FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 1443

ORDERS

THE COURT ORDERS THAT:

1.    The appeal filed on 14 June 2016 is dismissed.

2.    The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    The appellant, Mr Lakhwinder Singh, is a 38 year old citizen of India.

2    On 18 June 2010, the appellant applied under the Migration Act 1958 (Cth) for a Class VB, Subclass 886 Skilled (Residence) Sponsored visa (skilled residence visa), nominating his occupation as a pastry cook.

3    On 13 July 2010, in support of his skilled residence visa application the appellant provided to the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection, (the department) a skills assessment dated 13 March 2008 from Trades Recognition Australia (TRA). The skills assessment certified that the appellant had satisfied the assessing authority, TRA, of his skill as a pastry cook by providing evidence of at least 900 hours of directly related work experience.

4    On 10 July 2014, a delegate of the first respondent refused to grant the appellant a skilled residence visa because the skills assessment from TRA, which supported the visa application, was a bogus document as it had been granted on the basis of a false or misleading statement in relation to the number of hours of work experience the appellant had completed. As a result, the delegate concluded that the appellant did not satisfy public interest criterion (PIC) 4020(1) contained in Sch 4 to the Migration Regulations 1994 (Cth).

5    On 30 March 2015, the Migration Review Tribunal, now the Administrative Appeals Tribunal, (the Tribunal) affirmed the delegate’s decision.

6    The appellant then applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.

7    On 30 May 2016, the primary judge dismissed the appellant’s application for judicial review. The appellant now appeals from that order of the Federal Circuit Court to this Court.

BACKGROUND

8    As mentioned above, on 18 June 2010, the appellant applied to the department for a skilled residence visa on the basis that he had completed over 900 hours of appropriate work experience in his nominated occupation. The skills assessment provided by the appellant to the department in support of the visa application indicated that the appellant had completed the necessary work experience at a particular bakery, which has been referred to in the reasons for decision of the Federal Circuit Court as the “Baking Firm”. The skills assessment reflected the information contained in a work reference from the Baking Firm which had been provided to TRA in support of an application for a skills assessment for the appellant in his occupation as a pastry cook.

9    Clause 886.225 of Sch 2 to the Migration Regulations applied to the appellant’s visa application. That clause required that the appellant satisfy certain public interest criteria. One such criterion was PIC 4020, which relevantly stated as follows:

(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.

…

(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.

10    At that time, “bogus document” was defined in s 97(c) of the Migration Act to mean:

a document that the Minister reasonably suspects…was obtained because of a false or misleading statement, whether or not made knowingly.

11    On 28 October 2011, an officer of the department wrote to the appellant requesting evidence of the 900 hours of work experience, including copies of all of the documents given to TRA, to obtain the positive skills assessment.

12    On 14 November 2011, the migration agent then engaged by the appellant, provided the department with a work reference from the Baking Firm which stated that the appellant had undertaken more than 920 hours of unpaid and voluntary work at that business. The work reference was on the letterhead of the Baking Firm and was signed by Mr Deniz Kordemir who described his position as Manager/Owner.

13    On 4 January 2012, the department wrote to the appellant inviting him to comment on “suspected fraudulent information” supplied with his visa application. The letter stated that a named person, Mr Carmine Amarante, who is referred to in the reasons for decision of the Federal Circuit Court as “Mr Z”, had recently pleaded guilty in the County Court of Victoria to creating and selling fraudulent work references from a number of businesses to assist clients of Mr Amarante in obtaining permanent residency visas in Australia.

14    The letter went on to state that it had been brought to the department’s attention that the appellant may not satisfy PIC 4020(1) because the appellant’s Baking Firm work reference, which had been used to obtain the skills assessment, was “comparable” to the fraudulent work references created and sold by Mr Amarante.

15    On 17 August 2012, an officer of the department again wrote to the appellant advising the appellant that he may not satisfy PIC 4020, on the additional basis that the appellant had provided or caused to be provided a bogus document in relation to a visa which the appellant held in the 12 months before the present visa application. The previous visa type was a Subclass 485, Skilled Graduate visa (subclass 485 visa), which was granted to the appellant on 28 May 2010 and remained in effect until 28 November 2011.

16    The department’s letter advised that the appellant had relied on the same skills assessment from TRA as is referred to at [8] above in support of the application for the subclass 485 visa. The letter also provided similar particulars of the fraudulent activities of Mr Amarante as had been provided in the department’s letter of 4 January 2012.

17    The department’s letter also attached documents from criminal proceedings in the County Court of Victoria concerning Mr Amarante. The attached documents included:

(a)    An agreed summary of material facts for the purpose of the Victorian criminal proceedings (the Amarante agreed statement of facts). This agreed summary referred to fraudulent work references having been produced by Mr Amarante in relation to both the Baking Firm and another business, referred to in the reasons for decision below as the “Cake Shop”. Mr Amarante sold the references to students who intended to apply for visas and arranged for the owners of the Baking Firm and the Cake Shop to sign the references.

(b)    A statement by Mr Amarante in relation to a proceeding brought, or intended to be brought, by the department against a third party.

(c)    A summary of a taped interview with Mr Amarante by an officer of the department.

