FEDERAL COURT OF AUSTRALIA

Nanre v Minister for Immigration and Border Protection [2015] FCA 528

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

1    The Migration Review Tribunal (the MRT) confirmed the rejection by a delegate of the Minister of the appellant’s application for a Skilled Graduate visa. It considered that the appellant had provided a bogus document in relation to the application, with the consequence that he did not satisfy public interest criterion 4020 (PIC 4020), as required by subcl 485.224 of the Migration Regulations 1994 (Cth).

2    The Federal Circuit Court (the FCC) dismissed the appellant’s application for judicial review of that decision.

3    The appellant now appeals against that dismissal. He contends that, on a proper understanding of the phrase “in relation to”, the FCC should have found that he had not provided the document “in relation to” his visa application and, further, that the MRT had failed to consider his application on its own merits.

Background

4    The appellant lodged his application for the Skilled Graduate visa on 12 June 2009, but it was not determined by the Minister’s delegate until 26 March 2012. The MRT affirmed that decision on 21 September 2012.

5    The appellant had to satisfy criteria, prescribed in the Migration Regulations, at both the time of lodgement of his application and at the time of the decision on the application. Subclause 485.221(1) in Sch 2 to the Regulations contained a criterion of the latter kind:

(1)    The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.

This meant that the appellant’s skills had to have been assessed by a “relevant assessing authority” as suitable for his nominated occupation.

6    In addition, subcl 485.224, as in force at the time of the MRT decision, required that the appellant satisfy (relevantly) PIC 4020.

7    PIC 4020 provided relevantly:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)    the application for the visa; or

(b)    a visa that the applicant held in the period of 12 months before the application was made.

…

(5)    In this clause:

information that is false or misleading in a material particular means information that is:

(a)    false or misleading at the time it is given; and

(b)    relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

It is the requirement that there be no evidence that an applicant had provided a “bogus document” in relation to the visa application which is pertinent in this case.

8    The appellant’s nominated occupation in his visa application was that of cook. He relied, amongst other things, on an assessment by Trades Recognition Australia (TRA) on 11 June 2009. That assessment reported that the evidence provided by the appellant satisfied the “formal training requirements” set out in s 12 of the Uniform Assessment Criteria (UAC) applied by TRA, because it established that “900 hours directly related work experience set out at section 12 of the UAC” had been performed .

9    The evidence of the performance of these hours which the appellant provided both to TRA and to the Department was a letter (the Work Reference) from Maharaja Indian Restaurant at Cleveland, a suburb of Brisbane, dated 26 February 2009 and signed by Mr Baljit Binning, the Restaurant’s manager.

10    The Work Reference commenced with the following paragraph:

This letter is to confirm that Mr Sukhjinder Pal Singh Nanre worked as a Cook at Maharaja Indian Restaurant from 01/10/2007 to 15/01/09. To date, Sukhjinder has accumulated at least 936 hours of work experience where he has cooked many of the dishes listed in our menus. His skills and ability to work as a Cook meet Industry standards and his work experience at our restaurant is directly related to his trade.

The letter attached the menu of the Maharaja Indian Restaurant and said that it contained examples “of the types of dishes prepared and cooked from start to finish by Sukhjinder”. The Work Reference then listed a number of cooking methods and skills said to have been completed by the appellant in the Restaurant’s kitchen. On pages four, five and six, the Work Reference listed tools and equipment used by the appellant in preparing meals, in cooking meals, and in storing ingredients of meals and then listed a number of duties he had carried out in “maintaining kitchen hygiene and stock levels”. It concluded with the following:

Sukhjinder reports directly to our Head Chef who has extensive working experience as a cook in the restaurant industry. Sukhjinder has the ability to work independently in all aspects of cooking and has performed assigned tasks competently.

11    The Minister’s delegate considered that the skills assessment by TRA was a “bogus document” of the kind to which PIC 4020(1) referred. The delegate applied the definition of “bogus document” in reg 1.03 of the Migration Regulations which in turn incorporated the meaning contained in s 97 of the Migration Act 1958 (Cth):

97 Interpretation

In this Subdivision:

…

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

…

The delegate considered that subpara (c) of this definition applied to the skills assessment because the Work Reference by which it had been obtained contained false statements. Accordingly, the delegate refused the grant of the Skilled Graduate visa, as well as the grant of the visa which the applicant had sought in the alternative, namely, a Skilled (Provisional) (class VC) visa.

