FEDERAL COURT OF AUSTRALIA

Sandhu v Minister for Immigration and Border Protection [2015] FCA 987

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Circuit Court on 26 June 2015 are set aside and in lieu therefore of it is ordered that:

(a)    it is declared in its decision of 8 May 2014 (the decision), the second respondent erred in finding that the appellant had breached Public Interest Criterion 4020 in Schedule 4 to the Migration Regulations 1994 (Cth), having made that finding in breach of his entitlement, under s 362A of the Migration Act 1958 (Cth), to have access to the written material, given or produced to the second respondent for the purposes of the review;

(b)    as, notwithstanding that error, the decision is supportable on another ground, the application for judicial review otherwise be dismissed such that the decision is not set aside.

3.    The first respondent pay the appellant’s costs of the appeal (including, for the avoidance of doubt the costs of and incidental to mention today) and of the application before the Federal Circuit Court, the latter being fixed in the amount of $7,990.00.

4.    The appellant was granted leave to argue the sixth ground in his notice of appeal dated 29 June 2015.

5.    The name of the second respondent be amended to “Migration Review Tribunal (now Administrative Appeals Tribunal)”.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1    On 8 January 2009, Mr Gurjeet Singh Sandhu (Mr Sandhu) applied under the Migration Act 1958 (Cth) (the Act), for that class of visa known as a Skilled (Residence) (Class VB) visa (the visa). In that application the occupation which he nominated was that of pastry cook. The application was not decided by a delegate of the Minister of State now known as the Minister for Immigration and Border Protection (Minister), the first respondent to the appeal, until 3 October 2012. Some part of what prima facie looks to be a very long period of consideration or at least possession of the application by the Minister’s department is referable to an investigation which officers of the department conducted in relation to particular factual assertions made either in the application itself or in supporting documentation.

2    In any event, with the benefit of those investigations a delegate of the Minister decided on 3 October 2012 to refuse to grant to Mr Sandhu the visa for which he had applied. The basis for that refusal was a conclusion on the part of the Minister’s delegate that a Trades Recognition Australia skills assessment which supported the application was a bogus document because it was granted on the basis of a false or misleading statement in relation to completion of work experience for at least a particular prescribed number of hours. This led the delegate to conclude that Mr Sandhu did not satisfy public interest criterion (PIC) 4020(1).

3    That criterion is found in schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations) made under the Act. It is desirable in this case to set out both PIC 4020(1) and PIC 4020(2):

4020(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, 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.

(2)    The Minister is satisfied that during the period:

(a)    starting 3 years before the application was made; and

(b)    ending when the Minister makes a decision to grant or refuse to grant the visa;

the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

4    The Minister’s delegate further concluded that he was not satisfied that there were circumstances justifying the waiver of the requirements of PIC 4020(1). Accordingly, the Minister’s delegate refused to grant to Mr Sandhu the visa sought because Mr Sandhu did not satisfy the requirements of clause 886.225 of schedule 2 to the Regulations. It will be necessary later in these reasons to set out the terms of that provision.

5    Mr Sandhu then sought, as was his right, the review on the merits of the Minister’s delegate’s decision by the Migration Review Tribunal (Tribunal). On 8 May 2014, that Tribunal decided to affirm the decision of the Minister’s delegate. The Tribunal did so for two reasons. One of those was that identified by the Minister’s delegate, namely, the Tribunal also, having considered the matter afresh, decided that Mr Sandhu did not satisfy the requirements of clause 886.225 of schedule 2 to the Regulations. The other reason which grounded the Tribunal’s decision to affirm the Minister’s delegate’s decision was a conclusion on the part of the Tribunal that Mr Sandhu did not meet clause 886.211.

6    It is desirable now to set out the material terms of clause 886.2:

886.21    Criteria to be satisfied at time of application

886.211(1)    The applicant meets the requirements of subclause (2), (3) or (4).

