Josan v Minister for Immigration and Border Protection

federal circuit court's judgment 16 The appellant applied to the FCC for judicial review of the Tribunal's decision, initially seeking an order quashing the Tribunal's decision and a writ of mandamus directed to the Tribunal requiring it to determine the appellant's application according to law. 17 An amended application was subsequently filed under which the appellant sought by way of relief only a declaration that the Tribunal "erred in finding that the [appellant] had breached Public Interest Criterion 4020, having made the finding in breach of his entitlement to access to [sic] the written material before the Migration Review Tribunal pursuant to his request made under s 362A of the Migration Act 1958 (Cth)". The appellant's argument in support of the declaratory relief relied heavily on the Full Court's decision in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 ("Dhillon"). In Dhillon, the Full Court held that the Tribunal determined that Mr Dhillon did not satisfy Public Interest Criterion 4020 without affording Mr Dhillon a fair hearing to which he was entitled under s 360 of the Act because, in reaching its decision, the Tribunal had relied on material that it had wrongly decided that Mr Dhillon was not entitled to have access to under s 362A(1) of the Act. Although the Full Court affirmed the decision of the Tribunal on other grounds, the Court made a declaration that the Tribunal erred in its decision in relation to the Public Interest Criterion 4020. 18 In this case, the appellant argued that the Tribunal had breached both s 362A and s 359A(1) of the Act and that he was thereby denied procedural fairness by the Tribunal in reaching its decision that he did not satisfy Public Interest Criterion 4020. The FCC held that there had been a breach of procedural fairness as contended and that there was utility in granting the declaration sought, reasoning that "declaratory relief will tend to mitigate any reputational damage the [appellant] may suffer by the Tribunal's decision concerning the bogus document" and that the Court "should follow as precedents the like cases and decisions of the Full Court of the Federal Court in Dhillon and of Logan J in Sandhu". Sandhu was a reference to Sandhu v Minister for Immigration and Border Protection [2015] FCA 987; (2015) 236 FCR 63. 19 A further argument was raised at the hearing and considered by the FCC, namely that the Tribunal committed jurisdictional error in not performing its statutory task because it did not lawfully address and consider the appellant's statutory declaration that he had worked and completed more than 920 hours of work as a pastry cook at O'Heas Bakery. It was argued that if the evidence had been considered and accepted, it could have led to the Tribunal exercising the waiver power in Public Interest Criterion 4020(4). The FCC rejected the argument, holding that the reasons of the Tribunal disclosed that it had taken the statutory declaration into consideration in weighing up all the evidence.

THE APPEAL 20 The Notice of Appeal, which appeared to have been prepared by the appellant himself, raised three grounds of appeal as follows: 1. The Federal Circuit Court erred in law and in fact in finding that the three-year period for the purposes of Public Interest Criterion 4020(2) expired on 21 February 2016. 2. The Federal Circuit Court should have found that the three-year period expires on 1 June 2017. 3. The Federal Circuit Court erred in law by failing to quash the Second Respondent's decision and remit it for reconsideration. Particulars The Federal Circuit Court held that the Second Respondent's decision was affected by jurisdictional error and should have held that the decision, by reason of Public Interest Criterion 4020, had an apparent and continuing legal effect on the Applicant. In those circumstances, it was not open to the Federal Circuit Court to grant declaratory relief which identified jurisdictional error, but not to grant certiorari or mandamus.

Cross-appeal 21 The cross-appeal raised two grounds. In view of the Minister's concession, it is only necessary to refer to ground 2, which is as follows: Further or alternatively, the trial judge erred in making the declaration in order 1 (set out above). There was no utility in making that declaration. In particular, any "general reputational benefit" obtained by the making of the declaration was illusory, including because the declaration did not affect the decision by the delegate of the Minister made on 21 February 2013 to refuse to grant Mr Josan a visa on the basis that he had failed to satisfy Public Interest Criterion 4020.

