FEDERAL COURT OF AUSTRALIA

Salh v Minister for Immigration and Border Protection [2020] FCA 349

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The Appellants have leave to amend the grounds of appeal in the form of the Amended Notice of Appeal filed on 20 February 2010.

3.    The appeal be dismissed.

4.    The Appellants 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

MURPHY J:

1    The appellants, both citizens of India, appeal from the judgment of the Federal Circuit Court on 1 August 2019, which had dismissed their application for judicial review of a decision of the second respondent, the Migration Review Tribunal subsequently renamed the Administrative Appeals Tribunal (Tribunal), made 10 April 2015. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), to refuse to grant the first appellant a Temporary Business Entry (Class UC) (457) visa (457 visa) under s 65 of the Migration Act 1958 (Cth) (the Act). The second appellant is married to the first appellant and sought a visa as a member of the same family unit as the first appellant. His visa application turns on the result for the first appellant, and there is no need to separately consider his circumstances.

2    For the reasons I explain, the appeal must be dismissed.

Background facts and procedural history

3    On 6 February 2013 the first appellant, Mrs Amrit Kaur Salh, applied for a 457 visa to pursue employment in Australia in the nominated occupation of café or restaurant manager. The visa application was sponsored by Simran and Mona Pty Ltd, the proprietor of an Indian restaurant, bar and function centre in Terrey Hills, New South Wales, which had agreed to employ her as a restaurant manager for four years.

4    The first appellant lodged copy documents with the application to show that, under her maiden name Amrit Kaur, she had obtained a Bachelor of Commerce in April 1988 and then a Master of Commerce in April 1990 from Kurukshetra University in Kurukshetra, Haryana, India. Those documents included attested copies of the claimed Bachelor of Commerce degree together with a Detailed Marks Card (DMC) and the claimed Master of Commerce degree together with a DMC. She also lodged documents to show that she had experience in India working as an Assistant Banquet Manager and as a Banquet Manager.

5    On 27 June 2013 an officer of the Department of Immigration and Citizenship (the delegate) sent an email to the first appellant’s registered migration agent, headed “Invitation to comment on information for a (Class UC) Temporary Business (Long Stay) visa. The email relevantly stated:

Adverse information received

The department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.

The Masters of Commerce degree provided is fraudulent.

You are entitled to comment on this information, which will be considered in making a decision on your application. Please send your response to me using the contact details provided…

(Emphasis added.)

The letter allowed the first appellant 28 days to provide any comments and any further documents upon which she wished to rely.

6    The migration agent responded in a letter dated 24 July 2013 which said that the first appellant had confirmed that she had completed a Master of Commerce from Kurukshetra University in 1990 through Harkrishan Chand Raithkhana College which was affiliated with the university. The migration agent attached copies of two letters, both addressed “To Whomsoever it May Concern”, being:

(a)    a letter from Kurukshetra University dated 20 February 2013 signed by an Assistant Registrar, certifying that Amrit Kaur was registered as a student of the University in the Master of Commerce Program under Registration No. 62DBZ1485 between 1988 and 1990, and had completed the course; and

(b)    a letter from Harkrishan Chand Raithkhana College, Haryana dated 25 February 2013, which was stated to be affiliated with Kurukshetra University, signed by a Director, certifying that Amrit Kaur was registered as a student of the College in the Master of Commerce under Registration Number 62DBZ1485 and Roll Number 4584246 for the examination in 1989-1990, and had “proved herself” in the course.

7    The migration agent’s letter said that the first appellant found it “shocking” that Kurukshetra University had not verified her degree, that she had contacted the university through her family in India, and that it took her family almost 2 weeks “running around” just to get confirmation. It said that there had been a general strike at the university and the regular staff were away from work, and it was possible that the enquiries by the delegate had been attended to by temporary staff members who may not have correctly undertaken the relevant searches of the university records.

8    On 12 November 2013 the delegate again wrote to the migration agent. The letter relevantly said:

Adverse information received

The department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.

On the 17/09/2013 the overseas post [of the Department of Immigration and Border Protection] in New Delhi conducted checks on your qualifications to confirm if they were genuine.

On the 26/09/2013 officers from the New Delhi post met with a staff member from the university. It was explained that the university was on strike for the past 15 days.

On the 04/10/2013 the verification officer from the University stated that the strike is still on and they do not have any idea when it will be off. They will be able to reply to all queries once [the] strike is over.

On the 06/11/2013 the overseas post received an email from the certificate section from the university confirming that the roll no and regd number are not in series. The university confirmed that they were unable to confirm the applicants [sic] records. It is evident that the applicant has provided fraudulent educational documents.

The letter allowed the first appellant a further 28 days to provide any comments and any further documents.

9    On 1 December 2013 the migration agent responded by providing a letter from the first appellant dated 27 November 2013. The letter said that the first appellant could “most certainly attest” to the fact that she had obtained a Bachelor of Commerce and a Master of Commerce from Harkrishan Chand Raithkhana College in the period 1988-1990, and that it was “entirely shocking to comprehend your investigation that the Kurukshetra University has not been able to verify my roll number and registration number.” The first appellant said that the 25 February 2013 letter from Harkrishan Chand Raithkhana College which she had earlier supplied clearly evidenced her qualifications and that the negative response from the university was likely due to “an administrative bungle or bureaucratic mis-governance”.