(2)    The applicant met the requirements of subitem 1136 (4) of Schedule 1, and:

(a)    the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made; and

(b)    each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.

(3)    The applicant met the requirements of subitem 1136 (5) of Schedule 1, and:

(a)    if the applicant holds a Subclass 476 (Skilled – Graduate) visa, the qualification used to obtain that visa is closely related to the applicant’s nominated skilled occupation; or

(b)    if the applicant holds a Subclass 485 (Skilled – Graduate) visa, each degree, diploma or trade qualification used to satisfy the Australian study requirement to obtain that visa applicant is closely related to the applicant’s nominated skilled occupation.

(4)    The applicant met the requirements of subitem 1136 (6) of Schedule 1, and:

(a)    the applicant must have completed the apprenticeship for which the Subclass 471 (Trade Skills Training) visa was granted; and

    (b)    the apprenticeship is closely related to the applicant’s     nominated skilled occupation.

    …

886.225    The applicant:

(a)    satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and

(b)    if the applicant had turned 18 at the time of the application – satisfies public interest criterion 4019.

7    Before detailing the bases upon which the Tribunal member reached the conclusions about each of these provisions in schedule 2, it is necessary first to detail something of the procedural history of the case before the Tribunal.

8    In the proceedings before the Tribunal, Mr Sandhu was represented by a firm of immigration lawyers (Carina Ford Immigration Lawyers). On 25 October 2012, Ms Ford of that firm made an application to the Tribunal for written material held by the Tribunal. That application was made and understood by the Tribunal to have been made by reference to the entitlement conferred on an applicant before the Tribunal by s 362A of the Act which provides:

Applicant entitled to have access to written material before Tribunal

(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.

(3)    This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).

9    The Tribunal responded to this request by a letter dated 12 March 2013. Materially, the response concerned access to departmental file BCC 2009 at 13558. With reference to material on that file, the Tribunal’s response was:

The Department file BCC2009/13558

Folios 1, 4, 9, 11, 12, 14, 35, 73, 82, 89, 90, 97, 98, 99, 158 and 212 13558 are partially excluded and folios 147-157 are fully excluded from disclosure under section 14, Information Privacy Principle 11 of the Privacy Act 1988 as they contain personal information about another person and the tribunal is not satisfied that any of the exceptions in Information Privacy Principle 11 apply. Edited versions of partially excluded folios have been released to you and the information relating to other person has been deleted.

Folios 114-128 and 244 on department file BCC2009/13558 are excluded from release because they are subject to a certificate made by the department under section 375A of the Migration Act which certifies their disclosure to be contrary to the public interest.

10    It is a feature of the certificate made by a delegate of the Minister under s 375A that it refers only to folios 114 to 128 on that departmental file, not, as the Tribunal apprehended in the letter of 12 March 2013, also to folio 244.

11    Returning, then, to the Tribunal’s reasons, the essence of why the Tribunal found that Mr Sandhu did not meet PIC 4020 (1) is to be found in paragraphs 34 and 35 of the Tribunal’s reasons, where the Tribunal states –

34    Overall the Tribunal does not accept that the work reference from the Bakery contains truthful information. The Tribunal finds that the applicant’s TRA skills assessment was obtained because of a false or misleading statement made in the work reference in which it was stated that that the applicant was employed at the Bakery as a Pastry Cook for 923 hours. The Tribunal is, therefore, satisfied that there is evidence that the applicant has given or caused to be given a bogus document to the Minister or an officer, in relation to the application for the visa. The Tribunal finds that the bogus document is the TRA assessment dated 22 July 2008, which was provided to the Department in relation to the application for the visa. The Tribunal finds that the TRA assessment provided to the Department is bogus because the Tribunal reasonably suspects that it was obtained because of a false or misleading statement (being that made in the work reference) pursuant to s 97(c) of the Act.

