The commonality in the reasons
51 The submission was that the MRT had taken a generic view of the three cases, leading to a failure to consider the application by reference to its individual merits. Counsel emphasised the following:
(i) The similarity in the structure of the respective reasons;
(ii) In [27], the MRT referred to the appellant's Work Reference as being dated 12 July 2012, when in fact it is dated 26 February 2009;
(iii) In [87], the MRT referred to the Work Reference as being dated 5 September 2009 when, in fact, this was the date of Mr Bajwa's reference;
(iv) Paragraph [78] of the reasons in the appellant's case are almost identical to [72] in the Sekhon reasons and to [54] of the Bajwa reasons;
(v) Paragraph [79] of the reasons in the appellant's case are almost identical to [73] of the Sekhon reasons and [55] in the Bajwa reasons;
(vi) Paragraph [77] of the reasons in the appellant's case are almost identical to [71] in the Sekhon reasons and to [52] in the Bajwa reasons;
(vii) Paragraph [80] of the reasons in the appellant's case are very similar to [74] of the Sekhon reasons and to [56] in the Bajwa reasons;
(viii) Paragraph [81] of the reasons in the appellant's case are similar to [57] of the Bajwa reasons and have some similarities with [75] in the Sekhon reasons;
(ix) Paragraph [82] of the reasons in the appellant's case are similar to [76] of the Sekhon reasons and [58] of the Bajwa reasons;
(x) In paragraph [77] the MRT said:
The Tribunal does not accept that the owner's vague and inconsistent evidence and inability to recall the applicant or others is explained because he did not spend much time in the kitchen.
Counsel noted that an identical sentence appeared in [52] and [71] of the Bajwa and Sekhon reasons respectively, despite the fact that the photo board used by the Departmental officers when interviewing Mr Binning on 15 February 2011 did not include a photograph of the appellant. This indicated, he submitted, that the MRT had made no distinction between the appellant's circumstances and those of Mr Bajwa and Mr Sekhon;
(xi) Paragraphs [86], [87] and [88] of the MRT's reasons, quoted earlier, are essentially identical to [81]-[83] and [62]-[64] in the Sekhon and Bajwa reasons respectively;
(xii) Paragraph [89] in the MRT's reasons relating to the appellant is, mistakenly, a repetition of [88]. The MRT made the same mistake in [65] of the Bajwa reasons;
(xiii) Although in the case of Mr Bajwa the MRT had found at [53] that his Work Reference had been copied and completed by the present appellant and signed by the owner, the MRT had not considered whether the appellant's own letter used for the copying had been genuine.
52 Finally, the appellant's counsel submitted that the MRT appeared to have taken the view that any person who claimed to have worked in the Maharaja Indian Restaurant should not be believed, even though it was accepted that Mr Binning did in fact operate a restaurant and did engage at least some staff. This too was said to evidence a failure by the MRT to consider the appellant's application on its own merits.
53 The circumstance that a decision-maker has used the same terminology in the determination of two or more claims, or so-called template reasons, does not of itself indicate that the decision-maker has not given separate consideration to each claim. The decision-maker may be satisfied that each claim fails for the same reasons and that it is not necessary for those reasons to be expressed differently. Considerations of time and efficiency may incline a decision-maker to adopt the same manner of expression used by that decision-maker previously. When the one decision-maker has had two or more matters involving a common substratum of facts and similar evidence, it may be natural for the decision-maker to use a common form of expression in his or her reasons. That may be particularly so when the decision-maker had addressed three separate, but substantially identical, claims. The use of common form reasons in such cases may not be materially different in effect from those cases in which decision-makers have conducted a joint hearing of three claims and have published a single judgment.
