FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court on 28 April 2014 be set aside and in lieu thereof it is ordered that:

(a)    the decision of the Migration Review Tribunal be affirmed; and

(b)    for the avoidance of doubt it is declared that the Migration Review Tribunal erred in finding that the first respondent had breached Public Interest Criterion 4020, having made that finding in breach of his entitlement to access the redacted information to which he was entitled pursuant to his request made under s 362A.

3.    The appellant pay the first respondent’s costs of the appeal and the application before the Federal Circuit Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This appeal arises from the rejection of Mr Dhillon’s application for a Skilled (Residence) Class VB sub-class 886 Visa for the occupation of pastry cook. Mr Dhillon’s application was rejected by the Department of Immigration and Citizenship on the basis that Mr Dhillon did not satisfy Public Interest Criterion 4020 (“the Public Interest Criterion”) and, therefore, that he had not satisfied clause 886.225 of Schedule 2 to the Migration Regulations 1994 (Cth) as in force at the time. In reaching that conclusion the Department had access to information in material (which will be referred to as “the redacted material”) that had not been provided to Mr Dhillon. He then applied to the Migration Review Tribunal for review of the Department’s decision but that application was rejected on the basis of both the Public Interest Criterion and on the separate ground that each of the qualifications relied upon by Mr Dhillon to satisfy his Australian study requirement were not “closely related” to his nominated skilled occupation of pastry cook (“the closely related requirement”). The Tribunal also had access to the redacted material in reaching its decision to the extent that it was based on Mr Dhillon failing the Public Interest Criterion.

2    The Federal Circuit Court quashed the decision of the Tribunal on the grounds that Mr Dhillon had been denied procedural fairness as required by s 360 of the Migration Act 1958 (Cth) because he had not been given the redacted material which had been available to both the Department and the Tribunal in finding that he had not satisfied the Public Interest Criterion. His Honour dismissed Mr Dhillon’s other grounds of appeal, including his contention of having satisfied the closely related requirement, but did not consider whether the correctness of the Tribunal’s decision on the closely related requirement necessitated upholding its decision irrespective of any breach of procedural fairness which may have occurred by the failure to give Mr Dhillon access to the redacted material in deciding against him on the Public Interest Criterion.

The appeal to this Court

3    The Minister’s appeal to this Court was principally brought upon the basis that the relevant provisions of the Migration Act 1958 (Cth), including s 360, excluded an entitlement for Mr Dhillon to have been given the redacted material as a matter of procedural fairness. Mr Dhillon maintained that his Honour’s decision was correct, but, by notice of contention, also maintained that the decision ought, in any event, to be upheld on the grounds which the learned judge had decided against him; in particular that the Tribunal’s decision was affected by jurisdictional error because (a) the Tribunal had impermissibly used material seized under a search warrant executed under Part 1AA of the Crimes Act 1914 (Cth) or which had been obtained from a criminal proceeding, (b) the Tribunal had, in the circumstances of his case, wrongly conducted the hearing in Sydney by videolink to Perth with Mr Dhillon’s interpreter and adviser each being available only by telephone from Sydney and Melbourne, respectively, and (c) the Tribunal had erroneously decided the “closely related” issue against him. Two other issues arose during the course of the hearing of the appeal which were argued by the parties and became the subject of formal applications for amendment of the appeal and notice of contention, respectively. The Minister was given leave to amend the notice of appeal by adding as a ground of appeal that the Federal Circuit Court ought to have affirmed the decision of the Tribunal on the “closely related” ground irrespective of any conclusion concerning a claim of breach of procedural fairness by reason of Mr Dhillon not having been given access to the redacted material in deciding the Public Interest Criterion against him. Mr Dhillon, in turn, was given leave to apply to amend his notice of contention by adding as a ground of contention that the failure of the Tribunal to provide the redacted material was in breach of s 362A of the Migration Act 1958 (Cth). The Minister opposed Mr Dhillon’s application to rely upon the claim of a breach of s 362A and filed submissions which opposed the grant of leave to amend and, if leave to amend were granted, contended that the ground had insufficient merit to succeed.

Alleged breach of section 362A and failure to provide the redacted material

4    It is desirable to consider first Mr Dhillon’s application to add the s 362A ground, and to set out some of the relevant facts before doing so. The consideration of Mr Dhillon’s application by the Department and Tribunal occurred in the context of an investigation into, and subsequent conviction of, persons who had supplied fraudulent information of the kind relied upon by Mr Dhillon in his visa application. Public Interest Criterion 4020 required that an applicant for a visa not give, or cause to be given, a bogus document (defined by s 97 of the Migration Act 1958 (Cth)), or information that is false or misleading in a material particular to (amongst others) the Minister, an officer of the Department or the Tribunal. A Ms Tina Galanos had given Mr Dhillon a reference letter, upon which he relied in his visa application, stating that he had completed more than 900 hours work as a pastry cook from 5 February 2007 to 13 February 2008 at Axilleon Cakes. Ms Galanos was the manager and owner of Axilleon Cakes. The Department, and subsequently the Tribunal, however, had information in the redacted material, to which Mr Dhillon had not been given access, suggesting that the reference letter from Ms Galanos was a bogus document and contained false or misleading statements upon which Mr Dhillon’s visa application depended. That information was based in part upon the result of investigations into a Mr Carmine Amarante and Ms Galanos in the course of which a search warrant was executed under s 3E of the Crimes Act 1914 (Cth). The redacted material included two statements which had been made by Mr Amarante and an agreed summary of facts in which he had agreed to various facts for the purposes of a criminal proceeding against him in the County Court of Victoria. One of the statements had been made by Mr Amarante in the course of the investigation into his involvement in creating false documents of the kind relied upon by Mr Dhillon; the other had been made by him in the course of the prosecution of Ms Galanos for her involvement in providing false statements of the kind given by her to Mr Dhillon.

5    The redacted material did not specifically identify Mr Dhillon as a person to whom a false reference letter had been given by Ms Galanos, but the redacted material contained information which challenged the truthfulness of the facts asserted in her reference letter for Mr Dhillon, and also, of course, raised doubt about the truthfulness and honesty of his claim of having completed 900 hours’ work with Axilleon Cakes. Mr Amarante had admitted to his own involvement in the production of hundreds of fraudulent documents, including work reference letters for Axilleon Cakes, for use by students to obtain permanent residence in Australia. He claimed that money had been obtained for the references and that employers (including Ms Galanos) knew them to be false. The statement Mr Amarante had made in relation to the investigation into him had said:

23    Employers would sometimes ask ‘Do I have to keep them on for the whole 900 hours?’ I said ‘put them in here until they’re confident enough and they may not have to do the full 900 hours, it’s up to you’. They would normally say ‘yeah, no problems’. I told them that TRA or DIAC may contact them and ask if the students had completed 900 hours. I said ‘You need to say that the student has completed their 900 hours work experience’.

