FEDERAL COURT OF AUSTRALIA

Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The main issue raised by this application concerns whether the Migration Review Tribunal (the Tribunal) failed to exercise its jurisdiction because it failed to conduct various inquiries at the request or suggestion of the review applicant, Mr Nishant Aggarwal. The issue arose in the court below in the context of an application by the respondent, the Minister for Immigration and Border Protection (Minister), to summarily dismiss Mr Aggarwal’s application for judicial review of the Tribunal’s decision to affirm a decision to refuse Mr Aggarwal’s application for a visa. The issue arises in this Court in the context of an application by Mr Aggarwal for leave to appeal the summary dismissal of his application in the court below.

Background

2    On 11 August 2009, Mr Aggarwal applied for a Skilled (Residence) (Class VB) Subclass 885 (Skilled – Independent) visa (885 Visa) under the applicable provisions of the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations). A delegate of the Minister refused that application on 19 November 2013. It is not clear why it took almost four years for the delegate to determine Mr Aggarwal’s visa application. The Minister had no explanation for this delay. It would appear, however, that one reason for the delay may have been requests for further information by the Department of Immigration and Border Protection (Department).

3    The delegate was not satisfied that Mr Aggarwal met the criteria for the grant of an 885 Visa. At the relevant time, Part 885 of Schedule 2 to the Regulations set out the criteria to be met for the grant of an 885 Visa. Clause 885.221 contained mandatory criteria to be met at the time of the visa decision. In simple terms, the clause 885.221 criteria, when read together with ss 92 to 96 of the Act and Division 2.6 and Schedule 6B of the Regulations, required the visa applicant to satisfy a points test which involved the allocation of points in respect of certain occupational, age, language and employment qualifications. The pass mark for Mr Aggarwal was 120 points. The delegate assessed Mr Aggarwal as having achieved 110 points.

4    The main reason that Mr Aggarwal was unsuccessful in achieving the necessary points was that the delegate rejected Mr Aggarwal’s claim that he was entitled to points arising from his having worked for 12 months as a cook, which was Mr Aggarwal’s chosen skill category. Mr Aggarwal had claimed that, from 10 July 2008 to 10 July 2009, he had worked as a cook at an Indian restaurant named SriTaj Fine Indian Cuisine (SriTaj). Mr Aggarwal provided documentary evidence that he said supported that claim. For the reasons explained in detail in the delegate’s decision, the delegate placed little or no weight on that documentary evidence. Suffice it to say that the delegate was concerned about the sufficiency, provenance and integrity of the documentation that Mr Aggarwal supplied. The delegate was not satisfied that Mr Aggarwal had been employed at SriTaj as he had claimed. The delegate awarded none of the 10 points that would have otherwise have been allocated to Mr Aggarwal in respect of his employment.

5    Mr Aggarwal applied to the Tribunal for a review of the delegate’s decision.

The Tribunal’s decision

6    The main factual issue before the Tribunal was again whether Mr Aggarwal had in fact worked as a cook at SriTaj as he had claimed. This issue again mainly hinged on the sufficiency, provenance and integrity of the documentary evidence proffered by Mr Aggarwal. By the time the Tribunal was called upon to decide Mr Aggarwal’s application, however, there was an additional element to this issue. This arose as a result of amendments to the Regulations which had the effect of adding an additional criterion to be met for the grant of an 885 Visa. That additional criterion (in clause 885.224(a) of Schedule 2 to the Regulations) was that the visa applicant satisfy public interest criterion 4020 (PIC 4020). PIC 4020 was set out in Schedule 4 to the Regulations and was in the following terms:

(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.

(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 the application;

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).

(3)    To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

(4)    The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

(a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

(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.

7    Regulation 1.03 provides that the expression “bogus document” has the same meaning as in s 97 of the Act. At the relevant time, s 97 of the Act provides as follows:

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.

8    No doubt mindful of the concerns that had been expressed by the delegate about the sufficiency, provenance and integrity of the documentary evidence that he had provided to the Department in support of his visa application, Mr Aggarwal provided further documentation to the Tribunal that he said provided further evidence of his employment at SriTaj. The further documentation included pay statements that Mr Aggarwal said recorded payments made to him in relation to his employment at SriTaj. Mr Aggarwal’s migration agent also provided written submissions on Mr Aggarwal’s behalf which addressed the sufficiency and cogency of the documentary evidence.

9    The Tribunal was nevertheless not convinced.

10    Mr Aggarwal gave evidence before the Tribunal on 19 February 2014. That evidence included evidence about his employment at SriTaj. The Tribunal questioned Mr Aggarwal about his employment and the documents that he had supplied. Amongst other things, it asked Mr Aggarwal about the fact that the pay statements that he had provided to the Tribunal had not previously been supplied to the Department. The Tribunal also asked why Mr Aggarwal had not supplied any record of superannuation payments referable to his employment at SriTaj.

11    Following the hearing, the Tribunal wrote to Mr Aggarwal, as required by s 359A of the Act, and invited him to comment or respond to information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review (the s 359A letter). The operative parts of the s 359A letter are self-explanatory and, given the contextual importance of the letter and Mr Aggarwal’s reply to it, should be set out in full:

The particulars of the information are:

•    You provided a Skills assessment from Trades Recognition Australia (TRA) to the Department (TRA08/011228087), dated 11 November 2008, in the skilled occupation of Cook.

•    You made an application for a Skilled (Residence) (Class VB) visa on 11 August 2009. You nominated the skilled occupation of Cook.

•    You stated on the application form that you had been employed as a Cook at the SriTaj Fine Indian Cuisine between 10 July 2008 and 10 July 2009.

•    You indicated on the application form that you were claiming 10 points on the basis of your Australian work experience and 15 points on the basis of your employment in a Migration Occupation in Demand.

