FEDERAL COURT OF AUSTRALIA

Tumil-Ang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1824

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs'.

2.    The appeal is dismissed.

3.    The appellant must pay the costs of the first respondent, fixed in the sum of $3,500.00.

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

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    The appellant, Hector Tumil-Ang, is a citizen of the Philippines. He worked as a driller on resources projects in Australia for seven years from about 2007 onwards. On 25 June 2015, he applied for an Employer Nomination (subclass 186) visa. A delegate of the first respondent (the Minister) refused the visa on 1 February 2016. It was refused because Mr Tumil-Ang provided 'bogus documents' with the visa application. Bogus documents are defined in s 5(1) of the Migration Act 1958 (Cth) to include documents that purport to have been, but were not, issued in respect of the relevant person; in this case, in respect of Mr Tumil-Ang.

2    It was a criterion for the grant of the visa that Mr Tumil-Ang satisfy, among other things, Public Interest Criterion (PIC) cl 4020: Migration Regulations 1994 (Cth), Schedule 2, cl 186.213(1). PIC cl 4020(1) (which is found in Schedule 4 to the Regulations), relevantly requires that there is no evidence before the Minister that the applicant has given or caused to be given to the Minister or an officer (defined in s 5(1) of the Act to include an officer of the Department) a bogus document or information that is false or misleading in a material particular in relation to the application for the visa. But PIC cl 4020(4) provides that:

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 a visa.

3    Mr Tumil-Ang had provided to the Minister, in support of the visa application, two documents purporting to have been issued by Saint Louis University in Baguio, Philippines. These were proffered as evidence that he met certain English language requirements relevant to the visa. But when the Department checked with the University, it found that Mr Tumil-Ang had never been enrolled there and that the University had not issued those documents. Mr Tumil-Ang concedes that the documents are bogus documents. It follows that, subject to the question of waiver under PIC cl 4020(4), the visa should have been refused.

4    Mr Tumil-Ang applied to the Administrative Appeals Tribunal for review of the delegate's decision to refuse the visa. The Tribunal affirmed the decision. He then sought judicial review from the Federal Circuit Court of Australia. The primary judge dismissed the application. Mr Tumil-Ang now appeals to this court.

5    Mr Tumil-Ang is self-represented. The grounds of review before the Federal Circuit Court and the purported grounds of appeal in this court are precisely the same, apart from minor differences of spelling and punctuation. The grounds of appeal are:

1.    I believe that the Administrative Appeals Tribunal (AAT) did not decide my matter correctly, because the AAT failed to consider all my experiences and importance to my employer properly. (I have trained most of my colleagues all aspect of drilling but I believe that they still need more experience before they can train or pass the knowledge to others.

2.    The AAT didn't give me a chance to comment on all information in the decision.

3.    The AAT gave irrelevant consideration to some aspect of my matter.

6    This approach to the appeal is misconceived. The jurisdiction of this court is to decide whether there was appealable error in the decision of the Federal Circuit Court. The jurisdiction of this court is not to decide again whether to grant judicial review of the decision of the Tribunal: Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; (2013) 140 ALD 524 at [27]. Nevertheless, some allowance should be made for the fact that Mr Tumil-Ang is self-represented, and it is possible to interpret the grounds of appeal as alleging that the Federal Circuit Court erred in not finding the Tribunal had committed the claimed errors: see SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [11].

7    The primary judge rejected ground 1 on the basis that the Tribunal did take into account the evidence from Mr Tumil-Ang's employer. That evidence was in the form of a letter from the employer, SRG Mining (Australia) Proprietary Limited, confirming that Mr Tumil-Ang had worked with it as a driller on various mines for most of the period between October 2011 and the date of the letter, 8 February 2017. The letter said that Mr Tumil-Ang's work ethic and dedication to his job had assisted the company in expanding its business operations by assisting it to meet project timelines, retain existing clients and obtain new clients and contracts. The letter said:

[He] has been an upstanding employee and has shown his skills and expertise are very valuable to our company.

