills assessment was false or misleading. He submitted that in order for information to be “evidence”, it had to have a degree of reliability and that although the rules of evidence did not apply, the Evidence Act nevertheless provided a guide to what amounted to reliable evidence. He essentially submitted that if the Tribunal relied on evidence which was not probative, for instance because it was speculation, then its decision could be affected by jurisdictional error.
  3. In this regard, and on the assumption that the restaurant manager in question was Ms Mohad, the applicant submitted that she attended the restaurant only infrequently, did not supervise him and only infrequently saw him working. On this basis he submitted that any opinion the restaurant manager held concerning whether he, the applicant, ever cooked in the kitchen was only speculation and thus not “evidence” within the meaning of cl.880.230(1). He said that this produced the result that there was no evidence to support the Tribunal’s conclusion that his statement that he was a cook was false.
  4. The applicant further submitted that there was nothing in the summary of the restaurant manager’s statement set out in the delegate’s decision and reproduced in the s.359A(1) notice which suggested that the two representations in the document signed by the head chef to which the applicant referred were, in fact, false or misleading in a material particular. In this regard, the applicant referred to the Tribunal’s finding that the applicant had been employed as a kitchen hand and had never been employed as a cook or assistant cook. He submitted that the restaurant manager did not state that the applicant had never cooked while employed at Jet Café. He also submitted that the fact that he was employed as a kitchen hand rather than as a cook or assistant chef was not inconsistent with the representations made in the documents submitted to TRA.
  5. The applicant also submitted that the only way that the Tribunal could have concluded that the information concerning his skills and experience as a cook which had been submitted to TRA was false or misleading was if he did not cook, but the restaurant manager never said this. The applicant submitted that the Court had to review the information provided by the applicant to TRA and try to find the information about the applicant’s skills and experience as a cook that could be, on the basis of the restaurant manager’s information, false and misleading in a material particular. He said that if the Court could not find a statement in the information provided to TRA which could be false or misleading in a material particular then the Tribunal had had no information to ground its decision.
  6. Notwithstanding the applicant’s submissions, this particular of the third allegation was no more than an attempt at a review of the Tribunal’s factual assessment that the chef’s reference contained information which was false or misleading. To succeed in this ground the applicant has to demonstrate that the Tribunal should have rejected the restaurant manager’s statement on the basis that the facts asserted in it were only speculation. However, before that step could be taken, it would be necessary for the Tribunal to have accepted the accuracy of what the applicant had said in his response to the Tribunal’s s.359A(1) notice about the restaurant manager’s credentials as that was the only evidence before the Tribunal that the restaurant manager infrequently attended the restaurant, did not supervise the applicant and only infrequently saw him working.
  7. Seen in this way, this particular of the allegation is not truly an allegation that there was no evidence for the Tribunal’s finding but is, rather, a complaint that the Tribunal preferred the evidence of the restaurant manager over that of the applicant. However, the Tribunal was entitled to do this; absent vitiating conduct, of which none has been demonstrated, the weight which the Tribunal accords to the evidence before it is a matter for it. The Court cannot substitute its own views on that issue for those of the Tribunal, which is what the arguments of the applicant in connection with this particular of the allegation essentially invite the Court to do.
  8. This particular of the allegation discloses no basis for the Court to disturb the weight which the Tribunal accorded the evidence before it. The Tribunal was entitled to rely on the evidence of the restaurant manager when reaching its decision on the review. Further, given what was contained in the restaurant manager’s statement, it was open to the Tribunal to find that information given by the applicant to TRA was false and misleading in a material particular. In those circumstances, I find that it was not a finding for which there was no evidence.
  9. Further, the submission that the only way that the Tribunal could have concluded that the information submitted to TRA was false or misleading was if he did not cook overstates the position. The Tribunal did not make such a finding and it did not need to; it needed only to decide whether the information submitted to TRA was or was not false or misleading in a material particular. In that regard there was sufficient evidence in the restaurant manager’s statement to conclude that it was. For instance paras.14, 15 and 16 of the restaurant manager’s statement included the following:
  10. The clear impression to be gained from the reference and job description which the applicant supplied to TRA was that he was much more than a kitchen hand and was engaged in tasks requiring technical skill and experience. In essence the restaurant manager’s statement refuted this and said that he was no more than a kitchen hand, identifying the job he was employed to do as well as the jobs he was not employed to do and which the witness had never seen him perform. Consequently, it was not necessary for the Tribunal to conclude that the applicant did not cook, it merely had to conclude that he had not performed the tasks which the resume and job description indicated he had performed.