•    You provided an undated ‘Job Offer’ from the SriTaj Fine Indian Cuisine in Bronte Road, Bondi Junction. The Job Offer states that you will earn a gross salary of $14,560 paid in fortnightly instalments and that this will include superannuation; sick leave; vacation and personal days commencing on 10 July 2008.

•    On 31 October 2012, the Department wrote to you and requested that you provide supporting documentation relating to your employment at SriTaj Fine Indian Cuisine. You were invited to provide as much evidence as possible and various examples of the type of evidence that you could provide were listed, including bank records, superannuation documents, pay slips.

•    In response, your newly appointed representative provided the same documents that you had previously provided, as well as a Tax Assessment, PAYG statement and the reference provided to TRA which lists a more extensive range of duties as an Assistant Cook than the earlier references which relate to your paid employment as a Cook.

•    On 12 November 2012, the Department received an e-mail from a person who is aware of your circumstances and provided personal details of you. That person, who is identified, states that you came to Australia in 2007 on a Student visa and later arranged false documents in relation to your work experience. The person states that you worked full time for cash, despite the 20 hour work restriction and you obtained false documentation from the SriTaj Fine Indian Cuisine which you bought for $10,000 and 2 of your friends also bought false documents. The person states that you worked as a Theatre Cleaner, not a cook. Copies of your work references you had provided were attached to the e-mail.

•    SriTaj Restaurant has previously been the subject of allegations regarding false work references, and a large number of TRA assessments from that restaurant have been provided to the Department.

•    You provided copies of pay statements, commencing on 20 July 2008, stating that in every pay period for a one year period you grossed $560 each fortnight, paid $50 in tax, and superannuation of 9% was paid, amounting to $50.40.

•    The pay statements, indicate that superannuation YTD was $554.40 as at 7 December 2008, but for the period 7 December 2008 to 21 December 2008, your superannuation goes down to $304.80 and thereafter is miscalculated.

•    The records before the Tribunal indicate that you travelled to India between 30 April 2009 and 23 May 2009. However, the pay statements indicate that for the pay period 26 April to 9 May 2009, you were paid “Normal time” for 40 hours work and for the period between 10 May 2009 and 23 May 2009 you also worked 40 hours “Normal Time”.

The above information is relevant because the Tribunal may find that the fact that your pay statements indicate that you worked exactly the same amount of hours every week; do not record that you were on vacation in India; and the superannuation is incorrectly calculated. The Tribunal may find that this indicates that they are not genuine and have been manufactured following the Department's decision. The Tribunal may also find that it is not credible that you worked exactly the same number of hours as a Cook every week for a 52 week period and that this was determined in the Job Offer.

The above information is also relevant because the Tribunal may find that the information from the source indicating that you did not work at SriTaj Restaurant is credible, probative and reliable, when it is combined with evidence indicating that the SriTaj restaurant has previously been the subject of allegations and a large number of persons have provided TRA documents based on their employment at that restaurant.

The above information is in turn relevant because the Tribunal may find that you were not employed, either in a paid or unpaid capacity for the SriTaj Restaurant and that the information on the application form that you did so is false and misleading in a material particular, as it was given for the purpose of you satisfying cl.885.221 in relation to the qualifying score required for the grant of the visa.

The Tribunal may also find that you have provided bogus documents to the Department in the form of the TRA assessment and that the work references and job offer and other documentation relating to your claimed employment are also bogus documents. The Tribunal may also find that the pay statements that were provided to the Tribunal are bogus documents. The definition of ‘bogus document’ is attached to this letter and includes a document that the Minister reasonably suspects is counterfeit or has been altered by a person who does not have authority to do so; or was obtained because of a false or misleading statement. The Tribunal may find that the pay statements, the work references and Job Offer are bogus because they are counterfeit. The Tribunal may also find that the TRA assessment that you provided to the Department is a bogus document because the Tribunal reasonably suspects that it was obtained because of a false or misleading statement, whether or not made knowingly.

The totality of the above information is relevant because the Tribunal may find Public Interest Criterion 4020 applies in your case. The Tribunal may find that there is evidence that you have given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made. The full extract of PIC 4020 is attached. It is subject to the waiver provision, which states that the requirement in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa.

The Tribunal may also find that you do not meet cl.885.221 in relation to the qualifying score for the grant of the visa as it may find that you are not eligible for any points in relation to your claimed work experience in Australia.

The above information is also relevant because if the Tribunal finds that you do not meet PIC 4020(1) and decides that there are no compelling or compassionate reasons justifying the granting of the visa or that you do not meet cl.885.221, then it will find that you do not meet the criteria for the grant of a Skilled (Residence) (Class VB) visa.

You are invited to give comments on or respond to the above information in writing.

12    Mr Aggarwal’s migration agent replied to the Tribunal’s letter within the specified time. The important parts of the reply letter should also be set out in full:

We refer to the above matter and your letter of 26 February 2014. We have been instructed to send you a documentation supporting applicant claims;

The applicant claims to have worked in the restaurant as a cook which is witnessed by number of applicant friends. The applicant has provided statutory declarations from friends to confirm applicant employment. The contact numbers for the friends who provided statutory declarations are as follows;

1)    Jatin Sahni 0413 095 528

2)    Richa Gupta 0430 723 753

3)    Anil Balu 0433 024 500

4)    Harivansh Gaurav 0481 350 694

The applicant has also provided a copy of individual tax return for year ending 30 June 2009 where the name of payer is same as of the applicant employer at the time i.e. “Sritaj Fine Indian”. We note the tax return is of year 2008-2009 and has directly come from the applicant accountant “CNR Accounting & Taxation Trust”. It is noted that the copy of the group certificate and assessment notice has already been provided to the tribunal.

