Khan v Minister for Immigration & Multicultural Affairs [1999] FCA 1809 (3 December 1999)

Last Updated: 7 February 2000

FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration & Multicultural Affairs [1999] FCA 1809

IMRAN YOUSAF KHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N579 of 1999

WILCOX J

SYDNEY

3 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N579 of 1999

BETWEEN:	IMRAN YOUSAF KHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	3 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be allowed.

2. The decision of the Immigration Review Tribunal be set aside and the application be remitted to the Tribunal for reconsideration according to law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N579 of 1999

BETWEEN:	IMRAN YOUSAF KHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	3 DECEMBER 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1 WILCOX J: This is an application to review a decision of the Immigration Review Tribunal, affirming a decision to refuse the grant of a Transitional (Permanent) visa to ImranYousaf Khan, the present applicant, on the basis that he did not meet the criteria for a Class 816 visa.

2 Mr Khan made numerous claims in support of his application for a visa. The first of them was based upon an alleged degree in Science, but when this claim was investigated, it turned out he had never been awarded that degree. He withdrew that aspect of his claim. However, Mr Khan maintained a claim to be entitled to a visa pursuant to cl 816.721-(2)(b)(ii) of the regulations upon the basis of his qualifications as a waiter. That regulation is as follows:

"(2) An applicant meets the requirements of this sub-clause if on 1 November 1993:

(a) ...

(b) the applicant:

(i) ...

(ii) held an overseas trade qualification, or had work experience that is assessed as meeting Australian educational training standards for that trade:

(A) by the Department of Industrial Relations; or

(B) if that Department is unable to make an assessment, by the State or Territory authority that the Minister decides is appropriate; or

(C) if neither that Department nor that State or Territory Authority is able to make an assessment by the Minister; ..."

3 The only evidence of a trade qualification provided to the Tribunal by the applicant was a Craft Certificate, which purported to be issued by the Commissioner for Vocational Training of New South Wales, pursuant to the Industrial and Commercial Training Act 1989 (NSW). The certificate read as follows:

"Craft Certificate

This is to certify that Imran Yousef Khan

has completed the term of an apprenticeship in the trade of

WAITING

pursuant to section 43 of the Industrial and Commercial Training Act 1989, or has satisfied the requirements of the Vocational Training Board or the Commissioner for Vocational Training, pursuant to Section 81, 82 or 83.

Date of completion of training: Not applicable.

Specimen signature:

Date issued: 17 July 1996."

The certificate purports to be signed by a person whose name is difficult to read, but might be "Paul Johnson", with a stamp purporting to be that of the Commissioner for Vocational Training of New South Wales.

4 I use the word "purports", in relation to the certificate, because it seems the Tribunal never established its authenticity. Establishment of the authenticity of any document Mr Khan may present seems to be an unfortunate necessity. His quest for an Australian visa is studded with documents that, on investigation, have turned out to be false. However, as I say, the authenticity of the certificate was not examined; although it should have been easy for the Tribunal to have checked that the certificate was indeed issued by the Commissioner for Vocational Training.

5 There is a further difficulty about the certificate. It shows an issue date of 17 July 1996, whereas it is necessary, in order to comply with the regulation, that the relevant qualification was gained not later than 1 November 1993. Of course the 1996 date does not negative the possibility that the qualification was gained before 1 November 1993. However, the certificate leaves the matter unresolved.

6 It is not obvious to me why it would have been a "not applicable" piece of information, to have set out the date of completion of the training; it certainly would have been relevant for the Tribunal to have this date.

7 It seems the reason why the Tribunal did not investigate the authenticity of the certificate is that it was not satisfied Mr Khan had the work experience as a waiter, that he claimed. Mr Khan claimed experience both in Pakistan and Australia.

8 In relation to the Pakistan claim, the evidence of Mr Khan was that he worked at the Pearl Continental Hotel in Karachi from January 1983 to March 1987. He tendered some documents that purported to support this claim, but there were problems about the documents and the Tribunal rejected them as evidence of the claim.

