FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 1285

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    In this proceeding the appellant, Gurpreet Singh, appeals from a judgment of the Federal Circuit Court which dismissed his application for judicial review of a decision of the Migration Review Tribunal (Tribunal) (Singh v Minister for Immigration & Anor [2017] FCCA 701). The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (Minister) to refuse to grant Mr Singh a Skilled (Provisional) (Class VC) Subclass 485 visa (Subclass 485 visa).

2    The Tribunal’s decision was based in the conclusion that it was not satisfied that Mr Singh satisfied Public Interest Criterion 4020 (PIC 4020), which is a condition of the grant of a Subclass 485 visa under cl 485.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The Tribunal was satisfied that the visa application did not meet the requirements of PIC 4020 on the basis that it considered there is evidence that Mr Singh had given or caused to be given to an officer of the Department of Immigration and Citizenship (Department) and to the relevant training authority, Trade Recognition Australia (TRA), a “bogus document” (as defined) in relation to the visa application.

3    In large part revolving around submissions as to the approach the Tribunal took to the evidence Mr Singh contended that the Tribunal fell into jurisdictional error. For the reasons I explain I do not accept that it did and I have made orders to dismiss the appeal.

4    Mr Adam McBeth of counsel appeared for Mr Singh on a pro bono basis. The Court thanks him for the assistance he provided.

THE FACTS AND PROCEDURAL HISTORY

5    Mr Singh is citizen of India who arrived in Australia in April 2007 on a student visa. He enrolled in a Certificate III course as an Automotive Mechanical Technician in October 2007 which he completed on 13 March 2009. He enrolled in a Diploma of Business Management in September 2008 which he completed in September 2009, and enrolled in a Diploma of Automotive Management in March 2010 which he completed in July 2011.

6    On a date which is not clear on the materials Mr Singh applied to TRA for a skills assessment. Pursuant to the Regulations a suitable skills assessment from the relevant training authority is a precondition to obtaining a Subclass 485 visa. To obtain the skills assessment Mr Singh provided material to TRA to show that he had completed the Certificate III course as an Automotive Mechanical Technician as well as an undated letter on the letterhead of West Brunswick Motors signed by Dominic Tripodi as Manager/Owner (the work reference). The work reference included the following statement:

We hereby certify that Mr Gurpreet Singh DOB 15.01.86 was employed with us at West Brunswick Motors in Victoria. He has been employed with us as a Voluntary (unpaid) Motor Mechanic from 07/01/08 till 28/11/08 and has completed more than 910 hours, working part-time 15-20 hours per week during his studies.

7    On 1 October 2009 TRA issued a skills assessment to Mr Singh (the Skills Assessment) which operated to certify that he had satisfied the formal training requirements for the occupation of a “Motor Mechanic 4211-11” and had satisfied the requirement of 900 hours of directly related work experience.

8    On 27 September 2011 Mr Singh lodged an application for a Subclass 485 visa together with the Skills Assessment with the Department of Immigration and Citizenship (Department). On 10 October 2011 he provided a copy of the Skills Assessment to the Department.

9    On 23 January 2012 the Department wrote to Mr Singh inviting him to comment in relation to information provided with his visa application which the Department suspected was fraudulent. The letter included information to the effect that Carmine Amarante had pleaded guilty on 4 November 2011 to the manufacture and sale of fake work references including one matching the reference submitted by Mr Singh to TRA to obtain the Skills Assessment, and that Mr Amarante had admitted that the work references he created were fraudulent.

10    On 13 February 2012 Mr Singh responded to the Department by email. He did not provide a statement in regard to the matters raised but he attached two copy work references on the letterhead of West Brunswick Motors and signed by Dominic Tripodi as the Manager/Owner. The first is an undated and appears to be a copy of the work reference provided to TRA in 2009. The second is dated 9 February 2012 and it provides:

To whom it may concern

This is to confirm that Mr Gurpreet Singh (DOB: 15.01.86) has worked with us from 07//01/08 to 28/11/08. He has worked as a volunteer motor mechanic and accumulated over 900 hours. He had been working under the supervision.

He has proved himself to be a reliable and honest worker during his time with us. He has a pleasant personality with good communication skills and has always displayed a high level of interest.

Should you have any queries regarding him and his work experience, please feel free to contact me on [telephone number supplied].

Yours sincerely,

Dominic Tripodi

Manager/Owner

11    On 3 August 2012 the Department sent Mr Singh a further letter inviting him to comment on the information he provided with his visa application. The letter included the following:

All applicant(s) for a Skilled (Provisional) (class VC) visa must satisfy the PIC 4020 requirement. Failure to satisfy this criterion may result in each person included in the application being refused the grant of a visa.

As there is evidence suggesting that you provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application, you may fail to satisfy PIC 4020, with the result that this visa application may be refused.

Bogus Document

On 10 October 2011, in support of your application for a Skilled (Provisional) (Class VC) subclass 485 visa, you provided to the Department a skills assessment from Trades Recognition Australia (TRA). To obtain this skills assessment, you supplied to TRA documents supporting your 900 hours work experience from West Brunswick Motors.