As explained before, the applicant has been victim of the personal enemy. The applicant close friend and flat mate Narinder Jit Singh or one of his close friends made a false allegations and dobbed the applicant. The applicant and his friend also had a tenancy dispute and as a result matter went to Consumer, Trader & Tenancy Tribunal. The copy of the notice from the Consumer, Trader & Tenancy Tribunal attached.

We note that the number of evidence has been provided to tribunal the confirming applicant employment claims. Although the department has received adverse information against the applicant but the authenticity of the information is not known. It is also noted that the complainant in his complaint has provided number of documents to the department relating to applicant employment such as work reference letter. The complaint stole those documents from the applicant wardrobes and scanned those documents and forwarded to the department. The documents were obtained without applicant permission. We request tribunal to use its powers and resources to verify the authenticity of the allegations leveled against the applicant.

The statutory declaration from Hassan El Merheby is also provided which supports the applicant work history as a cleaner with Civicorp Property Services Pty Ltd. The applicant commenced work as a cleaner in November 2009. The contact number for Hassan El Merheby is 0425 795 574.

The applicant employer at Sritaj Fine Indian Cuisine, Muhammad Munir has confirmed applicant employment claims by providing the statutory declarations and has provided his telephone number in the declarations to address any enquiries the tribunal may have regarding applicant employment. The employer has confirmed that inadvertently the superannuation contribution was not paid and has apologized for this mistake. The superannuation contributions have now been paid. The employer has confirmed that he is willing to appear before tribunal if required.

13    The reply letter enclosed a statutory declaration from Mr Muhammad Munir which relevantly declared that Mr Aggarwal was employed at SriTaj as a cook on a part-time basis from July 2008 to July 2009, and that Mr Munir was the owner and head chef of SriTaj at the time of Mr Aggarwal’s employment. Mr Munir’s statutory declaration also stated that “[i]f you have any enquiry concerning this matter, please feel free to call me” on a specified mobile telephone number. The reply letter also enclosed four statutory declarations from persons who declared that they were friends or acquaintances of Mr Aggarwal and that they knew that Mr Aggarwal had worked at SriTaj. Other documents provided together with the letter included: a hearing notification from the Consumer, Trader and Tenancy Tribunal; a superannuation statement from REST Industry Super; an unsigned income tax return; and Mr Aggarwal’s birth and marriage certificates. The superannuation statement was dated 4 March 2014 and stated that REST Industry Super had “recently received your first employer contribution” from SriTaj.

14    The Tribunal was not swayed by Mr Aggarwal’s response to its concerns expressed in the s 359A letter or by the statutory declarations supplied with the response. It found that it was not satisfied that Mr Aggarwal was employed at SriTaj. It also found (at [27]) that Mr Aggarwal “ha[d] given or caused to be given false and misleading information and bogus documents in relation to the visa application”. It accordingly found that Mr Aggarwal had not satisfied the criterion in clause 885.224 and PIC 4020.

15    The Tribunal’s reasoning for so concluding included the following matters relevant to Mr Aggarwal’s case as advanced in the court below and on appeal.

16    First, the Tribunal found that the pay statements that Mr Aggarwal had provided to the Tribunal were not genuine and had been manufactured after the delegate’s decision to bolster Mr Aggarwal’s claims. It did not accept Mr Aggarwal’s explanations for why he had not previously provided those documents to the Department. It also pointed to discrepancies in the pay statements, including that they recorded that Mr Aggarwal had worked “[n]ormal time” during a period when Mr Aggarwal was in India, and discrepancies in relation to the calculation of superannuation payments that arose from Mr Aggarwal’s employment. The Tribunal also considered it unusual that the pay statements recorded that Mr Aggarwal worked exactly the same number of hours every week/fortnight for the entire year.

17    Second, the Tribunal accepted that the superannuation statement provided by Mr Aggarwal was genuine, but reasoned (at [33]) that “the fact that the account was established in February 2014, some [five] years after the applicant’s purported employment, raises further concerns as to the applicant’s willingness to manufacture evidence in an attempt to support his claimed employment”.

18    Third, the Tribunal noted that the tax return supplied by Mr Aggarwal was undated and there was no evidence as to when it was prepared or when, or if, it was lodged.

19    Fourth, the Tribunal reasoned as follows (at [35]) in relation to the allegations that had previously been made to the Department about SriTaj providing false work references to visa applicants and the information that had been provided to the Department by the unnamed person that Mr Aggarwal had never worked at SriTaj but had purchased false documentation to show that he had:

As indicated above, the Department’s file indicates that the SriTaj Fine Indian Cuisine has previously been the subject of allegations as a result of a number of skills assessments being provided by applicants for skilled visas. The evidence also indicates that a person has provided information to the Department that the applicant paid the owner of the restaurant for documentation to support his claimed employment at the restaurant. The Tribunal considers that these factors would, on their own, be insufficient to establish that the applicant was not employed at the SriTaj Restaurant as he has claimed. However, having regard to the problematic nature of the evidence discussed above, and in view of the lack of definitive and contemporaneous documentation confirming the applicant’s employment, the Tribunal is satisfied that the allegation is consistent with other evidence which the Tribunal has referred to which raises serious doubts in relation to the applicant’s employment at the SriTaj Indian Restaurant. The Tribunal is prepared to accept that he had a dispute with a former flatmate but is not satisfied that this establishes that the allegation was provided as a result of this dispute. The Tribunal has also had regard to the request that it “use its powers” to verify the authenticity of this information. However, the Tribunal considers it somewhat unclear how it would ascertain the authenticity of this information and in any event is not satisfied that any further inquiries in relation to the allegation is warranted.