35    Accordingly, the Tribunal finds that there is evidence before the Tribunal that the applicant has given or caused to be given, to the Minister, or an officer, a bogus document in relation to the application for the visa. The Tribunal finds, therefore, that the applicant does not meet PIC 4020(1).

12    The Tribunal decided for itself that there were not compelling circumstances such that the requirements of PIC 4020 should be waived. On the basis of Mr Sandhu not satisfying PIC 4020, the Tribunal concluded that he did not meet a requirement specified in clause 886.225.

13    As to clause 886.211, the Tribunal concluded that a particular diploma used to satisfy the Australian study requirement was not “closely related” to Mr Sandhu’s nominated skilled occupation of “pastry cook” such that he did not meet the requirements of clause 886.211(2)(b). As to what was entailed in the occupation of a pastry cook, the Tribunal made a finding of fact found at paragraph 50 of the Tribunal’s reasons in these terms:

… the tasks of a Pastry Cook which, according to ASCO, are:

•    weighs and mixes ingredients

•    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

14    In reaching its conclusion that a Diploma in Business Management undertaken by Mr Sandhu was not “closely related”, the Tribunal made reference to an earlier judgment of mine on that subject - Prasad v Minister for Immigration and Citizenship [2012] FCA 591 (Prasad) – as well as to what the Tribunal understood to be the Department’s guidelines: see paragraph 49 of the Tribunal’s reasons. The guidelines stated:

Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained.

15    Mr Sandhu then sought the judicial review under s 476 of the Act by the Federal Circuit Court of Australia (Federal Circuit Court) of the Tribunal’s decision. The grounds of the judicial review application were these:

1.    The Tribunal breached s 362A of the Migration Act 1958 (Cth) because the Tribunal incorrectly refused access to material and relevant documents.

Particulars

(i)    Section 362A required the Tribunal to provide the applicant with “access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review”.

(ii)    In the Tribunal’s 12 March 2013 letter (CB 229), the Tribunal refused to release “Folio 36 and 1 unnumbered document located behind folio 36” on the asserted basis that they were “fully excluded from release and do not contain factual matters to be determined by the member.”

2.    In the Tribunal’s 12 March 2013 letter, the Tribunal purported to refuse to give the applicant access to documents requested under s.362A because of Privacy Principle 11 within s.14 of the Privacy Act 1988 (Cth) (“the Privacy Act”). In Disclosure of the documents would not have been contrary to or inconsistent with Privacy Principle 11 within s.14 of the Privacy Act as in force at the time of the Decision.

3.    The Tribunal’s 12 March 2013 letter stated that Folios 114-128 and 244 on department file BCC2009/13558 were excluded from release because they were subject to a certificate made by the department under section 375A of the Migration Act which certified their disclosure to the contrary to the public interest. Folio 244 was not subject to a s.375A certificate. The s.375A certificate in this matter only referred to folios 113-128.

4.    The Tribunal erred by not giving the applicant particulars of the information in the documents that it had withheld under s.375A. Section 359A was not subject to s.375A. Section 359A meant that the applicant was entitled to particulars of information (as opposed to the information itself) even if had been withheld under s.375A.

5.    The Tribunal’s decision not to give the applicant particulars on information that had been withheld or redacted by wrongly withholding information as set out in its letter dated 12 March 2013 meant that the Tribunal decided the PIC 4020 criterion without the fair hearing to which the applicant was entitled under s.360 of the Migration Act.

16    It is a feature of the judicial review application that no error of law in relation to the construction of the “closely related” criterion as found in clause 886.211(2)(b) of schedule 2 to the Regulations is alleged. It is another feature of the judicial review application that there is no ground of review directed to a proposition that the Tribunal was not reasonably entitled to conclude, as it did at paragraph 50 of its reasons, that the features of the occupation of pastry cook were as there stated.

