FEDERAL COURT OF AUSTRALIA

Kabani v Minister for Immigration & Multicultural Affairs

[1999] FCA 511

MIGRATION - application for review of Immigration Review Tribunal decision refusing grant of a visa - applicant did not satisfy educational qualifications relevant to the grant of the visa - university documents provided by applicant found to be bogus - whether Tribunal should have provided the applicant with a copy of the letter alleging the documents were bogus in circumstances where the applicant had previously been informed of the opinion that they were bogus - whether denial of the opportunity to view or comment on the relevant letter resulted in fundamental unfairness to the applicant.

Migration Act 1958 (Cth) ss 353, 362A

Caragay v Minister for Immigration & Multicultural Affairs (1998) 49 ALD 539, followed

ALLLAUDIN KABANI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 936 OF 1998

MOORE J

28 APRIL 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application by Mr Allaudin Kabani ("the applicant") for judicial review of a decision of the Immigration Review Tribunal ("the Tribunal") of 10 August 1998.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"), and a further decision of the Migration Internal Review Office ("MIRO") refusing to grant the applicant a Class 816 (special (permanent)) entry permit or a Class 818 (highly qualified on-shore (permanent)) entry permit on the basis that he did not satisfy the criteria for either class of permit.

Background

2                     The applicant is a citizen of India who arrived in Australia on a visitor's visa in November 1989.  In August 1990 he lodged an application seeking refugee status which was refused in January 1992.  In August 1994 he applied to remain in Australia under the 1 November 1993 concessions announced by the Minister and submitted an application for a Class 816 and Class 818 entry permit (the subject of the present proceedings).  The criteria for the grant of the two classes of visas were found in the 1993 Migration Regulations.  It is not necessary for present purposes to set out those provisions.  However the regulations required, relevantly, that an applicant hold certain educational qualifications.

3                     In the original application to the Minister, the applicant stated that he and his wife had degrees of Bachelor of Commerce from the University of Bombay conferred on 29 October 1975 and 25 October 1978 respectively.  In support of the claim the applicant provided a number of letters from the University of Bombay stating that he had passed first and second year and giving his place in the class.  A further letter detailed marks that the applicant had received in various subjects.  The applicant's wife submitted a copy of a Bachelor of Commerce degree from the University of Bombay, as well as numerous letters indicating her position within each year and marks for particular exams.  In order to consider these documents, a delegate of the Minister made a request of the Australian High Commission, New Delhi, that an officer of the Commission attend the University of Bombay to verify the authenticity of the documents.  The outcome of this inquiry was that officials at that University viewed the documents presented by the applicant as bogus.  The delegate held that the applicant did not satisfy the relevant criteria and the applicant was notified of this decision on 16 September 1996.

4                     The applicant applied for review by MIRO of the delegate's decision.  Under a section of the application headed "Reasons why you want the decision/s reviewed" the applicant responded, relevantly, that "the Department considered that my and my wife's qualifications are bogus which is not true" and "I do confirm that my and my wife's academic qualification certificates are genuine".  On 18 February 1998 the applicant was notified of MIRO's decision to affirm the decision of the delegate.  The reasons accompanying the MIRO decision included the following:

The applicant claims to have undertaken studies at the University of Bombay, India from 1972 to 1975 and been awarded a Bachelor of Commerce degree.  The primary decision maker, following advice from the Australia High Commission and from officers from this department who interviewed the applicant, was not satisfied as to the genuineness of this degree and thus decided that the applicant did not meet the requirements of this paragraph [paragraph 816.721(2) of the Regulations].  In his application for review the applicant has stated that his degree was genuine but has provided no additional information.  The applicant thus fails to meet the requirements of this paragraph.

5                     The applicant then applied for review to the Tribunal providing a supporting statement which said:

Both myself and my wife were interviewed by compliance section in 1996 at the Bankstown Office.  It was the assumption of the officer in charge that our degree documentation we provided to support the 816 application was 'bogus'.  However it is still our intention as now that we did indeed supply legal and valid documentation.

6                     The applicant gave oral evidence before the Tribunal on 8 May 1998 and restated his belief that the documents relating to his and his wife's education were genuine.  Following the hearing, the Tribunal undertook inquiries which were substantially the same as those which had been undertaken by the delegate, namely a request to the Australian High Commission, New Delhi, to verify the authenticity of the documents.  The Tribunal may have thought it was necessary or at least desirable that it do so: see Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553.  By letter dated 15 July 1998 an officer of the University of Bombay replied:

With reference to your letter dated 27^th May, 1998, I write to inform you that after referring to this office records, it has been found that the photo copies of the below mentioned certificates issued in respect of ARK and KKA received along with your letter are not issued by this University and the same are fake.

            “A photo copy each of the statements of marks at the First Year Commerce, Intermediate Commerce, B.Com. (Part I) and B.Com. degree examinations issued in respect of Mr. Allauddin Rahemtullah Kabani and in respect of Smt. Kabani Kareema A.