20    Fifth, the Tribunal reasoned as follows (at [36]) in relation to the statutory declarations of Mr Munir and Mr Aggarwal’s friends that had been supplied with the response to the s 359A letter:

The Tribunal is also not satisfied that the statutory declarations provided by the applicant’s friends and the employer overcome the problematic nature of the evidence discussed above. The Tribunal has had regard to the submission that the [sic] Mr Munir would be willing to provide evidence to the Tribunal. Although there is no statement by Mr Munir to this effect, the Tribunal is prepared to accept this submission. However, the Tribunal is not satisfied that this evidence would be truthful and has concerns that persons have been prepared to provide false evidence to assist the applicant. The Tribunal is not satisfied, therefore, that there is any utility in it having another hearing or taking evidence from Mr Munir or the other persons who have provided statutory declarations.

21    The Tribunal’s conclusions in relation to clause 885.224 and PIC 4020 were in the following terms (at [38]-[39]):

Having regard to all of the evidence, the Tribunal is not satisfied that the applicant was employed in a paid capacity between 2008 and 2009 for the SriTaj Indian Fine Indian Cuisine Restaurant. The Tribunal is not satisfied that the pay statements provided to the Tribunal and the work references and job offer provided to the Department in relation to the applicant’s claimed employment at the SriTaj Indian Restaurant are genuine documents. The Tribunal instead reasonably suspects that they are bogus documents because they are counterfeit (see s.97(b) of the Migration Act). The Tribunal also considers that the information on the application form in which the applicant stated that he was employed at the SriTaj Indian Restaurant from June 2008 to June 2009 is false or misleading in a material particular because it was given for the purpose of the applicant satisfying cl.885.22l in order to assist him to achieve the qualifying score for the grant of the visa. The Tribunal is satisfied that the evidence set out above establishes that there is evidence that the applicant has given or caused to be given a bogus document and false or misleading information in relation to a material particular to an officer or the Minister and the Migration Review Tribunal.

The Tribunal finds, therefore, 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 the application for the visa. The Tribunal finds, therefore, that the applicant does not meet PIC4020(1) of Schedule 4 to the Migration Regulations.

(Footnote omitted.)

22    Importantly, the Tribunal also found that Mr Aggarwal did not satisfy the criteria in clause 885.221 of Schedule 2 to the Regulations because, like the delegate, it was not satisfied that Mr Aggarwal had worked as a cook at SriTaj as he had claimed. Mr Aggarwal was accordingly not entitled to any points in respect of that claimed employment. He therefore failed to meet the qualifying score of 120 points. In that regard, the Tribunal largely relied on its findings that Mr Aggarwal had procured and supplied bogus documents and false or misleading information about his employment at SriTaj.

Proceedings in the Federal Circuit court of australia

23    Mr Aggarwal commenced proceedings for judicial review of the Tribunal’s decision pursuant to s 476 of the Act. His application contained the following two grounds:

1.    Migration Review [Tribunal] did not follow cl 885.221 of schedule 2 to the regulation.

2.    I am eligible for 10 points under cl 885.221 of schedule 2.

24    Mr Aggarwal also filed an affidavit sworn by him which simply asserted that he had worked at SriTaj and annexed a number of the documents that he had relied upon in the Tribunal. No further particulars of the alleged failure by the Tribunal to follow clause 885.221 of Schedule 2 to the Regulations were supplied.

25    In the circumstances, it is perhaps not surprising that the Minister moved for an order under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCCR) that Mr Aggarwal’s application be summarily dismissed on the basis that the application did not raise an arguable case for the relief claimed.

26    The primary judge acceded to this application. He found that the application did not raise an arguable case and dismissed Mr Aggarwal’s judicial review application accordingly.

27    The primary judge found that the second ground in Mr Aggarwal’s application did not raise an arguable case of jurisdictional error on the part of the Tribunal. It simply sought a finding that was different from the Tribunal’s finding.

28    In relation to the first ground, the primary judge noted that, although unparticularised, that ground effectively claimed that the Tribunal did not correctly understand or apply clause 885.221 of Schedule 2 to the Regulations. As such, it was capable of raising a case of jurisdictional error. The question was whether any argument advanced by Mr Aggarwal in relation to that ground was capable of raising an arguable case that the Tribunal failed to correctly understand or apply clause 885.221 of Schedule 2 to the Regulations. The primary judge analysed each of the arguments advanced by Mr Aggarwal in his written and oral submissions, and answered that question in the negative.

29    The primary judge identified 11 arguments advanced by Mr Aggarwal. Those arguments, and the primary judge’s reasons for ultimately dismissing them, may be summarised as follows. As will be seen, many of the arguments, and the primary judge’s answers to them, hinged on whether the Tribunal was required to make certain inquiries or further investigations in relation to information supplied by Mr Aggarwal in his response to the s 359A letter.

30    Mr Aggarwal’s first submission was that the Tribunal was required to, but did not, “use its powers and resources to verify the authenticity of the allegations leveled against” Mr Aggarwal. The allegations the subject of this submission were the allegations that SriTaj had previously supplied false work references to other visa applicants and the allegation that had been made to the Department, apparently by Mr Aggarwal’s former friend, that Mr Aggarwal had never worked at SriTaj, but had paid the owner money to provide evidence that he had.

31    The primary judge found (at [30]) that this submission did not disclose any arguable case because the “Tribunal was under no obligation to exercise any power it had to verify the authenticity of allegations made” against Mr Aggarwal. The primary judge did not refer to any authority in support of that proposition. Nor did his Honour provide any, or any detailed, reasons for why, in the particular facts or circumstances, there was no obligation to investigate the specific matter identified by Mr Aggarwal. Aside from the issue relating to whether the Tribunal was obliged to conduct what amounted to further inquiries or investigations, the primary judge found that Mr Aggarwal’s submission went no further than expressing disagreement with the Tribunal’s rejection of his evidence that he had been employed at SriTaj.

32    Mr Aggarwal’s second submission concerned the Tribunal’s findings relating to the discrepancy in the superannuation calculations in the pay statements that he had supplied to the Tribunal. Mr Aggarwal submitted that this discrepancy was a miscalculation by Mr Munir and that the Tribunal should have taken up the invitation in Mr Munir’s statutory declaration to contact him in relation to any inquiry “concerning this matter”.