9 There was also a statutory declaration, made by Abdul Asiz Tejani, that referred to Mr Tejani having worked as a waiter with Mr Khan, at the Pearl Continental Hotel in Karachi, between July 1984 and March 1987. Mr Tejani said he commenced to work at the hotel in July 1984 and Mr Khan stopped working there in March 1987. He referred to Mr Khan having worked there as a waiter. Mr Tejani also referred having worked with Mr Khan between February 1990 and November 1990 at the Bombay Bicycle Club Restaurant at Potts Point in Sydney.

10 The Tribunal member was not satisfied that Mr Khan worked as a waiter in Karachi. She gave numerous reasons for this conclusion. They are not challenged. The way she put the matter in her reasons was as follows:

"The Tribunal has come to the view that there is insufficient probative evidence to indicate, that on the balance of probabilities, the visa applicant did work as a waiter at Pearl Continental Hotel, between 1983 and 1987."

11 It is to be noted this is not a finding that Mr Khan did not work at the Pearl Continental Hotel; it is simply a finding that the evidence does not affirmatively establish that he did, as a matter of probability. This point has some significance because of Mr Tejani's position. If the Tribunal had come to a clear conclusion that Mr Khan had not worked at the Pearl Continental Hotel in Karachi, this would be consistent only with disbelief of Mr Tejani. As a matter of logic, one would expect the Tribunal would then see his lack of credibility as a reason for also rejecting his evidence about having worked with Mr Khan at the Bombay Bicycle Club Restaurant. However, there would be no inconsistency in the Tribunal finding there is insufficient evidence to establish, as a matter of probability, that Mr Khan worked at the Pearl Continental Hotel at Karachi but accepting Mr Tejani's veracity in relation to the Bombay Bicycle Club Restaurant.

12 Mr Khan produced what purported to be a reference from the Bombay Bicycle Club Restaurant, which is no longer in operation. The reference referred to his having worked as a waiter at that establishment from February to November 1990. During the course of his oral evidence, Mr Khan gave the dates as June 1990 to November 1990. As indicated, Mr Tejani gave the dates as February to November 1990. The Tribunal member noted the dates stated by Mr Tejani and incorrectly said these dates conflicted with the dates set out in the work reference Mr Khan had produced. This perceived conflict seems to have been a reason for the Tribunal rejecting Mr Tejani's evidence in regard to the Bombay Bicycle Club Restaurant. I say this because of the following passage in the Tribunal's reasons:

"A Statutory Declaration from Mr Abdul Tejani which purported to support the Visa Applicant's claims to have worked at the Bombay Bicycle Club, gave different dates to those which the Visa Applicant had provided to the Tribunal in his reference as the dates he worked at that club. In addition the Tribunal has no independent evidence that Mr Tejani himself worked at the Bombay Bicycle Club at the time claimed."

13 It will be seen that one reason for rejecting Mr Tejani's evidence was that there was a conflict between the dates stated by him and the dates in the work reference. However, in thinking there was a conflict, the Tribunal erred. There was no conflict. As arbiter of the facts the Tribunal was, of course, free to reject Mr Tejani's evidence for good reason. However, it seems the Tribunal's reasoning involved a misunderstanding of the evidence.

14 In addition, it is difficult to see that the lack of what the Tribunal member called, "independent evidence", that Mr Tejani himself worked at the Bombay Bicycle Club Restaurant, could be a reason for rejecting his evidence. Lack of corroboration of his assertion of having been so employed might inculcate some scepticism. At the end of the day and after considering Mr Tejani's evidence as a whole, preferably after he had been asked to attend for oral questioning, the Tribunal might have decided Mr Tejani was not a credible witness; but it cannot be a proper reason for rejecting his statutory declaration that there is no "independent evidence", whatever that means in this context, that Mr Tejani himself worked at the Bombay Bicycle Club Restaurant.

15 A similar problem arises in respect of the next employment claimed by Mr Khan. He said he worked at an establishment called the Samrat Indian Restaurant in Newtown from March 1991 to May 1993. He produced what purported to be a work reference, on the letterhead of that establishment, referring to work between those dates. The Samrat Indian Restaurant is also, apparently, no longer in operation. In support of his claim to have worked at that restaurant, Mr Khan produced a statutory declaration made by a person called Arshad Hasen Khan who gave an address at Lakemba. There is reason to believe such a person exists; a photocopy of the driver's licence of a person with that name, and the address shown in the statutory declaration, is amongst the Tribunal's filed papers. The statutory declaration reads as follows:

"1. I worked at the Samrat Indian Restaurant from approximately late March 1992 until approximately July or August 1992.