(d)    A statement by Mr Amarante to the Australian Federal Police (the Amarante police statement).

(e)    An annexure to one of the documents which referred to two unsigned work references from the Cake Shop in respect of the appellant which had been found on a USB stick used by Mr Amarante to record the work references he had created. The USB stick had been discovered by investigators when they searched Mr Amarante’s premises.

18    Some parts of the aforementioned documents were redacted. It appears that one of the purposes for the redaction was to hide the names of some of the persons who were involved in the investigation.

19    The department’s letter also referred to the attached documents and said that the “attached Amarante documents” showed that the appellant had been provided with a work reference from the Cake Shop.

20    The appellant, through a new migration agent, responded to the department’s requests for comment by providing a letter (written by the appellant), dated 13 September 2012. In that letter, the appellant asserted that he had genuinely worked at the Baking Firm. The appellant acknowledged that the department had attached a work reference for him from the Cake Shop, but, said the appellant, no documents he had submitted to TRA related to work at the Cake Shop.

21    In response to the department’s claim that the wording and content of his Baking Firm work reference matched the work references created by Mr Amarante, the appellant said that his previous migration agent had provided the wording for the work reference from the Baking Firm, which the owner of the Baking Firm had then reviewed and signed.

22    On 10 July 2014, a delegate of the first respondent refused to grant the appellant a skilled residence visa on the basis that the appellant did not satisfy PIC 4020(1)(a). In making that decision the delegate reasoned as follows:

…I am satisfied that the skills assessment…you submitted to an officer of the department…is a bogus document within the meaning of subsection 97(c) of the Act because I reasonably suspect it is a document that was obtained because of a false or misleading statement made to TRA, whether or not made knowingly, about your claimed 900 hours work experience from [the Baking Firm].

23    The delegate also said that the appellant had failed to provide sufficient evidence, including independently verifiable third party documents, to verify his claims to have worked the hours claimed in the Baking Firm’s work reference.

24    The delegate did not refer to the allegation in the 17 August 2012 letter that the appellant may fail to satisfy PIC 4020(1) on a second basis, being that the same bogus skills assessment was provided to the department in support of the appellant’s previous subclass 485 visa application.

25    Furthermore, the delegate declined to waive satisfaction of PIC 4020(1) on compelling or compassionate grounds on the basis that the appellant had not advanced any claims or evidence in that regard.

THE TRIBUNAL

26    On 30 July 2014, the appellant applied to the Tribunal for review of the delegate’s decision.

27    On 6 August 2014, a delegate of the first respondent issued a certificate under s 375A of the Migration Act restricting, in the public interest, the disclosure of documents in folios 14-55 of the appellant’s departmental file to any persons other than a member of the Tribunal as constituted for that review. The s 375A certificate was in the following terms:

CERTIFICATE AND NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION ONLY TO THE MIGRATION REVIEW TRIBUNAL UNDER s 375A OF THE MIGRATION ACT 1958

I certify that, in accordance with s 375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in folio/s 14 – 55 of file number BCC2010/245489 would be contrary to the public interest because:

(a)    folio…14-55 (Investigation documents)

As s 375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s 375A(2)(b) of the Migration Act 1958.

28    Section 375A of the Migration Act provided as follows:

(1)    This section applies to a document or information if the Minister:

(a)    has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

(b)    has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

(2)    If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

(a)    the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

(b)    the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

29    On 23 December 2014, the Tribunal issued a summons to the department to produce, by 9 January 2015, any document or record confirming that the appellant’s work reference was found in Mr Amarante’s possession or any documents or records that showed the appellant’s work reference was similar, in content and format, to the false work references that were found in Mr Amarante’s possession.

30    In response to the summons to produce, the department provided as email attachments copies of the two work references for the appellant in respect of the Cake Shop, that were on the USB stick found on Mr Amarante’s premises when the search warrant was executed. The email correspondence does not suggest that any reference for the appellant for the Baking Firm was found in Mr Amarante’s possession as a result of the execution of the search warrant.

31    On 21 January 2015, the Tribunal wrote to the appellant, pursuant to s 359A of the Migration Act, inviting him to comment on certain information, which the Tribunal considered would otherwise be the reason, or part of the reason, for the Tribunal affirming the delegate’s decision. This letter stated that the information related to the activities of Mr Amarante and was subject to confidentiality obligations imposed by the County Court of Victoria.

32    The Tribunal’s letter summarised admissions by Mr Amarante that he collaborated with Mr Kordemir, the owner of the Baking Firm, in producing fraudulent work references for visa applicants.

33    The letter also stated that in a search of Mr Amarante’s residence on 29 September 2009, police officers also located a USB stick on which there were about 1,025 documents. Mr Amarante had also confirmed that he had created these documents using written job descriptions he had obtained from various migration agents and the documents were used by students in support of skills assessment applications sent to TRA, and subsequently in support of skilled migration visa applications.

34    The Tribunal’s letter also stated that Mr Kordemir, the owner of the Baking Firm, had given evidence in another unrelated Tribunal proceeding that only two volunteers had actually completed the requisite 900 hours of work experience by working at the Baking Firm, and the appellant’s name was not one of the two names mentioned.