The delegate’s decision

10    On 24 December 2013 the delegate decided to refuse to grant the first appellant a 457 visa.

11    The delegate’s decision noted that the letters from Kurukshetra University and Harkrishan Chand Raithkhana College and the first appellant’s submissions had been provided to the New Delhi post for further verification of authenticity, and on 6 November 2013 the university “again confirmed to the overseas post that the applicant’s degree certificate is fraudulent as applicant’s records cannot be found on the university roll.”

12    The decision relevantly stated:

On the 06/11/2013 the University again confirmed to the overseas post [of the Department] that the applicant's degree certificate is fraudulent as applicant's records cannot be found on the University roll.

(…)

I have acknowledged all information on file till [sic] and I have serious concerns about that the applicants claimed skills to perform in the nominated occupation. Though the applicant claimed that she completed her degree 23 years ago, she managed to obtain a recent letter (dated February 2013) allegedly from the University and signed by the University's Assistant Registrar. I therefore have serious concerns that an institution which had recently issued a letter to the applicant could not recognize the applicant on its records. I am therefore satisfied that the applicant's degree certificate may have been fraudulently obtained.

Given the above inconsistencies, I cannot place any weight on applicant's claimed 8 years relevant experience. From the above I find it reasonable to consider that the applicant's claims have been embellished only to achieve a migration outcome.

Based on the evidence and information submitted to date, I am not satisfied that the primary applicant has demonstrated that they have the skills necessary to successfully perform the approved nominated occupation.

Therefore, I am not satisfied that paragraph 457.223(4)(e) has been met.

Decision

As the applicant does not satisfy paragraph 457.223(4)(e) of the Regulations, I am not satisfied that the applicant meets the prescribed criteria for grant of a Temporary Business Entry (Class UC visa) - Subclass 457 (Business (Long Stay)) visa.

As one criterion was not satisfied, I have not assessed the application against all other required criteria.

The delegate refused the second appellant’s visa application on the basis that as a member of the family unit he did not satisfy the prescribed secondary criteria for a 457 visa.

13    At that time cl. 457.223(4)(e) of the Migration Regulations 1994 (Cth) (Regulations) provided:

Standard business sponsorship

(4)    The applicant meets the requirements of this subclause if:

…

(e)    if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation - the applicant demonstrates that he or she has those skills in the manner specified by the Minister;

…

The application to the Tribunal

14    On 6 January 2014 the appellants lodged an application for review of the delegate’s decision with the Tribunal.

15    On 8 January 2014 the Tribunal wrote to the first appellant and said that it had requested the Department of Immigration and Border Protection (Department) to provide it with all documents and files which it considered to be relevant to the application.

16    On 11 September 2014 the appellants’ new migration agent sent an email to the Department attaching a Freedom of Information request for all documents in relation to Amrit Kaur Salh and the Tribunal provided the requested material on 17 September 2014.

17    On 11 November 2014 an officer of the Tribunal sent an email to the Department stating:

According to a case note on ICSE dated 12/11/2013…the New Delhi post received an email from the certification section of the University. This email is not on the Department’s file. Could we be sent ASAP by email a copy of this email from the University plus anything relevant to the verification checks conducted regarding the qualifications.

18    On 19 November 2014 the Department provided the Tribunal with a letter dated 6 November 2013 from Kurukshetra University to the Department’s New Delhi post (the University Letter), which concerned checks undertaken by the university in relation to the educational records of six persons. In relation to the first appellant the letter stated as follows:

The Educational record of the candidate has been checked with the record from this University as noted below:

…

19    The material before the Court does not establish whether this letter was included in the Department file earlier provided to the migration agent, but I infer that it was not.

20    On 24 November 2014 the Tribunal wrote to the migration agent and invited the appellants to appear before the Tribunal and present arguments on 22 December 2014 at 11:30 am. Specifically, the Tribunal invited the first appellant to provide:

Evidence that you have the skills that are necessary to perform the occupation of Café or Restaurant Manager if that remains the nominated occupation. The Tribunal specifies that this be demonstrated through oral and documentary evidence of your qualifications and experience provided at the hearing or before it.

21    The scheduled hearing did not proceed because, at 9:26 am on the day the hearing was scheduled, the first appellant sent an email to the Tribunal stating that she was unable to attend due to a medical condition, attaching a medical certificate which did not disclose the nature of the condition. The Tribunal allowed the adjournment and informed the first appellant that the hearing would be adjourned to a date in February 2015.

22    On 7 January 2015 the Tribunal wrote to the migration agent inviting the appellants to appear before the Tribunal on 18 February 2015 at 1:30 pm, and reiterating the earlier request for evidence that the first appellant has the skills necessary to perform the occupation of café or restaurant manager.