17    The Federal Circuit Court fixed as the date of hearing for the judicial review application 26 March 2015. The previous day, by his solicitors, Mr Sandhu filed and served on the Minister a notice to produce. That notice to produce sought the production of documents which the Tribunal had by the letter of 12 March 2013 declined to produce either at all, or in the case of those said to have been covered by a s 375A certificate or only in an edited way in the case of those said to have been covered by Privacy Principle 11. At the hearing on 26 March 2015, the notice to produce was called on before the court. The Minister, in response, did not produce the documents but, rather, pointed to “a simple way home in determining this application”.

18    That “simple way home”, so it was submitted, was that the Federal Circuit Court should refuse to remit the matter because there would be no utility in so doing. That, so the argument went, was because there was a separate and independent basis upon which Mr Sandhu could not obtain a visa, and which was not the subject of challenge. That separate basis was the Tribunal’s finding that Mr Sandhu’s diploma was not “closely related” to his nominated occupation of pastry cook.

19    On Mr Sandhu’s behalf, the submission was made that there was at least utility in a declaration as to jurisdictional error arising in the making of the decision insofar as the conclusion as to noncompliance with PIC 4020 was made as a result of denial of procedural fairness stemming from a failure on the part of the Tribunal to comply with s 362A of the Act. In the result, though, the Federal Circuit Court chose instead to proceed down the alleged “simple way home”. In other words, the court concluded at paragraph 16:

16.    The Tribunal’s determination can stand independently on the “closely related” findings against the applicant. Those findings are not challenged. Even if there is merit in the argument in respect of the non-provision of the redacted material, there could be no utility, therefore, in remitting the matter to the Tribunal. There being no nexus of relevance, I do not accept the argument that the entirely of the determination could be infected by the failure to provide the redacted material.

[footnotes omitted]

In short, the court below accepted what was termed the “futility agreement” made on the Minister’s behalf.

20    The grounds of appeal are prolix. They are:

1.    The learned Federal Circuit Judge erred by not finding that the Second Respondent fell into jurisdictional error in relation to each of the five grounds raised in the appellant’s application to the Federal Circuit Court, namely:

a.    The Tribunal breached s.362A of the Migration Act 1958 (Cth) because the Tribunal incorrectly refused access to material and relevant documents.

Particulars

i.    Section 362A required the Tribunal to provide the appellant with “access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review”.

ii.    In the Tribunal’s 12 March 2013 letter (CB 229), the Tribunal refused to release “Folio 36 and 1 unnumbered document located behind folio 36” on the asserted basis that they were “fully excluded from release and do not contain factual matters to be determined by the member.”

iii.    In the Tribunal’s 12 March 2013 letter, the Tribunal purported to refuse to give the appellant access to documents requested under s.362A because of Privacy Principle 11 within s.14 of the Privacy Act 1988 (Cth) (“the Privacy Act”). In Disclosure of the documents would not have been contrary to or inconsistent with Privacy Principle 11 within s.14 of the Privacy Act as in force at the time of the Decision.

iv.    The Tribunal’s 12 March 2013 letter stated that Folios 114-128 and 244 on department file BCC2009/13558 were excluded from release because they were subject to a certificate made by the department under section 375A of the Migration Act which certified their disclosure to the contrary to the public interest. Folio 244 was not subject to a s.375A certificate. The s.375A certificate in this matter only referred to folios 113-128.

v.    The Tribunal erred by not giving the appellant particulars of the information in the documents that it had withheld under s.375A. Section 359A was not subject to s.375A. Section 359A meant that the appellant was entitled to particulars of information (as opposed to the information itself) even if had been withheld under s.375A.

vi.    The Tribunal’s decision not to give the appellant particulars on information that had been withheld or redacted by wrongly withholding information as set out in its letter dated 12 March 2013 meant that the Tribunal decided the PIC 4020 criterion without the fair hearing to which the appellant was entitled under s.360 of the Migration Act.