On 4 November 2011, a Carmine Amarante pleaded guilty to the manufacture and sale of work references from West Brunswick Motors. Amarante has admitted the documents were fraudulent in content and that they were created to assist you to apply for a Skilled (Provisional) (Class VC) subclass 485 visa in Australia.

Please refer to the following documents for consideration in your visa application.

The following attachments refer to the Carmine Amarante court proceedings:

Amarante - Summary of Facts

Amarante - Summary of Taped Record of Interview

The following attachments specifically refer to West Brunswick Motors as an employer for which Carmine Amarante manufactured work documents:

Amarante - AFP Employer Statement - West Brunswick Motors

Amarante - Document Type and Employer List - West Brunswick Motors

The following attachments specifically refers to your details identified as part of the warrant evidence:

Amarante - Evidence from Warrant – 44908092834 SINGH GURPREET

As a result of these events we have reason to believe that the skills assessment submitted as part of your Skilled (Provisional) (Class VC) subclass 485 visa application may be a bogus document as it has been obtained because of a false or misleading statement.

You may provide comment on the information that is considered to be non-genuine, and specify if you believe there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020 and the grant of the visa.

12    The letter attached the following:

(a)    a Client Service Information sheet which provides information about rights and obligations;

(b)    a redacted Agreed Summary of Material Facts in County Court of Victoria proceeding The Queen v Amarante;

(c)    a redacted Department file note being a brief summary of a taped record of interview with Mr Amarante;

(d)    a redacted detailed statement made by Mr Amarante to the Australian Federal Police (AFP) dated 21 April 2011;

(e)    a redacted list recording “Employer” and “Document types” which records seven documents for West Brunswick Motors one described as “Employer Letterhead” and six as “Work reference”; and

(f)    one entry on a spreadsheet titled “Carmine Amarante: Evidence from Warrant” which records a work reference from West Brunswick Motors in the name of Mr Singh together with his date of birth.

13    On 3 September 2012 Mr Singh responded by email. Again, he did not make a statement but he attached the following documents:

(a)    a letter from Mr Tripodi addressed to the Manager of the Department which essentially reiterated his earlier letter. It stated:

Re: Mr. GURPREET SINGH (15/01/1986).

I, Dominic Tripodi (Manager/Owner) of West Brunswick Motors of 376 Moreland Road, West Brunswick VIC 3055 want to make a statement that:

1.    Mr. Gurpreet Singh (15-01-1986) has worked at my workshop from 07/01/2008 to 28/11/2008.

2.    He genuinely worked with me and I provided him with the work experience.

3.    Like many others, his work experience is not fake.

4.    You can call me on [telephone number supplied] for any further queries or questions regarding this matter.

(b)    short statutory declarations by two former housemates, Gurpreet Singh Badesha and Anish Kumar Gill, who each declared that he lived with Mr Singh between 2007 and 2009, that he was aware that Mr Singh worked at West Brunswick Motors between January and November 2008, and that Mr Singh used to go there mostly twice a week for work experience.

14    On 27 October 2014 a delegate of the Minister refused the visa application. The delegate was satisfied that the Skills Assessment Mr Singh submitted to the Department on 10 October 2011 is a bogus document (as defined) because the delegate reasonably suspected it was obtained because of a false or misleading statement made to TRA (whether or not made knowingly) about Mr Singh’s claimed 900 hours of work experience with West Brunswick Motors. The delegate found that the appellant did not satisfy PIC 4020.

15    On 13 November 2014 Mr Singh appealed to the Tribunal. He appeared before the Tribunal on 13 November 2014 to give evidence and present submissions without legal representation. On 8 May 2015 the Tribunal affirmed the delegate’s decision.

16    On 5 June 2015 Mr Singh made an application for judicial review to the Federal Circuit Court. He was not legally represented in the hearing on 27 March 2017 and his application was dismissed.

17    On 13 April 2017 Mr Singh filed a notice of appeal to this Court.

THE LEGISLATIVE FRAMEWORK

18    At the time of the Tribunal decision cl 485.224(a) of Schedule 2 to the Regulations provided that a mandatory requirement for the grant of a Subclass 485 visa is that the applicant satisfies PIC 4020. PIC 4020(1), which is set out in Schedule 4 to the Regulations, relevantly required:

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.

19    The meaning of “bogus document” is defined in s 5 of the Migration Act 1958 (Cth) (the Act) 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.

THE TRIBUNAL’S DECISION

20    The question for the Tribunal was whether the Mr Singh satisfied PIC 4020. The Tribunal stated the nature of the evidentiary inquiry (at [11] of its reasons) as follows:

The central evidentiary issue in dispute in this case is whether the Tribunal reasonably suspects that the TRA skills assessment is a document that was obtained because of false or misleading statements regarding Mr Singh working at West Brunswick Motors from 7 January 2008 to 28 November 2008 and that Mr Singh worked more than 910 hours of unpaid work experience as a motor mechanic at West Brunswick Motors as set out in the work reference.