54 The observations of French J in WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209 at [38], although not directed specifically to template reasons, are apposite in the present context:
[38] The coincidence in the text, so far as it related to independent country information, does not support the inference that the Tribunal took its text from the particular earlier Tribunal decisions which were referred to by counsel. It may be that in similar cases, eg, cases involving persons of Arab ethnicity coming from Iran, there will be a good deal of commonality in the independent country information referred to by various tribunals and that similar citations will be made. It may be the case that Tribunal members are using similar surveys of relevant country information in similar cases and adopting a 'cut and paste' technique to incorporate those in their judgments. This does not, in my opinion, demonstrate, as a matter of fact, that a tribunal so doing fails to consider the country information for itself. In the case under appeal I do not consider that, even if a cut and paste technique were adopted, as seems likely, that this is indicative of a failure by the Tribunal to carry out its statutory function. No doubt it could be said that at para 96 of its reasons the Tribunal goes beyond the mere recitation of independent country information to a conclusionary statement which is word for word the same as a conclusionary statement made in another Tribunal decision involving a person of Arab ethnicity from Iran. While I think it would be preferable for Tribunal members in drafting their reasons to express their conclusions in their own words rather than those of another decision by another member, failure to do so does not indicate that the Tribunal member has not applied his or her mind to the facts or that the Tribunal member does not in fact hold the view expressed in the reasons given.
55 In Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223 at [51], the Court considered the repeated use by an independent merits reviewer of his own reasons for rejecting generic claims. Rares and Jagot JJ said at [51]:
There was no suggestion that the reviewer was using someone else's template reasons for rejecting the generic claims. The complaint is that the reviewer used his own reasons for doing so. If those were the reviewer's reasons for rejecting the generic claim, he was entitled to use and even repeat them, since he had no more material to consider. The applicant could not suggest why a reworded, but substantively similar, reasoning process would have changed his argument that an apprehension of bias arose from the use of the same reasons, even if differently worded. And for this reason, the argument also fails. It is a syllogism to say that because a decision-maker used the same words to reject two identical claims, he or she was apparently biased.
56 With these principles in mind, I now address the particular complaints of the appellant listed above.
57 Having regard to the fact that the Tribunal gave its decision on Mr Sekhon's application one week after those relating to the appellant, the similarities between the reasons in his case and those given in respect of the appellant are not significant. The temporal difference does not support an inference that the MRT applied its reasoning in the Sekhon review to that of the applicant. For this reason, I consider it appropriate to focus on the appellant's submissions concerning the Bajwa reasons. If the appellant cannot establish his claim by reference to those reasons, resort to the Sekhon reasons is unlikely to avail him.
58 Although there are a number of similarities between the reasons of the MRT in relation to the appellant and Mr Bajwa, there are also a number of differences. Apart from anything else, the MRT reasons in the appellant's case comprise 94 paragraphs, whereas the Bajwa reasons comprise 70 paragraphs.
59 The MRT reasons in each case do have a similar structure and the headings used in each are identical. However, in relation to the appellant's submissions generally, and to this submission in particular, it is appropriate to keep in mind a number of matters, including the circumstance that each application was heard at about the same time, by the same Tribunal member, arose from the one Departmental investigation, raised common issues, and involved consideration of evidence given by witnesses who were common to all hearings (Mr Binning, Mrs Binning and Harpreet Singh). The principal issue which arose in each case was whether the TRA assessment in each case had been obtained because of a false or misleading statement. The evidence bearing on that issue in each case appears to have had much in common, turning on how relevantly identical letters from the Maharaja Indian Restaurant had come to be obtained by each applicant, and whether they had performed any work at all in the Restaurant or, at least, work of the nature and extent claimed in the respective letters. These circumstances make understandable and unremarkable that the one Tribunal member in both matters used a similar structure in the respective reasons when addressing the issue.
60 Accordingly, I consider that the similar structure of the reasons in each case is not of itself indicative of a failure by the MRT to consider the merits of each application separately. At best, it is one of the matters to be taken into account in considering whether, taken as a whole, the reasons indicate such a failure.