2.    The learned Federal Circuit Judge erred by not considering the following relevant circumstances in exercising his discretion to refuse to remit the matter to the Tribunal on the basis of futility:

a.    the five procedural fairness grounds raised in the appellant’s application to the Federal Circuit Court;

b.    whether the Tribunal could make a different decision in relation to whether the appellant’s qualifications used to satisfied the two year study requirement, being the Certificate III in Food Processing (Retail Baking) – Cake and Pastry and his Diploma in Business Management, was closely related to the appellant’s nominated skilled occupation of Pastry Cook.

3.    The learned Federal Circuit Judge erred by not ordering the First Respondent to produce the documents sought in the appellant’s notice to produce dated 25 March 2015, which sought production from the First Respondent of the following documents:

“1.    Folio 36 and one unnumbered document located behind folio 36 as described in the Tribunal’s letter at CB 229 under the heading “Tribunal file 1215834”.

2.    Folios 1, 4, 9, 11, 12, 14, 35, 73, 82, 89, 90, 97, 98, 158, 212, 147-157, 114-128 and 224 as described in the Tribunal’s letter at CB 229 under the heading “The Department File BCC2009/13558.”

4.    The learned Federal Circuit Judge erred by not giving the appellant an oral hearing to argue the merits of his application to the Federal Circuit. Instead, the Court reserved its decision on the question of the appellant’s notice to produce and then proceeded to dismiss the appellant’s judicial review application without ruling on the notice to produce and without listing the matter for further hearing on the merit of the appellant’s five grounds of judicial review.

5.    The learned Federal Circuit Judge erred in failing to consider whether to make a declaration, consistent with the full Federal Court’s disposition of the proceeding in the case of Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 (21 November 2014), that the Tribunal had erred in relation to its PIC 4020 findings.

6.    In addition, the appellant seeks leave to argue a ground not raised in the Federal Circuit Court, namely, that the Tribunal erred in finding that the appellant’s qualifications used to satisfy the two year study requirement, being the Certificate III in Food Processing (Retail Baking) – Cake and Pastry and his Diploma in Business Management, was not closely related to the appellant’s nominated skilled occupation of Pastry Cook.

[emphasis in original]

21    Quite properly, Mr Sandhu’s counsel highlighted and conceded that ground 6 did not reflect a ground taken on review to the Federal Circuit Court. Nonetheless, by the Minister’s own conduct before that court, namely, the promotion of the “simple way home”, the question of whether there was error in relation to the construction of an application of clause 886.211(2)(b) necessarily arose before the Federal Circuit Court. Of course, the jurisdiction presently being exercised is appellate, not original, and litigants should not be encouraged to think otherwise. Nonetheless, in the circumstances of this case, the point sought to be raised in relation to clause 886.211(2)(b) is hardly a novel one. Insofar as leave is necessary, it is granted. There is no prejudice entailed in relation to the Minister in that grant of leave. Indeed, the issue in many ways is one of the Minister’s own making.

22    It is convenient, first, to consider that particular issue. I have already made passing reference to a judgment which I delivered on the subject of the meaning of “closely related” in Prasad. The starting point, though, is not that judgment, but rather that of North J in Uddin v Minister for Immigration and Citizenship [2010] FCA 128 (Uddin). The course of authority at single judge level following on and from Uddin is canvassed by Jacobson J in Constantino v Minister for Immigration and Border Protection (2013) 139 ALD 567 [2013] FCA 1301 at [31] through to and including [38] (Constantino):

[31]    The starting point for consideration of the authorities is the decision in Uddin. North J said (at [12]):

[12]    … In my view, the Tribunal was correct to draw a distinction between a qualification which was closely related to the nominated occupation and a qualification which was less closely related, namely, merely complementary.

[32]    The approach adopted in Uddin was followed by Logan J in Prasad v Minister for Immigration and Citizenship (2012) 128 ALD 113; [2012] FCA 591 (Prasad). His Honour said at [23] that in approaching the clause by reference to its subject matter, scope and purpose and language, the term “closely related” does not bear the less stringent meaning stated in the minister’s procedures advice manual (PAM 3).