35    The Tribunal went on to say in the letter that it may find the information constitutes probative evidence that the content of the work reference the appellant submitted to TRA, was false or misleading in relation to the work experience that the appellant claimed to have undertaken at the Baking Firm.

36    On 24 January 2015, the appellant (through his migration agent) made a written request, pursuant to s 362A of the Migration Act, to be provided with access to all written material on the departmental and the Tribunal file in relation to his review application.

37    By a letter, dated 2 February 2015, headed “Access to Written Material – Partial Access…”, the Tribunal granted access to the appellant of part of the departmental file, namely, to folios 1-14 and folios 56-117 of the departmental file.

38    The letter went on to state that folios 15-55 on the departmental file were excluded from release on the basis of a s 375A certificate which “certifies their disclosure to be contrary to the public interest”. The letter also advised the appellant that if he was dissatisfied with the Tribunal’s decision and wished to discuss it further, he should not hesitate to contact the author of the letter. The letter went on to state:

There is no formal right under the Migration Act (the Act) to review this decision however you can lodge a request for access to documents under the Freedom of Information Act or make a further request under s 362A of the Act.

39    The letter did not refer to, nor attach, the Tribunal’s summons to the department to produce documents, nor the department’s response thereto, referred to at [29] and [30] above.

40    On 3 February 2015, a Tribunal officer had a telephone conversation with the appellant’s migration agent. A file note records that during the course of the conversation, the migration agent confirmed that she did not require access to the Tribunal file.

41    On 11 February 2015, the appellant responded in writing to the Tribunal’s s 359A letter of 21 January 2015, in great detail.

42    The appellant’s response included responding to the claim in the department’s letter of 17 August 2012, that there were two work references for him from the Cake Shop found on a USB stick containing 1,025 documents, seized from Mr Amarante’s premises by investigators.

43    The appellant gave a detailed response to that circumstance. The appellant set out a number of possible reasons why his details would have been on the USB stick found on Mr Amarante’s premises. These included the fact that the appellant was a student at the college at which Mr Amarante was a teacher, and that Mr Amarante had been trying to “please the prosecution”.

44    The appellant also commented on Mr Kordemir’s statement in the unrelated Tribunal proceedings, the effect of which was to state that the appellant had not worked the 920 hours referred to in the work reference. He contended that Mr Kordemir’s statement was untrue and that Mr Kordemir was motivated to give the evidence that he did “to save the image of his name and business”.

45    The appellant appeared by video link before the Tribunal on 19 March 2015 with the assistance of an interpreter in the English and Punjabi languages. The appellant gave oral evidence to the Tribunal. The appellant said he had randomly approached businesses and had been offered unpaid work experience by Mr Kordemir. The appellant said he had worked four days per week from 4:00 pm to 9:00 pm.

46    On 25 March 2015, the appellant’s migration agent also provided to the Tribunal a letter from the appellant’s elderly widowed aunt, who lived in Australia, in support of the waiver of PIC 4020(1) on compassionate grounds.

47    On 1 April 2015, the appellant was notified of the Tribunal’s decision of 30 March 2015 to affirm the decision of the delegate.

48    The Tribunal found that the period during which the appellant said he had completed his work experience at the Baking Firm coincided with the period in which Mr Amarante had admitted to engaging in the fraudulent activities described above.

49    The Tribunal acknowledged that no copy of his work reference from the Baking Firm was found on Mr Amarante’s premises. However, the Tribunal referred to the fact that a copy of a work reference letter from the Cake Shop, bearing the appellant’s name and details, was among the documents on a USB stick that had been seized from Mr Amarante’s premises as part of the investigation into Mr Amarante’s fraudulent activities.

50    The Tribunal placed “considerable weight” on information from the department’s investigation in to the authenticity of work references from the Baking Firm, as set out in the delegate’s decision, and as put to the appellant in the 21 January 2015 letter.

51    The Tribunal also placed “significant weight” on the fact that Mr Kordemir, the owner of the Baking Firm, had given evidence in unrelated Tribunal proceedings, that only two volunteers had completed 900 hours of work experience there, and that the appellant was not named as one of them.

52    The Tribunal did not accept the appellant’s claim that he completed over 900 hours of work experience as stated in the Baking Firm’s work reference. However, the Tribunal was prepared to accept that the appellant had performed a “small” amount of work at the Baking Firm in order to familiarise himself with the business.

53    The Tribunal found, on the evidence before it, that the Baking Firm’s work reference supplied by the appellant to TRA, contained a false statement regarding the hours of work experience completed by the appellant; and that, accordingly, the skills assessment produced by TRA was obtained because of a false or misleading statement; and so was a bogus document under s 97(c) of the Migration Act.

54    Consequently, the Tribunal found that the appellant did not satisfy PIC 4020(1)(a) as it was not satisfied that there was “no evidence” that the appellant had provided a bogus document to a departmental officer in an application for a visa. The Tribunal also rejected the appellant’s contention in respect of compassionate or compelling circumstances.

THE FEDERAL CIRCUIT COURT

55    On 14 April 2015, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellant appeared in person at the hearing.

56    The primary judge discerned from the various documents filed by the appellant in that proceeding that, in substance, the appellant relied on eight grounds of review. The primary judge dismissed each of the grounds of review.