23    On 16 February 2015, two days before the re-scheduled hearing, the first appellant sent an email to the Tribunal seeking another adjournment on the basis that her mother was critically ill and she had to travel urgently to India to find a kidney donor for her. She said that she should be back in Australia in two weeks. The Tribunal allowed the adjournment.

24    On 17 February 2015 the Tribunal wrote to the migration agent inviting the appellants to appear before the Tribunal on 26 March 2015 at 1:30 pm. The letter said that the Tribunal was “unlikely to postpone again without good reason” and invited the appellants to produce the same evidence as in the earlier letters.

25    The first appellant did not however attend the hearing on 26 March 2015. Forty-five minutes before the hearing was due to commence she sent an email to the Tribunal attaching an undated letter (the 26 March 2015 Letter). It stated:

To whom it may concern

I Amrit Kaur Salh ‐ MRT CASE NUMBER 1400240, would like to write this letter of apology to the Australian Government and to the department of immigration for producing documents that were stated fraudulent by the department.

The degree that I provided to the department was based on the education which I did with the university back in 1990. After all these years it came as a shock to me that the university where I studied no longer existed and my degree did not hold any value. I had no idea about this until I was informed by the department. I put in a lot of effort and commitment to achieve this degree and it has been extremely emotional for me as I came to this country with a lot of hope.

I have never nor will I ever do anything against the law. I came to this beautiful country because it is a land of opportunities and I see a bright future here for me. I am very hard working and would like to show case my skills to this country. None of this was done intentionally; I was not given the right guidance and unfortunately I am facing the consequences.

I am happy to take any steps required by the department for re considering my application. I would deeply appreciate if the Australian government and the Department of Immigration could give me another chance and re consider my application and help me to have a brighter future in this country which feels like home.

Regards,

Amrit Kaur Salh

26    On 10 April 2015 the Tribunal decided to affirm the delegate’s decision not to grant the appellants 457 visas. The Tribunal set out the background to the decision (at [4]-[8]):

4.    The delegate refused to grant the visas on 24 December 2013 on the basis that cl.457.223(4)(e) was not met because the delegate found that the applicant had submitted fraudulent documents to show she has a Masters of Commerce. The delegate gave no weight to the applicant's claimed experience for 8 years as a banquet manager.

5.    The Tribunal wrote to the applicants on 17 February 2015 advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 26 March 2015. They were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice. This was the third time that the Tribunal had invited the applicants to appear before the Tribunal, as the Tribunal had agreed to requests to postpone the 2 previous hearings. The invitation also invited the applicants to provide evidence that the applicant has the skills necessary to perform the occupation of Café or Restaurant Manager. The invitation was sent to the authorised recipient and a copy of the invitation was also sent to the visa applicants’ personal email address.

6.    No response was received to the invitation but on 26 March 2015 the first named applicant sent the Tribunal an email in which he states that she wants to apologise for producing documents which were said to be fraudulent. The degree she provided related to a university she attended in 1990. She was shocked to discover that the university no longer exists and her degree holds no value. She did not know this until the Department told her. She had put a lot of effort into the degree. She came to Australia for a better future and is very hard-working and would not do anything outside the law. She was not given the right guidance and is unfortunately facing the consequences. She would appreciate it if her application was reconsidered.

7.    The applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. In these circumstances, and pursuant to s 362B of the Act, the Tribunal had decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

8.    For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

27    Under the heading “Consideration of Claims and Evidence” the Tribunal said (at [9]-[10]):

9.    The issue in the present case is whether the primary visa applicant meets the requirements of cl. 457.223(4)(e).

Skills, qualification and employment background of the applicant

10.    Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl. 457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.

28    The Tribunal then traversed the requirements for the nominated occupation of restaurant and café manager and the documents the first appellant had provided in relation to her work experience and qualifications. In relation to the first appellant’s qualifications the Tribunal said (at [16]):

The Tribunal has considered if the applicant has a qualification equal to an advanced Diploma or Diploma. However, on the basis of the visa applicant's letter of 26 March 2015 in which the applicant states that the university where she obtained her qualification is no longer in existence, the Tribunal is of the view that it is not possible to verify the qualifications. The applicant also writes that her degree holds no value and on this basis the Tribunal is not satisfied that the visa applicant has a qualification equal to an advanced Diploma or Diploma.

29    The Tribunal next considered if the first appellant had at least three years of relevant experience. It said (at [17]-[21]):

17.    The Tribunal has next considered if the visa applicant has at least 3 years of relevant experience. The visa applicant claims she was a banquet manager for more than 3 years and that her duties included menu development, banquet hall set up/arrangements, food service and food expedition, guest relations and ordering and supplies, staff training and collaboration, staff supervision and hiring. The Tribunal invited the visa applicant to appear before the Tribunal so that the Tribunal could ask the applicant about her work experience in order to assess whether the applicant has the necessary skills and employment background. The issue and the way in which the applicant was asked to demonstrate that she has the necessary skills and employment background to perform the nominated occupation was specified in the hearing invitation. However, despite the hearing being postponed twice to accommodate the visa applicant, she did not avail herself of the opportunity to appear before the Tribunal and she did not provide any additional information about her employment background.