8    The Tribunal took that letter into account. The Tribunal was prepared to accept on the basis of the letter that Mr Tumil-Ang was a valuable employee. It accepted that Mr Tumil-Ang had assisted SRG to meet project timelines and keep clients and obtain new contracts. It acknowledged that having reliable and skilled employees is necessary for an employer to meet contract timelines. However, there was no evidence that Mr Tumil-Ang was vital to SRG achieving these goals. Since he had apparently trained other employees, the Tribunal found that he may have passed on his skills to others.

9    In any event, in the Tribunal's view Mr Tumil-Ang's position as a valuable employee was not a compelling circumstance for the purposes of PIC cl 4020(4). The Tribunal held that to be 'compelling', a circumstance must force or drive the decision-maker irresistibly to be satisfied of the relevant matter: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [31] (French CJ, Bell, Keane and Gordon JJ). While Mr Tumil-Ang was a valuable employee, the need to replace him was just an ordinary aspect of the business. The loss of him as an employee was not a compelling circumstance that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. And it would have been far-fetched to say that it was a compelling circumstance affecting the interests of Australia.

10    This course of reasoning displays full engagement by the Tribunal with Mr Tumil-Ang's claim concerning the interests of his employer. The primary judge was correct to find that the Tribunal did take the employer's evidence into account.

11    The second sentence in ground 1 appears to address the Tribunal's finding that Mr Tumil-Ang may have trained other employees and, thus, passed his skills on. But it does nothing more than express disagreement with an aspect of the Tribunal's decision. The Federal Circuit Court could not review the merits of the Tribunal's decision. It could only quash the decision if it found there was jurisdictional error: ASV16 v Minister for Immigration and Border Protection [2018] FCAFC 141 at [25]. I do not uphold ground 1.

12    As for ground 2, the Tribunal was under no obligation to disclose its decision in advance so that Mr Tumil-Ang could comment on it. Section 357A of the Migration Act provides that Part 5, Division 5 is an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. Section 359A requires the Tribunal to give an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. However, that does not extend to information that the applicant has provided for the purpose of the application for review, or that he gave during the process that led to the decision that is under review, other than such information as was provided orally by the applicant to the department: s 359A(4).

13    In the present case, the fact that the certificate and transcript reportedly issued by Saint Louis University were bogus documents was obviously information that the Tribunal considered would be the reason or part of the reason for affirming the decision that was under review. The Tribunal did not put that information to Mr Tumil-Ang in any letter under s 359A. However, the information formed an important part of the decision of the delegate of the Minister which was the subject of the Tribunal's review. The nature and substance of the information and its importance to the question of the refusal of the visa application was set out clearly in the delegate's decision.

14    As part of the normal process of initiating a review, the delegate's decision was then given to the Tribunal in order for it to conduct its review. The Minister submits, and I accept, that this means that the Tribunal was not required to give Mr Tumil-Ang particulars of the information in question, namely the information which was an important part of the reason for affirming the decision that is under review to, by reason of the exception in s 359A(4)(b). The Tribunal's omission to provide that information is therefore not a failure to comply with the natural justice hearing rule, as modified and stated exhaustively in relation to this subject in Division 5, Part 5 of the Migration Act. Apart from that, neither before the Federal Circuit Court or in this court has Mr Tumil-Ang identified any information that was required to be disclosed by the Tribunal under s 359A.

15    More broadly, it is clear from the Tribunal's reasons that it accorded Mr Tumil-Ang ample opportunity to be heard. He had a migration representative with him at the Tribunal hearing. The Tribunal asked him whether there were any compelling or compassionate circumstances that justified the grant of the visa. He was given a short adjournment so that he could discuss that with his representative. The representative asked for a longer adjournment to obtain the letter from the employer, to which I have referred. The Tribunal granted that adjournment too.

