Kaur v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellants pay the first respondent's costs of the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 The first appellant, an Indian national, applied for a Skilled (Provisional) (Class VC) - Skilled Graduate (Subclass 485) visa on 9 January 2009. The second and third appellants, the first appellant's husband and son respectively, were secondary applicants for such visas. In support of her application, on 14 June 2009 the first appellant provided to the Department of Immigration and Citizenship (the Department) a skills assessment from Trades Recognition Australia (TRA). That skills assessment (the TRA skills assessment) was based on a reference letter from Enigma Hair Studio to the effect that the first appellant had completed more than 922 hours of work experience as a hairdresser during the period 9 December 2006 to 26 November 2007. 2 On 28 December 2012, a delegate of the first respondent (the Minister) refused the application for the visas. The delegate found that the TRA skills assessment was a "bogus document" as defined, at that time, in s 97 of the Migration Act 1958 (Cth) (the Act). On this basis, the delegate found that the first appellant did not satisfy Public Interest Criterion 4020 (PIC 4020). Accordingly, the delegate found that the first appellant did not satisfy the criteria for the grant of the visa in cl 485.224 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). 3 The appellants applied to the Migration Review Tribunal (the Tribunal), now the Administrative Appeals Tribunal, for review of the delegate's decision. 4 On 10 June 2014, the Tribunal wrote to the appellants (care of their migration agent) inviting them to comment on certain information, including that: (a) the employment reference issued to the first appellant by Enigma Hair Studio was fraudulently produced or procured; (b) this employment reference was provided by the first appellant, or on her behalf, to TRA to obtain a positive skills assessment in the first appellant's nominated occupation; and (c) Mr X (a pseudonym adopted for the purposes of this judgment) had pleaded guilty in criminal proceedings in Victoria to the manufacture and sale of work references, including a reference matching the employment reference submitted by the first appellant to TRA to obtain her skills assessment. 5 The Tribunal's letter explained that this information was relevant to its review because the criteria for the grant of the Skilled Graduate visa the first appellant had applied for included that there be no evidence that the first appellant had given, or caused to be given, to persons including the Minister a bogus document or information that was false or misleading in a material particular in relation to the visa application. 6 An extension of time to respond to this letter was sought and granted. The appellants' migration agent subsequently provided a submission dated 27 July 2014 in response to the Tribunal's invitation to comment (AB 210-213). 7 In response to an invitation to appear at a hearing, the appellants indicated that they would each take part in the hearing, and their migration agent would also attend. They further indicated that they did not request that the Tribunal "take oral evidence from another person" (AB 220-221). 8 The hearing before the Tribunal took place on 18 December 2014. By letter dated 31 December 2014 (emailed to the Tribunal on 2 January 2015), the appellants' migration agent provided further documents in support of a submission that there were compelling circumstances to waive PIC 4020 in the case of the appellants (AB 227-235). 9 On 6 January 2015, the Tribunal decided to affirm the delegate's decision not to grant the appellants the visas. I note the following matters in relation to the Tribunal's reasons: (a) At [3], the Tribunal stated that the appellants had appeared before the Tribunal on 18 December 2014 to give evidence and present arguments, and that the Tribunal also had available to it the Department's file regarding the visa application and the Tribunal's file containing information provided by the appellants during the review process. (b) The Tribunal identified, at [6], the issue in the review as being whether the first appellant met PIC 4020 as required for the grant of the visa by cl 485.224 of Sch 2 to the Regulations. (c) A copy of PIC 4020 was attached to the Tribunal's reasons. It is convenient to set out at this stage the relevant parts of PIC 4020: (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to: (a) the application for the visa; or (b) a visa that the applicant held in the period of 12 months before the application was made. … (4) The Minister may waive the requirements of any or all of paragraphs (1) (a) or (b) and subclause (2) if satisfied that: (a) compelling circumstances that affect the interests of Australia; or (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa. (d) The Tribunal referred, at [9], to the definition of "bogus document" in s 97 of the Act. That provision was in the following terms: In this Subdivision: … bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that: (a) purports to have been, but was not, issued in respect of the person; or (b) is counterfeit or has been altered by a person who does not have authority to do so; or (c) was obtained because of a false or misleading statement, whether or not made knowingly. (e) At [17] of its reasons, the Tribunal stated