[33]    Logan J went on to say in Prasad (at [24]):

[24]    “Closely related” certainly does not require an exact correspondence. As used adverbially, closely imports a meaning of “near” in the present context. “Related” requires a relevant relationship between the nominated course of study and the nominated occupation. The construction promoted by the Minister in his manual, although not in this court on appeal, is a more remote relationship than that specified in the regulation.

[34]    The stark results that may arise from that test were illustrated by Logan J in an example set out at [25] in Prasad.

[35]    The same approach was taken by Cowdroy J in Manik v Minister for Immigration and Citizenship (2012) 128 ALD 539; [2012] FCA 619 at [19]–[20].

[36]    More recently, in Dhiman v Minister for Immigration and Citizenship [2012] FCA 1254 at [22] Katzmann J accepted the correctness of the approach taken by Logan J in Prasad.

[37]    In my respectful opinion, each of these decisions adopts the correct approach to the construction of the degree of proximity or relationship required by cl 485.213(b) between the qualification that is relied upon and the nominated occupation. The relationship must be one which is more than complementary and more than one in which the qualification is useful to the nominated occupation.

[38]    As North J observed in Uddin at [12], the tribunal was correct to draw a distinction between a qualification which was closely related to the nominated occupation and one which was less closely related. The tribunal in the present case adopted the approach accepted in Uddin and followed in later authorities. The learned judge in the present matter was correct to find that there was no error in so doing.

23    In turn, what was said in Constantino as to the meaning of “closely related” has since been the subject of express approval by a Full Court in Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 at [20] (Dhillon), where the Full Court stated:

The words “closely related” are not specifically defined in the Migration 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) 139 ALD 567 at [26].

24    On Mr Sandhu’s behalf, it was put that the Tribunal had erroneously assimilated an explanation in the department’s guidelines with what was said in Prasad as to the meaning of “closely related”.

25    It was further put that the Tribunal had failed to appreciate that the guidelines to which it made reference had been replaced, on 1 July 2013, by fresh guidelines. That is true. The fresh guidelines materially state:

Under policy, the crucial factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill sets underpinning the qualifications are directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained.

26    That the Tribunal looked to earlier rather than current guidelines can be seen to be a distinction without a difference.

27    The real vice, and it is one relied upon by Mr Sandhu, is that error lies in analogy. The language chosen by the Governor-General in Council in making the Regulations was not “directly transferable”, but rather “closely related”. The resort by the Tribunal to the guidelines, albeit the former ones, was conducive to a misconstruction of the Regulation.

28    Even so, the difficulty which Mr Sandhu faces is that put on behalf of the Minister. That is that on the true construction of “closely related”, as explained in Dhillon and with approval expanded in I and, of course, authorities there referred to, and on the finding of fact unchallenged, there could only ever have been one conclusion reached by the Tribunal in law. That conclusion was the one which the Tribunal did reach, namely, that the occupation of pastry cook and the Diploma in Business Management were not “closely related”.

29    I can readily see how, if Mr Sandhu had nominated as his occupation “owner-operator of bakery/patisserie” a different result may well have followed. But the Regulations require that the benchmark for the question of whether a qualification is closely related is the occupation nominated in the application. To this extent, the conclusion reached by the learned Federal Circuit Judge is unremarkable.

30    The difficulty though is in a failure on the part of that court to appreciate that that did not mean that the judicial review application was robbed of all utility. So much ought to have been apparent from the orders made in Dhillon. It was not as if Mr Sandhu did not seek to make this point before the court below. It is just that the attraction of a “simple way home”, so-called, proved to be irresistible.