2. Imran Khan was working there as a waiter throughout this period. He trained me as a waiter; he explained wine to me, he showed me how to open wine and champagne, how to serve the patrons, where everything had to be put and so on; and how to be respectful towards the patrons. Sometimes he ordered me around without saying `please'; I can still remember this because sometimes I thought he was a bit too bossy. But overall I was grateful to him for the training he gave me. He was working there 5 days per week.

3. I would also say that some people from Pakistan do feel ashamed to be known as a waiter, because of the fact that some patrons are quite disrespectful towards waiters. It is regarded as a low profession job. I know these things because I lived for the first 19 years of my life in Pakistan.

4. I have also noticed that the restaurant is no longer situated in the place it was; I do not know what happened to it."

16 The reference to feeling ashamed to be a waiter has some relevance. This was the explanation given by Mr Khan to the Tribunal when asked why he had not initially made a claim for recognition as a person qualified in the trade of waiting.

17 The Tribunal member referred in her reasons to Mr Arshad Khan's statutory declaration. Mr Arshad Khan had not been called in for questioning. All the Tribunal member had was the statutory declaration and the copy of the driving licence. The Tribunal member said this:

"A statutory declaration from Mr Arshad Khan, which purports to support the Visa Applicant's claim to have worked at the Sanrat [sic: Samrat] Indian Restaurant suffers also, in the Tribunal's view from the fact that there is no independent evidence offered to the Tribunal that Mr IYK had ever worked at that restaurant."

18 It seems to me, with respect to the Tribunal member, that this statement exhibits an error of law. The member seems to have proceeded on the basis that she could not give any weight to Mr Arshad Khan's declaration unless there was what she called "independent evidence" as to his having worked at the restaurant. By "independent evidence" she presumably meant evidence from another person to that effect. However, Mr Arshad Khan's declaration itself constituted evidence that he (that is, Mr Arshad Khan) worked at the restaurant. As with Mr Tejani's declaration, the Tribunal Member was bound to consider whether this declaration should be accepted as correct. For that purpose, she might have wished to have Mr Arshad Khan attend for oral questioning. So far as I know, there would have been no great problem about this being arranged. After questioning Mr Arshad Khan, the member might have taken the view that he was not a credible witness and discarded his evidence on that basis. If so, that would have been a conclusion of fact and, providing that there was no legal irregularity about the conclusion, that would have been the end of the issue. However, I do not think it was open to the Tribunal member simply to reject the declaration on the basis that there is no other evidence of Mr Arshad Khan having worked at the restaurant.

19 I should have mentioned, in relation to the Bombay Bicycle Club Restaurant that statutory declarations were submitted by the applicant from James Ram and his wife, Benay Ram. In those declarations Mr and Mrs Ram both speak of having known Mr Khan since about 1990 and of his having visited them from time to time at their home at Campsie. In different language, and in declarations that are rather different in form, they each depose to conversations during which Mr Khan mentioned he was working at the Bombay Bicycle Club Restaurant. Apparently the subject came up when Mr James Ram, who was a taxi driver, inquired about Mr Khan's availability to drive a taxi. Mr Ram also speaks of subsequent conversations during which Mr Khan mentioned that he was working at the Samrat Indian Restaurant, and later still, having been aware that Mr Khan worked at a third restaurant, Manjit's Indian Restaurant in Potts Point. Mr Khan also relied upon Manjit's Indian Restaurant, as part of the work history which he said qualified him under the regulations.

20 The Tribunal rejected, or placed no reliance on, the declarations of Mr and Mrs Ram because of a view that they were simply hearsay evidence. In her reasons for decision the member said:

"Other Statutory Declarations, submitted by people who claim to have second-hand knowledge of the Visa Applicant's work at some of these restaurants, do not in the Tribunal's view, represent appropriate evidence to support the Visa Applicant's claims."