that the "central evidentiary issue" in dispute in the case was whether the Tribunal reasonably suspected that the TRA skills assessment was a document that was obtained because of false or misleading statements regarding: the first appellant having worked at Enigma Hair Studio from 9 December 2006 to 26 November 2007; and the first appellant having completed more than 922 hours of work experience as a hairdresser at Enigma Hair Studio, as set out in the work reference. (f) The Tribunal detailed the documentary evidence (including the various statutory declarations provided by the appellants) at [18]-[27] of its reasons. This included both a statutory declaration and a written statement from the first appellant stating that she had completed over 922 hours of voluntary work experience at Enigma Hair Studio between 9 December 2006 and 26 November 2007. It also included a handwritten statutory declaration dated 24 January 2012 from the proprietor of Enigma Hair Studio stating that the first appellant was a voluntary worker at his salon during the period claimed, and that all references given by him were true and correct (a copy is at AB 272). (g) The Tribunal detailed, at [28]-[34], the oral evidence at the hearing. This included evidence from the first appellant that: she worked as a volunteer at Enigma Hair Studio between 6 December 2006 and 27 November 2007; because the position was a volunteer position, she does not believe that her employer kept any records of her time at Enigma Hair Studio; and although she kept a diary of her hours, she no longer has that diary. The Tribunal observed, at [31], a very minor discrepancy between the commencement date referred to by the first appellant in oral submissions (6 December 2006) and the date provided in the work reference letter (9 December 2006). The Tribunal noted, at [32], a further inconsistency in the first appellant's evidence. In her written statement dated 7 December 2012, the first appellant stated that she worked 4-5 hours per week. But in her oral evidence she said that she worked 20 hours per week. This matter was raised with the first appellant during the hearing. In response, she stated that she did work 20 hours per week, and there may be a mistake in her written statement. The Tribunal also noted, at [33], that the first appellant left Australia on 15 November 2007 (a matter confirmed by the first appellant) but the work reference letter referred to her being in Australia after this time (ie, until 26 November 2007). (h) The Tribunal referred, at [35]-[40], to the Department's documentary evidence. This included a statement made by Mr X in relation to certain criminal proceedings, in which he made admissions concerning the production of hundreds of fraudulent documents, including work reference letters, from 40 different employers. Enigma Hair Studio was identified in Mr X's statement as one of those employers. The proprietor of that salon was specifically named in Mr X's statement. At [37], the Tribunal stated that one of the work reference letters obtained under a search warrant of Mr X's home was a work reference letter from the employer Enigma Hair Studio for the first appellant. The Tribunal noted that this document was identical to the work reference letter that the first appellant gave to TRA (a copy of which appears at AB 142-143). (i) The Tribunal stated, at [41], that it had invited the first and second appellants to comment on these matters. At [41]-[42], the Tribunal detailed their responding evidence. (j) At [43], the Tribunal stated that, after carefully considering the information it had set out above, it found that it reasonably suspected that the statements in the work reference letter regarding the first appellant working at Enigma Hair Studio, and the period and hours that she worked there, were false or misleading. The Tribunal set out, in some detail, the way in which it had analysed the evidence to arrive at this finding. At [44], the Tribunal stated that, after consideration of these matters, it reasonably suspected that the TRA skills assessment was obtained because of false or misleading statements in the work reference letter for the first appellant. The Tribunal therefore found that the TRA skills assessment was a "bogus document" as defined in s 97 of the Act. The Tribunal also found, at [45], that the first appellant caused to be given to an officer the bogus document in relation to the visa application. (k) On this basis, the Tribunal concluded, at [47], that it was not satisfied that the first appellant met the requirement in PIC 4020(1). (l) Finally, the Tribunal considered whether the requirement of PIC 4020(1) should be waived at [50]-[59], concluding that it was not satisfied that the requirement should be waived. 10 The appellants applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision. The appellants were not legally represented and it is apparent that their application was prepared without the benefit of legal assistance. The appellants' grounds were: 1. My work experience was genuine. 2. My documentation wasn't considered to depth by the MRT. 3. I can contribute positively by working in my field of Hair Dressing. (Errors in original.) 11 A hearing before the Federal Circuit Court took place on 16 December 2016. The first appellant appeared in person. 