21    The Tribunal heard evidence from Mr Singh and it had before it the correspondence between the Department and Mr Singh, including the materials from the prosecution of Mr Amarante, the letters from Mr Tripodi, the statutory declarations by Mr Singh’s two former housemates, and Mr Singh’s written submissions.

22    The Tribunal set out (at [20]) a number of Mr Amarante’s admissions from the detailed statement he made to the AFP including that:

(a)    he was involved in the production of hundreds of fraudulent documents including work references, explanation letters, job offer letters and letterhead spanning 40 different employers, including West Brunswick Motors;

(b)    he created these fraudulent documents for students to use in their attempts to obtain permanent residence in Australia. He created the false work references to show that the particular individual completed 900 hours of work in a relevant trade;

(c)    Department investigators and AFP officers searched his residence on 29 September 2009 where they found fraudulent documents, including 1,025 documents naming 600 individuals on a USB stick, some of which related to West Brunswick. He falsified those work references by creating the businesses’ letterhead and using written job descriptions that he obtained from various migration agents;

(d)    he approached various business owners or managers and agreed to pay them a fee in return for their supporting the false claims contained in the work references used in the skills assessment applications lodged with TRA. The business owners agreed to verify the content of the false work references if they were ever contacted by TRA and/or the Department. The false work references generally included a statement that the individual had completed work experience at 900 hours or more as required;

(e)    employers sometimes asked whether they had to keep the individual on for the whole 900 hours. He said that he replied that they should put them in the business until they were confident enough, and that “they may not have to do the full 900 hours, it’s up to you”. However, if contacted by TRA or the Department the employer was required to say that the individual had completed 900 hours of work experience;

(f)    from his recollection “none of the students completed the full 900 hours with any employers mentioned”. He knew this through his observations during visits to the business premises (sometimes weekly, other times once every two weeks) and he said “I would be surprised if any of the students attended at all”;

(g)    some employers insisted on signing all fraudulent documents containing their business letterhead and those employers included Mr Tripodi from West Brunswick Motors; and

(h)    all the employers knew that the students were not going to complete the full 900 hours as the individuals paid for the reference prior to commencing any voluntary work experience.

23    The Tribunal noted (at [21]) that the exhibit list in the Mr Amarante’s prosecution included a work reference from the USB stick for Mr Gurpreet Singh for the employer West Brunswick Motors which is almost identical to the one submitted by Mr Singh to the TRA. The only differences are that the work reference submitted to TRA states that Mr Singh completed his work experience on 28 November 2008 and is signed by Mr Tripodi, while the work reference on the USB stick states that he completed his work experience on 28 November 2009 and is unsigned.

24    At the hearing Mr Singh said that he had obtained work experience as a motor mechanic at West Brunswick Motors through a friend who recommended him, and that he worked there on an unpaid basis from 7 January 2008 to 28 November 2008 and completed 900 hours of work experience. He said that he worked 2-3 days a week and that he worked alone with Mr Tripodi when he worked. He said that he counted his hours every week and added them up. After he had completed 900 hours work experience he said he went to Mr Tripodi and asked for the work reference which Mr Tripodi gave him.

25    As the Tribunal noted (at [18]) Mr Singh denied any knowledge of Mr Amarante. He said:

…that he did not know Mr Amarante and he had never met Mr Amarante. Mr Singh could not explain why Mr Amarante would be in possession of Mr Singh’s personal details (i.e. date of birth and work details). Mr Singh could not explain why Mr Amarante would be in a possession of a work reference that is almost identical to the work reference Mr Singh submitted to the TRA. Mr Singh stated that he did not know anything about Mr Amarante having an almost identical document and why it was at Mr Amarante’s home.

26    The Tribunal noted (at [23]) that Mr Singh invited the Tribunal to contact Mr Tripodi and ask him to give evidence or to sign another letter. It gave Mr Singh a further seven days to provide further materials and on 20 April 2015 Mr Singh stated:

(a)    he had been truthful in his evidence to the Tribunal;

(b)    he had no association with Mr Amarante. He was never Mr Amarante’s client and that he hardly knew who he was;

(c)    he never approached a person such as Mr Amarante to get a work reference and he genuinely performed and undertook 900 hours of work experience at West Brunswick Motors;

(d)    the work reference was drafted, signed and given in hand to him by Mr Tripodi under whom he acquired the work experience;

(e)    he was surprised to learn of the admissions of Mr Amarante and equally surprised as to how those admissions involved him into Mr Amarante’s unlawful activities. There is no “exclusive evidence” that relates him to the acts and deeds of Mr Amarante;

(f)    he did not submit any bogus document or incorrect information to TRA to obtain the Skills Assessment. He genuinely applied for the skills assessment along with a genuine work reference;

(g)    he had provided a letter from Mr Tripodi dated 21 August 2012 which confirmed that his 900 hours work experience was genuine. He asked why any employer would issue such a statement “if there was something fishy in the work experience or it was fake”;

(h)    that the delegate gave too much weight to Mr Amarante’s statement and not enough weight to the letters from Mr Tripodi and the statutory declarations by his two former housemates which were sufficient to show that his claim of work experience was genuine; and

(i)    it was wrong to put the onus on him to prove his work experience was not fake, when the onus should be on the Department.