However, the information in the agreed summary of facts tendered in the County Court proceedings against Mr Amarante expressed a potentially important qualification to what he had said in his statement. One of the agreed facts in the summary tendered in the County Court proceedings was:

He [Mr Amarante] would always push the students to do some training however, he had no way of knowing whether they actually completed the training. Some of the students did not even go in [to the employers] as they were too busy (emphasis added).

The statement of agreed facts in the County Court proceeding, therefore, tempered the force of the statement he had previously given suggesting that all claims by students of having completed 900 hours were false because of the qualification that Mr Amarante did not know, and had no way of knowing, whether the students had actually worked the 900 hours they claimed to have worked.

6    Mr Dhillon had received a letter from the Tribunal inviting him under s 359A (“the 359A letter”) to comment or respond to matters which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The 359A letter had referred to Ms Galanos and to Mr Amarante and to much of the information which had been obtained from the investigation into the creation by them of false documents for the purpose of visa applications. The 359A letter referred to Mr Amarante’s admission of being involved in the production of hundreds of fraudulent documents and of Ms Galanos’ involvement in his activities. Amongst the particulars in the 359A letter was the following:

•    Mr Amarante said he knew that all the employers knew they were providing false information to TRA and DIAC when verifying that the students had worked and completed 900 hours. Mr Amarante stated that, from his recollection, none of the students completed the full 900 hours with any of the employers he mentioned. Mr Amarante said he encouraged students to attend the business premises and do some training but told them it did not have to be the whole 900 hours. He said some students didn't want to and never showed up.

The qualification to that particular, which might be seen from the agreed facts tendered in the County Court, was not set out in the 359A letter. His Honour noted that Mr Dhillon had not been provided with the redacted material “even though he had requested it” and concluded that access to the redacted material would have shown Mr Dhillon material upon which he could have sought to develop a demand that either Mr Amarante or Ms Galanos be subpoenaed by the Tribunal or to put more persuasively arguments on the facts. Mr Dhillon had not been one of the nine individuals who had specifically been named in the redacted material as having fraudulent documentation.

Mr Dhillon’s request for the relevant file

7    A formal request had been made on 4 March 2013 by Mr Dhillon under s 362A of the Migration Act 1958 (Cth) for access to written material held by the Tribunal in relation to his visa application. The material sought on his behalf was described as:

Entire file including file notes, case notes etc. including investigation file if any.

Upon receipt of this request, the Tribunal asked the Department for information in the process of determining what material could be released to Mr Dhillon. Previously, on 21 November 2012, the Tribunal member had sought from the Department:

… copies of all the evidence (TRIM and ISCE records, file notes, investigation reports etc.) that led to your finding that the visa applicant’s work reference was false or misleading, in particular details of Carmine Amarante’s evidence in respect of the applicant and/or Axilleon (the claimed workplace). She also request a copy of the judgment of the County Court in relation to Amarante if available.

The redacted material was amongst the information given by the Department to the Tribunal. On 11 March 2013 the Tribunal sent the s 359A letter to Mr Dhillon and on 18 March 2013 the Tribunal wrote to Mr Dhillon’s advisers giving partial access to the documents which had been sought under s 362A but denying him access to the redacted material. There was no suggestion that the redacted material did not come within the terms of Mr Dhillon’s s 362A request if not exempted from access.

Tribunal’s reason for refusal to provide the redacted material

8    The Tribunal’s denial of access to the redacted material was based upon its conclusion that access was not permitted or authorised by s 362A. The section conferred upon Mr Dhillon an entitlement to have access to any written material given to the Tribunal for its review of Mr Dhillon’s visa application but, by sub-section 362A(2), that entitlement was expressly said not to override any requirement of the Privacy Act 1988 (Cth). Sub-sections 362A(1) and (2) of the Migration Act 1958 (Cth) provides:

(1)    Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

(2)    This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.

The Tribunal’s reasons for rejecting Mr Dhillon’s application for access to the redacted documents under s 362A, although expressed briefly, were that the obligation under s 362A(1) did not extend to the redacted documents because the exclusion from disclosure which would have operated under the Freedom of Information Act 1982 (Cth) also prevented disclosure under s 362A(1) of the Migration Act 1958 (Cth) by reason of the incorporation into that provision, through s 362A(2), of any restriction from disclosure found in the Privacy Act 1988 (Cth).

Section 362A and the Privacy Act

9    It was contended for Mr Dhillon at the hearing of the appeal that the Tribunal had breached its obligations under s 362A(1) by incorrectly applying the provisions of the Privacy Act 1988 (Cth) to his request under s 362A of the Migration Act 1958 (Cth). There may be some uncertainty from the brevity of the reasons given by the Tribunal in concluding that it was not permitted to provide the redacted material to Mr Dhillon, but on analysis of its reasons, it seems clear that the Tribunal concluded that the redacted materials could not be given to Mr Dhillon because permitting Mr Dhillon to access the information in the redacted material would have been a contempt of court within the meaning of s 46 of the Freedom of Information Act 1982 (Cth), and that, as disclosure was not permitted under that provision, it could not be disclosed under s 362A(1) in light of s 362A(2). The Tribunal did not base its refusal on a belief that access to the redacted material would have been a contempt of the orders which had been made by the learned judge of the County Court in the criminal proceedings against Mr Amarante. On 30 November 2012, Judge Cannon had ordered the prohibition of publication of any information derived from the proceeding relating to Mr Amarante’s co-operation with police or other law enforcement agencies or his undertaking to give evidence in any future legal proceedings, but those orders formed no part of the Tribunal’s decision refusing access to the redacted information on Mr Dhillon’s s 362A application. Her Honour, indeed, had specifically provided that the order of prohibition on publication did not extend to any disclosure of information to or between a number of persons, including persons in connection with applications such as Mr Dhillon’s. Amongst the orders made by her Honour was an express exception from the prohibition in the following terms:

2

…

(d)    for the purposes of making or reviewing any decision under the Migration Act 1958 (Cth) or any legal proceedings arising from any such decision or review:

(i)    persons for whom false documentation was, or might be reasonably be suspected to have been, prepared by [Mr Amarante] who have lodged, or might lodge, visa applications with the Department of Immigration and Citizenship;

(ii)    persons for whom false documentation was, or might be reasonably be suspected to have been, prepared by [Mr Amarante] whose visas have been, or might be, the subject of decisions under the Migration Act 1958 (Cth) in respect of those visas;

(iii)    persons who make, or have made, sponsorship or nomination applications under the Migration Act 1958 (Cth) based on or connected with false documentation that was, or might reasonably be suspected to have been, prepared by [Mr Amarante];

(e)    the legal representatives of any persons referred to in subparagraphs (b) to (d) above;

(f)    the registered migration agents, the authorised recipients (within the meaning of the Migration Act 1958 (Cth)) and any interpreters in respect of any persons referred to in sub-paragraph (d) above.

It would therefore not have been a contempt of the orders made by Judge Cannon for the redacted documents to have been given to Mr Dhillon and the Tribunal did not base its refusal of access to the redacted documents on the possibility of an actual breach of the orders made by Judge Cannon. The Tribunal’s reasons were, rather, that the independent operation of s 362A(2) of the Migration Act 1958 (Cth), in conjunction with the relevant provisions in the Privacy Act 1988 (Cth), had the effect of preventing disclosure to him because a disclosure of the information would have been a contempt of court had access been sought under the Freedom of Information Act 1982 (Cth) and, therefore, had been made to a member of the public (whether or not that member of the public was Mr Dhillon).

10    The essential point in the Tribunal’s reasoning lay in the fact that Mr Dhillon’s entitlement under s 362A(1) to access to material did not override any requirement flowing from the Privacy Act 1988 (Cth) which would deny him access. The Tribunal reasoned:

Section 14, Information Privacy Principle 6 of the Privacy Act provides for the same right of refusal or access to information as is available under applicable provisions of any law of the Commonwealth that provides for access by persons to documents, such as the Freedom of Information Act 1982 (FOI Act).

In accordance with the FOI Act, the aforementioned folios contain material that is exempt from disclosure under s 46(a) as public disclosure of the material would be in contempt of court. [The Tribunal] therefore [found] that disclosure of this material would be in contempt of court.

Section 15 of the Privacy Act 1988 (Cth) provides that an “APP entity” must not breach an Australian Privacy Principle. An APP entity is defined by s 6 to mean “an agency or organisation” which, by their respective definitions, relevantly included the Tribunal. Section 14 provides that the Australian Privacy Principles are those set out in the clauses of Schedule 1. Privacy Principle 6, as in force at the date of the Tribunal’s decision, namely 18 March 2013, provided:

Access to records containing personal information

Where a record-keeper has possession or control of a record that contains personal information, the individual concerned shall be entitled to have access to that record, except to the extent that the record-keeper is required or authorised to refuse to provide the individual with access to that record under the applicable provision of any law of the Commonwealth that provides for access by persons to documents.

Privacy Principle 6 thus required a record-keeper (relevantly, the Tribunal) to give an individual access to a record containing personal information of the individual, but the record-keeper was expressly “required or authorised” to refuse access to the extent that refusal was “required or authorised” under any law of the Commonwealth providing for access by persons to documents. The Tribunal considered that this principle provided the same right of refusal or access to information as was available under the Freedom of Information Act 1982 (Cth) (being a law of the Commonwealth providing for access by persons to documents) and appeared to have asked itself whether it, as the record-keeper, was required or authorised to refuse to provide Mr Dhillon with access to the redacted information under the applicable provisions of that law of the Commonwealth. Section 46 of the Freedom of Information Act 1982 (Cth) relevantly provided that a document is an “exempt document” if public disclosure of the document would, apart from the Freedom of Information Act, and any immunity of the Crown, be in contempt of court. The Tribunal’s reasoning, if Privacy Principle 6 applied to Mr Dhillon’s application under s 362A(1), was that any refusal to give him access to the redacted material under s 362A(1) was required by Privacy Principle 6 irrespective of the actual terms of the order made by the court.

Did Privacy Principle 6 apply?

11    The difficulty with the application of Privacy Principle 6 to the application made by Mr Dhillon, however, was that its terms were directed to an individual whose personal information is contained in a record in the possession or control of a record-keeper and not to a person seeking access to documents containing information relating to another person. Privacy Principle 6 could only apply if the documents sought by Mr Dhillon contained his personal information but did not apply if the documents contained personal information of others, namely of Mr Amarante and Ms Galanos. In that circumstance there might be some other Privacy Principle which prevented disclosure to Mr Dhillon but not the one relied upon by the Tribunal. What is not clear from the Tribunal’s brief reasons is whether, and if so how, the Tribunal took the view that the information in the redacted material contained personal information of Mr Dhillon so as to engage Privacy Principle 6. Counsel for the Minister did not contend that the Tribunal either did find, or that it could have found, that the redacted material contained personal information of Mr Dhillon. Indeed, in a subsequent, and alternative, submission (upon which the Minister contended that the Tribunal might have denied Mr Dhillon access to the redacted material under s 362A(2)), the Minister contended that the information in the redacted material was not “personal information” about Mr Dhillon.

12    Section 6 of the Privacy Act 1988 (Cth) defines “individual concerned” in relation to personal information to mean “the individual to whom the information relates”. The section also defines “personal information” to mean:

information or an opinion about an identified individual, or an individual who is reasonably identifiable:

(a)    whether the information or opinion is true or not;

(b)    whether the information or opinion is recorded in a material form or not.

The information in the redacted material plainly did not identify Mr Dhillon, and the Tribunal’s reasons in its letter of 18 March 2013 did not say otherwise or that he was either identified or an individual who was “reasonably identifiable” within the meaning of the definition of “personal information” in the redacted material. It seems clear, as was contended for the Minister in the alternative submission, that it was not open for the Tribunal to conclude that Mr Dhillon was either identified or reasonably identifiable in the redacted material to have engaged Privacy Principle 6. The Tribunal provided no more detailed reasoning of the steps taken in reaching the conclusion necessary to invoke Privacy Principle 6 and the Minister has neither advanced any argument that it was open, nor shown how it was open, for the Tribunal to find that the redacted material contained personal information of Mr Dhillon. It follows that the Tribunal’s reason for refusing to give Mr Dhillon access to the redacted material was wrong and that it ought to have been given to him unless there was some other legal basis for not doing so.