Finding irrational or not based on logical, probative material – particular 3(aa)

  1. In his updated written submissions, the applicant submitted:
  2. The applicant submitted that there was no basis, on the restaurant manager’s evidence, to conclude that information provided by the applicant in the reference and job description was false or misleading in a material particular.
  3. Dealing first with the allegation that the “Central Finding” was not based on probative material, this is no more than a re-casting of the allegation made in particular 3(a) that there was no evidence for the finding that information provided to TRA had been false and misleading because the restaurant manager’s statement could not be treated as reliable evidence. The allegation effectively comes down to an assertion that the Tribunal should have believed what the applicant said and for that reason what the restaurant manager said was speculative. For the reasons given in relation to particular 3(a), this aspect of this allegation is not made out.
  4. The assertion that the “Central Finding” or the inferences underlying it could not reasonably be drawn from the Tribunal’s findings of fact does not challenge the weight accorded to the information supplied by the restaurant manager but asserts that what was contained in his or her statement did not provide a proper factual basis for the “Central Finding”. However, the restaurant manager’s statement contained information which did support the Tribunal’s “Central Finding”, in that it asserted facts which contradicted central aspects of the information which the applicant had supplied to TRA. A simple comparison of the restaurant manager’s statement with the applicant’s claims reveals that in significant respects they cannot be reconciled. Consequently, the Tribunal’s decision to give greater weight to, and thus to prefer, the restaurant manger’s evidence over the applicant’s led logically to the conclusion that information given by the applicant to TRA had been false and misleading in a material particular. It was reasonable of the Tribunal to have drawn that conclusion once it decided to prefer the restaurant manger’s evidence to the applicant’s.
  5. As to the allegation that the finding was irrational or illogical, this too was based on the assertion that the restaurant’s manager’s evidence ought not to have been preferred by the Tribunal and should not have been the basis of its findings. Again, the applicant’s argument is that the Tribunal should have preferred his evidence over the restaurant manager’s. However, it has not been demonstrated how the Tribunal’s preference for the restaurant manager’s evidence over that of the applicant’s was irrational or illogical.
  6. Nor has it been demonstrated why, having accorded the restaurant manager’s evidence greater weight than the applicant’s, it was illogical or irrational of the Tribunal to draw inferences from it. As was said in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611:

The finding which the Tribunal made was well open to it on the evidence and the fact that the applicant disagrees with it does not mean that it is affected with jurisdictional error.

Evidence overlooked – particular 3(b)

  1. The applicant submitted that where a decision-maker makes no reference in its reasons for decision to a probative document it is open to the Court to find that the decision-maker ignored or failed to have regard to the document, with the result that its decision is affected by jurisdictional error. He submitted that the Court should find that the Tribunal had made such an error in this case because it had failed to refer in its reasons to his payslips, copies of which he had supplied to the department. Those four payslips recorded that the applicant was employed as a “050 COOK” by a corporation during pay periods ending on 21 April 2006, 28 July 2006, 17 November 2006 and 23 February 2007. The payslips made no explicit reference to the Jet Café.
  2. If the Tribunal fails to consider evidence which might have a bearing on the outcome of its review, in that the evidence is not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review, then that failure is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40; Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 [82]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]- [83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]. An inference available to be drawn from the payslips is that the applicant was employed, presumably by the company which traded as the Jet Café, as a cook. As such, a failure to consider the payslips would amount to jurisdictional error because the failure could possibly have deprived the applicant of a successful outcome to his review proceedings before the Tribunal.
  3. However, the fact that the Tribunal does not explicitly refer to a piece of evidence does not mean that it overlooked or failed to consider it. As was said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47]:

Nor is it necessary for the Tribunal to refer to every item of evidence and every contention made by an applicant in its written reasons: Applicant WAEE at 641 [46]; or to give a line by line refutation of evidence for an applicant which is contrary to findings of material fact made by the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [65].