61 The first 26 paragraphs of the reasons in each case are identical, or vary only to the extent that the dates on which the events recited in each case are different. In these paragraphs, the MRT was summarising in each case the course of events giving rise to the application for review, the law to be applied, the material provided to the MRT by the Department, and the delegate's reasons for refusal of the visa in each case. As these matters were essentially the same in each case, these similarities are, in my opinion, unremarkable.
62 The differences in the respective reasons commence at [27] when, under the heading "The Tribunal Hearing", the MRT details the course of its hearing and the evidence received in each case. In the appellant's case, this section of the reasons comprises 41 paragraphs; in the Bajwa reasons, 21 paragraphs. The similarities in these sections of the reasons are minor.
63 Both the reasons in the appellant's case and the Bajwa case have a heading "Post Hearing" in which the MRT records events occurring after the hearing (the initial hearing in the appellant's case). In particular, the MRT refers to a letter sent to each applicant under s 359A of the Migration Act and to the respective responses of the appellant and Mr Bajwa to those letters. There are some, but by no means complete, similarities in the way the MRT recorded these matters. However, it is difficult to determine the significance of these similarities. They may be no more than a reflection of the fact that the letters provided by the migration agent and the statutory declarations from Mrs Binning and another witness, Harpreet Singh, were identical, or at least substantially similar. The lack of evidence about these matters counts against the appellant, as he had the evidential onus on his application for judicial review.
64 It is evident that the respective reasons under the heading "The Tribunal Hearing" reflect the different evidence received by the MRT in each case and the different course which each hearing took. In the appellant's case, the hearing commenced on 13 July 2012 and continued on 29 August 2012. In the Mr Bajwa's case, the hearing took place on 20 July 2012 and was completed that day. The further evidence provided by Mr Bajwa on 24 August 2012 was wholly written.
65 These differences are important as they indicate that attention was given by the MRT to the different circumstances of each case and to the different evidence received in each case. I also observe that the MRT's summary of the evidence given by the appellant, Mr Binning and Mrs Binning are different from the summary of the counterpart evidence in Mr Bajwa's case, although the concerns of the MRT arising from the information provided by Mr Binning to the Departmental officers on 15 February 2011 were essentially the same.
66 There is undoubtedly considerable similarity between MRT's reasons in the appellant's case and in the Bajwa reasons under the heading "Finding and reasons". To my mind however, most of these similarities are of no consequence.
67 The first matter raised by the appellant concerning [27] of the MRT's reasons is not significant. Contrary to his assertion, the MRT did not regard the date 12 July 2012 as the date of the appellant's Work Reference. The sentence on which the appellant relies is somewhat awkwardly expressed but I think it is plain enough that the MRT was referring to the date of a submission provided by the appellant in the form of statutory declaration made on 12 July 2012. Even if that not be right, it is a simple mistake which cannot indicate a failure to consider the claim on its own merits.
68 The mistaken reference in [87] to the date of the Work Reference as 5 September 2009, which was the date of Mr Bajwa's reference letter, does support the inference that the MRT cut and pasted [63] of the Bajwa reasons into the appellant's reasons. So also does the mistaken repetition of two paragraphs in each of the reasons relating to the appellant and Mr Bajwa. From this it can be inferred that the MRT prepared the Bajwa reasons first, and later copied these paragraphs into the reasons concerning the appellant. This supports in turn an inference that the paragraphs in the appellant's reasons which are identical, or substantially identical to those in the Bajwa reasons, were also copied into the reasons concerning the appellant. However, this is just as consistent with the MRT having decided, by reference to the merits of the appellant's own case, that it should be dismissed for substantially the same reasons as was Mr Bajwa's. It does not bespeak a failure by the MRT to consider the appellant's claims according to its own merits.
69 Paragraphs [73]-[76] of the applicant's reasons match paras [48]-[51] in the Bajwa reasons, but all these paragraphs do is identify the issue for the MRT's determination and make some preliminary findings of fact bearing upon the determination of the issues in each case.