57    The first ground of review contended that the Tribunal erred in concluding that TRA was the relevant assessing authority for the occupation of pastry cook. This ground was seemingly reliant upon Singh v Minister for Immigration & Anor [2012] FMCA 145.

58    The primary judge dismissed this ground of review; finding that the Tribunal did not make the finding alleged by this ground. Furthermore, the primary judge stated that although the skills assessment was provided to the department at a time when TRA was not specified as the relevant assessing authority, this did not affect the status of the skills assessment as a bogus document. This is because the skills assessment had been provided to the department, and, even if it had no legal effect as such, it still met the description of a document obtained because of a false or misleading statement.

59    There were two elements to the second ground of review. First, the appellant contended that the Tribunal erred in concluding that the information given to TRA, namely, the work reference, was information given to a relevant assessing authority for the purpose of PIC 4020(1). This was because TRA was not at that time the relevant assessing authority. Secondly, that the Tribunal misapplied or misconstrued the definition of “information that is false or misleading in a material particular” as defined in PIC 4020(5).

60    The primary judge rejected the first contention on the basis that the Tribunal had found that the bogus document, as defined by s 97(c) of the Migration Act, was the skills assessment document which was provided to the department. It was not the case, observed the primary judge, that the Tribunal had found PIC 4020(1) was not satisfied, as the appellant contended, on the ground that false or misleading information had been provided to a relevant assessing authority.

61    The primary judge rejected the second contention on the basis that the Tribunal did not make a finding that any information was “false or misleading in a material particular” within the meaning of PIC 4020(5), but rather that the skills assessment was obtained because of a false or misleading statement and so was a bogus document which had been provided to the department.

62    Accordingly, said the primary judge, the Tribunal was not required to consider the definition of information that is false or misleading in a material particular.

63    The primary judge dealt with the third and fourth grounds of review together. The third ground of review alleged that the Tribunal had given its decision “by assuming not on the facts and without giving any proofs”. The fourth ground of review alleged the appellant had provided all the documents that proved the genuineness of the appellant’s claim, and the Tribunal had ignored those facts in making its decision.

64    As to the third and fourth grounds, the primary judge noted it was evident from the Tribunal’s decision that it had considered all information and evidence before it, and made findings based on that consideration. The primary judge observed that these grounds of review constituted no more than an attempt by the appellant to initiate an impermissible merits review of the Tribunal’s decision.

65    The primary judge also considered whether the Tribunal’s decision could be characterised as legally unreasonable in that it lacked an evident and intelligible justification (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]). The primary judge found that there was no such unreasonableness; and found that there was evidence available to the Tribunal upon which the Tribunal was able to conclude that the skills assessment had been procured on the basis of a false and misleading statement given to TRA.

66    The fifth ground of review alleged that the appellant had worked at the Baking Firm and had genuine experience as a pastry cook. The primary judge regarded this ground of review on the basis that this ground was an attempt to engage in a merits review.

67    In the sixth ground of review, the appellant contended that there was a conflict between the reasons of the Tribunal and the delegate’s reasons in relation to where the appellant had worked. The appellant claimed that the Tribunal had referred to his experience working in the Baking Firm, while the delegate had referred to his experience working in the Cake Shop. The primary judge considered that there was no contradiction. The primary judge explained that, properly understood, the fact that the Cake Shop work reference in the appellant’s name was found on Mr Amarante’s USB stick, and the fact that the Baking Firm work reference forwarded to TRA, were in substantially the same terms, were facts correctly relied on by the Tribunal to infer the falsity of the Baking Firm work reference. Accordingly, the primary judge dismissed this ground of review.

68    The seventh ground of review stated that the appellant had moved from Melbourne to Perth seven to eight years ago and, therefore, by the time of the Tribunal hearing, he had lost the connections in Melbourne which he required to assist him in proving the genuineness of his claims as to the number of hours he had worked at the Baking Firm. The primary judge considered that this ground did not establish a jurisdictional error on the part of the Tribunal. The primary judge stated that there were steps that the appellant could have endeavoured to take, but which he did not take, to satisfy the Tribunal. These steps included seeking to subpoena the Baking Firm’s staff or business records, which would have corroborated his assertions. The primary judge dismissed this ground of review.

69    The eighth and final ground of review stated that the appellant “was not provided with all the information” and was not particularised.

70    The primary judge stated that the appellant had been given partial access to information on his departmental file held by the Tribunal with the exception of the documents excluded from release by the s 375A certificate.

71    The primary judge went on to observe that the appellant had been apprised in the department’s letter of 2 February 2015 that it was possible to make a further s 362A request, or a Freedom of Information request, if further information was required, but no such request was made. In dismissing this ground, the primary judge considered that the appellant had not been denied access to information, other than under lawful processes contained within s 375A of the Migration Act.

72    Accordingly, the primary judge dismissed the appellant’s application for judicial review.

THE APPEAL

73    On 14 June 2016, the appellant filed a notice of appeal from the orders of the Federal Circuit Court to this Court. The appellant’s notice of appeal contained the following ground:

My all grounds are genuine and based on the facts. I want honourable Court to review them.