  1. The question which the Tribunal had to consider and determine was whether the information supplied by the applicant to TRA concerning his skills and experience as a cook had been false or misleading in a material particular. Relevantly for current considerations, the Tribunal was presented with conflicting evidence. On the one hand, an inference available to be drawn from the payslips was that the applicant had been employed as a cook at the Jet Café. On the other hand, in his or her statement, the restaurant manger had said:
  2. The Tribunal expressly stated in para.17 of its decision that in deciding whether the information supplied by the applicant to TRA had been false or misleading in a material particular, it gave greater weight to the evidence contained in the statement of the restaurant manager than “to the claims of the applicant”. In concluding that it preferred the restaurant manager’s evidence over the applicant’s the Tribunal can be understood to have found that in those respects where the restaurant manager’s evidence differed from the applicant’s, the former’s was to be preferred. Such a finding was one of a generality which addressed, amongst other things, the inference which could possibly be derived from the payslips that the applicant was employed by the Jet Café as a cook.
  3. It should also be observed in that connection that nothing was advanced to suggest that in the course of the review the payslips had assumed a significance which required them to be the subject of any particular or close attention in the Tribunal’s reasons. Indeed, the evidence indicates that they were not the subject of any submissions or comment by the applicant to the department or to the Tribunal and that the significance of their description of the applicant as “050 COOK” was not explained.
  4. In circumstances where the payslips had not achieved a prominence which required them to be addressed separately on that account and where the restaurant manager’s evidence was expressly preferred over the applicant’s, the Tribunal was not required to undertake a separate discussion of the payslips in its reasons or to do more than to express its general preference for the restaurant manager’s evidence. Given that the Tribunal stated that it had the department’s and its case files before it and that had considered the evidence, I am not satisfied that the absence from the Tribunal’s reasons of any express reference to the payslips indicates that it had overlooked them.

Wrong test – particular 3(c)

  1. The applicant submitted that cl.880.230 required the Tribunal to undertake three steps.
  2. The first of these steps was said to require the Tribunal to identify the information alleged to be false or misleading in a material particular. The applicant pointed to the fact that cl.880.230(1) refers to information given by an applicant or used as part of the applicant’s skills being “false or misleading in a material particular”. He submitted that although the words “in a material particular” are a significant limitation on the words “false or misleading”, the Tribunal did not use the words “in a material particular” in the “Central Finding”. He said that because the Tribunal did not identify what part of the documents signed by the head chef were “false or misleading”, it was not clear from the “Central Finding” what information was “false or misleading”. He submitted that if “the applicant’s skills and experience as a cook” was understood by the Tribunal to be the test then the Tribunal had misunderstood how cl.880.230 works because those words were not information provided by the applicant but the Tribunal’s summary of the information which it said the applicant had provided.
  3. The applicant submitted that the second step under cl.880.230(1) required the Tribunal to identify the evidence which made the information supplied by the applicant false or misleading in a material particular. He said that the Tribunal had not done this. The applicant submitted that the evidence contained in the restaurant manager’s statement, namely that the applicant was employed as a kitchen hand and not as a cook or assistant chef, did not address the information which he had supplied to TRA. In this regard, he submitted that he had never asserted that he was not employed as a kitchen hand or that he had been employed as a cook or assistant chef. The applicant submitted that what the head chef had said in his reference reproduced at CB 56 was his opinion or assertion concerning the positions in which the applicant worked and was not the applicant’s direct assertion. He submitted that it had not been suggested that the head chef’s document was fabricated or that he had never held the opinion or had never stated the opinion that the applicant had worked as a cook or assistant chef. Consequently, submitted the applicant, the Tribunal had not identified the evidence necessary to conclude that information he had supplied to TRA was false or misleading in a material particular.