Did Privacy Principle 11 apply?

13    Senior Counsel for the Minister contended (by way of the alternative submission previously referred to) that there was “another clearer basis” upon which there had been no breach of s 362A of the Act in not giving Mr Dhillon the redacted material, namely, that disclosure of the redacted material by the Tribunal would have been in breach of Privacy Principle 11. That Privacy Principle relevantly provided:

1.    A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

(a)    The individual concerned is reasonably likely to have been aware, or made aware under Privacy Principle 2, that information of that kind is normally passed to that person, body or agency;

(b)    The individual concerned has consented to the disclosure;

(c)    The record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious or imminent threat to the life or health of the individual concerned or of another person;

(d)    The disclosure is required or authorised by law; or

(e)    The disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.

2    Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purposes of the protection of the public revenue, the record-keeper shall include a note of the disclosure.

3    A person, body or agency to whom personal information is disclosed under clause 1 of this Principles shall not use or disclose information for a purpose other than that for which the information was given to the person, body or agency.

It was argued for the Minister that the application of Privacy Principle 11 necessarily prevented the disclosure to Mr Dhillon of the personal information relating to Ms Galanos and Mr Amarante. However, the exception which permitted disclosure in paragraph 1(d) is broad enough to have permitted disclosure to Mr Dhillon when read with the terms of the order made by Judge Cannon. Her Honour’s order, operating as an order of the court, “authorised by law” (within the meaning of clause 1(d) of Privacy Principle 11) the disclosure of the information in the redacted material by the Tribunal on Mr Dhillon’s application. The Minister contended that sub-paragraph (d) did not apply because s 362A(2) did not override the requirements of the Privacy Act 1988 (Cth), but any disclosure by operation of clause 1(d) of Privacy Principle 11 would not be because of an overriding effect of s 362A but because the terms of Privacy Principle 11 itself permitted disclosure where that disclosure was authorised by law (as it was here by the order made by her Honour in the County Court proceedings). It follows that the application of Privacy Principle 11 would not have prevented access to Mr Dhillon of the redacted material and it is unnecessary to consider whether access might also have been permitted under clauses 1(a) and (b) of the Privacy Principle 11 in light of (a) the evidence that the investigations undertaken into Mr Amarante and Ms Galanos had been of conduct affecting applications for visas and had included members of the Department as part of the investigating team, (b) the giving of statements by Mr Amarante for use in public proceedings, and (c) the agreement by Mr Amarante of the summary of agreed facts tendered publicly in the County Court. Another reason for the engagement of privacy principle paragraph 11(1)(d) was that the law (being the proper application of the principles of procedural fairness) required and thus authorised the disclosure of the information. For present purposes it is, in any event, sufficient to note that the Tribunal made none of the findings that would be needed to make Privacy Principle 11 applicable as a basis for denying Mr Dhillon access to the information in the redacted material and did not purport to do so.

The application for leave to amend to include ground under section 362A

14    It follows that Mr Dhillon should be given leave to rely upon the Tribunal’s failure to provide the redacted material under s 362A(1) unless there are other reasons why leave should not be granted. The Minister did not oppose the grant of leave on the basis of any prejudice or on the basis that the Minister would have lead further evidence had reliance upon s 362A(1) been raised earlier. The Minister’s submissions in opposition to the grant of leave were, rather, that the ground had insufficient prospects of success, that the ground could have been raised by Mr Dhillon in the proceeding before the Tribunal, and that it was inconsistent with an argument which had been made for Mr Dhillon that the redacted material ought not to have been relied upon at all because to have done so was a contempt of the orders made by Judge Cannon.

15    The prospects of success in this instance favour the grant of leave as does the absence of prejudice to the Minister. Factors against the grant of leave include that the argument about a breach of s 362A could have been raised by Mr Dhillon earlier than in the appeal to this Court and that it depended in part upon a construction of the orders made by Judge Cannon which is inconsistent with (or at least alternative to) an argument advanced for Mr Dhillon to the effect that the redacted material ought not to have been taken into account in his visa application because it was a contempt of the orders actually made to have done so. These considerations, however, do not outweigh in this case those in favour of the grant of leave. The argument concerning the effect of Judge Cannon’s order is a purely legal argument and could have been maintained in the alternative to the others relied upon had the ground been raised at an earlier stage of the proceedings. That it was not pursued with the Tribunal is not sufficient to deny Mr Dhillon the ability to raise it on appeal if the argument has otherwise sufficient strength and ensures that the substantial issues between the parties are settled: see TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576, 585. There was also some uncertainty about whether or not s 362A had been relied upon in the proceeding before the Federal Circuit Court. Counsel for Mr Dhillon said from the bar table in the appeal that previous counsel who had appeared for Mr Dhillon at the Federal Circuit Court had contended before his Honour that it was unfair for the Tribunal to have failed to provide documents under s 362A. That assertion was not challenged by Counsel for the Minister nor was it pursued. It is unnecessary, however, to consider counsel’s claim any further beyond noting a doubt about whether or not the point had been raised before the appeal. What is clear is that Mr Dhillon had maintained an entitlement to have been given access to the redacted material which he had been denied by the Tribunal’s formal decision on the request he had made regularly under s 362A. The information in the redacted material was material and relevant to the Tribunal’s decision against Mr Dhillon on the Public Interest Criterion. The qualification to Mr Amarante’s statement in the agreed summary of facts bore relevantly and probatively upon the vital findings that the document relied upon by Mr Dhillon was bogus and that he ought not to be believed. It was also relevant and probative to forensic decisions that might have been made about the conduct of the proceeding before the Tribunal, including whether to persuade the Tribunal to subpoena either Ms Galanos or Mr Amarante. 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) 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.