18.    The visa applicant's resume and visa application and references do not satisfy the Tribunal that she has an employment background suitable for the occupation of restaurant and café manager, as the documents are short on detail and the Tribunal also notes that the visa applicant gave up being a banquet manager in 2008 and appears to have completely changed careers. The applicant did not attend the scheduled hearing. The Tribunal has not had the opportunity to explore with the applicant the work she actually performed as a banquet manager including the size of the banquets, the planning and organisation required of the applicant, the extent to which she planned menus with the chef, whether she was responsible for arranging the purchasing and pricing of goods according to budget, whether she maintaining records of stock levels and financial transactions [sic], if she was responsible for hiring and training staff and for ensuring OH&S regulations were met, and if she took bookings and the extent of her contact with customers. The Tribunal is therefore unable to make positive findings about the claimed work experience and employment background of the visa applicant. The Tribunal does not find that there is sufficient evidence for it to be satisfied that the applicant has the employment background and skills which the Tribunal considers necessary for the applicant to perform the tasks of the nominated occupation of Restaurant or Cafe Manager.

19.    The Tribunal is not satisfied on the basis of the available information that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. The Tribunal is also not satisfied that the applicant has demonstrated that she has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

20.    For these reasons the applicant does not satisfy the requirements of cl. 457.223(4)(da) and cl.457.223( 4)( e).

21.    For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457 .223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

30    The Tribunal affirmed the delegate’s decision not to grant 457 visas to the appellants.

The application to the Federal Circuit Court

31    On 11 May 2015 the appellants filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. The amended application alleged that:

1.    The [Tribunal] fell into jurisdictional error, in making the Decision, by contravening sections 357A and/or 359 of the Migration Act 1958 (Cth).

Particulars

(a)    On or about 11 November 2014, the Second Respondent sought and obtained a copy of verification checks conducted by the Department of Immigration and Border Protection regarding the First Applicant’s qualifications.

(b)    Among the verification checks was a document received by the New Delhi office (or “post”) of the Department from Kurukshetra University:

i.    indicting [sic] that the educational record of the First Applicant could not be verified “due to Roll No. & Regn. No. are not in series”; and

ii.    stating “please supply the original DMCs/Degrees for further necessary action”.

(c)    The tribunal was obliged, pursuant to sub-section 359(1) of the Act, to have regard to that document, and the information contained in it, in making the decision under review, but failed to do so.

2.    The Second Respondent’s exercise of power in making the Decision was legally unreasonable because the following findings of the Second Respondent had no logical, rational or probative basis:

(a)    that the Applicant’s university was no longer in existence;

(b)    that it was not possible to verify the Applicant’s qualifications;

(c)    that the Applicant had stated that her degree holds no value.

32    On 23 July 2018 the learned primary judge dismissed the application. In summary his Honour made the following relevant findings:

(a)    the failure of the Tribunal to refer expressly to the University Letter did not necessarily amount to jurisdictional error because s 368 of the Act only required the Tribunal to refer to evidence on which its findings of fact were based (at [31]);

(b)    the University Letter was not necessarily relevant to the Tribunal’s finding that it was not satisfied that the first appellant had a qualification equal to a diploma or an advanced diploma because that finding was based on what the first appellant had said in the 26  March 2015 Letter and could be reached without reference to the University Letter (at [32]);

(c)    the Tribunal was entitled to accept the first appellant’s evidence concerning her university and the appropriate inference to draw, particularly as the Tribunal was aware of the basis of the delegate’s decision, is that the Tribunal had regard to the University Letter but made no reference to it because it was not relevant to the finding in question (at [33]).

(d)    even if the Tribunal’s decision was affected by jurisdictional error, remitting the matter back to the Tribunal for determination would be a futile course because of changes made to the subclass 457 visa regime in the period following the review the subject of the proceeding below, which have the effect that the first appellant is no longer entitled to be approved for nomination for a 457 visa by a standard business sponsor (at [36]-[43]).

The appeal to this Court

33    On 21 August 2019 the appellants filed a notice of appeal from the orders of the Federal Circuit Court.

34    By an Amended Notice of Appeal dated 20 February 2020 the appellants allege the following grounds:

1.    In circumstances where the critical issue before the Second Respondent was whether the First Appellant had a genuine qualification from a university, and whether that university existed, the Court erred in finding that:

a.    it was not a denial of natural justice for the Second Respondent to fail to have regard to a letter from that university (the University Letter) and to instead rely exclusively on the First Appellant’s letter of 26 March 2015;

b.    it was not legally unreasonable for the Second Respondent to fail to have regard to the University Letter and to instead rely exclusively on the First Appellant’s letter of 26 March 2015.

2.    It was a denial of natural justice for the Second Respondent to fail to disclose to the First Appellant the full effect of the University Letter, particularly that the university had requested that the Department ‘please supply the original DMCs/degrees for further necessary action’.