74    The appellant appeared at the hearing and made submissions with the assistance of an interpreter. The appellant did not file an affidavit nor any submissions in support of his case.

75    The appellant’s single ground of appeal fails to identify any appealable error by the primary judge.

76    At the hearing, when questioned about the appealable error he relied on, the appellant did not make any submissions in support of there having been any error made by the primary judge and stated that he sought “a whole case review…and a review of the documents which I have provided”.

77    In my view, the following observations of McKerracher J in the case of CGN15 v Minister for Immigration and Border Protection [2017] FCA 1035 (CGN15) are apposite:

[32]    The task of the Federal Circuit Court was to determine whether the Tribunal’s decision was affected by jurisdictional error and the task of this Court is to determine whether the judgment of the Federal Circuit Court is affected by appealable error.

[33]    Although an appeal to this Court is an appeal by way of rehearing, it remains necessary to demonstrate an error in the judgment appealed from. As the Full Court explained in Rawsthorne v Minister for Immigration & Citizenship (2013) 140 ALD 524 per Cowdroy, Katzmann and Farrell JJ (at [27]) an appeal by way of rehearing is not an opportunity to revisit the decision of the Tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge.

78    In this case, as in CGN15, the appellant’s single ground of appeal fails to identify any appealable error by the primary judge. In the absence of any allegation of error by the primary judge, the appeal, would on its face, appear to be incompetent.

79    I have, however, in any event, had regard to the reasons for decision of the primary judge and have not discerned any error by the primary judge in the disposition of the first seven grounds of review.

80    However, ground eight of the grounds of review requires further discussion.

81    As mentioned, this ground of review was treated by the primary judge as a complaint that the Tribunal had in reliance upon a certificate issued under s 375A of the Migration Act failed to provide all the information relevant to the appellant’s application to the Tribunal for review of the delegate’s decision.

82    The primary judge’s judgment was delivered on 30 May 2016.

83    This appeal was heard on 18 August 2016. At that time there was an appeal pending in the Full Court of this Court from a decision of the Federal Circuit Court in Singh v Minister for Immigration and Border Protection (2016) 313 FLR 1 (Singh). In that case, there had been, as in this case, a certificate issued to the Tribunal under s 375A of the Migration Act to prevent the disclosure to the review applicant, Mr Singh, of documents relating to the same proceedings in the County Court of Victoria affecting Mr Amarante as in this case. In accordance with the prohibition in the s 375A certificate, the documents covered by the certificate had not been provided to the review applicant, nor was the existence of the s 375A certificate disclosed to the review applicant in that case. The review applicant did not become aware of the existence of the s 375A certificate, nor the legal limitations imposed by it, until after the Tribunal’s review of the delegate’s decision and in the course of the judicial review of the Tribunal’s decision by the Federal Circuit Court.

84    The Federal Circuit Court held that the Tribunal had fallen into jurisdictional error as it was bound to inform the review applicant of the existence of the s 375A certificate, and that it had denied him procedural fairness in failing to do so.

85    In light of the pending appeal in the Full Court in Singh, the first respondent requested that judgment in this appeal not be delivered until the outcome of the Full Court appeal.

86    On 19 December 2016, the Full Court of this Court delivered its decision in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 (Singh (Full Court)).

87    In Singh (Full Court), the Full Court dismissed the first respondent’s appeal and found that in the circumstances there had been a failure to accord procedural fairness to the review applicant in the Tribunal failing to disclose the s 375A certificate to him.

88    The first respondent then requested that judgment in this appeal not be delivered until the outcome of the first respondent’s application to the High Court for special leave to appeal. In May 2017, the first respondent’s application for special leave to appeal was refused by the High Court.

89    Subsequent to the refusal of special leave, I invited the parties to make further submissions as to the effect of the Full Court decision in Singh (Full Court) on the present appeal.

90    On 1 September 2017, the first respondent filed submissions. Also, on that day, the first respondent filed an affidavit of Ms Ellen Lucy Goldsworthy Tattersall, a solicitor in the firm representing the first respondent. The affidavit attached the documents which were the subject of the s 375A certificate, namely, folios 14-55 of the departmental file in respect of the appellant. The first respondent expressly declined to claim privilege or confidentiality over the documents.

91    Ms Tattersall’s affidavit shows that all but three folios in folios 14-55 had been disclosed to the appellant or his migration agent during the course of the proceedings before either the delegate or the Tribunal. The three folios which were not disclosed comprised the confidentiality orders made by the County Court of Victoria in relation to the documents in Mr Amarante’s criminal proceedings, and a related document. These three folios were irrelevant to the matters upon which the Tribunal’s decision turned.

92    On 19 September 2017, Da Gama Pereira & Associates went on the record as solicitors for the appellant by filing a notice of acting.

93    On 29 September 2017, the appellant filed submissions on the effect of the decision in Singh (Full Court), but, also, without leave having been given, made submissions contending that the Tribunal had contravened s 362A of the Migration Act and so had fallen into jurisdictional error.

94    I deal first with the question of the effect of Singh (Full Court).

95    As mentioned, in Singh (Full Court), the review applicant was neither given a copy of the s 375A certificate before the Tribunal hearing, nor was he advised of the existence of the s 375A certificate prior to the Tribunal hearing. The documents the subject of the s 375A certificate were never disclosed to the review applicant.