  4. The applicant submitted that the third step in the proper application of cl.880.230(1) was for the Tribunal to identify how, in light of the evidence which had become available, the information provided by him or used in the assessment of his skills was false or misleading in a material particular. He submitted that the Tribunal had failed to do this.
  5. The meaning of “false or misleading in a material particular” was considered in Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348. There the applicant had completed a visa application and an incoming passenger card which both incorrectly stated his marital state. Once these facts were ascertained, the applicant was advised that he was an illegal entrant because the statements in question were false or misleading in a material particular contrary to s.20 of the Act as it stood at the relevant time. In that case the Full Court of the Federal Court said:
  6. Clause 880.230 is concerned with whether an applicant has submitted statements of potential relevance to the skills assessment which were false or misleading. That is the issue or test which the Tribunal has to address, as the applicant’s submissions noted above at [47] acknowledged. What, in the context of this particular of his third allegation, the applicant said was the prescribed test is better described as a process by which the question posed by that test may be answered, and one in which the appropriate steps might be better articulated as:
    1. the identification of the information supplied in relation to the skills assessment;
    2. the determination of what aspects of that information might, at the time it was submitted, have been reasonably considered to be relevant to the skills assessment; and
    1. the determination of whether any of that information was false or misleading.
  7. Contrary to the implication in the applicant’s submissions, the Tribunal was not required to incant the wording of cl.880.230(1) in its finding in order to appropriately apply the test found in that clause. The Tribunal was only required to identify information which the applicant had supplied to TRA which was false or misleading and which might, at the time it was submitted, have been reasonably considered to be relevant to the skills assessment. That is what it did when it concluded in para.17 of its decision that the applicant had supplied information to TRA “on which TRA’s assessment of the applicant was based” which conveyed a false and misleading impression of his skills and experience as a cook. In that conclusion the Tribunal identified information which the applicant supplied to TRA in relation to the skills assessment and particularised that information as information contained in his “work reference”, an expression which should be understood to mean the reference and the job description documents signed by the head chef.
  8. The applicant also submitted that it was not clear from the Tribunal’s reasons what information was considered to be false or misleading, or which evidence indicated this. However, in the early part of its decision record the Tribunal set out what had been contained in the reference, the job description and the restaurant manager’s statement and went on to say in its conclusion that it preferred the evidence of the restaurant manager. It is apparent from the earlier part of the decision record that the restaurant manager’s statement contradicted the other two documents. Consequently, it must be concluded from the Tribunal’s preference for the restaurant manager’s statement over the reference and the job description that it found that, to the extent that the reference and the job description differed from what the restaurant manager had said, they were incorrect and thus false and misleading. Given this, it was not necessary for the Tribunal to say more in the conclusary paragraphs of its decision than that the “work reference” contained information which was false or misleading.
  9. Additionally, contrary to the applicant’s submission, the Tribunal’s reference to “the applicant’s skills and experience as a cook” was not a reference to the information supplied to TRA but to the nature of the submission he made to the TRA. The Tribunal correctly identified the relevant information as that contained in the “work reference” and did not misunderstand the test it was required to apply.
  10. The Tribunal did not misapply the test found in cl.880.230(1).