16    The primary judge was correct to find that Mr Tumil-Ang had a real and meaningful hearing before the Tribunal. I do not uphold ground 2.

17    Ground 3 is unintelligible. To the extent that it alleges taking into account an irrelevant consideration or failing to take into account a relevant consideration, no such considerations have been identified or are apparent on the face of the Tribunal's reasons. The primary judge was correct not to uphold ground 3 and neither do I.

18    Conscious that Mr Tumil-Ang is self-represented, I explained to him that it was necessary for him to demonstrate on appeal to this court that the primary judge had committed some error, and invited him to take up the opportunity to persuade me that his Honour had erred. Mr Tumil-Ang was unable to point to any error in the primary judge's reasons other than the asserted errors said to be identified in grounds 1 to 3, which I have already addressed.

19    Mr Tumil-Ang explained that he was, at the time of preparation of the grounds of appeal, distressed because of financial demands that were being made on him in connection with the visa process. While one may have sympathy for him, the result is that he has not been able to identify any error in the reasons of the primary judge. Mr Tumil-Ang explained that if he had been able to consider the matter properly, he would have asked for more time so that he could make a separate visa application. However, whether or not he is entitled to make, or makes, such a separate application cannot affect what this court needs to determine, which is whether or not there was any error in the decision of the primary judge in relation to the visa application which was refused on 1 February 2016.

20    There was also an issue to which the primary judge referred about a notification and certificate under s 376 of the Migration Act, which the delegate of the Minister gave to the Tribunal in relation to certain information. The Tribunal did not notify Mr Tumil-Ang of the existence of the notification and certificate. However, the information in question was the information to the effect that the documents that had purportedly come from Saint Louis University were bogus documents. As I have already explained, the fact that that was an important basis of the delegate's decision was made known to Mr Tumil-Ang from the outset. His migration agent conceded that the documents were bogus, and Mr Tumil-Ang frankly acknowledged it in the hearing before me today.

21    The Tribunal's failure to notify Mr Tumil-Ang of the existence of the s 376 certificate was a breach of its obligations of procedural fairness. That is for the reasons which the plurality in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 gave, in particular at [27] and [29]-[31]. Essentially, the fact of a certificate and notification alters the procedural context in which an opportunity to present evidence and make submissions is routinely afforded by the Tribunal. While the findings in SZMTA related to Part 7 reviewable decisions, the same reasoning must apply to the similar provisions in Part 5, which are relevant to the present appeal.

22    However, SZMTA is also authority for the proposition that a breach of obligations of procedural fairness in such circumstances would not amount to jurisdictional error unless it was material in the sense that compliance with those obligations could realistically have resulted in a different decision: SZMTA [38], [45]. The breach will not be material if the information in the documents covered by the certificate was largely known to the appellant, was not relevant to the decision to be made by the tribunal, had not in fact been taken into account by the tribunal and could have made no difference to the outcome of the review: see SZMTA at [61].

23    As I have said, the information in question was clearly known to Mr Tumil-Ang here. Like the primary judge, I am satisfied in any event that if the Tribunal had disclosed either the existence of the notification or the contents of the information that was the subject of the notification/certificate to him, that could not have made any difference to the outcome. Given that he was clearly aware from the outset of the problem he faced in relation to the bogus documents, and given that he had conceded that they were bogus so that there was no issue that PIC cl 4020(1) was engaged, the only relevant issue before the Tribunal was whether the circumstances justified a waiver under PIC cl 4020(4). The outcome of the Tribunal's consideration of that issue could not have been affected by any notification to Mr Tumil-Ang of the existence of the s 376 notification and certificate.

24    There was no jurisdictional error in connection with the s 376 certificate and notification. The primary judge was correct so to find.

25    None of the grounds of appeal are upheld, and the appellant has demonstrated no error in the Federal Circuit Court's decision. The appeal is dismissed with costs.

Associate:

Dated:    8 November 2019