33    The primary judge found (at [32]) that there was no arguable case that the Tribunal was in error in not making inquiries of Mr Munir because “the Tribunal was not obliged to do so”. The primary judge again cited no authority in support of the proposition that the Tribunal was not obliged to conduct this further inquiry. Nor did his Honour explain why the particular facts and circumstances did not give rise to any such obligation. Otherwise, the primary judge again characterised Mr Aggarwal’s second submission as amounting to nothing more than a disagreement with the Tribunal’s finding concerning the relevance and significance of the superannuation discrepancy.

34    It is unnecessary to consider Mr Aggarwal’s third and fourth submissions in any detail. He submitted that he was not aware of the allegations that the owner of SriTaj had provided false work references to other visa applicants. He also submitted that the entries in the pay statements relating to payments made whilst he was in India were in fact annual leave payments. The primary judge found that those submissions amounted to no more than complaints about factual findings made by the Tribunal. They did not raise any arguable case of jurisdictional error.

35    Mr Aggarwal’s fifth and sixth submissions again raised the issue concerning whether the Tribunal was under any duty to make inquiries of Mr Munir. It is sufficient to extract the paragraph of the primary judge’s judgment (at [35]) that summarised the arguments and the primary judge’s answer to them:

The applicant’s fifth and sixth written submissions relate to the Tribunal’s conclusion that the pay slips were not genuine and were manufactured, and to the Tribunal’s reference to the late payment of superannuation. The applicant refers to Mr Munir, the claimed employer at the SriTaj Restaurant, having provided a statutory declaration that the applicant had worked at SriTaj Restaurant, and that he had provided to the Department Mr Munir’s contact number for any inquiries about the applicant’s pay slips. There is no arguable case the Tribunal was obliged to make any inquiries of Mr Munir.

(Footnotes omitted.)

36    Mr Aggarwal’s seventh submissions addressed the fact that the Tribunal did not accept the statutory declarations from his friends to the effect that they were aware that Mr Aggarwal worked at SriTaj. The primary judge found (at [36]) that there was no arguable case that it was not reasonably open to the Tribunal not to accept as true those statements “having regard to the matters the Tribunal assessed as supporting its conclusion that the SriTaj Restaurant did not employ” Mr Aggarwal. The effect of this finding (after removing a double negative) was that it was open to the Tribunal not to accept or give any material weight to the contents of the statutory declarations for the reasons it gave.

37    Mr Aggarwal’s eighth submission again related to whether the Tribunal was required to do anything further in relation to the fact that Mr Munir and Mr Aggarwal’s friends had provided statutory declarations. Mr Aggarwal contended, in effect, that his migration agent had requested the Tribunal to take oral evidence from those persons. The primary judge rejected that contention and found, in any event, that there was no arguable case that the Tribunal was obliged to take oral evidence from Mr Munir or Mr Aggarwal’s friends.

38    Mr Aggarwal’s ninth submission was interpreted by the primary judge as being that the Tribunal was required to undertake investigations concerning the authenticity of the documents that Mr Aggarwal had submitted. In relation to that submission, the primary judge said (at [39]):

There is no arguable case the Tribunal was obliged to undertake any such investigation. The Tribunal’s obligation was to determine whether it was satisfied there was no evidence that the letters were not bogus documents and did not contain information that was false or misleading in a material particular in relation to the applicant’s application for a Skilled Visa.

39    Mr Aggarwal’s tenth submission related to the explanation Mr Aggarwal gave to the Tribunal for not having earlier provided copies of his pay statements to the Department. It is unnecessary to refer in any detail to that submission or the primary judge’s conclusions in relation to it. Suffice it to say that Mr Aggarwal gave the primary judge a different explanation to that which had been provided to the Tribunal. The primary judge concluded that the explanation given by Mr Aggarwal was implausible.

40    Finally, Mr Aggarwal’s eleventh submission was to the effect that the Tribunal was biased. Mr Aggarwal contended that, because the Tribunal decided his case within five days of its receipt of his response to the s 359A letter, the Tribunal’s mind must have been closed. The primary judge found that there was no arguable case of bias.

41    Despite the fact that Mr Aggarwal’s grounds of review did not refer to clause 885.224 and PIC 4020, the primary judge nevertheless considered whether there was an arguable case that the Tribunal had misunderstood or misapplied that criterion. The primary judge noted that the Tribunal did not approach the clause 885.224 criterion, as the text of clause 885.224 and PIC 4020 would suggest, by asking itself whether it was satisfied that there was no evidence that Mr Aggarwal had given it or the Department a bogus document or false or misleading information. Rather, the Tribunal had made a positive finding that Mr Aggarwal had provided bogus documents or false or misleading information. The question was whether it was arguable that this amounted to a jurisdictional error.

42    The primary judge found that there was no arguable case. He concluded (at [51]):

By finding that the applicant had given a bogus document and had provided false or misleading information, it necessarily follows that the Tribunal was not satisfied there was no evidence that the applicant had given a bogus document or had provided false or misleading information.

Leave to appeal grounds and submissions

43    Mr Aggarwal’s application for leave to appeal and draft notice of appeal contained the following three grounds:

1.    His Honour failed to consider that the material on file is not probative to conclude that documents provided are bogus or false.

2.    The Migration Review Tribunal decision is affected by error of law as well as the judgment of His Honour Judge Manousaridis is affected by error of law.

3.    I ask the Honourable Federal Court to allow me to present a transcript which was not previously presented to demonstrate that I have an arguable case.

44    None of these grounds provides a proper basis for the grant of leave to appeal. Nor were Mr Aggarwal’s written and oral submissions squarely directed at these grounds.