CONSIDERATION OF THE appeal 22 The grounds as formulated were not intelligible and appear to be misconceived. No written submissions were filed by the appellant and it appeared from the oral submissions put by the appellant, who represented himself at the hearing of the appeal, that he was not in fact challenging that the exclusionary three year period by force of Public Interest Criterion 4020(2) runs from the date of decision of the delegate (21 February 2013), as found by the FCC. The issue of the expiry of the three year exclusionary period only became relevant in the context of the FCC's consideration of the utility of granting declaratory relief. It appears from the reasons of the FCC that it was submitted on behalf of the appellant (who was represented below) that if declaratory relief was not granted, the three year exclusionary period would run from the date of the Tribunal's decision, being 2 June 2014 until 1 June 2017 whereas if the declaratory relief was granted, the period would run from the date of the decision of the delegate, namely 21 February 2013 and so expire on 21 February 2016. In response, the Minister argued that the three year period ran from the date of the decision of the delegate. The FCC accepted the Minister's submission but concluded that the appellant was entitled to declaratory relief nonetheless for two reasons, namely that declaratory relief would tend to mitigate any reputational damage that the appellant may suffer by the Tribunal's decision concerning the bogus document and, secondly, that the Court should follow as precedents, the like cases and decisions of Dhillon and Sandhu. 23 In the circumstances, notwithstanding grounds 1 and 2 of the Notice of Appeal, it is not necessary to address whether the Tribunal was correct to conclude that the three year period expired on 21 February 2016, not 1 June 2017. 24 In the written submissions filed on behalf of the appellant relating to the impact of the Full Court decision in Singh, it was contended that the Court should quash the Tribunal's decision given the Minister's acceptance that the Tribunal did not afford the appellant procedural fairness. It was argued that the Tribunal's breach of the rules of procedural fairness precluded it from affording the appellant a "real and meaningful" hearing as required by s 360 of the Act. It was further submitted that the breach of procedural fairness and the Tribunal's conclusion that the appellant had given it a "bogus document" infected the exercise of discretion in relation to the question of "closely related" course of study and nominated occupation and once the Tribunal decided that the appellant did not satisfy Public Interest Criterion 4020 for the purposes of cl 886.225 of the Regulations, it was obliged to affirm the decision. As such, it was argued, the consideration of the "closely related" criterion was a nullity and had no practical significance for the outcome of the review. These submissions are not accepted. 25 Under cl 886.211(2)(b) of the Regulations a criterion to be satisfied at the time of application is that each degree, diploma or trade qualification used to satisfy the two year study requirement is "closely related" to the applicant's nominated skilled occupation. The Tribunal found that the appellant's Certificate III in Food Processing (Retail Baking) was closely related to his nominated occupation of pastry cook but this course did not meet the two year study requirement and accordingly it was necessary to consider whether the appellant's Diploma in Business Management satisfied the cl 886.211(2)(b) criterion. The Tribunal held that the Business Management qualifications were not closely related. The Tribunal reasoned at [55]-[57] as follows: In the Tribunal's view, having regard to the subjects that the applicant has been assessed as competent in the Diploma in Business Management courses he undertook, these qualifications are not closely related to the duties or tasks of a pastry cook. According to ASCO, a pastry cook prepares and bakes buns, cakes, biscuits and pastry goods. The Tribunal does not consider that any of the units in the Business Management courses, which include manage meetings and manage people performance, are relevant to the tasks and job description of a pastry cook as set out in ASOC. It was submitted that the applicant undertook business study because the college told them that they needed to have business and he needed to know about business for management and how to run a business. However, the applicant had nominated the occupation of a pastry cook and not that of a business owner. It was submitted by the applicant's representative that at the time, the Immigration department was providing specific guidance on its website as to what would meet the requirement as being closely related and that the department had said that they would accept a Certificate III in Carpentry and business diploma as being closely related. It was submitted that this information was given to applicants and practitioners and that he thinks that any applicant is entitled to rely on that. It was submitted that hundreds, if not thousands, would have been granted their permanent residency on the basis of this combination of course. It was also submitted that it was unfair for the Tribunal to assess it differently. In his written submission, the representative added that the applicant had a legitimate expectation at the time he applied for his visa that this combination of course would be found to be closely related to his nominated occupation. The representative referred to a previous submission where examples of acceptable and not acceptable combinations were provided by the Department. The Tribunal acknowledges that the department had given examples of combinations based on its view as to whether certain qualifications would be "genuinely useful in operating their own business" or would have practical application in their work. However, the existence of previous departmental guidance on this issue is not binding on the Tribunal. The Tribunal does not consider that whether a qualification is "useful" sufficiently reflects the requirement that each qualification be closely related to the nominated occupation. The Tribunal notes that the Department's guidelines were subsequently revised, apparently in response to judgments indicating that their interpretation was incorrect: see for example Shafiuzzaman v MIAC [2011] FMCA 874 at [32] and Prasad v MIAC [2012] FCA 591. The Tribunal has thus considered for itself whether the applicant's Business Management qualifications are closely related to the nominated occupation of pastry cook. Having considered the units undertaken in the business management courses, it does not accept that business management qualifications are closely related to the occupation of pastry cook. [Errors in original] 26 The Tribunal's reasons disclose that the Tribunal gave separate and reasoned consideration as to whether the closely related criterion was met and it was plainly open for the reason given by the Tribunal to conclude that the closely related criterion was not met. The contention that the breach of procedural fairness and the Tribunal's conclusion that the appellant had given it a "bogus document" infected the exercise of discretion in relation to the question of "closely related" course of study and nominated occupation is without substance. The appellant had been represented below and correctly conceded that, irrespective of any conclusion concerning the claim for procedural unfairness, the Tribunal had made lawful findings that the appellant did not satisfy the "closely related" criterion applicable to his visa application and thus the decision would otherwise be affirmed on that ground. 27 The appeal should be dismissed.