27    The Tribunal (at [24]) placed significant weight on the statement of Mr Amarante that he entered into an arrangement with Mr Tripodi to manufacture and sell work references for the purposes of TRA skills assessments, and that one of the work references on the USB stick located at Mr Amarante’s home was in Mr Singh’s name and contained his date of birth, and was almost identical to the work reference Mr Singh submitted to the TRA. The Tribunal did not find Mr Singh a compelling witness as he could not provide any explanation as to how his personal details were in the possession of Mr Amarante, why an almost identical document was in the possession of Mr Amarante, or how given the absence of records Mr Tripodi could have been satisfied that Mr Singh had worked more than 910 hours.

28    At [25] the Tribunal rejected Mr Singh’s submission that there was no direct evidence linking him to Mr Amarante and concluded that could be seen in the almost identical work references found on Mr Amarante’s USB stick as Mr Singh submitted to TRA. The Tribunal gave little weight (at [26]) to the statutory declarations by Mr Singh’s two former housemates because they were identical and provided very limited information. It also gave little weight Mr Tripodi’s letters given Mr Amarante’s statement that Mr Tripodi was prepared to accept money in return for verifying false work experience claims. It found the fact that false work references were found at Mr Amarante’s home including one in the name of Mr Singh compelling, and gave weight to Mr Amarante’s statements and his guilty plea as he had no reason to plead guilty if he had a viable defence.

29    The Tribunal concluded (at [24] and [27]) that it reasonably suspected that the Skills Assessment dated 1 October 2009 was obtained because of false or misleading statements in the work reference Mr Singh submitted to TRA. The Skills Assessment was therefore a “bogus document” as defined in s 5 of the Act. It found (at [28] that Mr Singh caused the bogus Skills Assessment to be given to an officer of the Department on 10 October 2011. In light of those finding the Tribunal decided (at [29]) that, pursuant to PIC 4020, it was not satisfied that there is no evidence that Mr Singh had given or caused to be given a “bogus document” in relation to his visa application to an officer of the Department or a relevant assessing authority. The Tribunal therefore affirmed the decision of the delegate.

THE APPLICATION TO THE FEDERAL CIRCUIT COURT

30    In the application to the Federal Circuit Court for judicial review of the Tribunal’s decision Mr Singh challenged the Tribunal’s decision on the following grounds:

(a)    that the application was decided unfairly, his visa should not have been refused and the decision is contrary to natural justice;

(b)    his TRA Skills Assessment is valid and the work reference he submitted was a genuine document. His employer still stands by the work reference; and

(c)    he was not provided procedural fairness.

31    The application was heard on 27 March 2017. Mr Singh was not legally represented in the hearing. The primary judge dismissed the application on that day and delivered extempore reasons. The primary judge said (at [10]) that in respect to each ground of appeal Mr Singh submitted only that the Tribunal ought to have accepted his evidence and should have concluded that the relevant documents were genuine rather than bogus documents. His Honour said (at [11]):

It is not open to this Court to conduct a merits review of the Tribunal’s fact-finding. The circumstantial evidence of locating a copy of the relevant reference on a USB stick in the possession of the fraudster is quite compelling. On the material before the Tribunal, it was clearly open to the Tribunal to reach the conclusion that it did. It is also apparent that despite the very large number of cases of a similar style, that the Tribunal treated this case individually and carefully examined the actual facts and circumstances of this applicant.

THE APPEAL TO THIS COURT

32    On 13 April 2017 Mr Singh filed a notice of appeal to this Court which alleged four grounds of appeal. It is unnecessary to set out those grounds as he subsequently abandoned them.

The new grounds of appeal

33    On 3 August 2017 Mr Singh filed a proposed amended notice of appeal. The amended appeal abandoned the existing grounds of appeal and sought to advance three new grounds of appeal, none of which were argued before the Federal Circuit Court.

34    The usual position is that parties are bound by the way a case was conducted at first instance, and they will not be permitted to raise new grounds for the first time in an appeal: Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2015) 227 FCR 95; [2015] FCAFC 7 at [161]-[162] (Kenny, Besanko and White JJ). However, where all the facts have been established beyond controversy or where the point is one of construction or of law then an appellate court may find it expedient and in the interests of justice to entertain the new ground: see Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ ).

35    In the circumstances of the present case it is expedient and in the interests of justice to grant Mr Singh leave to advance the new grounds. First, he did not have legal representation in the hearing below. Second, he has a great deal at stake in this appeal. He is likely to be removed from Australia if his appeal is not successful and the prejudice he may suffer if not permitted to run the new grounds of appeal may be significant. Third, the issues in the proceeding are questions of construction or law and the facts are uncontroversial. The new grounds could not have been met by calling evidence in the Court below. Fourth, the Minister did not oppose a grant of leave and did not contend that he would suffer any prejudice by a grant of leave.