45    The first proposed ground of appeal, at its highest, asserts that the primary judge erred in failing to find that there was no probative evidence before the Tribunal to support its findings that Mr Aggarwal had provided bogus documents. Whilst a decision by the Tribunal that is based on findings of fact that are not supported by any probative evidence might involve jurisdictional error, there plainly was some evidence before the Tribunal that was capable of supporting its finding concerning the provision of bogus documents. Mr Aggarwal did not raise any “no evidence” ground in the court below. His case before the primary judge was that the Tribunal should not have found that the documents were bogus. The primary judge correctly rejected Mr Aggarwal’s arguments to that effect as simply amounting to a disagreement with factual findings made by the Tribunal.

46    The first proposed ground of appeal does not engage with the case advanced below or with the primary judge’s judgment. It does not raise any arguable ground of appeal.

47    The second proposed ground of appeal simply asserts that both the decision of the Tribunal and the judgment of the primary judge were affected by errors of law. No particulars of the alleged errors of law were provided. In his submissions, however, Mr Aggarwal raised a number of arguments based on the primary judge’s findings concerning whether the Tribunal had a duty to inquire or investigate. Those submissions, which will be addressed later, will be treated as being directed to this proposed ground of appeal.

48    The third proposed appeal ground is not a proper appeal ground. Mr Aggarwal did not tender, or attempt to tender, in the court below a transcript of the Tribunal hearing. When asked about this proposed appeal ground at the hearing of the leave to appeal application, Mr Aggarwal said that he had tapes of the Tribunal hearing, but not a transcript. He was not able to point to any particular argument or submission that would be advanced by the tender of the transcript. He was unable to indicate any particular part of the Tribunal hearing that he wanted the Court to consider. There was, in short, no proper basis to allow Mr Aggarwal to tender a transcript of the Tribunal hearing, even if one was available.

49    Mr Aggarwal’s written and oral submissions focussed almost entirely on the primary judge’s findings, in various different contexts, that the Tribunal was under no duty to conduct further inquiries or investigations. Mr Aggarwal submitted, in effect, that the primary judge’s findings in that regard were in error.

50    Mr Aggarwal raised three specific arguments in relation to the Tribunal’s duty to inquire. First, he submitted, in effect, that the Tribunal was required to, but did not, verify the adverse information or allegations that had been made against him. He referred, in particular, to the information that had been provided to the Department by his former friend.

51    Second, Mr Aggarwal contended that, if there were discrepancies in the pay statements or issues in relation to superannuation calculations or payments, they were clerical errors by his employer, Mr Munir. In this context, Mr Aggarwal pointed to the statement in Mr Munir’s statutory declaration that he would answer any inquiries. Mr Aggarwal complained that nobody tried to contact Mr Munir. He contended that the Tribunal’s failure to make inquiries with Mr Munir in this regard was an error. He referred in this context to s 362 of the Act.

52    Third, Mr Aggarwal contended, in relation to the discrepancies in relation to the superannuation calculations, that the Tribunal should have “check[ed] the papers” in relation to other employees of SriTaj.

Should leave to appeal be granted?

53    It is well settled that an applicant for leave to appeal is generally required to show that there is sufficient doubt as to the correctness of the judgment at first instance to warrant appellate review and that, assuming that the judgment was wrong, the applicant would suffer substantial injustice if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The main question in relation to Mr Aggarwal’s application is whether there is sufficient doubt as to the correctness of the judgment below. If the judgment below was wrong, and leave were refused, it may be inferred that Mr Aggarwal would suffer substantial injustice. He would have no further recourse in relation to the adverse visa decision. He may, in those circumstances, be deported or otherwise required to leave Australia.

54    The only issues raised by Mr Aggarwal in his notice of appeal and submissions that warrant detailed consideration are those that concern the primary judge’s findings that the Tribunal was not obliged to investigate, conduct further inquiries or take oral evidence in relation to various matters raised by Mr Aggarwal, either at the hearing or in Mr Aggarwal’s response to the Tribunal’s s 359A letter. The other issues raised by Mr Aggarwal in support of his leave application either do not raise proper grounds of appeal, or have no merit, or both. They amount, in substance to nothing more than arguments about the merits of the Tribunal’s decision. The primary judge correctly held that those arguments raised no arguable case of jurisdictional error by the Tribunal.

55    The question whether the Tribunal was required to further investigate any aspects of Mr Aggarwal’s case requires further exploration. The primary judge simply concluded that the Tribunal was not required to conduct any further investigations suggested by Mr Aggarwal in his submissions. His Honour did not cite any authorities or conduct any analysis of the facts and circumstances of the case in support of that conclusion. The question is whether that conclusion was correct.

56    There is no doubt that the Tribunal has wide powers to investigate an applicant’s claims. For example, s 359 of the Act provides that the Tribunal may get any information that it considers relevant. Subsection 363(1)(d) of the Act provides that the Tribunal may require the Secretary of the Department to arrange for the making of any investigation. It is well established, however, that those provisions do not impose upon the Tribunal a general duty to make such inquiries: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [20] (French CJ and Kiefel J, Heydon and Crennan JJ agreeing). Section 361 of the Act provides that the applicant may give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or to obtain written evidence from a person or other written material. Subsection 361(3) makes it clear, however, that the Tribunal must have regard to that notice, but is not required to comply with it. Thus the section does not give rise to any general duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; 207 ALR 12 at [43] (Gummow and Hayne JJ, Gleeson CJ agreeing); SZGUR at [20].

57    In Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 (Le), Kenny J conducted an exhaustive review of the authorities in this Court in relation to the existence of any general obligation for the Tribunal to initiate inquiries or to make out an applicant’s case for him or her. Her Honour concluded (at [60]) that authorities that stretch back over the life of the Tribunal established that there is no such general obligation. Her Honour did, however, conclude that “there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable”.