3.    The Court erred in finding that it was futile to remit the matter to the Second Respondent. The Court ought to have found that the Appellants had an accrued right to have their applications determined to law.

35    Grounds 1 and 2 both concern the Tribunal’s consideration of the University Letter and the 26 March 2015 Letter and allege that the Tribunal fell into error by:

(a)    failing to have regard to the University Letter and instead relying on the first appellant’s 26 March 2015 Letter, which the appellants allege involved a denial of natural justice and was also legally unreasonable; and

(b)    failing to disclose to the first appellant the full effect of the University Letter, being that the university had been unable to verify the first appellant’s degrees and had requested the Department supply further information to enable it to do so, by stating “please supply the original DMCs/Degrees for further action”, which the appellants allege was a further denial of natural justice.

36    Ground 2 was raised for the first time in the course of the appeal hearing. The Minister did not oppose the appellants’ application to amend the Notice of Appeal to include this ground and I have granted leave for the amendment.

37    Ground 3 of the appeal only arises for consideration if one of grounds one or two succeed, because the question as to whether there is any possible utility in remitting the matter to the Tribunal to be re-determined only arises if it is found that the Tribunal’s original decision is affected by jurisdictional error.

The Appellants’ submissions

Failure to have regard to the University Letter

38    The appellants’ contention that the Tribunal failed to have regard to the University Letter is based in the fact that the Tribunal’s reasons make no reference to it. They describe the University Letter as independent correspondence between the Department and the university which negatived any suggestion that the university does not exist or that the first appellant was suggesting as such in the 26 March 2015 Letter. The appellants also argue that if the information in the University Letter had been considered by the Tribunal it could not reasonably have construed the 26 March 2015 Letter as suggesting or admitting that the university did not exist, particularly having regard to the fact that:

(a)    English is the first appellant’s second language;

(b)    the relevant statement in the letter was ambiguous because it conflated the Department’s statement that the first appellant’s degree was fraudulent with the proposition that Kurukshetra University did not exist;

(c)    the letter that the first appellant was not aware that the university did not exist “until I was informed by the Department” and that qualification indicated that her statement was a subjective response to the information received from the Department indicating her degree could be fraudulent; and

(d)    the University Letter was an objective record before the Tribunal which demonstrated the existence of the university.

39    The appellants argue that the Tribunal was obliged by ss 357A and 359 of the Act to give the University Letter genuine consideration. Those sections relevantly provide as follows:

s 357A Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)    Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

s 359 Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

…

(Emphasis added.)

40    As to the requirement in s 359(1) “to have regard to information”, the first appellant relies on Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [58]-[59] where Sackville J said:

The expression “have regard to” suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.

I doubt that much is to be gained by attempting to be more precise about the extent to which the Minister is bound to consider the information in the application in order to comply with s 54(1) of the Migration Act. In A v Pelekanakis, Weinberg J said that the duty imposed by s 54(1) would not be discharged “if no realistic regard is had to [the] information” (at 82): see also Wen v Minister, at [56]. I would not dissent from that proposition, although I would add that for consideration to be “realistic” or “genuine” (cf Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, at [105], per Gleeson CJ and Gummow J), there must be what Black CJ has described as “an active intellectual process” directed at the information: Tickner v Chapman (1995) 57 FCR 451, at 462; see also at 495, per Kiefel J. The extent of the required intellectual process must depend on the nature of the information and its degree of relevance: Tickner v Chapman, at 462-463.

: See also Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34] (Katzmann, Griffiths and Wigney JJ); NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [207]-[212] (Hill, Madgwick & Conti JJ).

41    The appellants submit that the University Letter was material to the Tribunal’s consideration and it was therefore required to refer to the University Letter in its reasons. They argue that it is appropriate to infer that the Tribunal failed to give genuine and realistic consideration to all the information available to it and that the primary judge erred in holding (at [33]):

The Tribunal appears to have accepted unquestioningly the first applicant’s assertions it was no longer possible to verify her qualifications, and that her degree was worthless, and to have been uninterested in, and to have placed no weight on, her statement that the information she had concerning the existence of her university had been provided by the Department and that it had come as a shock to her. The Tribunal was entitled to accept the first applicant’s evidence concerning her university. More importantly, the University Letter did not contradict that evidence and, as was noted earlier, was not necessarily relevant to its acceptance. That being so, the appropriate inference to draw, particularly as the Tribunal was aware of the basis of the delegate’s decision, is that the Tribunal had regard to the University Letter but made no reference to it because it was not relevant to the finding in question.

42    The appellants also say that no registration number is noted in item 5 of the University Letter and that the roll number in the DMC for the first appellant’s Master of Commerce is different to one of the roll numbers which appears on a DMC for the degree which was in evidence. They submit that there are points at which the different numbers match up on the documents and other points where they do not, and that the Tribunal may have come to a different outcome if it had:

(a)    made a supplementary request to the Department to provide the original degrees and DMCs to the university to enable further enquiries by the university; or

(b)    provided the University Letter to the first appellant so that she could make a supplementary request to the university by providing the original DMCs and degrees.