The closely related requirement

16    It may next be convenient to consider the Minister’s additional ground of appeal, namely, that Mr Dhillon could not have succeeded in his visa application before the Tribunal and the Federal Circuit Court because he had not satisfied the “closely related” requirement. It was common ground between the parties that Mr Dhillon needed to satisfy the criteria in sub-class 886.211 at the time of his application. That meant that Mr Dhillon needed to establish the requirement in cl 886.211(3)(b) that “each degree, diploma or trade qualification used [by him] to satisfy the Australian study requirement to obtain [his] visa […was] closely related to [his] nominated skilled occupation”. The Department had not considered whether Mr Dhillon had satisfied this requirement but rejected his visa application only on the Public Interest Criterion. The Tribunal, however, raised with Mr Dhillon whether “each qualification used [by him] to satisfy the Australian study requirement [was] closely related to [his] nominated skilled occupation” and concluded that they did not. The Minister contended on appeal that the Tribunal’s finding was open on the material before it and that his application must fail on that ground whatever might be a consequence of a failure to afford him procedural fairness in relation to the Public Interest Criterion.

17    The 359A letter to Mr Dhillon had clearly raised the question of whether he had satisfied the closely related requirement in cl 886.211(2)(b). Specifically the letter said:

Other information discussed at hearing

You are also invited to provide any information or submissions regarding the issue of whether each qualification used to satisfy the Australian study requirement is closely related to your nominated occupation of Pastry Cook as required by cl.886.211(2)(b).

The Tribunal’s reasons considered the relevant requirement to be that in cl 886.211(3)(b), rather than clause 886.211(2)(b) as stated in the 359A letter, but for present purposes the issue is the same. In each case the question was whether each of the qualifications relied upon Mr Dhillon satisfied the requirement of being closely related to Mr Dhillon’s nominated skilled occupation.

18    Regulation 1.15F of the Migration Regulations 1994 sets out how a person may satisfy the Australian study requirement which Mr Dhillon needed to satisfy. Regulation 1.15F(1) provided:

A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed one or more degrees, diplomas or trade qualifications for award by an Australian education institution as a result of a course or courses:

(a)    that are registered courses; and

(b)    that were completed in a total of at least 16 calendar months; and

(c)    that were completed as a result of a total at least two academic years study; and

(d)    for which all instruction was conducted in English; and

(e)    that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

To satisfy this requirement Mr Dhillon needed, relevantly, qualifications completed in a total of at least 16 calendar months as a result of a total of at least two academic years study. Mr Dhillon’s application listed three Australian qualifications, namely, a Diploma of Business Management from the Nova Institute of Technology which he completed between 7 January 2008 and 30 May 2008, a Certificate IV in Business Management from the Nova Institute of Technology which he completed between 20 August 2007 and 21 December 2007, and a Certificate III in Food Processing – Cake and Pastry from the Della International College which he completed between 16 October 2006 and 13 July 2007. Mr Dhillon’s application contained copies of the certificates and academic transcripts from each of the Della International College and the Nova Institute of Technology.

19    Mr Dhillon needed to rely upon all three qualifications to satisfy the requirement in reg1.15F that the Australian study requirement was completed in a total of at least 16 calendar months. The three qualifications relied upon by Mr Dhillon would not be sufficient for his visa application, however, unless they were all closely related, as required by clause 886.211(3)(b), to his nominated skilled occupation of pastry cook. The Tribunal found that Mr Dhillon had not satisfied the “closely related” requirement in cl 886.211 because the business management qualification obtained at the Nova Institute of Technology was not “closely related” to his nominated skilled occupation of pastry cook. It found that the course he completed in food processing (retail baking) at the Della International College was closely related to his nominated skilled occupation as a pastry cook. In reaching its conclusion that the Nova Institute Diploma of Business Management was not closely related to Mr Dhillon’s nominated skilled occupation of pastry cook the Tribunal reasoned:

92.    It was submitted that the department considered the Diploma of Hospitality Management as a closely related qualification to the Certificate III in Hospitality (Patisserie) and Certificate III in Hospitality (Cookery) yet those units do not cover the area of management of a kitchen of cookery. The Tribunal does not accept that Business Management qualifications are closely related to the occupation of pastrycook on the basis that the department accepts that a Diploma of Hospitality Management course is closely related. The Tribunal is of the view that the comparison must occur between the qualification obtained by the applicant and his nominated skilled occupation, not between the applicant's qualification and another qualification, even where the applicant believes the other qualification is closely related to the nominated skilled occupation. Additionally, the requirement is not that the qualifications need to be closely related to each other, but that the qualifications that the applicant has completed need to be closely related to his nominated occupation.

93.    The Tribunal considers that a diploma in business management is designed to equip a student with skills that are relevant to general business and not in performing the tasks of a pastrycook which, according to ASCO are:

•    weighs and mixes ingredients, and prepares pastry fillings and shapes pastry goods

•    kneads, matures, cuts, moulds and shapes pastry dough and operates dough baking and rolling equipment

•    controls mixing times and transfers dough to tempering rooms

•    glazes buns and pastries, and decorates cakes with cream or icing

•    monitors forming machines for crumpets, muffins and wafers

•    operates machines which roll and mould dough or cut biscuits

•    loads buns, pastries and cakes into ovens, and unloads cooked products

•    controls baking times and monitors the temperature and appearance of products

•    empties, cleans and greases baking trays, tins and other cooking equipment

94.    In the Tribunal’s view, having regard to the subjects that the applicant has been assessed as competent in the Certificate IV in Business Management and Diploma of Business Management courses he undertook, these qualifications are not closely related to the duties or tasks of a pastrycook. As indicated in ASCO, a pastrycook prepares and bakes buns, cakes, biscuits and pastry goods. The Tribunal does not consider that any of the units in the Business Management courses are relevant to these tasks.

95.    It was submitted that a Certificate III in Hospitality qualification and a Diploma of Hospitality Management or Diploma of Management will "equip a student to rise up in the kitchen from cook to the level of chef or restaurant manager and will also enable a student to set up his own restaurant or catering business in the future". The Tribunal notes, however, that the applicant had nominated the occupation of a pastrycook and not that of a chef or restaurant manager or business owner. The ‘closely related’ test applies to the nominated occupation and not to the occupation in which the applicant hopes to engage in the future. The Tribunal must consider whether the Business Management qualifications are closely related to the nominated occupation of pastrycook and not to the occupation of a chef or restaurant manager, which are separate and distinct occupations under ASCO, or business owner.

96.    As noted above, the duties of the nominated occupation as set out in ASCO relate to preparing and baking buns, cakes, biscuits and pastry goods. Having considered all the material before it, the Tribunal is not satisfied that the applicant's study for the Certificate IV and Diploma of Business Management is closely related to his nominated occupation of Pastrycook. The Tribunal is thus not satisfied that each of the applicant's qualifications, being the Certificate III in Food Processing (Retail Baking) - Cake and Pastry and his Certificate IV and Diploma of business Management, are closely related to the applicant's nominated skilled occupation of pastrycook.