70 In paras [77] and [52] respectively, the MRT reviewed the differences between the accounts given by Mr Binning when interviewed by the Department in February 2011, in the subsequent statutory declaration he had provided in each case in an attempt to explain why he had not been able to remember either the applicant or Mr Bajwa at that interview, and his evidence at the respective hearings. As the first two matters were common to both applications, the similarities in the way in which the MRT dealt with them are unsurprising.
71 It is very evident that the MRT did not regard Mr Binning as a reliable witness, describing his evidence as "vague and inconsistent". It is also evident that the MRT was sceptical of Mr Binning's explanation for having been unable in February 2011 to remember the applicant and Mr Bajwa, given his claims that he worked in the Restaurant every day it was open, and the assertion that both men had worked in the Restaurant for over a year and had performed more than 900 hours of work. Unsurprisingly, the MRT considered it improbable that Mr Binning would have forgotten employees who worked in the Restaurant to that extent, if it was the fact.
72 The MRT also regarded the evidence of Mrs Binning as "vague and inconsistent" and said that it was not prepared to give much weight to it.
73 In Mr Bajwa's case, the MRT then addressed the evidence concerning the way in which his work experience letter had come into existence. The MRT had his evidence that the letter had been copied out by the present appellant, and then given to Mr Binning to sign. It is unsurprising that the MRT regarded this as a further reason to doubt the reliability of Mr Bajwa's work experience letter. In the applicant's case, the MRT referred to his evidence that he had not copied the letter, this being a point of difference between him and Mr Bajwa. However, the MRT was not prepared to act on that evidence of the appellant because of the existence of a number of relevantly identical work experience letters, because of the evidence of copying of these references, and because of inconsistent evidence from Mr Binning and Mrs Binning as to the origins of the letter. Again, the approach taken by the MRT is unsurprising. For present purposes, what is pertinent is that, contrary to the appellant's submissions, the MRT's reasons disclose separate consideration in each case of the evidence concerning the way in which the letters came into existence.
74 The MRT's credibility findings concerning the evidence of Mr Binning and Mrs Binning and its findings concerning the manner of preparation of the work experience letters appear to have been of a foundational kind. That is to say, these findings inform the structure and content of the balance of the MRT's reasons. It is unsurprising that having made these findings, the MRT reached the same conclusion in each case. Had it been otherwise, the MRT's reasons would have been inconsistent and probably open to review on grounds of irrationality.
75 This strongly suggests therefore that this is a circumstance in which, on the evidence given in each case, the MRT has reached the same decision and has then used the same language to express its reasons. Contrary to the appellant's submissions, an analysis of the MRT's reasons does not support a conclusion that the MRT failed to consider the appellant's application on its own merits. Instead, there is a clear impression that the MRT did consider each application separately but expressed itself in the same manner having regard to the commonality of the issues, the common substratum of fact and the commonality of the evidence received by the MRT.
76 On this view, most of the matters on which the appellant relies fall away and need not be addressed further.
77 The appellant did not put in evidence in the FCC all the evidential material received by the MRT in relation to his own application, nor the evidence it received in relation to the applications by Mr Bajwa and Mr Sekhon. Accordingly, it is not possible for this Court to assess fully the extent to which the evidence was common in each case. However, the very nature of the circumstances giving rise to each application and the MRT's reasons do suggest that there was substantial common, or at least similar, evidence. It was for the appellant to demonstrate that the evidence was materially different, if that was the case, and he has not done so.
78 In my opinion, it is not necessary to consider the MRT's reasons relating to Mr Sekhon's application separately. As already noted, they were delivered after the reasons in the appellant's case. Further, and in any event, the circumstances of Mr Sekhon's case involved the same substratum of fact, substantially the same evidence and the same issues as arose in the case of the appellant and Mr Bajwa. It is unsurprising in that circumstance that the MRT chose to express itself using the same language as it had used in the earlier cases.
79 In my opinion, the FCC Judge was correct to reject this ground of appeal.