They argue that the Tribunal failed to accord the appellants procedural fairness by failing to take steps which would have allowed the legitimacy of the first appellant’s qualifications to be further verified.

Failure to disclose the full effect of the University Letter

43    Under ground 2 of the appeal, the appellants submit that they were denied procedural fairness by the failure of the Tribunal to disclose to the first appellant the full effect of the University Letter, which included a request from the university that the Department “please supply the original DMCs/Degrees for further action”. They argue that the request by the university for original documents indicated that there was some further step towards verification which could have been taken and therefore procedural fairness required the Tribunal to disclose to the first appellant that the university had suggested a further avenue for verification of her qualifications.

44    The appellants rely on s 359A of the Act which relevantly provides as follows:

359A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

  (c)    invite the applicant to comment on or respond to it.

…

45    The appellants submit that the information that the first appellant’s degrees were not verified and the university had proposed a step for further action constituted information which s 359A required the Tribunal to give clear particulars about to the appellants and cite in support of that proposition SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (SZBYR) at [17] (Gleeson CJ, Callinan, Heydon and Crennan JJ) and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (SZMCD) at [71] (Tracey and Foster JJ).

Legal unreasonableness

46    Under ground 1(b) of the appeal the appellants allege that it was legally unreasonable for the Tribunal to make the decision on the review without having regard to the University Letter and instead relying only on the 26 March 2015 Letter. They contend that it was unreasonable in the requisite sense for the Tribunal to rely on facts stated in the 26 March 2015 Letter in the context of objective evidence to the contrary.

47    They contend that no reasonable administrative decision-maker could interpret the first appellant’s 26 March 2015 Letter as a statement of affirmative fact that “the university where I studied no longer existed and my degree did not hold any value”, when the Tribunal had objective evidence, including the University Letter itself, that indicated that it in fact continued to exist. In essence they submit that the 26 March 2015 Letter had no probative evidentiary value, and no reasonable decision-maker would have treated it as supporting the conclusion that Kurukshetra University did not exist.

48    They also submit that the Tribunal’s decision shows legal unreasonableness by finding that “it is not possible to verify the qualifications”. They argue that having regard to the University Letter, which invited the Department to “supply original DMCs/Degrees”, no reasonable decision-maker would have relied on the evidence available instead of taking further steps to verify the claimed tertiary qualifications. They submit that the Tribunal’s exercise of two power under the Act was unreasonable in the requisite sense, namely:

(a)    the power under s 362B of the Act to make a decision on the review without taking any further action to enable the appellants to appear before it; and

(b)    the power under s 359C to make a decision on the review without taking any steps to obtain further information from the appellants.

49    In relation to s 359C the appellants contend that the Tribunal having been provided the University Letter which contained a request “to supply original DMCs/Degrees for further necessary action”, it was legally unreasonable for it to find, in effect, that it was no longer possible to verify her qualifications. They argue that, in the circumstances, a reasonable decision-maker would have exercised its discretion under s 359C to seek original DMCs and/or degrees from the first appellant and then provide them to the university before making a decision on the review.

50    The appellants point to four features of the circumstances surrounding the exercise of the Tribunal’s discretion, to make a decision without taking further action to either enable the appellants to appear before it or to obtain further information from the first appellant, which make that decision legally unreasonable: (a) that the authenticity of the tertiary qualification was critical to the determination of the visa application; (b) that the university had given a clear request for a particular piece of information that could be provided in order to confirm whether or not the first appellant was enrolled; (c) that the matters that the university had asked for were not matters that the first appellant already knew about and so could be expected to have already provided if available; and (d) that there are issues on the face of the University Letter, such as the absence of the registration number for the second qualification and a differences in the roll numbers between that letter and the Master of Commerce that would support the need for further inquiry before the Tribunal could be satisfied that the degrees were not properly obtained.

Consideration of grounds one and two

51    The Tribunal’s task was to conduct a review the delegate’s decision, who was not satisfied that the first appellant met the relevant criteria for the grant of a 457 visa on the basis that she had not met the requirement under cl. 457.223(4)(e) of the Regulations to demonstrate that she has the skills necessary to perform the nominated occupation. The decision was largely based in the delegate’s “serious concerns” that the university, which on the first appellant’s account had recently issued letters of confirmation to her, could not recognise her on its records. The delegate had concluded that the degree certificate “may have been fraudulently obtained”.

52    Clause 457.223(4)(da) of the Regulations required the first appellant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. Under cl. 457.223(4)(e), she was required to demonstrate that she has the skills necessary to perform the occupation, in the manner specified by the Minister. The central issue for the Tribunal was whether on the material before it the first appellant had satisfied it that she had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of café or restaurant manager.

53    The effect of s357A of the Act is that Division 5 of Part 5 of the Act is a code which sets out the totality of the procedural fairness requirements imposed upon the Tribunal.

54    I am not persuaded that the Tribunal fell into jurisdictional error in any of the ways alleged and I can discern no appealable error in the primary judge’s decision.