58    In Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; 259 ALR 429, the High Court referred to the judgment of Kenny J in Le and a number of the authorities that her Honour had referred to. The High Court said (at [25]):

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

(Footnote omitted.)

59    Is there an arguable case that this is one of those rare and exceptional cases where the Tribunal’s failure to inquire into any matter meant that the Tribunal’s exercise of its jurisdiction was manifestly unreasonable? Was there any “obvious inquiry about a critical fact” the existence of which could “easily [have been] ascertained” by the Tribunal? If so, did the failure to make that obvious inquiry supply a sufficient link to the outcome of the Tribunal’s review to constitute a failure to review?

60    The short answer to those questions is “no”. The long answer requires some further consideration to be given to the matters that Mr Aggarwal suggested that the Tribunal should have, but did not, inquire into.

61    The first inquiry that Mr Aggarwal suggested that the Tribunal should have made was an inquiry directed at verifying the authenticity of the allegations concerning the previous supply of false work references by SriTaj and the specific allegations made against him by his former friend. Two points can be made concerning the proposed inquiry about those matters.

62    First, a fair reading of the Tribunal’s reasons reveals that the allegations that had been made to the Department against SriTaj and Mr Aggarwal were not critical to the Tribunal’s decision. At [35] of its reasons, the Tribunal states that those factors alone would be insufficient to establish that Mr Aggarwal was not employed at SriTaj as he had claimed.

63    Second, it could not be suggested that the authenticity or veracity of those allegations could easily have been ascertained by further inquiries. A further hearing would have been required and judgments formed about the credibility of conflicting claims and evidence.

64    It follows from those two points that it could not be concluded from the fact that the Tribunal did not conduct any further inquiries concerning the allegations against SriTaj and Mr Aggarwal that the Tribunal failed to exercise its jurisdiction, or exercised it in a way that was manifestly unreasonable. The primary judge was therefore correct to conclude that the Tribunal was not obliged to conduct any further inquiries into those matters and therefore there was no arguable case of jurisdictional error.

65    The second inquiry that Mr Aggarwal claimed that the Tribunal should have made was to have asked Mr Munir about the discrepancies in the superannuation calculations in the pay statements. The difficulty for Mr Aggarwal in relation to that suggested inquiry is that he could have asked Mr Munir to deal with this question in the statutory declaration that he obtained from Mr Munir and submitted to the Tribunal. He did not do so. In those circumstances, it could not reasonably be said that it was incumbent on the Tribunal to explore that issue with Mr Munir itself. The Tribunal was not obliged to make out Mr Aggarwal’s case for him.

66    In any event, once again the discrepancy in the superannuation calculations could not be said to be a critical fact in the Tribunal’s decision. It was but one of a number of matters that cast doubt on the authenticity of the pay statements and the veracity and credibility of Mr Aggarwal’s claim that he was employed at SriTaj. Nor could it be said that the issue concerning the superannuation calculations could have been easily ascertained, particularly given the issues surrounding the credibility of Mr Munir.

67    For each of those reasons, the fact that the Tribunal did not ask Mr Munir about the superannuation calculation discrepancies does not support a finding that the Tribunal did not exercise its review jurisdiction, or exercised it in a manifestly unreasonable way. The primary judge was therefore again correct to conclude that the Tribunal was not obliged to conduct any such inquiry. There was no arguable case of jurisdictional error on this point.

68    The third suggested inquiry was very similar to the second. Mr Aggarwal contended that the Tribunal should have made inquiries of Mr Munir concerning the authenticity of the pay statements. Exactly the same observations can be made about that suggested inquiry as were made in relation to the superannuation calculation discrepancies. Mr Aggarwal submitted the pay statements in support of his case. The Tribunal gave Mr Aggarwal the opportunity to respond to its concerns about the authenticity of those documents. Mr Aggarwal could have asked Mr Munir to address that issue in his statutory declaration. Indeed, Mr Aggarwal could have given the Tribunal written notice under s 361(2) and (2A) of the Act that it wanted the Tribunal to take oral or written evidence from Mr Munir at the hearing. He did not do so.

69    In those circumstances, it was not up to the Tribunal to make Mr Aggarwal’s case for him. The fact that the Tribunal did not make inquiries of Mr Munir about the pay statements in all the circumstances does not support a finding that the Tribunal did not exercise its review jurisdiction, or exercised it in a manifestly unreasonable way. Again, the primary judge was correct to find that the Tribunal was not obliged to conduct that further inquiry and that there was therefore no arguable case of jurisdictional error raised by Mr Aggarwal.

70    The fourth matter relied on by Mr Aggarwal was that the Tribunal should have taken oral evidence from Mr Munir and Mr Aggarwal’s friends who had provided statutory declarations. A number of points can be made about that contention.

71    First, Mr Aggarwal well knew from the delegate’s decision that the question whether he worked at SriTaj was critical to his review application. He could have, but did not, give the Tribunal written notice under s 361(2) of the Act that he wanted the Tribunal to take oral evidence from those witnesses at the hearing. Even if he had done so, the Tribunal would only have been required to have regard to that notice. It would not have been required to comply with it.

72    Second, the primary judge was correct in finding that Mr Aggarwal did not, in terms, ask the Tribunal to take oral evidence from those persons when he submitted the statutory declarations.

73    Third, the truthfulness or otherwise of the assertions by those witnesses was not a matter which could be said to be easily ascertained. To determine if the evidence of those witnesses was truthful and reliable, the Tribunal would have been required to conduct a further hearing and form a judgment about the credibility of the evidence of the witnesses, assuming that they gave evidence in accordance with their statutory declarations.

74    Fourth, given the findings made by the Tribunal in relation to bogus documentation, the very general evidence contained in each of the statutory declarations could not be said to have been critical to the Tribunal’s decision. The statutory declarations could not, in the circumstances, be said to have supplied a sufficient link to the outcome such that any failure to make inquiries concerning them could amount to a failure by the Tribunal to conduct a review in accordance with its jurisdiction.