CONSIDERATION

Ground one: The qualifying statement by Mr Amarante

36    Ground one of the Amended Notice of Appeal alleged:

The Federal Circuit Court erred in failing to find that the decision of the Tribunal was affected by jurisdictional error, in that the Tribunal failed to take into account relevant and probative material that was before the Tribunal.

Particulars

(a)    The Tribunal had before it a document titled ‘The Queen v Carmine Amarante – Agreed Statement of Facts.’ (‘Agreed Statement’)

(b)    The Agreed Statement contained the following statement: “He would always push the students to do some training however, he had no way of knowing whether they actually completed the training.”

(c)    The Tribunal at [19]-[20] set out parts of the evidence before it which the Tribunal identified as the critical parts of the evidence relevant to whether the appellant worked at West Brunswick Motors, the hours he worked there and whether the work reference provided to TRA contained false or misleading statements.

(d)    The statement set out in (b) above was not mentioned or referred to in the Tribunal’s recital of the critical parts of the evidence, or anywhere else in the Tribunal’s reasons.

Mr Singh’s contentions

37    Mr Singh alleged that the Tribunal erred by failing to take into account the statement in the Agreed Statement of Facts in the prosecution of Mr Amarante that:

He [Amarante] would always push the students to do some training however, he had no way of knowing whether they actually completed the training.

(the qualifying statement). It is common ground that the Tribunal’s decision made no reference to the qualifying statement.

38    In summary Mr Singh submitted that:

(a)    the Tribunal identified what it said were the “critical parts of the evidence relevant to whether Mr Singh worked at West Brunswick Motors” (at [19] to [20]). That included Mr Amarante’s evidence that from his recollection none of the individuals for whom he completed work references undertook the full 900 hours of work and evidence that to his knowledge none of them worked the required hours. The Tribunal did not refer to the qualifying statement and it therefore selectively relied on the evidence to reach its decision;

(b)    the Tribunal’s failure to refer to the qualifying statement meant that it should be inferred that the Tribunal did not consider that part of the evidence in reaching its decision which constitutes jurisdictional error: Minister for Immigration and Border Protection v MZYTS and Another (2013) 230 FCR 431; [2013] FCAFC 114 (MZYTS) at [52] and [62] (Kenny, Griffiths and Mortimer JJ). Mr Amarante’s statement that he created fraudulent documents must be read in light of the qualifying statement that he had no idea whether an individual actually worked the required 900 hours;

(c)    the same qualifying statement was considered in Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157 (Dhillon) at [5] (Allsop CJ, Murphy and Pagone JJ). In that case the Full Court said:

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

(d)    there is no basis in Mr Amarante’s admissions for the Tribunal’s decision that the fraudulent documents “were created to assist Mr Singh to apply for permanent residence in Australia” (at [22]).

Relevant principles

39    Failure by an administrative tribunal to consider particular material can give rise to jurisdictional error. In deciding whether that is so the fundamental question is the importance of the material to the exercise of the tribunal’s function and thus the seriousness of the error: Minister for Immigration and Citizenship v SZRKT and Another (2013) 212 FCR 99; [2013] FCA 317 at [111] (Robertson J); MZYTS at [70].

40    An administrative tribunal need not set out in its decision every piece of evidence that it has considered. The mere fact that a decision makes no or only a passing reference to a relevant consideration does not necessarily mean that the tribunal did not consider the matter. Whether a tribunal failed to consider a matter is a question of fact, and the applicant bears the onus of establishing the failure on the balance of probabilities: Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; [2001] FCA 389 at [60] (Sackville J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR) at [67], [91]-[92] (Gummow, Heydon and Crennan JJ).

41    A tribunal may give little or no weight to a relevant matter after having considered it, and this may explain a lack of reference to the matter rather than a failure to consider it: SZGUR at [31], [91] and [92], (French CJ, Heydon, Crennan and Kiefel JJ); ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [65] (Griffiths, Perry and Bromwich JJ); Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 (SZSRS) at [34] (Katzmann, Griffiths and Wigney JJ); MZYTS at [52]. However as the Full Court in SZSRS explained at [34]:

…where a particular matter, or particular evidence, is not referred to in the tribunal’s reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight.

Consideration

42    Mr Singh had the burden of establishing on the balance of probabilities that the Tribunal failed to consider the qualifying statement. In my view he failed to discharge that burden. I am not persuaded that it is appropriate to infer that the Tribunal’s failure to refer to the qualifying statement means the Tribunal did not consider that matter at all.

43    First, contrary to Mr Singh’s contention, there is a basis in the evidence for the Tribunal’s decision that fraudulent documents were created to assist him to apply for permanent residence in Australia. The evidence includes Mr Amarante’s admissions that he produced fraudulent work references in relation to numerous employers, including West Brunswick Motors, for individuals to use in their attempts to obtain permanent residence in Australia. Mr Amarante’s USB stick contained five work references he prepared for West Brunswick Motors, one of which was a work reference in Mr Singh’s name, with his date of birth, in a form almost identical to the one which Mr Singh submitted to TRA. Mr Singh received a Skills Assessment from TRA as a result which he lodged with the Department as part of his application for a permanent visa.