            A photo copy each of the certificate of passing the First Year Commerce, Intermediate Commerce, B.Com.(Part I) and B.Com. degree examinations issued in respect of Mr. Allauddin Rahemtullah Kabani and in respect of Smt. Kabani Kareema A.

            A photo copy each of the degree certificate at the B.Com. degree examinations issued in respect of Mr. Allauddin Rahemtullah Kabani and in respect of Smt. Kabani Kareema A.”

                                                                        Yours faithfully,

                                                                        (SIGNED)

                                                            For Controller of Examinations

7                     The Tribunal did not tell the applicant that it had sought or had obtained this letter nor did it afford the applicant an opportunity to comment on it.

8                     The Tribunal determined that neither the applicant nor his wife held an overseas educational qualification of the kind required by the regulations and were not eligible for grant of the relevant visas.

Issues and submissions

9                     The applicant was unrepresented in these proceedings.  In his submissions the applicant contended that the Tribunal failed to give effect to the obligations imposed by s 57 of the Act.  That is, it failed to provide him with a copy of the letter of 15 July 1998 from the University of Bombay.  It is not in issue that, as a matter of fact, the applicant was never given a copy.

10                  Counsel for the Minister submitted s 57 had no application to proceedings before the Tribunal.  He conceded, however, the applicant had a right conferred by s 362A(2) to view documents (the right to have access to written material before the Tribunal for the purpose of its review) or a similar right under s 353(2) (that the mechanism for review by the Tribunal have regard to substantial justice and the merits of the case).  However counsel for the Minister submitted that s 362A does not oblige the Tribunal to provide a copy of all material it receives to the applicant.  Nor did substantial justice require, in the circumstances of this case, that the documents be shown to the applicant.  Counsel submitted that denial of access to documents constitutes a failure to observe substantial justice only if the Court is satisfied that any lack of access or denial of the opportunity to comment resulted in some fundamental unfairness to the applicant: Caragay v Minister for Immigration & Multicultural Affairs (1998) 49 ALD 539 at 544.  In this case, no such unfairness was visited upon the applicant because he was already on notice, from various sources and prior to the Tribunal's decision, that the documents were considered to be bogus.  The applicant himself had, on a number of occasions, acknowledged that his documents were thought by others to be fake.  Counsel drew the Court's attention to the instances where the applicant's knowledge of this was clear, namely, the reasons for decision of the Minister's delegate dated 16 September 1996; the applicant's statement in his application to MIRO that the delegate did not believe the documents to be genuine; the MIRO decision of 18 February 1998 stating that the documents were not genuine, and that no evidence had been provided by the applicant to refute this; and the acknowledgment of the applicant in the supporting statement to his application for review in the Tribunal that the documents had been considered bogus.

11                  Thus, it was submitted, the opportunity to have access to or to comment on the material before the Tribunal would have put the applicant in no better position than he was in now, or given him no greater knowledge than he already had.  Counsel submitted that even if a ground of review was made out the Court should not exercise its discretion under s 481(1)(b) to refer the matter back to the Tribunal for further consideration as there would be no utility in doing so.

Conclusions

12                  Notwithstanding the provisions of s 415 of the Act it, appears that s 57 has no application to proceedings before the Tribunal: see Mensah v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 495 at 504.  It may be accepted that s 362A creates an entitlement in an applicant to have access to any written material given or produced to the Tribunal for the purposes of the review.  It is unnecessary to determine whether this provision impliedly imposes on the Tribunal an obligation of the type imposed on the Minister by s 57.  I say that because all the letter of 15 July 1998 said was that the certificates which the applicant had relied upon were, in the opinion of the University, "fake".  It did not indicate the basis upon which that view was formed.  Thus even if the applicant had been provided with a copy of that letter he would have been in precisely the same position he had been in for some time.  That is, he would have been aware that the University viewed the certificates as "fake" and the view of the University was one the decision maker, in this case the Tribunal, would or might act on.  That was precisely the same position that had obtained since shortly after he lodged his application for the relevant visa.  The failure of the Tribunal to provide the applicant with a copy of the letter could have had no material bearing on the course the review might have taken.  It may have been different if the letter from the University identified the factual basis upon which the University had formed the view that the certificates were not authentic.  It may have been open to the applicant, in those circumstances, to test the views of the University either by establishing that the facts relied upon did not exist or establishing that the conclusion drawn from them should not have been drawn.  However neither situation arose given the limited scope of the letter of 15 July 1998.  This is not a case where, in my opinion, the Tribunal was obliged to alert the applicant to the inquiries it had made about the genuineness of the documents and the letter it had received in order to provide the applicant with a hearing of the type contemplated by s 353(2)(b): cf Meadows v Minister for Immigration and Multicultural Affairs [1998] FCA 1706 and Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 416.

13                  I am not satisfied the applicant has established reviewable legal error and certainly not error which had a material bearing on the consideration of his application.  Accordingly I dismiss the application with costs.

Associate:

Dated:              28 April 1999