97.    The applicant claims that he works for a poultry business and is also a kitchen hand. The Tribunal does not consider that this is relevant to the issue of whether his qualifications are closely related to this nominated occupation. He also stated that he met the requirements of having his qualifications being closely related when he was granted a Subclass 485 visa. However, the Tribunal is considering whether each qualification used to satisfy the Australian study requirement for the Subclass 485 visa is closely related to the applicant's nominated skilled occupation which allows a further assessment of whether his qualifications are closely related to his occupation, and the Tribunal is not bound by any previous decision on this point. For the reasons set out above, the Tribunal has found that the qualifications are not closely related to the occupation of Pastrycook (cl.886.211(3)(b)).

98.    On the basis of the above findings, the Tribunal finds that the applicant does not meet the requirements of cl.886.211.

The finding that the Nova Institute Business Management Course was not “closely related” to Mr Dhillon’s nominated skilled occupation of pastry cook was open to the Tribunal on the material.

20    The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.

21    His Honour in the Federal Circuit Court correctly concluded at [82] that the Tribunal’s finding that Mr Dhillon’s business qualifications were not closely related to his nominated occupation of pastry cook “was one in the circumstances that it was open for the Tribunal to make” but his Honour did not go on to consider whether that conclusion was sufficient to require the application to be dismissed and for the decision of the Tribunal necessarily to be affirmed. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 the majority of the High Court said at [27]-[29] in a joint judgment:

[27] The respondent minister raised the issue of discretionary relief by way of a notice of contention dated 16 February 2007. The minister argued that, even if the appellants’ arguments about s 424A were correct, their claim would be doomed to failure because of the absence of a Convention nexus, and thus the grant of certiorari or mandamus would be futile. This submission was not put to the courts below, and, given the conclusions expressed in these reasons that on the facts of this case s 424A had not been engaged at all, it is not critical for the minister to rely upon it in this Court. However, it is convenient to say something on the subject.

[28] This court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala, Gaudron and Gummow JJ noted that:

Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.”

[29] The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”. In this regard, the references that were made in the course of argument to the “unbundling” of a tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.

[Citations omitted.]

Kirby J concurred with the joint reasons at [32] and Hayne J did so at [91]. The application by Mr Dhillon to the Federal Circuit Court ought similarly to have been dismissed once it was concluded that it had been open to the Tribunal to find that Mr Dhillon had not satisfied the closely related requirement in cl 886.211 and that, therefore, his application could not succeed.

Alleged breach of section 360 by the failure to provide the redacted material

22    It is, therefore, not necessary to consider whether Mr Dhillon was denied procedural fairness for the reason given by his Honour, but it may be desirable to make some observations concerning that issue. His Honour concluded that the Tribunal had not given Mr Dhillon the fair hearing required by s 360 of the Migration Act 1958 (Cth) because he had not been given access to the redacted material. The purpose of s 360(1) is to ensure that an applicant, such as Mr Dhillon, is given a proper opportunity to present his or her case. That purpose was described in the joint judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 361-2 [60]:

… Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal’s duty therefore extends further than merely issuing an invitation to an applicant to appear.

Their Honours in Li went on to observe that s 360(1) requires that “the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case”. The extent of the duty imposed upon the Tribunal under s 360(1) must, however, be understood in light of the express terms of s 357A that the provisions in Pt 5, Div 5 are taken to be “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.

23    Section 359A is concerned with the information the Tribunal must give to an applicant appearing before it and provides:

359A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

(4)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application for review; or

(ba)     that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

This provision must be taken to be an exhaustive statement of the natural justice hearing rule in relation to the matter it deals with, namely, the giving of particulars of any information the Tribunal considers to be the reason, or part of the reason, for affirming the decision under review. The matter dealt with by s 359A is, of course, not just the specific entitlement it confers but is more broadly that of “the provision of information, more generally relevant and adverse” (Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [42]; Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173, [40]), bearing in mind that other provision in the Division (such as s 362A(1)) also deal with the provision of information for the purposes of a hearing by the Tribunal.

24    The Minister’s argument on appeal was that the obligation of the Tribunal arising under s 359A did not extend to providing the redacted material because what had not been given to Mr Dhillon in the redacted material was not adverse to Mr Dhillon. The obligation upon the Tribunal under s 359A was not to provide to Mr Dhillon all relevant information (Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25, [145]-[149] cf Shields v Overland (2009) 26 VR 303, [109]) but was limited specifically to the provision of information considered “the reason, or a part of the reason, for affirming the decision” under review. It is not, of course, s 359A which limits the requirements of the “natural justice hearing rule” for the purposes of the Division. It is, rather, s 357A(1) that limits the requirements of the natural justice hearing rule but only by substituting for that rule the provisions in the Division “in relation to the matters it deals with”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [35]-[42]; Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173, [39]; AZADM v Minister for Immigration and Border Protection [2014] FCA 143, [26]. Section 359A relates to the information to be given by the Tribunal with its invitation for an applicant to comment or respond to that information which the Tribunal considers “would be the reason, or part of the reason, for affirming the decision that is under review”. It is not, however, the only provision in the Division relating to the requirements of the natural justice hearing rule and the express limitation in s 357A(1) of the hearing rule does not require that s 359A be construed otherwise. Section 357A(1) excludes the requirements of the natural justice hearing rule by substituting for it the requirements found in the other provisions in the Division and does so in the context of the obligation in s 357A(3) that the Tribunal “must act in a way that is fair and just” in applying the Division and of the obligation in s 362A(1) to provide to an applicant access to “any written material” given or produced to the Tribunal for the purpose of review. The contemplation of the Division is not that the Tribunal will be deciding applications on material that is not available to an applicant.

25    The particulars of the information given by the Tribunal in its letter to Mr Dhillon on 11 March 2013 were:

• Mr Carmine Amarante has admitted to being involved in the production of hundreds of fraudulent documents which included work reference letters from approximately 40 different employers, including Axilleon Cakes.

• In a police statement dated 21 April 2011, Mr Amarante stated that he created these fraudulent documents for students to show that the student had completed 900 hours of work in a trade for the purpose of attempting to obtain permanent residency in Australia. He stated that these documents were used by international students in support of skills assessment applications submitted to TRA., and these assessments were then subsequently used in support of General Skilled Migration visa applications lodged with DIAC.