The MRT decision

12    On the review, the MRT took oral evidence from the appellant, from Mr Binning and from Mrs Binning (Mr Binning’s wife who is the Head Chef in the Maharaja Indian Restaurant) as well as receiving their statutory declarations and evidence from others. In addition, the MRT had the body of evidence collated by the Department.

13    The MRT rejected much of the evidence of the appellant, Mr Binning and of Mrs Binning. It did so in the context that several other applicants for Skilled Graduate visas had provided work experience letters from the Maharaja Indian Restaurant which, other than in their personal details, were identical to the appellant’s. The MRT did not accept that these work experience letters were reliable. In relation to the appellant, the MRT said:

[84]    Based on the evidence before it, the Tribunal does not accept that the applicant worked as an unpaid cook at the Maharaja Restaurant or that he worked for at least 936 hours or that he undertook all the duties as claimed in the work reference.

14    The MRT then continued:

[86]    When considered together the Tribunal finds and reasonably suspects the TRA assessment is a document that was obtained because of a false or misleading statement, whether or not made knowingly, being a work reference in which it was stated the applicant worked as a cook for at least 936 hours at the Maharaja Restaurant and listed his cook duties and experience. The Tribunal finds therefore it is a bogus document as defined in s 97 of the Act.

[87]    As referred to above the Tribunal finds the applicant provided [the] work experience reference letter dated 5 September 2009 from the owner of Maharaja Indian Restaurant to TRA, Immigration (DIAC) and the Tribunal. The Tribunal finds the applicant provided a TRA assessment to DIAC.

[88]    In view of the above, the Tribunal is not satisfied that there is no evidence before it that the applicant has given, or caused to be given to TRA, a relevant assessing authority, or the Minister a bogus document in relation to the application for the visa. Accordingly, the Tribunal finds that the applicant does not satisfy PIC 4020(1).

…

[91]    In view of the above, the Tribunal finds that the applicant does not satisfy PIC 4020, and therefore does not meet clause 485.224.

15    Accordingly, the MRT affirmed the decision of the Minister’s delegate.

The application to the FCC

16    The appellant’s application under s 476 of the Migration Act for judicial review of the MRT decision by the FCC was based on two grounds.

17    The first was that the Work Reference could not be said to have been provided to TRA (or for that matter to the Department or the MRT) “in relation to” the application for the visa, as contemplated by PIC 4020. This was because, contrary to the understanding of the appellant and the Minister’s delegate, TRA had not at the time been validly appointed as a “relevant assessing authority”. This meant, it was said, that the assessment of TRA was entirely irrelevant with the consequence that the MRT’s reliance on it was affected by jurisdictional error.

18    The second ground was that the MRT had failed to exercise its jurisdiction or, in the alternative, was affected by apprehended bias. The appellant relied on the same matters for both limbs of this contention. The underlying contention was that, instead of the MRT considering the circumstances of the appellant’s case on its own merits, it had “adopted a general, global approach to [the] fact finding process” in relation to three applications for review heard contemporaneously by the same Tribunal member in which the circumstances were similar, but not identical.

19    The FCC Judge rejected both grounds and dismissed the application for judicial review: Nanre v Minister for Immigration and Border Protection [2015] FCCA 134.

20    On the appeal to this Court, the appellant relied on the same grounds.

Ground One: Was the Work Reference “in relation to” the visa application?

21    As already seen, subcl 485.221(1), as in force in September 2012, required that the appellant’s skills for his nominated occupation be assessed by a “relevant assessing authority” as suitable for that occupation. The term “relevant assessing authority” is defined in reg 1.03 of the Migration Regulations to mean “a person or body specified under regulation 2.26B”. Regulation 2.26B provides (relevantly):

(1)    Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:

(a)    a skilled occupation; and

(b)    one or more countries;

for the purposes of an application for a skills assessment made by a resident of one of those countries.

(1A)    The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:

(a)    the Education Minister; or

(b)    the Employment Minister.

22    In his application for the visa, the appellant relied upon the assessment of TRA. It had been specified as a relevant assessing authority for the occupation of cook by an instrument made by the Minister which came into operation on 15 May 2009 (IMMI 09/031). However, in Singh v Minister for Immigration [2012] FMCA 145, it was found that this specification was invalid because approval for the specification had not been given by either the Education Minister or the Employment Minister.