Ground 4 – obvious enquiries

  1. The applicant submitted that prior to making a decision, the Tribunal should have contacted the head chef and asked him whether the content of the two documents he had signed was correct and the basis on which he believed it to be correct. He submitted that the head chef’s answers were of central importance to the Tribunal’s determination as to whether or not “evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular” and that it was easy for the Tribunal to contact the head chef as he had provided his contact phone numbers in the two documents and invited persons to phone him.
  2. The applicant submitted that if the Tribunal was concerned about whether the applicant had not done some of the cooking which he said he had done, it could have contacted the head chef and asked him about this. He submitted that there was utility in the Tribunal contacting the head chef to clarify this issue.
  3. The applicant also submitted that following the commencement of the hearing in the Tribunal which he did not attend, but prior to making a decision, the Tribunal should have contacted him or his migration agent to confirm that he did not wish to attend the hearing. He submitted that, through his migration agent, he had responded to previous communications from the Tribunal and that this was a factor in support of a conclusion that the Tribunal should have made an inquiry to confirm that he did not wish to attend the hearing. He submitted that it would have been easy for the Tribunal to make this inquiry. In this regard, he referred to Khant v Minister for Immigration & Citizenship [2009] FCA 1247; (2009) 112 ALD 241. In that case the Tribunal did not hold a hearing because the applicant had failed to respond to a request to provide information and to comment on certain other information. Amongst other things the Tribunal had invited the applicant to provide evidence that his non-compliance with a visa condition was due to exceptional circumstances beyond his control. Cowdroy J held that the Tribunal could have emailed or telephoned Mr Khant to find out with certainty whether or not there was evidence of exceptional circumstances which excused his failure to comply with a condition of his visa. His Honour held that this was a critical fact in relation to which the Tribunal could and should have made an enquiry and that, in the circumstances, its failure to make that enquiry amounted to a constructive failure to exercise jurisdiction.
  4. Although the applicant submitted that the head chef’s evidence was of vital importance, this submission was unsupported by any evidence in these proceedings suggesting what vital evidence the head chef would have given to the Tribunal had it made contact with him. For instance, there was no evidence before the Court to suggest that the head chef would have provided the Tribunal with information which would have tended to undermine the weight to be given to the restaurant manager’s statement.
  5. In the absence of evidence of what the head chef would have said to the Tribunal, the possible utility of the Tribunal contacting him can only be considered in the abstract. In this regard, it is not apparent that the enquiry the applicant submits should have been made would have been of any practical use to the Tribunal. Had the head chef said that the reference was wrong then this would not have led to a conclusion different from the one at which the Tribunal arrived in any event, and if he had said that his statements were true then this would have added nothing to the evidence which the Tribunal already had. In circumstances where the evidence does not suggest that further inquiry by the Tribunal would have yielded a useful result, the Tribunal does not err if it does not make such inquiries: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1129 [26]. That is the case here.
  6. In relation to the submission that the Tribunal should have contacted the applicant to ensure that he did not wish to attend the Tribunal’s hearing, the statutory framework for the giving of invitations to Tribunal hearings is concerned with providing the parties with procedural certainty concerning when an invitation is taken to have been received, regardless of whether it has been received in fact: Sainju’s case at 94 [58] and 95 [68]. This procedural certainty provides the Tribunal with a firm foundation to make consequential decisions, such as whether it may proceed to make a decision without having heard from an applicant. A requirement to make the inquiry suggested by the applicant in this case would undermine the administrative certainty sought to be achieved by the deemed receipt provisions, an outcome which points to a conclusion that the Tribunal has no general duty to make enquiries of the sort suggested by the applicant.
  7. Consequently, the question is whether the particular circumstances of this case required the Tribunal to confirm with the applicant that he did not intend to attend the hearing. In this connection the applicant referred to Khant where Cowdroy J said that a failure to make an enquiry can constitute jurisdictional error

As noted earlier, his Honour found that by not making a particular enquiry the Tribunal had failed to discharge its statutory duty to review.

  1. Khant is distinguishable from this case. In Khant, the applicant had not responded to a request for information and comment and the Tribunal exercised its power under s.359C to proceed to make a decision on the review without allowing him to appear before it. Relevantly, the Tribunal made a decision although it lacked evidence on a most important issue and in circumstances where that issue could have been elucidated by an enquiry of the applicant. Cowdroy J found that the Tribunal erred by not enquiring about an issue critical to its decision on the merits. Significantly however, his Honour did not find that the Tribunal should have asked the applicant whether he wanted to attend a hearing, an invitation to which had not, in any event, been issued because of the latter’s failure to respond to the request for information and comment.
  2. The present applicant’s failure to respond to the hearing invitation was not a critical fact of the sort considered in SZIAI or Khant. Nor was it obvious that the Tribunal should have made the enquiry the applicant has suggested. In this regard, the Tribunal’s “No Reply – Check List” reproduced at CB 144 and dated 21 December 2009 records the checks which the Tribunal made two days before its listed hearing, by which time it was apparent that the applicant had not responded to the hearing invitation. This checklist document supports the conclusion that, as far as the Tribunal was aware, the invitation had gone to where it was supposed to go. The fact that the applicant had responded to the Tribunal’s correspondence in the past but had failed to do so on this occasion did not make it obvious that an inquiry should be made as to whether he wished to attend the hearing, particularly as the hearing invitation had apparently been sent without incident to a migration professional. The applicant did not point to anything which would have alerted the Tribunal to the possibility that something was amiss; its choice to proceed to a decision was made against the backdrop of the applicant having been properly invited to attend a hearing but having simply not responded. It was not obvious that he should have been queried over this.
  3. As a result, the Tribunal’s lack of enquiry of the applicant concerning whether he intended to attend its hearing did not amount to a failure to review. Nor, given the facts and in the context of the statutory framework for the giving of notices, is it apparent that the choice which the Tribunal made to proceed to a decision was so unreasonable as to support a finding that its decision on the review was infected by jurisdictional error: SZIAI at 1129 [26].

Conclusion

  1. Jurisdictional error on the part of the Tribunal has not been demonstrated.
  2. Consequently, the application will be dismissed.

I certify that the preceding one-hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Cameron FM


Date: 16 February 2011

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