75    For each of these reasons, the fact that the Tribunal did not convene a further hearing to take oral evidence from those persons did not amount to jurisdictional error. It did not mean that the Tribunal did not exercise its jurisdiction, or exercised it manifestly unreasonably. The primary judge was correct to find that Mr Aggarwal did not raise an arguable case of jurisdictional error in relation to this point.

76    The fifth and final investigation that Mr Aggarwal claimed the Tribunal should have conducted was an investigation into whether the documents submitted by Mr Aggarwal were in fact bogus or false. There are a number of answers to that contention.

77    First, it was not necessary for the Tribunal to conduct this inquiry for the purposes of determining whether Mr Aggarwal had satisfied the criterion in clause 885.224 and PIC 4020. It was enough for the Tribunal to inquire into whether there was no evidence that the documents were bogus. The definition of “bogus document” in s 97 of the Act also meant that it was only necessary for the Minister to have a reasonable suspicion that the documents were counterfeit or otherwise false. That did not require a finding that the documents were in fact bogus.

78    Second, in any event, the Tribunal did investigate whether the documents were in fact bogus. It found that they were bogus on the basis of deficiencies and discrepancies on the face of the documents themselves, considered together with other inconsistencies arising from the surrounding facts and circumstances. Beyond making inquiries of Mr Munir, Mr Aggarwal did not suggest any specific investigations that the Tribunal should have conducted to determine whether the documents were in fact false. That suggested inquiry has already been dealt with.

79    In all the circumstances, the fact that the Tribunal did not do any more than it did to consider whether the documents were in fact bogus does not support a finding of jurisdictional error. It does not support a finding that the Tribunal did not exercise its jurisdiction or exercised it unreasonably. The primary judge was correct to find that the Tribunal was not obliged to conduct any further inquiry in relation to whether the documents were in fact bogus and that Mr Aggarwal’s arguments to the contrary did not raise an arguable case of jurisdictional error.

Conclusion and disposition

80    Whilst the primary judge’s reasoning in relation to Mr Aggarwal’s case based on failures by the Tribunal to conduct further inquiries was somewhat sparse, ultimately the primary judge was correct to conclude that Mr Aggarwal did not have an arguable case that the Tribunal made any jurisdictional error arising from any such failures. In all the circumstances, the Tribunal was not obliged to conduct the further inquiries suggested by Mr Aggarwal. The fact that the Tribunal did not make those further investigations does not support a conclusion that the Tribunal either failed to exercise its jurisdiction, or exercised it unreasonably.

81    Nor did any of the other submissions or arguments made by Mr Aggarwal before the primary judge establish that he had an arguable case that the Tribunal had made a jurisdictional error in dealing with his review application. The primary judge did not err in dismissing Mr Aggarwal’s application pursuant to r 44.12(1)(a) of the FCCR. In these circumstances, Mr Aggarwal’s application for leave to appeal must be dismissed.

82    Two further observations should perhaps be made.

83    First, it is doubtful whether it was ultimately appropriate for the Minister to pursue summary dismissal of Mr Aggarwal’s application at a show cause hearing pursuant to r 44.12(1)(a) of the FCCR. Whilst the grounds of review in Mr Aggarwal’s application were unparticularised and did not, on their face, reveal any arguable case, Mr Aggarwal’s written and oral submissions at the show cause hearing did reveal some apparently substantive arguments that at least raised issues that warranted further exploration and careful consideration. That is demonstrated by the fact that the primary judge reserved his judgment on the summary dismissal application. Ultimately, Mr Aggarwal’s arguments were found to have no merit. One would generally expect, however, that the show cause hearing procedure and summary dismissal pursuant to r 44.12(1)(a) of the FCCR should be reserved for clear and obvious cases. This was not such a case.

84    Second, the fact that summary dismissal at the show cause stage was pursued in this case gave rise to some issues and deficiencies at the hearing of the leave to appeal application in this Court.

85    First, it would appear that because the matter was an application for leave to appeal, not an appeal, no directions were made for the preparation of an appeal book. The arguments advanced by Mr Aggarwal were not able to be properly addressed by the Court without an appeal book. The Court did not, for example, initially have before it the s 359A letter, Mr Aggarwal’s reply, or any of the disputed documents. Accordingly, at the hearing, the Minister was directed to produce the application book that was before the court below.

86    Second, again presumably because this was an application for leave to appeal, rather than an appeal, the Court did not receive the sort of assistance from the Minister that would ordinarily be expected of a model litigant. The written submissions filed by the Minister did not address the issue concerning the Tribunal’s duty to inquire. Nor did the Minister’s oral submissions on that issue greatly assist. The duty to inquire issue was obvious from the judgment of the primary judge.

87    Nor was the Minister in a position, at the hearing, to take the Court through the Regulations to clearly demonstrate that the Tribunal had addressed the correct visa criteria. Issues arose in that regard because of the delay between the visa application and its consideration by the delegate and the Tribunal. A number of amendments had been made to the Regulations during that period. As a result, it was necessary to carefully trace the history of the amendments and the operation of transitional provisions. Because the Minister was unable to adequately deal with this issue at the hearing, the Minister was given leave to file supplementary written submissions. That resulted in delay in determining the application.

88    Notwithstanding these observations, the Minister is nevertheless entitled to his costs. That is not only because the Minister was the successful party, but also because Mr Aggarwal did not comply with the Court’s directions to file written submissions. He only produced written submissions on the day of the hearing. Those written submissions advanced his case based on the Tribunal’s duty to inquire. His application for leave to appeal did not squarely raise that issue.

89    The orders of the Court are as follows:

1.    The application for leave to appeal be dismissed.

2.    The applicant to pay the first respondent’s costs as agreed or assessed.

Associate:

Dated:    26 November 2015