21 The Tribunal Member was undoubtedly correct in saying the matters set out in the declarations of Mr and Mrs Ram were second-hand knowledge. Neither Mr or Mrs Ram claimed to have visited any of the restaurants or seen Mr Khan working there. However, each of them claimed to have been the recipient of contemporaneous statements by him as to the place where he was working. In endeavouring to piece together a work history, claims made at the time, by the relevant person may provide a substantial reason for accepting as truthful a claim made at a later point of time in respect of a visa application. Of course, once again, that was a matter for the Tribunal to evaluate. An integral part of that evaluation would have been determination of the credibility of the people who made the statutory declarations. However, once again, the relevant people were not asked to attend for questioning; the matter of credibility was not pursued. There was no evaluation of the weight that ought to be given to the alleged contemporaneous statements. The declarations were simply rejected as irrelevant; on the basis that they set out second-hand knowledge.

22 Consideration of the applicant's visa application has occupied a number of years. It is a matter of regret if the process must be prolonged. However, it seems to me the Tribunal fell into errors of law in considering this application.

23 Contrary to the submission put to me by Mr Slater on behalf of the applicant, it was for the Tribunal to determine, as a question of fact, the nature and extent of the work experience of the applicant, relevant to reg 816.721(2)(b)(ii). This was not something to be determined by the tendering of a Craft Certificate. However, the very fact that it is for the Tribunal to determine the nature and extent of the applicant's work experience emphasises that the process of determination must avoid infection by error of law. If there is an error of law, so that the work experience has not been determined in an appropriate way, the Tribunal has not successfully carried out the first part of its task.

24 Once the Tribunal has determined an applicant's work experience, it is for one of the expert bodies to assess the quality of that work experience, in terms of its equivalence to Australian training standards for the relevant trade. By the "expert bodies", I mean the Department of Industrial Relations or the relevant State or Territory authority. Only if none of those expert bodies is able to undertake the assessment, should the Tribunal itself make the assessment.

25 As the Tribunal made errors of law in determining the nature and extent of the applicant's work experience, I have no option other than to set aside the decision of the Tribunal and order that the matter be remitted to the Tribunal for further consideration. I so order.

[There was discussion about costs.]

26 Mr Slater, on behalf of the applicant, seeks a costs order. Ordinarily, that would be granted, almost as of course. However, Mr Leeming, on behalf of the Minister, opposes the application in this particular case. His reason is that the ground on which the applicant has succeeded arose only pursuant to an amended application filed today.

27 The history of the matter is that Mr Slater supplied an outline of submissions to the respondent's solicitors on Tuesday last. The point on which he has succeeded was one of many points in the outline of submissions. None of the other points has any merit at all. The respondent's outline of submissions, which was apparently prepared yesterday, Thursday, noted this point was not covered by the filed application. Taking the hint, Mr Slater prepared an amended application and faxed a copy to the Australian Government Solicitor. He sought leave to file the amended application this morning. The application was not opposed and I granted leave.

28 Mr Leeming says that, but for the amendment, the point on which Mr Slater succeeded would not have been available to him. More significantly, had this point been taken in the original application, there would have been an opportunity for those advising the Minister to consider it and obtain instructions.

29 Although Mr Leeming did not spell it out, it is within my knowledge that, in recent times, the Minister has not infrequently accepted the existence of error by one or other of the Tribunals and consented to a remission to the relevant Tribunal without the necessity of a hearing. This is sometimes done before counsel is briefed and at some saving in costs. Mr Leeming, of course, does not seek an order for costs in favour of his client; but he says that, under the circumstances, the applicant should not receive an order for costs.

30 I think there is substance in this claim. Mr Slater observes that he does not have the benefit of counsel, he being a solicitor, and he says the point only recently become obvious to him. That may be so. However, Mr Slater appeared for Mr Khan at the hearing before the Tribunal. He would have received a copy of the Tribunal's reasons immediately after the decision was made. The point on which he has succeeded ought, then, to have been obvious to him. Had he raised the point in the filed application, with the Australian Government Solicitor shortly after filing, or at least on the directions hearing in this Court, there must have been a fair chance the case would not have proceeded further.

31 Under the circumstances, it is reasonable for me to accede to the submission put on behalf of the Minister that there be no order for costs. Accordingly, the only orders will be that the application be allowed, the decision of the Tribunal set aside and the application for a visa remitted to the Tribunal for reconsideration.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 3 December 1999

Solicitor for the Applicant:	Brett Slater Solicitor
Counsel for the Respondent:	Mr M J Leeming
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 December 1999