23    Perhaps in anticipation of that decision, on 28 September 2011, the Minister for Immigration and Citizenship made a further instrument under reg 2.26B(1) specifying TRA as a relevant assessing authority for the skilled occupation of cook (IMMI 11/068). IMMI 11/068 was specified to apply (relevantly) to those who had applied for a Skilled Graduate visa on or before 8 February 2010 and whose application had not been finally determined by that date. That meant that it applied to the appellant’s application.

24    It was the invalidity of IMMI 09/031 which formed the basis of the appellant’s first ground of appeal. The contention made on his behalf had the following elements:

(a)    PIC 4020(1) requires that there be no evidence before the Minister that the applicant in question has “given, or caused to be given” to identified persons, including the Minister and a relevant assessing authority, a bogus document or information that is false or misleading in a material particular “in relation to” the application for the visa;

(b)    Documents or information could “relate to” a visa application only if they were relevant to the satisfaction of the criteria bearing on the grant of the visa for which application is made. Documents or information which, as a matter of fact and law, could not assist in establishing the applicable criteria were irrelevant and could not be said to have been given “in relation to” the visa application;

(c)    Accordingly, even if the Work Reference was a bogus document (which the applicant disputed), the circumstance that TRA had not been validly specified as a relevant assessing authority meant that the Work Reference was irrelevant to satisfaction of the prescribed criteria for the Skilled Graduate visa which he sought, with the consequence that it could not be said to have been “given” by him “in relation to” his visa application.

25    In my opinion, this contention breaks down at a number of levels and the FCC Judge was correct to reject it.

26    It is appropriate to mention that the appellant did not submit that the invalidity of the specification of TRA as an assessing authority meant that the Work Reference had not been given to an assessing authority in the sense contemplated by PIC 4020(1). He recognised no doubt that such a submission would be of no avail because he had, in any event, given the Work Reference to the Department and had also caused TRA’s skills assessment to be given to the Department.

27    The submission of the appellant was, in effect, that the expression “in relation to” has the meaning of “relevant to” or “probative of”, in the sense that the document or information provided is capable of being logically probative of the criteria to be satisfied for the grant of a visa. It is plain that the expression “in relation to” does not have that narrow meaning, and that it refers instead to the purpose for which the document or information is given to the identified person, however probative of the matters to be established the document or information may be. A document given to the Department to support an application for a visa remains such a document even if, unbeknown to the applicant, it is irrelevant or otherwise incapable of achieving the purpose for which it was provided. The appellant’s submission does not recognise the composite effect of the requirement that there be no evidence that an applicant “has given ... to a relevant assessing authority ... a bogus document ... in relation to the application of a visa”.

28    To construe the expression “in relation to” in the way for which the appellant contends would be to adopt a strained meaning and would not give effect to the evident intention of PIC 4020, namely, the discouragement of the provision of false or misleading information. That intention was stated expressly in the Explanatory Memorandum provided by the Minister to Migration Amendment Regulations 2011 (No 1) (Cth) by which, amongst other things, the PIC 4020 was introduced.

Section 97 to 106 of the Act, in general, place obligations on applicants to provide correct information and to correct any incorrect information whether at the time of application or subsequently prior to visa grant. In circumstances where incorrect information is provided, the Minister may cancel under section 109 of the Act any visa that has been granted. The application of section 109 of the Act depends on a visa having been granted.

Section 65 of the Act provides that after considering valid visa application, the Minister must grant the visa if the applicant has satisfied the prescribed criteria, provided that there are no statutory bars to the visa being granted. Currently, the power to refuse a visa application on the basis that the visa applicant has false or misleading information is extremely limited. The relevant Schedule 2 criteria are not of general applicability, and relate only to false or misleading information provided by a primary visa applicant to satisfy certain specific requirements. Further, it is common practice that a visa applicant will seek to withdraw the bogus documents, or false or misleading information or find alternative methods of satisfying the relevant visa criteria without relying on the false information. In circumstances where this occurs, a decision maker is required to accept the request to withdraw the information and continue to process the application.