31    I turn then to the other principal appeal ground, namely: was there compliance by the Tribunal with s 362A of the Act? And if not, what are the ramifications of that? It is a feature of s 362A(2) that the section does not “override any requirements of the Privacy Act 1998”.

32    As noted, the requirement in Privacy Principle 11, made under the Privacy Act, was thought by the Tribunal to provide a reason why the nominated documents could not be disclosed in full. A difficulty about that is that exposed by Dhillon, at paragraph 13, where the Full Court observed:

Another reason for the engagement of privacy principle para 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.

33    To understand the point there made it is necessary to set out Privacy Principle number 11:

11.    Australian Privacy Principle 11 – security of personal information

11.1    If an APP entity holds personal information, the entity must take such steps as are reasonable in the circumstances to protect the information:

(a)    from misuse, interference and loss; and

(b)    from unauthorised access, modification or disclosure.

11.2    If:

(a)    an APP entity holds personal information about an     individual; and

(b)    the entity no longer needs the information by any purpose for     which the information may be used or disclosed by the entity     under this Schedule; and

(c)    the information is not contained in a Commonwealth record;     and

(d)    the entity is not required by or under an Australian law, or a     court/tribunal order, to retain the information;

the entity must take such steps as are reasonable in the circumstances to destroy the information or to ensure that the information is de-identified.

34    As soon as one of the exceptions found in Privacy Principle 11 is engaged, as it was in this case, the basis for the Tribunal’s refusal to provide particular nominated documents in full disappears. The Tribunal also erroneously considered that folio 244 was covered by the s 375A certificate. It was not.

35    Thus, there were two classes of document, namely, one thought to have been excluded by a s 375A certificate and the others thought to have been excluded by Privacy Principle 11, which were not disclosed to Mr Sandhu in response to his request, as s 362A required. It has not been necessary, as it would not have been necessary for the Federal Circuit Court, to have regard to those documents in order to reach that conclusion. The conclusion flows necessarily from a true construction of s 362A and Privacy Principle 11, as set out in the passage quoted from Dhillon. To this extent, there was no utility in production pursuant to the notice to produce. Seeing the documents was not at all necessary to reach the conclusion as to a failure on the part of the Tribunal to comply with the mandatory requirements of s 362A.

36    It is true that in Dhillon, as result of the documents in that case having been produced, the Full Court had occasion to consider the materiality of redacted material. That though seems to have been because it was necessary in that case to decide whether the Court ought to permit to be raised on appeal the question as to compliance or otherwise by the Tribunal with s 362A. That particular issue was always one before the Federal Circuit Court and a ground that Mr Sandhu was entitled further to pursue, without any grant of leave by his notice of appeal, to this Court.

37    It is not necessary to determine the appeal to do other than make the observations just made in relation to the notice produce before the Federal Circuit Court. Another reason for that is that the case is not one for sending back to the Federal Circuit Court for hearing afresh. If the appeal succeeded, it would go back to the Tribunal for a hearing on the merits.

38    The case is not one though for sending back to the Tribunal for a hearing on the merits. That is because Mr Sandhu cannot overcome the separate difficulty of his failure to comply with clause 886.211(2)(b).

39    However, the Tribunal in the course of its decision made a finding which has resonance beyond the immediate fate of the particular visa application. That resonance flows from clause 4020(2) and s 48(1)(b)(i) of the Act.

40    In effect, a finding that there has been a falsehood generates a preclusion period. And that preclusion period is applicable not just to Mr Sandhu but “each member of the family unit of the applicant”. It was for that reason that the Full Court in Dhillon was likewise disposed not to remit the case to the Migration Review Tribunal but, nonetheless made a declaration that that Tribunal had erred in finding that the visa applicant in that case, Mr Dhillon, had breached public interest criterion 4020, having made that finding in breach of his entitlement to access the relevant redacted information pursuant to his request made under s 362A.