• Mr Amarante stated that he approached business owners or managers to assist him. He would pay a fee to the owner of the business and in return they would support the false claims contained in the work references used in skills assessment applications lodged with TRA. He stated that the owners of the business agreed to verify the contents of the false work experience letters if and when they were ever contacted by TRA and/or DIAC. This generally included a statement that the student had completed work experience of 900 hours or more as required by TRA and DIAC.

• Mr Amarante said he knew that all the employers knew they were providing false information to TRA and DIAC when verifying that the students had worked and completed the 900 hours. Mr Amarante stated that, from his recollection, none of the students completed the full 900 hours with any of the employers he mentioned. Mr Amarante said that be encouraged students to attend the business premises and do some training but told them it did not have to be the whole 900 hours. He said some students didn't want to and never showed up.

• Mr Amarante stated that Tina Galanos from Axilleon Cakes recorded all the students' names, dates of birth, work experience start and finish dates and the total amount of hours completed on A4 size papers and would say to him "I had a telephone call from TRA today for this one" and then he would notice that the student's name had been crossed out. It appeared to him that she was crossing out the students' names after TRA had verified the student completed 900 hours.

• Mr Amarante stated that migration agents and students wanted the work experience letter upfront in exchange for a cash payment.

• Mr Amarante stated that Tina Galanos agreed to him signing reference letters on her behalf. He stated that when he provided a copy of the work reference she would read the first few paragraphs and saw that the work experience dates were prior to any student intending to start work. Mr Amarante stated that all the employers knew that the students weren't going to complete the full 900 hours as the students had already paid for the reference prior to commencing any voluntary work experience. He had an agreement with the employers that they would verify false employment claims if TRA or DIAC checked.

• As part of the investigation carried out by the Department of Immigration and Citizenship which commenced in May 2009, the department also compiled a table of the relevant employer names and document types which were identified as being false documents. The list indicates that about 100 reference letters were created in the name of your alleged former employer, Axilleon Cakes.

• According to an article in the Herald Sun, dated 13 August 2012, Mr Amarante worked at Della International Training College. This is the college where you completed a Certificate III in Food Processing (Retail Baking) - Cake and Pastry.

Each of these particulars related to the one fact upon which the Public Interest Criterion depended, namely, whether the claim made by Mr Dhillon of having worked 900 hours and stated in the reference letter obtained by Mr Dhillon from Ms Galanos was fraudulent. What was absent from the information in the particulars given under s 359A, however, was the statement found in the redacted material that Mr Amarante had no way of knowing whether the students actually completed the training. It is true that that statement was found in an agreed statement of facts and not in the statements initially made by Mr Amarante on which the particulars relied upon by the Tribunal appeared to be based, but s 359A is not concerned with the source of the information in the particulars given. However, whilst it may be accepted, as the Minister contended, that the Tribunal had no obligation under s 359A(1) to give Mr Dhillon particulars of the information in the redacted material to the extent that it was not adverse, the Tribunal also had obligations under s 357A(3) to act in a way that is fair and just, and under s 360(1) to provide Mr Dhillon with a real chance to present his case. The Tribunal’s decision not to give Mr Dhillon access to the redacted material (by wrongly deciding not to provide access under s 362A(1)) meant that the Tribunal decided the Public Interest Criterion without the fair hearing to which Mr Dhillon was entitled under s 360 of the Migration Act 1958 (Cth).

The alleged breach of section 360 in the hearing by video-link

26    Mr Dhillon’s notice of contention raised two additional grounds upon which he sought to affirm the judgment of the Federal Circuit Court that have not yet been considered in these reasons. The first ground was that the Tribunal was said to have impermissibly used material which had been seized in the execution of a search warrant under Part 1AA of the Crimes Act 1914 (Cth). The second ground was that the Tribunal’s decision was said to be affected by jurisdictional error in breach of s 360 of the Migration Act 1958 (Cth) by conducting the hearing in Sydney by videolink to Perth in circumstances where (a) Mr Dhillon needed an interpreter (who was in Sydney and only available to him by telephone), (b) Mr Dhillon had issued his application in Melbourne and his representatives were in Melbourne (and who were also only available to him by telephone), and (c) there was an issue about whether he was a party to a fraud which required an assessment of his credit and demeanour that necessitated that his evidence be given by personal attendance. His Honour dealt with both grounds and decided each against Mr Dhillon.

27    It was common ground between the parties, and clear on the evidence, that material was obtained in the execution of a search warrant under s 3E of the Crimes Act 1914 (Cth). Section 3ZQU identifies the purposes for which things and documents seized in the execution of such a warrant may be used. Subsection 3ZQU(4) provides that the section does not limit any other law of the Commonwealth that either (a) requires or authorises the use of a document or other thing, or (b) requires or authorises the making available of a document or other thing. The learned judge in the Federal Circuit Court concluded that the use of the material available to the Tribunal fell within that exception. However, it is sufficient to dispose of this ground to note that there was no evidence of the use by the Tribunal of anything seized, or the original or a copy of a document produced under Div. 4B, in its decision. The Tribunal had access to two statements which had been made by Mr Amarante and an agreed statement of facts rather than something seized in the execution of the search warrant. In any event, his Honour was correct to conclude that the exception in s 3ZQU(4) applied to the use made by the Tribunal of anything which might have been made available to it from material which may have been obtained in the execution of a search warrant. Section 352(4) of the Migration Act 1958 (Cth) required the Secretary to give to the Registrar of the Tribunal every document, or part of a document, within the Secretary’s possession or control that the Secretary considered to be relevant to the Tribunal’s review. The information considered by the Tribunal was sent to it from the Department in response to a request made on 12 November 2012.

28    Mr Dhillon’s ground concerning the conduct of the hearing by videoconference was rejected by his Honour on the basis that the Tribunal “clearly had a discretion given to it by the legislation to proceed by way of videolink” and was entitled to do so. In this regard his Honour said at [50-[57]:

50.    The applicant’s written and oral submissions concentrated on the reservations expressed by various courts from time to time about the caution that should be exercised in circumstances where a person provides oral evidence through an interpreter and/or where they are only observed by video link. What the applicant’s counsel submitted was that the circumstances of this case, in which it was put that demeanour was of very considerable significance, (given that the Tribunal was dealing in substance with an allegation of fraud), required that he be heard in person and the failure to do so vitiated the hearing to which the applicant was entitled pursuant to s.360.