CONSIDERATION OF The cross-appeal 28 The Minister was out of time to file his Notice of Cross-Appeal and requires an extension of time. As he was out of time by slightly less than two weeks, and an adequate explanation was provided as to why the cross-appeal was not filed within time, an extension of time should be granted. 29 The Minister argued that the FCC erred in concluding that there was utility in making the declaration to protect the appellant's reputation, submitting first that the FCC was wrong to conclude that protection of the reputation of the appellant was a reason or foundation for the making of the declaration in Dhillon, and secondly that the declaration served no utility in protecting the appellant's reputation because the declaration did not, and could not, change the fact that the appellant had been found by the delegate to have provided a "bogus document" in support of his application for a visa in circumstances that did not involve a denial of procedural fairness and the delegate's finding remained undisturbed. 30 In my view the FCC has not been shown to have erred in concluding that there was utility in making the declaration. In Dhillon, the Full Court granted a declaration in similar circumstances where it was held that the Tribunal had wrongly denied the appellant access to material in reaching its decision that the appellant did not satisfy Public Interest Criterion 4020, but also held that the Tribunal had not erred in finding that the appellant did not meet the "closely related" requirement. At [15] the Full Court stated: The conclusion that the decision of the Tribunal on the Public Interest Criterion was erroneous because of the failure to provide the redacted material under s 362A is also of practical significant to Mr Dhillon and the outcome of any future visa application he may make. The finding of Mr Dhillon having given, or caused to be given, a bogus document or false information precludes him under Public Interest Criterion 4020 from being granted a visa for a period of three years unless justified by "compelling circumstances": see Vyas v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1226; (2013) 281 FLR 247; Kandel v Minister for Immigration [2014] FCCA 1479. The Tribunal's decision to the extent that it is based on acceptance of a failure to meet the Public Interest Criterion should not be affirmed if made in breach of s 362A in circumstances where access to the redacted material might, as was the case here, reasonably have affected the decision of the Tribunal on that ground. This reasoning equally applies in the present case. As the FCC noted the appellant had always asserted that he is truly a qualified pastry cook and was in truth employed for 920 hours by O'Heas Bakery and there were never any bogus or counterfeit documents submitted to the Minister. Whilst the delegate's decision has not been disturbed, access to the s 375A material might, as was said in Dhillon, reasonably have affected the decision of the Tribunal on that ground. As submitted for the appellant, the declaration may have practical implications for any future visa application by the appellant, including satisfaction of the character test under Public Interest Criterion 4001, and contrary to the Minister's submission, the utility of the declaration is not illusory.

conclusion 31 The appeal should be dismissed, the extension of time to cross-appeal granted and the cross-appeal dismissed. As a substantial part of the hearing was taken up with argument on the grounds of the cross-appeal that have been abandoned in consequence of the Full Court decision in Singh and the Minister has been unsuccessful on his remaining ground, I consider it appropriate that there be no order as to costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.