41    As to the ramifications of a failure on the part of the Tribunal to comply with s 362A, it is instructive to recall observations made by Hayne, Kiefel and Bell JJ in Minister for Immigration v Li (2013) 249 CLR 332 at [59] - [61]:

59    A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.

60    The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. 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.

61    Section 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. Scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture (140) and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.

42    In the passage quoted, their Honours make particular reference to s 360. Section 360 of the Act is, as their Honours observe, central to Division 5 and the conduct of the review for which the division provides. Section 362A complements that and gives meaning to that centrality by equipping an applicant with material which will necessarily be before the Tribunal when the Tribunal comes to conduct the hearing for which s 360 provides. It is one means chosen by Parliament to afford an applicant procedural fairness.

43    Another is the requirement found in s 359A for the Tribunal to give 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. Section 359A performs, in respect of the Migration Review Tribunal, a like role to that which s 424A performs in relation to the Refugee Review Tribunal. As was said by Gleeson CJ and Gummow, Callinan, Heydon and Crennan in SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [13] in respect of s 424A:

A majority of this court in SAAP determined two points about the operation of s 424A: first, that its effect was mandatory, in that a breach of the section constituted jurisdictional error; and second, that its temporal effect was not limited to the prehearing stage.

For like reasons, a breach of s 362A constitutes a jurisdictional error and its temporal effect is not limited to the pre-hearing stage.

44    It does not though follow from this, because the granting of relief remains discretionary, that the case must go back to the Tribunal or at least to its present subsumed manifestation, the Administrative Appeals Tribunal. Again, that is because, as was recognised in Dhillon, if there is a fatal flaw in relation to the administrative review sought, remission is pointless. Equally though, and again as highlighted by Dhillon, it does not follow that the appellant is thereby disentitled to all relief.

45    In these circumstances, it is not necessary further to delve into the prolix grounds of appeal. The conclusions reached are sufficient to dispose of the appeal. I shall give counsel an opportunity to formulate the orders that should be made in light of these reasons for judgment and also hear counsel in respect of costs.

46    The question has arisen as to the orders for costs which ought to be made in the proceedings. Mr Sandhu’s submission is that costs both on the appeal and in the Court below should follow the event in the Court below. That event was, at the very least, the granting of declaratory relief. That event was resisted by the Minister in the Court below for a reason which has been found to be flawed, namely that success on the “closely related” point did not mean the judicial review proceedings were robbed of utility.

47    Even though, in terms of formal orders, a writ of mandamus was sought along with the quashing of the Tribunal’s decision, it was always open to the Federal Circuit Court, in lieu of granting a mandamus, just to grant declaratory relief. An example of that is offered by Edwards v Santos (2011) 42 CLR 421. That very type of outcome was canvassed in submissions before the Federal Circuit Court on behalf of Mr Sandhu.

48    For the Minister, it was submitted that the result in the appeal was that the question of the true construction and application of the closely related point arising from clause 886.2112B was settled in the Minister’s favour. Thus, of the two main issues in the appeal, the “closely related” issue and the s 362A issue, each side had enjoyed success and each side had correspondingly enjoyed failure. That, so the submission for the Minister went, should result in an outcome such that each side should have no order for costs. In other words, costs should lie where they fell.

49    The difficulty about that submission is that it was always a minimum outcome and always an outcome resisted before the Federal Circuit Court by the Minister that Mr Sandhu at least secure declaratory relief of the kind granted in Dhillon and also ultimately in this case. The “closely related” issue did not occupy a great deal of time in this Court. To obtain any relief at all, Mr Sandhu had to vindicate his point in relation to s362A and the utility arising from that of at least securing declaratory relief. This, he has done on appeal and, but for the error made by the Federal Circuit Court judge in failing to appreciate that the “closely related” issue was not a “simple way home”, ought to have secured, in light of Dhillon, before that Court. In my view therefore, Mr Sandhu should have his costs, both in respect of the appeal and the Court below.

Associate:

Dated:    7 September 2015