96    The Full Court in Singh (Full Court) held that whereas s 357A(2) of the Migration Act would preclude an argument that the failure to disclose the documents the subject of a s 375A certificate would be a denial of procedural fairness, that section did not affect the argument that the general law notions of procedural fairness might require the disclosure of the s 375A certificate.

97    The Full Court then went on to observe that that conclusion did not relieve Mr Singh of the obligation to show that the rules of procedural fairness did, in fact, require disclosure of the s 375A certificate.

98    The Full Court observed that the existence of the s 375A certificate had an “immediate and adverse impact on an applicant’s entitlement to participate in the [Tribunal] hearing” and found that the existence of such a s 375A certificate would have “substantial and immediate practical consequences”. The Full Court found that Mr Singh, therefore, had a sufficient interest as an applicant in the Tribunal proceedings to “give rise to an obligation to afford him procedural fairness upon the issue of the certificate”.

99    The Full Court found that, on the facts, in Mr Singh’s case, the obligation to afford him procedural fairness required that the Tribunal be required to disclose to Mr Singh the s 375A certificate.

100    A reason for the Full Court holding that procedural fairness required the disclosure of the terms of the s 375A certificate, was that such a disclosure would afford the review applicant an opportunity to challenge the validity of the certificate and, thereby, to contend that the documents covered by the certificate, should have been disclosed to the review applicant.

101    In this case, the existence of the certificate, but not the certificate itself, was disclosed to the appellant’s migration agent. Accordingly, on the principle approved by the Full Court in Singh (Full Court), there was, to that extent, a denial of procedural fairness by the Tribunal.

102    Further, had the terms of the certificate been disclosed, the appellant could have made an argument that the certificate issued to the Tribunal was invalid. This is because s 375A(1)(a) of the Migration Act requires that the certificate specify the reason why it would be contrary to the public interest that the documents, the subject of the certificate, not be disclosed. It is evident from [27] above, that the certificate specified the reason in starkly succinct terms, namely, “Investigation documents”. Whilst it may be possible to infer from those words that the reason for the issue of the certificate was that disclosure would prejudice an ongoing criminal investigation, it is, nevertheless, the case that the failure to provide the certificate did deprive the appellant of an opportunity, if properly advised, to have made the respectable argument, either before the Tribunal or before the primary judge, that the certificate was invalid and the documents covered by the certificate should have been disclosed to him.

103    However, in my view, notwithstanding the aforegoing, this is not a case where the failure to provide the appellant with the s 375A certificate gave rise to jurisdictional error on the basis of a denial of procedural fairness.

104    This is because the failure to provide the certificate to the appellant did not give rise to any practical injustice.

105    In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ observed at [36]-[38]:

36    The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.

37    A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

38    No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant’s children.

(Footnotes omitted.)

106    If the appellant had been provided with the certificate and he had successfully argued that the certificate was invalid, the documents the subject of the certificate, would have been provided to him. However, the appellant already had in his possession all of the documents which were the subject of the certificate and which were relevant to his review application. This is apparent from the affidavit of Ms Tattersall, who, as I have said (see [90] and [91] above), deposed that the documents covered by the certificate were essentially the same documents which had been given to the appellant’s migration agent by the delegate in August 2012 (see [15]-[17] above). The only documents which were covered by the certificate but which were not disclosed to the appellant by the delegate, were irrelevant to the matters before the Tribunal.

107    Accordingly, the failure to provide the appellant with the certificate did not, thereby, result in the appellant losing an opportunity to advance his case before the Tribunal because of his ignorance of the content of the documents covered by the certificate. Nor did the appellant, thereby, lose an opportunity to put any information or argument to the decision-maker, or suffer any detriment because of his ignorance of the content of those documents.

108    Secondly, for the same reason, it is apparent that failure to provide the certificate to the appellant prior to the Tribunal hearing, did not have an immediate adverse impact upon the Tribunal’s entitlement to participate in a fair and meaningful hearing and so did not lead to any contravention of s 360(1) of the Migration Act.

109    Accordingly, insofar as the appellant’s appeal is founded on a contention that there was a denial of procedural fairness because of the failure of the Tribunal to disclose the terms of the s 375A certificate, that ground of appeal is dismissed.

110    As mentioned, the appellant also contended in the written submissions filed after the hearing, that the Tribunal had fallen into jurisdictional error because it failed to comply with s 362A of the Migration Act, and that, in effect, the primary judge had erred in failing so to find. I observe in passing that this, also, was not an argument which was made before the primary judge.

111    Section s 362A provides as follows:

(1)    Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

(2)    This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.

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

112    The appellant contended that, in response to his request under s 362A for the documents on the departmental file and the Tribunal file, the Tribunal failed to provide the appellant with the documents the subject of the s 375A certificate, as well as the correspondence between the department and the Tribunal referred to at [29] and [30] above. Relevantly, as mentioned, that correspondence attached printed versions of the work references for the appellant provided by the Cake Shop which were found on the USB stick recovered from Mr Amarante’s premises. It was also to be inferred from that correspondence that no copy of a work reference for the appellant from the Baking Firm had been found on Mr Amarante’s premises.