51.    I do not propose to set out the authorities in this regard. Although I appreciate the industry and endeavour that counsel for the applicant has put into bringing the relevant authorities to my attention, in my view the propositions that counsel advanced in general terms are uncontroversial. It is certainly the case that a court should approach demeanour with a measure of reservation (Fox v Percy (2003) 214 CLR 118 at [31]). I would go further and say that I accept that a court should be careful in considering evidence given through an interpreter and even more so where a hearing is conducted by video link. Having conducted trials by video link (not just in the Migration Law field) in circumstances where credit is in issue, I would respectfully entirely endorse the comments that have been expressed from time to time on this point.

52.    However, as the first respondent in my view correctly submits, s.366 of the Act expressly provides that the Tribunal may take evidence by video link (s.366(1)(b) closed circuit television or (c) any other means of communication). In Odhiambo v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 29 Black CJ, Wilcox and Moore JJ at [97]-[99] said:

“In this case, the tribunal heard the appellants’ evidence by video conferencing. This court regularly uses video to conduct hearings to great practical effect. It is a valuable tool for a court or tribunal in conducting hearings where one, some or all of the parties are located at various points over a large area. However, video can have its limitations: see the discussion by Spender J in Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526; BC200202276. The particular position applicants for protection visas are in has been the subject of judicial comment. In Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 557, the Full Court said:

We accept that refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. Ordinarily, the knowledge and experience of members of the RRT may be expected to ensure that they are sensitive to these special considerations.

[98] The Full Court also quoted with approval the following passage from Professor J C Hathaway in The Law of Refugee Status, Butterworths, Toronto, 1991:

First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state.

[99] It is of course for the tribunal to decide whether it conducts a video hearing in a particular matter. It is empowered to use it: see s 429A of the Migration Act. But, in doing so, it is as well to be mindful of the limitations of using videos for hearings, particularly where language and demeanour may be relevant if not significant in assessing the veracity of what the applicant for the protection visa is saying in circumstances where the person giving the account is starting from a position of comparative disadvantage of the type just discussed.”

53.    As Reeves J observed in SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [24]-[25]:

“[24] Indeed, s 429A of the Act expressly allows for appearances before the Tribunal to be conducted using such technology. It provides:

For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:

(a) telephone; or

(b) closed-circuit television; or

(c) any other means of communication.

[25] As the Federal Magistrate observed, this is an enabling provision. It clearly gives the tribunal a discretion to allow an applicant’s appearance (for the purposes of a review hearing under s 425 of the Act) to be undertaken by telephone, closed-circuit television (which is probably not the same as a video conference facility), or any other means of communication (which clearly would include a video conference facility).”

54.    In the face of the fact that the Tribunal clearly had a discretion given to it by the legislation to proceed by way of video link in my view the Tribunal was clearly entitled to do so. Minds would differ as to whether in the particular circumstances of the applicant this was appropriate, but it seems to me that it cannot have been jurisdictional error for the Tribunal to adopt a form of communication that the Statute expressly empowered.

55.    It should be noted that the Tribunal considered the applicant’s request for a face-to-face hearing and said at paragraph 68 (CB293-294):

“68.    The Tribunal considered the request for a face-to-face hearing on the basis that the applicant’s evidence is of central importance to assessing his credibility and that evidence given by video link “is not popular with the Courts in Australia” and that there is a developing line that “witness [sic] required to give evidence preferably for credibility issues must attend in person to give evidence.” However, whilst the Tribunal accepts that the evidence given by the applicant at the hearing is relevant to its findings, it notes that the rules of evidence do not apply and there is no cross-examination of evidence before the Tribunal. The Tribunal considers that the applicant was able to give his evidence and arguments by video-conference at the hearing and will proceed to a decision on the information before it.”

56.    At paragraph 77 (CB295) the Tribunal further stated:

“… However, the Tribunal does not consider that the hearing offered by video conference denied the applicant an opportunity to give evidence and present arguments about the issues before the Tribunal.”

57.    In these circumstances it is clear that the Tribunal turned its mind to whether or not there should be a face-to-face hearing and concluded that it was not necessary to do so. In the circumstances this failure was not such as to give rise to jurisdictional error.

Mr Dhillon did not contend that the Tribunal did not have a statutory discretion to proceed by way of videolink but, rather, that in the circumstances of the case it could not have exercised the discretion as it did. A conclusion of jurisdictional error, however, requires that the decision made by the Tribunal was one that was not open to it or which was affected by erroneous considerations. None have been shown by Mr Dhillon in this case. The Tribunal was permitted to conduct the hearing by videolink. The circumstances confronting the Tribunal which it needed to take into account, and did take into account, in exercising its discretion were that it was in Sydney, Mr Dhillon was in Perth but available by videolink, and that his adviser was in Melbourne and the interpreter in Sydney but available by telephone. The conduct of the hearing was not ideal but proceeded in a manner permitted by the discretion given to the Tribunal: see SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712, [24]-[25]; SZNPK v Minister for Immigration and Citizenship [2009] FCA 1271, [18]-[19]; SZNNE v Minister for Immigration and Citizenship [2010] FCA 194, [22], [48]-[49]; SZQAO v Minister for Immigration and Citizenship [2011] FCA 874, [7], [10]; SZNPB v Minister for Immigration and Citizenship [2010] FCA 61, [8], [16]-[20].

Costs

29    The central point of the Minister’s appeal was the contention that there was no breach of procedural fairness in the Tribunal’s failure to provide the redacted material to Mr Dhillon. This issue was also central in the hearing below. The Minister did not succeed in this argument as we are satisfied that the Tribunal’s failure was a breach of ss 360 and 362A of the Migration Act.

30    Although the Minister established that the Tribunal did not err in finding that Mr Dhillon did not meet the “closely related” requirement, this ground was initially not part of the Minister’s appeal. It was only added as a ground during the hearing of the appeal, at the invitation of the Court. Few of the costs incurred are properly attributable to this issue.

Conclusion

31    The appeal will be allowed and the decision of the Federal Circuit Court will be set aside. The decision of the Tribunal will therefore be affirmed but, for the avoidance of doubt, the orders should record by declaration that the Tribunal erred in its decision in relation to the Public Interest Criterion 4020.

Associate:

Dated:    21 November 2014