44    Second, the remarks of the Full Court in Dhillon have little bearing on the significance of the qualifying statement in the present case. The facts of Dhillon are that the Department provided the visa applicant with incomplete particulars of Mr Amarante’s evidence and did not inform him of the qualifying statement. The Full Court held (at [25]) that Mr Dhillon was denied procedural fairness as a result as, had he known about the qualifying statement, he may have put on evidence or submissions in that regard. In the present case Mr Singh was provided with the qualifying statement and he was able to put on evidence and submissions in that regard.

45    Third, the qualifying statement - that Mr Amarante had no way of knowing whether any particular individual had completed 900 hours of work experience - is a matter of which the Tribunal must have been aware. Mr Amarante’s evidence was that he prepared false work references for permanent visa applicants in return for payment and that he paid unscrupulous employers (including Mr Tripodi) to make false statements to the Department or TRA if either made enquiries about the work reference. While he said he would be surprised if any of the individuals for whom he completed work references actually undertook the work experience, he said that he only attended the relevant business premises once a week and other times once every two weeks. Mr Amarante would have no interest in whether students actually undertook some part of the work experience or not, he did not claim to know whether they did, and there is nothing in the Tribunal’s reasons to indicate that the Tribunal understood his evidence to go to whether Mr Singh (or any particular individual) actually worked the required 900 hours.

46    Fourth, in deciding that it reasonably suspected that the Skills Assessment was obtained because of a false or misleading statement the Tribunal considered:

(a)    Mr Amarante’s statement that he entered into an arrangement with Mr Tripodi to manufacture and sell work references for the purposes of TRA skills assessments;

(b)    one work reference located on Mr Amarante’s USB stick at his home was in Mr Singh’s name, contained his personal information, and was almost identical to the work reference that Mr Singh submitted to TRA;

(c)    Mr Singh did not provide persuasive evidence as to how his personal details came to be in Mr Amarante’s possession or how Mr Tripodi could have been satisfied that Mr Singh had worked more than 900 hours;

(d)    Mr Amarante pleaded guilty to the manufacture and sale of fraudulent work references in relation to West Brunswick Motors;

(e)    the two statutory declarations from Mr Singh’s housemates, and decided they should be given little weight because were identical and provided very little information; and

(f)    the letters provided by Mr Tripodi, and decided they should be given little weight in light of the evidence that he was prepared to accept money for verifying false work experience claims.

47    The Tribunal did not attribute any significance to Mr Amarante’s statement that from his recollection none of the individuals for whom he completed work references undertook 900 hours of work experience. It is significant that the Tribunal made no express reference to the aspect of Mr Amarante’s evidence to which his qualifying statement related.

48    In such circumstances it is appropriate to infer that the Tribunal did not refer to the qualifying statement because it did not regard it as material.

49    If (contrary to my view) the Tribunal in fact failed to consider the qualifying statement, I would not be persuaded that doing so would constitute jurisdictional error.

50    First, as I have said, the Tribunal must have been aware that Mr Amarante had no way of knowing whether any particular individual had completed 900 hours of work experience. Second, the Tribunal decision was based in the considerations summarised at [46] above. The fact that Mr Amarante had no way of knowing whether Mr Singh worked the required 900 hours does not directly bear on any of those matters and is not incompatible with them. Third, the Tribunal placed no reliance on the aspect of Mr Amarante’s evidence to which his qualifying statement related. In those circumstances I do not consider that a failure to take into account the qualifying statement would be sufficiently significant to the Tribunal’s decision to constitute jurisdictional error.

51    Mr Singh further submitted that if the Tribunal viewed the evidence through the lens that Mr Amarante had no idea whether Mr Singh had actually completed the 900 hours work, then the evidence could not give rise to a reasonable suspicion that he had not done so. On that basis he argued that the Skills Assessment was not a bogus document. I disagree. In my view the evidence is capable of supporting a reasonable suspicion that Mr Singh had not actually completed the required 900 hours work.

52    Ground one of the appeal is dismissed.

Ground two: The Tribunal applied the incorrect test

53    Ground two of the Amended Notice of Appeal alleged:

The Federal Circuit Court erred in failing to find that the decision of the Tribunal was affected by jurisdictional error, in that the Tribunal applied the incorrect test to the finding that the TRA assessment was a bogus document.

Particulars

(a)    The finding that the TRA assessment was a bogus document because of false or misleading statements in the work reference required the Tribunal to find that a statement in the work reference was in fact false.

(b)    The Tribunal failed to inquire into whether the appellant had actually worked more than 900 hours at West Brunswick Motors as stated in the work reference.