113    There are no findings by the Tribunal or by the primary judge that this correspondence was not provided to the appellant. This is not surprising as no argument, as is now advanced, was put in either forum. That may, on one view, be sufficient to dispose of the contention advanced by the appellant. However, the inference is open from the Court book and the affidavit of Ms Tattersall that the documents referred to in [29] and [30] above, were not disclosed to the appellant and I will proceed on that assumption.

114    The question of a failure by the Tribunal to comply with s 362A was considered by the Full Court in Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 (Dhillon).

115    In that case, Mr Dhillon had, like the appellant in this case, applied for a skilled residence visa for the occupation of pastry cook. Mr Dhillon’s skills assessment by TRA was obtained on the basis of a work reference which stated that Mr Dhillon had completed more than 900 hours of work as a pastry cook at Axilleon Cakes. That is the same business as the Cake Shop referred to in this case. Mr Dhillon’s work reference was signed by Ms Tina Galanos as the manager and owner of Axilleon Cakes.

116    As previously mentioned, Axilleon Cakes was one of the businesses in respect of which Mr Amarante admitted he had manufactured and sold false work references with the business owner’s complicity. The delegate of the first respondent refused to grant the visa on the basis that the skills assessment was a bogus document and that it had been obtained by reason of a work reference which contained false information, namely, that Mr Dhillon had completed at least 900 hours of work at Axilleon Cakes.

117    Mr Dhillon applied to the Tribunal for review of the delegate’s decision; and also applied under s 362A of the Migration Act for access to written material held by the Tribunal in relation to his visa application.

118    The material held by the Tribunal included the Amarante police statement and the Amarante agreed statement of facts. These were the same documents to which reference was made in [17] above.

119    In response to Mr Dhillon’s application under s 362A, the Tribunal only provided Mr Dhillon with partial access to the file which was in its possession and excluded the redacted information on the basis that s 362A(2) of the Migration Act applied.

120    The redactions to the documents given to Mr Dhillon obscured statements, including, in particular, a statement by Mr Amarante in para 23 of the Amarante police statement, where Mr Amarante had said that he told employers for whom he provided references that it was up to them to decide how many hours the students actually worked; and that the employers needed to tell TRA or the department, if either inquired, that the students named in the references he provided, had worked 900 hours, even if this was not true. Among the employers Mr Amarante mentioned was Ms Galanos, the owner of Axilleon Cakes. He also said that from his recollection, none of the students for whom he had provided work references had actually worked the 900 hours referred to in the references.

121    The redactions to the documents given to Mr Dhillon also obscured a paragraph in the Amarante agreed statement of facts which qualified Mr Amarante’s statement in para 23 of the Amarante police statement. The obscured paragraph stated that Mr Amarante had no way of knowing whether the students had actually worked the requisite number of hours or not (para 34 of the Amarante agreed statement of facts).

122    Subsequently, the Tribunal sent Mr Dhillon a letter under s 359A of the Migration Act calling on Mr Dhillon to comment on matters in relation to his review application which could be the reason or part of the reason for the Tribunal affirming the delegate’s decision under review. That letter referred to Mr Amarante being involved in the production of fraudulent work references and of Ms Galanos’ participation in those activities. The letter referred, inter alia, to Mr Amarante’s statement at para 23 of the Amarante police statement that from his recollection, none of the students completed the full 900 hours of work with any of the employers he mentioned in the references he had created. However, the particulars did not mention the qualifying statements in para 34 of the Amarante agreed statement of facts.

123    Before the Full Court, Mr Dhillon contended that the refusal to provide the redacted material was a breach of s 362A(1) of the Migration Act and that the Tribunal decision should be set aside because the redactions were not justified by s 362A(2). The Full Court agreed. The Full Court went on to observe at [15]:

The Tribunal’s decision to the extent that it is based on the acceptance of a failure to meet the Public Interest Criterion should not be affirmed if made in breach of s 362A in circumstances where access to the redacted material might, as was the case here, reasonably have affected the decision of the Tribunal on that ground.

(Emphasis added.)

124    The circumstances which the Full Court identified as falling within the category of material which might reasonably have affected the decision of the Tribunal was that:

The qualification to Mr Amarante’s statement in the agreed summary of facts bore relevantly and probatively upon the vital findings that the document relied upon by Mr Dhillon was bogus and that he ought not to be believed. It was also relevant and probative to forensic decisions that might have been made about the conduct of the proceeding before the Tribunal including whether to persuade the Tribunal to subpoena either Ms Galanos or Mr Amarante.

125    The Full Court also considered whether, in failing to provide the redacted material under s 362A(1), the Tribunal had failed to give Mr Dhillon a fair and meaningful hearing to which he was entitled under s 360 of the Migration Act.

126    The Full Court said at [25]:

However, whilst it may be accepted, as the Minister contended, that the Tribunal had no obligation under s 359A(1) to give Mr Dhillon particulars of the information in the redacted material to the extent that it was not adverse, the Tribunal also had obligations under s 357A(3) to act in a way that is fair and just, and under s 360(1) to provide Mr Dhillon with a real chance to present his case. The Tribunal’s decision not to give Mr Dhillon access to the redacted material (by wrongly deciding not to provide access under s 362A(1)) meant that the Tribunal decided the Public Interest Criterion without the fair hearing to which Mr Dhillon was entitled under s 360 of the Migration Act.