Failure to have regard to the University Letter

55    It is convenient to deal with both limbs of the first ground together as they rely on similar arguments.

56    First, and importantly, the Tribunal invited the first appellant to attend before it to give evidence, produce documents, and present arguments on no less than three occasions. It specifically requested her to produce evidence that she has the skills that are necessary to perform the occupation of café or restaurant manager. It put her on notice that the question as to whether her qualifications were genuine was an issue in the review.

57    The first appellant failed to make use of the opportunities afforded for her to establish her entitlements to the 457 visa she sought and instead she provided the Tribunal with the 26 March 2015 Letter. In those circumstances the Tribunal decided it was appropriate pursuant to ss 362B and 359C to make a decision on the review on the material which was before it, including the 26 March 2015 Letter. That does not show a failure to accord natural justice or legal unreasonableness by the Tribunal.

58    Second, the chapeau to grounds 1(a) and (b) of the appeal alleges that the “critical issue” before the Tribunal was whether the first appellant “had a genuine qualification from a university and whether that university existed.” But the question as to whether the Kurukshetra University existed was not an issue before the Tribunal at all, let alone a critical issue, and the Tribunal did not find that the university did not exist. As I have said, the Tribunal stated (at [16]):

The Tribunal has considered if the applicant has a qualification equal to an advanced Diploma or Diploma. However, on the basis of the visa applicant’s letter of 26 March 2015 in which the applicant states that the university where she obtained her qualification is no longer in existence, the Tribunal is of the view that it is not possible to verify the qualifications. The applicant also writes that her degree holds no value and on this basis the Tribunal is not satisfied that the visa applicant has a qualification equal to an advanced Diploma or Diploma.

(Emphasis added.)

On a fair reading the Tribunal reiterated the first appellant’s statement and concluded only that it was unable to verify the claimed qualifications.

59    That conclusion was unsurprising when, under cl. 457.223(4)(e) of the Regulations, the first appellant was required to demonstrate that she has the skills necessary to perform the occupation in the manner specified by the Minister. She had almost two years to address the concerns raised by the delegate in that regard, including the genuineness of her qualifications, and had not done so. She had adjourned two hearings of the Tribunal at short notice and then she had written to the Tribunal on the morning of the re-scheduled third hearing, which she again did not attend, and in effect accepted that she was unable to address the Tribunal’s stated concerns. Her statement that the university “no longer existed” was incorrect but the letter plainly indicated her inability to take her visa application any further by providing additional evidence of her skills and qualifications including as to the genuineness of the claimed qualifications. In those circumstances it was open to the Tribunal to conclude that it was unable to verify her claimed qualifications, and I can see no absence of natural justice or legal unreasonableness in the Tribunal’s approach.

60    Third, s 368(1)(d) of the Act required the Tribunal to refer to the evidence on which the findings of fact were based. But the Tribunal’s statement that it “is of the view that it is not possible to verify the qualifications” is not a finding of fact and it is better understood as an explanation of the Tribunal’s state of satisfaction in the context of the 26 March 2015 Letter and overall. But even if it is taken to be a finding of fact, the University Letter itself was not critical to any such finding. What was critical was that the Tribunal correctly understood that the university had been unable to verify the first appellant’s claimed qualifications, which information had been directly communicated to the first appellant on numerous occasions.

61    Further, having obtained the University Letter under s 359 the Tribunal was required to have regard to the document, but it was not required to refer expressly to the document or to rely upon the document in its reasoning. In my view it is not appropriate to infer that the Tribunal did not have regard to the information in the University Letter. The Tribunal concluded from the letter and other information from the Department file that the university had been unable to verify the first appellant’s qualifications, and therefore invited her to put on documentary or oral evidence to satisfy it that she had the necessary skills to perform the nominated occupation. Instead, it is appropriate to infer that the absence of direct reference to the University Letter indicates that the Tribunal did not consider the letter itself to be material to its decision: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, [69] (McHugh, Gummow and Hayne JJ). That is especially so when the first appellant failed to submit any further evidence in response to the Tribunal's invitation and did not appear at the hearing.

62    That did not involve a breach of natural justice. Nor was the Tribunal in breach of s 359 of the Act. The primary judge did not err by declining to infer that the University Letter was not considered by the Tribunal.

63    Fourth, in circumstances where the first appellant was on three occasions invited in writing to provide information to the Tribunal to show that she had the necessary skills and qualifications, and where she failed to do so, there is little merit in her contention that it was legally unreasonable for the Tribunal to make a decision on the review under ss 362B and 359C without taking further action to allow her to appear or to obtain further information. I accept that the University Letter is capable of being understood as inviting the Department to provide original DMCs and/or degrees to the university but it said, in terms, that the claimed qualifications are “not verified” because the roll numbers and registration numbers provided to the Department by the first appellant were “not in series”. That is enough to show that it was open to reach the conclusion that it was appropriate to make a decision on the review without taking any further action.