29    This purpose has been recognised in the authorities. In Mudiyanselage v Minister for Immigration and Citizenship [2013] FCA 266; (2013) 211 FCR 27 at [35], Tracey J said that one of the purposes of the amendment was “to frustrate applicants who submit bogus documents when making a visa application in the hope that they will not be detected but that, if their deceit is exposed, they are able to eschew reliance on the document without prejudice to the success of their application”. Likewise, Murphy J said in Batra v Minister for Immigration and Citizenship [2013] FCA 274; (2013) 212 FCR 84 at [58]:

[58]    The use of bogus documents is prohibited by s 103. The evident purpose of the prohibition is the maintenance of an effective migration system whereby classes of visa are given to those who have certain skills or characteristics. The section, considered in the context of other provisions such as ss 100, 101, 102, 104, 105, 107, 108 and 109, promotes honesty, order and reliability within the Australian migration system. Together, the provisions emphasise the importance of honesty and accuracy in an application for a visa.

Murphy J went on to find at [60] and [61] that the fact that the bogus skills assessment being considered in that case was of no legal effect was immaterial.

30    The appellant sought to draw support for his submission from the use of the word “relevant” in the definition of “information that is false or misleading in a material particular” contained in PIC 4020(5)(b). The submission was that this was an express recognition of the necessity for the material said to be false or misleading to be relevant to the criteria to be considered by the Minister. As the provision of a bogus document or information that is false or misleading are alternatives in PIC 4020(1), it should be taken, it was said, that relevance was also necessary in the case of bogus documents.

31    I do not accept that submission. PIC 4020, being part of a regulation made by the Executive, cannot control the meaning of the language used by the Parliament in s 97 of the Migration Act. Further, the term “in relation to” governs both the giving of a bogus document and the giving of information which is false or misleading. There is no reason in logic to suppose that terminology identifying what is false or misleading information should inform the meaning of a term concerning a different subject matter and, in particular, the purpose for which that information is given to the Minister.

32    In a number of decisions, the FCC, and the Federal Magistrates Court, as it was formerly known, have upheld findings of the MRT that documents provided to the Department as part of a visa application were bogus documents, or false in a material particular, even though, for one reason or another, the document had no legal effect: Brar v Minister for Immigration and Citizenship [2012] FMCA 519; Bajwa v Minister for Immigration [2014] FCCA 2890; Sekhon v Minister for Immigration [2014] FCCA 2834. The appellant sought to distinguish these cases by his focus on the expression “in relation to”. For the reasons already given, the narrow construction which the appellant sought to give to that expression is rejected.

33    It is an historical fact, recognised by the appellant, that he did give, or cause to be given, the skills assessment to the Department as part of his application for the Skilled Graduate visa. One does not have to revert to judicial exegesis of the phrase “in relation to” to conclude that it was, as a matter of fact, given by the appellant “in relation to” his visa application. It was part of the evidentiary material by which he sought to support his application. The appellant did not point to any other reason for his provision of the skills assessment, and no rational alternative explanation is available. It is obvious that, at the time the appellant provided the skills assessment, he was proceeding on the basis that TRA was a relevant assessing authority and that he was endeavouring to show, by reference to it, that he met the prescribed criteria. That is sufficient for a conclusion that the Work Reference was given to the Minister “in relation to” the appellant’s visa application.

34    The invalidity of the specification of TRA as a relevant assessing authority cannot alter the position.

35    For these reasons the first ground of appeal fails.

36    This conclusion makes it unnecessary to consider the Minister’s alternative submission that the invalidity of the original specification of TRA as an assessing authority did not in any event mean that the skills assessment was not relevant in the sense for which the appellant contended. Nor is it necessary to consider the significance of the second specification of TRA as a relevant assessing authority.

Ground Two: Failure to consider the application on its individual merits and reasonable apprehension of bias?

37    One of the matters which led the Department to investigate the appellant’s application for the Skilled Graduate visa was that several persons had made applications for such a visa relying on letters from Maharaja Indian Restaurant which were in material respects identical to the Work Reference provided by the appellant.

38    As part of the investigation, Departmental officers attended at the Restaurant on 15 February 2011 and interviewed Mr Binning. During the interview, the Departmental officers showed Mr Binning photographs of a number of persons and asked him to indicate whether or not he recognised any as persons who had worked in the Restaurant. Mr Binning identified five of the persons as having so worked.