127    The circumstances of this case differ significantly in material respects to Dhillon.

128    The documents at [29] and [30] above, which I have assumed were not disclosed to the appellant, related to two matters relevant to the Tribunal hearing. Those were that no copy of a work reference for the appellant from the Baking Firm had been found on Mr Amarante’s premises; and that the work references for the appellant found on the USB stick on Mr Amarante’s premises were from the Cake Shop. The appellant contended that the Tribunal’s failure to disclose the documents, prior to the Tribunal hearing, prejudiced the conduct of his case before the Tribunal.

129    In my view, for the following reasons, information contained in the undisclosed documents was not of such a character that if the appellant had obtained access to it prior to the Tribunal hearing, that circumstance might reasonably have affected the Tribunal hearing.

130    As to the first matter, it had never been put to the appellant before the delegate or before the Tribunal that a work reference from the Baking Firm had been found on Mr Amarante’s premises. Indeed, in [4] of the Tribunal’s reasons for decision, the Tribunal specifically acknowledges that no electronic evidence of a work reference from the Baking Firm was located on the USB stick seized during the execution of the warrant at Mr Amarante’s premises. The Tribunal went on to observe that the department informed the Tribunal that the two work references for the appellant on the USB stick were from the Cake Shop.

131    Accordingly, the disclosure to the appellant of a document or documents to the effect that no work reference for the appellant from the Baking Firm was found at Mr Amarante’s premises would not reasonably have affected the hearing before the Tribunal because the delegate and the Tribunal proceeded on that basis in any event.

132    As to the second matter, the Tribunal also proceeded, as had the delegate, on the basis that the work references found on the USB stick which contained the appellant’s details were from the Cake Shop and not the Baking Firm. However, the aspect of this circumstance which was adverse to the appellant was that his details were in possession of Mr Amarante and had been used in the manufacture of a work reference for the appellant, albeit, for a different entity. The appellant knew from as early as 17 August 2012 that these work references for the Cake Shop had been found on the USB stick at Mr Amarante’s premises. Further, the appellant appreciated that this circumstance could give rise to an adverse finding against him by the Tribunal and that he needed to explain how his details came to be in a work reference for him from the Cake Shop found on the USB stick at Mr Amarante’s premises.

133    The appellant, therefore, addressed this issue in detail in his letter to the Tribunal of 11 February 2015 (see [43] above), and the Tribunal acknowledged that it had received a letter from the appellant that provided possible explanations as to why his personal details were found on Mr Amarante’s USB stick.

134    Accordingly, the fact that the appellant had not, before the Tribunal hearing, seen the actual content of the references from the Cake Shop bearing his name (if that indeed was the case), did not prevent the appellant from responding to the damaging element of this evidence. Accordingly, the fact that the appellant had not seen the content of the Cake Shop work references bearing his name was not a circumstance which might reasonably have affected the decision of the Tribunal.

135    There is another distinguishing feature between this case and Dhillon. In this case, the documents disclosed to the appellant by the delegate on 17 August 2012 identified and disclosed fully Mr Amarante’s involvement and the involvement of Mr Kordemir in the production of false work references. This was not the case in Dhillon. Also, unlike in Dhillon, the documents disclosed to the appellant on 17 August 2012 included both para 23 of the Amarante police statement and also the qualifying statement in para 34 of the Amarante agreed statement of facts.

136    Further, at all times leading up to the Tribunal hearing, the appellant was represented by a migration agent. In light of the information available to them from the disclosed documents, the appellant and his migration agent had the opportunity to request the Tribunal to subpoena Mr Kordemir and/or the documentation relating to the Baking Firm, before the hearing. This was an opportunity denied to Mr Dhillon because of the paucity of the information in his possession.

137    Accordingly, in my view, the information which was not disclosed to the appellant consequent upon his s 362A application was not such that if it had been disclosed it might reasonably have affected the decision of the Tribunal, nor the fairness of the hearing.

138    I note in passing that the appellant has referred to the decision in Sandhu v Minister for Immigration and Border Protection [2015] FCA 987 (Sandhu) where the reasons of Logan J may be construed as finding that a breach of s 362A of the Migration Act per se would amount to jurisdictional error. To the extent that the reasons in Sandhu may be read in that way, that reading would fail to have regard to the words of qualification I have emphasised in the observations of the Full Court in Dhillon referred to at [123] above. I would, therefore, prefer to base my decision upon those observations of the Full Court in Dhillon.

139    It follows that had a ground of review been raised before the primary judge, which squarely raised this issue, the primary judge would not have erred in dismissing the ground of review.

140    Alternatively, if there was a contravention of s 362A of the Migration Act by the Tribunal giving rise to a jurisdictional error, the primary judge would not have erred in declining, for the reasons referred to in [127]-[137] above, to grant relief in the exercise of the Court’s discretion.

141    It follows that the appeal is dismissed.

Associate:

Dated:    4 December 2017