64    The appellants do not contend that the Tribunal had an obligation to obtain original documents from the first appellant, only that it should have exercised its discretion to do so before making a decision on the review. The appellants did not point to any authority for the proposition that the discretions afforded to the Tribunal under ss 362B and/or 359C to proceed to make a decision after the first appellant’s non-attendance at a Tribunal hearing, without taking any further action to allow or enable her to appear before it or to obtain further information, will necessarily have been unreasonably exercised if there is some further step possible to clarify a fact in dispute. That submission gives insufficient attention to cl. 457.223(4)(e) which places the onus on the appellants to demonstrate that the first appellant “has those skills in the manner specified by the Minister”.

65    While in my view it would have been preferable for the Tribunal to seek original DMCs and/or degrees from the first appellant, in circumstances where the university had twice said that the degrees were not genuine, the Tribunal had so informed the appellants, and yet they adduced no further material and did not attend the hearing, it was open to it to decide that the they had been given ample opportunity to present oral and documentary evidence and had not done so. I do not accept that making a decision on the review without taking any further action to allow or enable the first appellant to appear before the Tribunal or to obtain further information were decisions which no rational or logical decision-maker could reach on the evidence: see Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[135] (Crennan and Bell JJ). The decision was not unreasonable in the requisite sense.

66    Fifth, the appellants’ submission regarding the discrepancy between the roll numbers involves speculation and it is not clear on the face of the materials that an administrative error of the kind asserted by the appellants did in fact occur. What is clear is that the roll numbers and registration numbers that appear in the University Letter correspond to numbers found in material provided by the first appellant to the Department and the university was not able to verify them.

67    The discrepancy does not show procedural unfairness in the circumstances. The delegate found that the first appellant had submitted fraudulent documents, the Tribunal invited her to give documentary or oral evidence as to her qualifications and experience, and she did not take that opportunity and instead sent a letter to the Tribunal which effectively conceded her inability to establish her qualifications. Mere speculation that some manner of an administrative error may have occurred is insufficient in that context.

68    Sixth, jurisdictional error is the expression not simply of the existence of error but of the gravity of that error: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] and [30] (Kiefel CJ, Gageler and Keane JJ). In the circumstances the appellants must establish that if (contrary to my view) the Tribunal erred by failing to have regard to the University Letter, that there is a realistic possibility that the Tribunal might have reached a different decision on the review. However, the University Letter revealed nothing further about the first appellant’s qualifications, her 26 March 2015 Letter said that her degree “did not hold any value”, and she declined to attend the Tribunal hearing. In those circumstances, I do not accept that there is a realistic possibility that any failure to have regard the University Letter might realistically have led to a different outcome.

69    Seventh, the four reasons that the appellants raise as pointing towards legal unreasonableness (noted above at [51]) are reasons why it was appropriate for the Tribunal to give the first appellant a chance to give oral evidence and present arguments at a hearing. It does not follow that, once that opportunity was provided and the first appellant did not appear and sent the 26 March 2015 Letter, it was unreasonable for the Tribunal to proceed to make a decision without taking further steps.

Failure to disclose the full effect of the University Letter

70    The obligation to give clear particulars of information under s 359A(1) only arises in relation to information “that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review”.

71    Nothing in the Tribunal’s reasons indicate that the fact that the university had requested more information to further verify the authenticity of the degrees was “the reason or a part of the reason” for its decision. The Tribunal affirmed the decision because it could not be satisfied on the material that the first appellant’s qualifications were genuine. It invited the appellants to a hearing to present further evidence on that question, and the appellants did not take the opportunity to appear before it. Clause 457.223(4)(e) of the Regulations required the first appellant to demonstrate that she has relevant skills in the manner specified by the Minister, and she did not so satisfy the Minister.

72    Neither of the authorities which the appellants cite in support of their contention with respect to s 359A(1) are particularly helpful for their case.

73    The plurality in SZBYR said at [71]:

…The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

74    The plurality in SZMCD said at [71] about s 424A of the Act, which is relevantly analogous to s 359A:

The policy and purpose reflected in s 424A is that the Tribunal should be compelled:

(a)    To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;

(b)    To ensure that the visa applicant understands the significance of those matters to the decision under review; and

(c)    To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

75    The obligation to disclose “information that the Tribunal considers would be the reason, or a part of the reason for affirming the decision under review” does not mean that the Tribunal was required to disclose to the appellants that the University had invited provision of original degrees, rather than to disclose as it did that the genuineness of the first appellant’s qualifications was an issue in the review. The Tribunal put the appellants on notice of the critical matter - that on the materials before it the Tribunal could not be satisfied that the first appellant had the necessary skills and qualifications to perform the tasks of the nominated occupation including that there was an issue as to the whether the first appellant’s claimed qualifications were genuine. It offered them the opportunity to comment on or to respond to those matters, which was spurned by the appellants who provided no further evidence and elected not to attend the Tribunal hearing.

Ground Three

76    The question as to whether there is any utility in remitting the matter to the Tribunal to be re-determined only arises if it is found that the Tribunal’s original decision is affected by jurisdictional error. Given my finding on grounds 1 and 2, it is unnecessary to decide this ground.

Conclusion

77    It is appropriate to dismiss the appeal and order the appellants to pay the Minister’s costs.

Associate:

Dated:    18 March 2020