Mr Singh’s contentions

54    In summary Mr Singh submitted that:

(a)    the Tribunal erred by failing to inquire whether Mr Singh actually undertook 900 hours of work experience at West Brunswick Motors as he claimed, and mistook its task as ascertaining whether there was a connection between Mr Singh and Mr Amarante’s fraudulent business;

(b)    if Mr Singh had actually undertaken 900 hours of work experience at West Brunswick Motors as he said then the statement in the work reference attesting to that fact would not be false or misleading. As such, the TRA assessment would not be a bogus document;

(c)    the Tribunal wrongly focussed on evidence that a draft work reference in Mr Singh’s name, with his personal information, which was almost identical to the work reference that Mr Singh submitted to TRA, was found on Mr Amarante’s USB stick, to the exclusion of evidence from Mr Singh and Mr Tripodi that he undertook more than 900 hours of work experience at West Brunswick Motors. The Tribunal made an error of the kind described by Latham CJ in R v Connell; ex parte The Hetton Bellbird Collieries (1944) 69 CLR 407; [1944] HCA 42 at 432; and

(d)    there was no evidence before the Tribunal that Mr Singh had not worked the hours indicated on the work reference. Mr Amarante’s evidence was that he had produced work references for various businesses and that he had no way of knowing whether any individual had worked the required hours. Mr Amarante said that Mr Tripodi had insisted on personally signing documents that were produced under his letterhead and Mr Tripodi continued to state that Mr Singh had undertaken 900 hours of work experience. The facts and circumstances, objectively viewed, were insufficient to induce suspicion in a reasonable person: see Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 (Gill) at [92] (Logan, Griffiths and Moshinsky JJ).

Consideration

55    I do not accept Mr Singh’s contentions.

56    First, the Tribunal’s task was to decide whether it reasonably suspected that the Skills Assessment was a bogus document because it was obtained by submitting to TRA a work reference which falsely stated that Mr Singh had undertaken more than 900 hours of work experience at West Brunswick Motors. The Tribunal was not required to be satisfied on the balance of probabilities whether Mr Singh had undertaken such work experience, nor was it required to direct its inquiry solely to that question.

57    The Tribunal arrived at a finding of “reasonable suspicion” by giving weight to strong circumstantial evidence that the work reference was false, including that Mr Amarante entered into a fraudulent work reference scheme with Mr Tripodi amongst others, Mr Amarante’s USB stick contains a work reference for West Brunswick Motors for Mr Singh, with his personal information, in a form almost identical to the reference Mr Singh submitted to TRA, and Mr Singh could not provide any explanation as to how this came about. In my view the Tribunal identified the correct question and in the absence of better evidence that Mr Singh actually undertook 900 hours of work experience the Tribunal’s finding was open on the evidence.

58    Second, Mr Singh’s reliance on the decision in Gill is misplaced. In Gill the visa applicant claimed to have worked as a cook and the Tribunal focused its inquiry on testing whether the applicant had worked as he claimed. I do not accept the contention that the Tribunal failed to embark on such an inquiry in the present case. On a fair reading of the decision the Tribunal weighed the evidence as to whether Mr Singh had undertaken 900 hours of work experience at West Brunswick Motors and decided that it reasonably suspected that he did not.

59    In weighing the evidence the Tribunal gave little credence to Mr Singh’s testimony, the statutory declarations from his former housemates, and the letters from Mr Tripodi. Having regard to the evidence it was open to the Tribunal to:

(a)    infer that Mr Singh had not undertaken 900 hours of work experience from the fact that neither he nor West Brunswick Motors could produce any record of his having done so;

(b)    give little credence to Mr Tripodi’s letters when Mr Amarante admitted that he paid Mr Tripodi to assist in the false work reference scam; and

(c)    give little weight to the statutory declarations by Mr Singh’s former housemates because they were almost identical in form and scant in the information they provided. His former housemates could have said much more to assist Mr Singh’s case.

The Tribunal assessed the evidence and it was open to it to prefer the Department’s evidence.

60    Ground two of the appeal is dismissed.

Ground three: The Tribunal failed to make an obvious inquiry about a critical fact

61    Ground three of the Amended Notice of Appeal alleged:

The Federal Circuit Court erred in failing to find that the decision of the Tribunal was affected by jurisdictional error, in that the Tribunal’s failure to make an obvious inquiry about a critical fact constituted a constructive failure to review, or alternatively, was unreasonable.

Particulars

(a)    The Tribunal had before it two letters from the appellant’s employer, both of which attested in very brief form that the appellant had genuinely worked 900 hours at West Brunswick Motors and invited the Tribunal to contact the employer to discuss further.

(b)    The only means by which the Tribunal could reasonably be satisfied that the statement that the applicant had worked 900 hours at West Brunswick Motors was false was to test and reject the evidence of the person making the statement, namely the employer.

(c)    The inquiry of the employer, who had expressly offered to be contacted, as to whether the appellant had actually worked more than 900 hours was in the circumstances an obvious inquiry about a critical fact which could easily have been undertaken.

(d)    The Tribunal’s failure to make that obvious inquiry about a critical fact constituted a constructive failure to review.

(e)    Alternatively, the Tribunal’s failure to call the employer and its decision to place little weight on his letters without calling him was unreasonable.

62    Under this ground Mr Singh alleges that the Tribunal erred by failing to contact Mr Tripodi to confirm whether Mr Singh undertook more than 900 hours of work experience with West Brunswick Motors.