39    Two of the persons who had applied for visas and who had relied on identical work references from Maharaja Indian Restaurant were a Mr Bajwa and Mr Sekhon. Their applications for a Skilled Graduate visa were also refused by a delegate of the Minister.

40    All three lodged applications for review with the MRT and all were allocated to the same Tribunal member. The MRT delivered separate decisions on the applications of the appellant and Mr Bajwa on 21 September 2012 and delivered its decision on Mr Sekhon’s application on 28 September 2012.

41    The reasons of the MRT in each case have a substantial commonality. In particular, a number of the paragraphs in each set of reasons under the heading “Findings and Reasons” are identical or substantially identical. However, there are also a number of material differences to which I will refer later.

42    It is the substantial commonality in the three sets of reasons which gives rise to Ground Two in the present appellant’s Notice of Appeal:

2.    The Federal Circuit Court erred in finding that the second respondent, in affirming the decision of the first respondent’s delegate in relation to the appellant (made on 26 March 2012):

(a)    Took into account the individual circumstances of the appellant;

(b)    Properly considered the individual circumstances of the appellant;

(c)    Undertook a proper review; and

(d)    Thereby did not fail to exercise jurisdiction or give rise to an apprehension of bias.

43    In his outline of submissions, counsel for the appellant summarised this ground as follows:

[T]he second respondent in this case failed to exercise jurisdiction, or showed apprehended bias, because there is at least a reasonable apprehension on the evidence that the Tribunal did not consider the appellant’s case on the merits. Rather the appellant contends that the Tribunal conflated his case with that of Mr Bajwa and Mr Sekhon, both of whom appeared before the same member.

Not a case of apprehended bias

44    At the hearing, counsel for the appellant recognised that, despite the manner in which Ground Two was framed, the appeal did not really engage the principles of apprehended bias. Counsel accepted that the gravamen of the appellant’s complaint was that the MRT had not exercised its jurisdiction because it had failed to address his application by reference to its own facts and circumstances.

45    In my opinion, counsel’s recognition that this is not a bias case was appropriate.

46    Apprehended bias by an administrative decision-maker will be found to exist if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425 at [28]-[29]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264 at [14]-[21]. The circumstance that a decision-maker has previously expressed a view on the same, or a similar, subject matter does not of itself give rise to an apprehension that the decision-maker might not bring a fair and impartial mind to the current decision: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. It is commonly the case that administrative decision-makers have to decide the same or similar issues raised by different claimants in separate applications. The decision-maker must bring a fair and unprejudiced mind to the decision making in such cases but that does not mean that the decision-maker may not already have some views. The statement of the High Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554 is pertinent in this respect:

Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.

So also in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [72], Gleeson CJ and Gummow J said:

The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

47    In short, what is required is that decision-makers bring to their task an impartial mind which is open to persuasion having regard to the individual circumstances of each applicant’s claim.

48    The authorities also indicate that the use of so called “template” reasons by an administrative decision-maker does not of itself indicate that the decision-maker has prejudged a claim. In Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223 at [43]-[50], Rares and Jagot JJ discussed some circumstances in which template reasons may be acceptable. Nevertheless, as the Full Court in SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 314 ALR 146 pointed out at [20], there are risks in doing so, including the risk of overlooking the actual submissions made in the particular case and the potential to fail to consider each case on its own merits. However, the Full Court in SZRBA did not consider that bias was one of the risks implicit in the use of template reasons: at [36].

49    Reliance by the appellant on the MRT’s decision concerning Mr Sekhon in relation to apprehended bias would also have had to face the difficulty that the MRT delivered that decision one week after the decision in the appellant’s case. The same difficulty would have arisen, although to a lesser extent, in relation to the decision concerning Mr Bajwa, as that was delivered in the same day as the MRT decision in relation to the appellant. These circumstances may have made it difficult for the appellant to establish that the MRT had a fixed preconceived view about the outcome of his application for review.

50    The appellant’s complaint that the MRT had not determined his complaint on its own merits was accordingly a more apt way of particularising the jurisdictional error for which he contended.

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.

Conclusion

80    For the reasons given above, the appeal from the decision of the Federal Circuit Court on 22 January 2015 is dismissed.

Associate:

Dated: 29 May 2015