12 On 1 February 2017, the primary judge published reasons for judgment, dismissing the application. At [1]-[11] of his reasons, the primary judge set out the background facts and summarised the findings of the Tribunal. The primary judge then set out, at [12], the three grounds of judicial review in the application. The primary judge noted, at [13], that in substance the appellants sought to review the decision of the Tribunal on its merits. 13 At [14], the primary judge set out and considered an argument raised by the first appellant in her oral submissions, namely that witnesses who provided statutory declarations and were able to give evidence were not cross-examined. The primary judge noted that there was no evidence that the first appellant had brought these witnesses to the hearing, and nor did it appear that the Tribunal member had sought to hear from these witnesses in person. The primary judge stated that: whether or not a Tribunal member assesses the evidence in person or by way of documentary material is ultimately a question for the Tribunal member; and while there may be a small category of cases where the factual dispute is entirely one person's oral and written evidence against another's, which may require an assessment of the witnesses personally, this did not appear to be such a case. The primary judge then referred, at [15] and [16], to aspects of the evidence before the Tribunal. 14 The primary judge also considered, at [17]-[22], whether the Tribunal should have made certain inquiries. The primary judge stated, at [21], that there was no inquiry that was likely to have easily ascertained a fact that would have made a significant impact upon the outcome of the case; and, at best, there was a line of inquiry that may have led to additional evidence. The primary judge noted that "[t]he real difficulty for the [first appellant] was the impact of the evidence that her work reference was found in the possession of Mr X coupled with the errors referred to" earlier in the primary judge's reasons. As a result, the primary judge was not persuaded that this argument provided a basis for judicial review on the facts of the particular case (at [22]). 15 The appellants appeal to this Court from the judgment of the Federal Circuit Court. The grounds in their notice of appeal (evidently prepared without the benefit of legal assistance) are as follows: 1. My all grounds are geniune and based on the facts and I want the honourable court to review the whole judgment. I will get all the witnesses in the court during the hearing. 2. I will provide all the proofs and documentation to the court. I will get everything to court that belongs to my geniuness. 3. My all documentation provided to the federal circuit court were genine and I want the honourable court to review the whole judgement. (Errors in original.) 16 The first appellant appeared in person at the hearing of the appeal. She stated that she did not know Mr X or how her name came to be on documents found in his possession. She maintained that she had worked the 900 hours, but did not know how to prove this. She said further that no one had contacted her employer to give evidence (before the Tribunal). 17 For the following reasons, in my view, the appeal should be dismissed. The appellants' grounds of appeal do not identify any error in the primary judge's decision. As I raised with the first appellant during the course of the hearing, it is necessary to show error in the judgment appealed from. Moreover, and more fundamentally, the grounds of appeal seek to have this Court engage in merits review of the Tribunal's decision. It is not open to this Court to do so. 18 Whether or not the work reference letter was genuine is not to the point; likewise, whether the first appellant did in fact work as a hairdresser at Enigma Hair Studio for over 900 hours is not to the point. It was open to the Tribunal to reasonably suspect that the TRA skills assessment was a "bogus document" as defined in the Act, on the basis that it had been obtained because of a false or misleading statement provided to TRA. The weight to be given to the evidence is a matter for the Tribunal: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23] per curiam. 19 The primary judge's conclusion that there was no error by way of a failure to inquire was correct. As the High Court held in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] (in a passage quoted by the primary judge), the question is "whether the decision which is under review is vitiated by jurisdictional error". In that context, the High Court observed that "[i]t may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review". However, for the reasons given by the primary judge, the present is not such a case. 20 Further, I do not think it was incumbent upon the Tribunal to ask the first appellant's employer (who had already provided a statutory declaration, AB 272) to give oral evidence. In general, it is for applicants in proceedings before the Tribunal to advance the evidence and arguments upon which they rely in support of their contentions: see Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ; BSB15 v Minister for Immigration and Border Protection [2016] FCA 1135 at [8] per White J. It was open to the appellants (who were on notice of the adverse information) to seek to call the employer to give oral evidence, but they did not choose to do so. 21 For these reasons, the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the appellants pay the Minister's costs of the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.