Relevant principles

63    A decision may be vitiated by jurisdictional error if an administrative tribunal fails to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained” but only if there was evidence that the enquiry could have made a difference: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 (SZIAI) at [25]-[26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The Court said:

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.

64    However, the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her, and a failure to make inquiries will only amount to jurisdictional error in “rare or exceptional circumstances”: Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 at [60] (Kenny J) and the authorities cited therein. The mere fact that it may have been reasonable to make an inquiry does not mean that the lack of such an inquiry amounts to jurisdictional error: SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63] (White J).

Mr Singh’s contentions

65    In summary Mr Singh submitted that:

(a)    the question of whether he had undertaken 900 hours of work experience at West Brunswick Motors was the critical issue in the case. He contended that the only people in a position to attest to whether or not he did so were himself and Mr Tripodi. Mr Tripodi provided two letters to the Tribunal which invited the recipient to contact Mr Tripodi for further information yet the Tribunal did not do so;

(b)    Mr Tripodi personally signed the work references for West Brunswick Motors, so he was effectively taking personal responsibility for the contents of the reference. He was in a position to elaborate further on letters he provided to the Tribunal and because it did not contact him, it was left with only Mr Tripodi’s letters as evidence of whether Mr Singh undertook the work he claimed;

(c)    the proper approach for the Tribunal would have been to call Mr Tripodi to test the allegations that he had engaged in fraud instead of pre-emptively rejecting his evidence on a character basis. Mr Singh said the inquiry was obvious within the meaning of SZIAI, and the evidence of the relevant critical fact was easily obtained as it could have been provided to the Tribunal by telephone;

(d)    in the alternative, the Tribunal’s failure to make the inquiry was unreasonable because this is a case where “it is obvious that material is readily available which is centrally relevant to the decision to be made”: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 46 at [33] (Wilcox J);

(e)    the present case was analogous with Wei v Minister for Immigration (2015) 257 CLR 22; [2015] HCA 51 (Wei), where Nettle J found that a delegate of the Minister erred by failing to contact the university to ascertain whether the plaintiff was enrolled. In that case Nettle J said (at [51]):

Hence, one obvious way of ensuring, or at least being more certain, that the plaintiff had ceased to be enrolled was to make a telephone inquiry of the University, the direct and authoritative source of confirmation of the plaintiff’s enrolment, just as the delegate had done on 20 February 2014 to check the plaintiff’s address. Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so – by picking up the telephone and requesting the University to check whether the plaintiff’s enrolment status as shown in PRISMS was in fact correct – and the clear link between the delegate’s failure to make that inquiry and the delegate’s determination to cancel the visa, I consider this to be a case in which the delegate’s failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.

Consideration

66    I do not accept Mr Singh’s contentions.

67    First, and most fundamentally, the Tribunal knew the evidence that Mr Tripodi would give if he was called to give evidence. It had two letters signed by him in which he stated that Mr Singh had undertaken more than 900 hours of work experience at West Brunswick Motors. There is nothing to indicate that if Mr Tripodi gave evidence he would do more than reiterate the contents of his letters and his evidence by telephone would not have adduced any additional evidence to that already provided.

68    Second, there was evidence which indicated that Mr Tripodi was party to the work reference scam. If Mr Tripodi had given evidence and, as could be expected, he reiterated the contents of his letters, it would have been open to the Tribunal to give that evidence little weight. Mr Tripodi would have had no choice but to deny that he was involved in the scam and deny that the relevant work reference was false, and it was open to the Tribunal to infer that making further inquiries of him would not have yielded useful information.

69    The facts of the present case are distinguishable from Wei. In that case the delegate made a decision to cancel the applicant’s visa on the basis that he was no longer enrolled at the University, when the applicant was in fact enrolled as he claimed. The delegate did not have any evidence from the university as to that enrolment, and the evidence that the university could have given (had it been asked) would have been a clear and definitive answer to the critical fact in question.

70    That may be compared to the present case where the Tribunal knew what Mr Tripodi’s evidence was likely to be and its assessment of any evidence he gave was likely to be coloured by evidence that he was a party to the work reference scam. It was open to the Tribunal to reach the view that obtaining evidence from Mr Tripodi would not benefit their inquiry and to choose not to contact him. Put another way, there was no evidence that hearing evidence from Mr Tripodi would have made any difference: SZIAI at [25]-[26].

71    Third, if Mr Tripodi’s evidence was as critical to the case as Mr Singh said, it was open to Mr Singh to call him. In Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Gummow and Hayne JJ said (at [187]):

The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention…

72    The present case is not one of the “rare and exceptional” cases in which a decision-maker is under a duty of the kind for which this ground of appeal contended. Ground three of the appeal is dismissed.

COSTS

73    I am not aware of any reason why costs should not follow the event and I have made orders for Mr Singh to pay the Minster’s costs. If either party contends for a different order I allow liberty to apply to vary the order as to costs within seven days.

Associate:

Dated:    3 November 2017