Federal Court of Australia

Sri Guru Gobind Singh Transport Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 118

ORDERS

THE COURT ORDERS THAT:

1.    In appeal numbered QUD 189 of 2021, it is ordered that:

(a)    The appeal be dismissed.

(b)    The appellant pay the first respondent’s costs of the appeal.

2.    In appeal numbered QUD 190 of 2021, it is ordered that:

(a)    The appeal be dismissed.

(b)    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    These reasons deal with appeals from two related proceedings in the Federal Circuit Court of Australia (FCC). There, the applicant had unsuccessfully sought judicial review of two decisions of the Administrative Appeals Tribunal (the Tribunal). They were as follows:

(a)    On 13 May 2020 the Tribunal had affirmed a decision pursuant to s 140M of the Migration Act 1958 (Cth) (the Act) to cancel the approval previously given to the applicant, Sri Guru Gobind Singh Transport Pty Ltd (SGGS Transport) to be a “standard business sponsor” under the Act and to bar it from making future applications for approval as such a sponsor pursuant to s 140M. This decision is the subject of proceedings BRG333/2020 and QUD 189/2021. The Tribunal’s decision can conveniently be described as the “sponsorship decision”.

(b)    On 15 July 2020 the Tribunal affirmed a decision to refuse the nomination of Mr Harpreet Singh, Harkiran Kaur Khangura and Dhanveer Kaur as sponsored persons as had been proposed by SGGS Transport. This decision is the subject of proceedings BRG467/2020 and QUD 190/2021. In these reasons that decision is referred to as the “nomination decision”.

2    Necessarily, the matters overlap as do the several grounds on which review was sought before the FCC and which are relied upon in the appeals.

Background

3    It is necessary to set out some of the background in detail for the purposes of identifying and addressing the issues in dispute.

4    In April 2013, Mr Harpreet Singh (Mr Singh) made an unrelated application for a Sub-class 457 visa in relation to a sponsored position. The sponsor was not SGGS Transport. In support of that application he had made a declaration to the Immigration Department (the Department) in which he identified that his brother, Mr Rajbeer Khangura, lived in Australia at Surfers Paradise. The application disclosed that Mr Singh’s address was the same as his brother’s.

5    On 3 May 2013, Mr Singh was granted the visa for which he had applied.

6    The following year on 1 August 2014, SGGS Transport made an application for the approval of the nomination of Mr Singh for the position of “transport company manager”. Accompanying the application was an undated reference under the hand of a Mr Gurcharan Singh and on a letterhead of sorts purporting to be of the company “Khangura Transport Pvt Ltd”. A second reference, also purportedly under the hand of Mr Gurcharan Singh and on the same letterhead but dated 15 September 2014 was also included, as was a résumé of Mr Singh. Although the information in the two letters is not consistent, they each indicated Mr Singh performed or acted in the role of an Assistant Manager of Khangura Transport Pvt Ltd (Khangura Transport) from 2007 to 2010.

7    On 19 August 2014, SGGS Transport was approved as a standard business sponsor pursuant to s 140E of the Act.

8    On 20 October 2014, the Minister approved the nomination of Mr Singh on behalf of SGGS Transport.

9    On 23 December 2016 the Australian Border Force (ABF) wrote to SGGS Transport, via its migration agent, informing it that it had been identified for monitoring as part of the Department’s activities to ensure sponsors were complying with sponsorship obligations. The letter requested that SGGS Transport provide records relating to Mr Singh.

10    As the original approval of the nomination of Mr Singh was due to expire in mid-2017, on 6 January 2017, SGGS Transport made a further application for approval of his nomination to a sponsored position.

11    On 28 February 2017, ABF officers attended SGGS Transport’s premises and interviewed Mr Khangura. The ABF record of that interview states:

[Mr Khangura] stated not really much when asked by Officer Holden if he knew Harpreet Singh before he got the job with the company. [Mr Khangura] then stated that he had seen him India (sic) but he was not a good friend. He had met him in India. He was given the job because his background was suitable.

12    In the course of questioning it appears that Mr Khangura informed the ABF that prior to Mr Singh’s employment he had advertised the position of transport manager through the websites of “Gumtree” and “Seek”. He claimed that there were few applicants for the position but that Mr Singh had the required experience. It was in this context that he made the above statement.

13    Subsequently, the ABF interviewed Mr Singh by telephone. Its records disclose that Mr Singh told the ABF that Mr Khangura was, in fact, his brother and that he, his wife and child lived at Mr Khangura’s house together with Mr Khangura’s wife and child.

14    On 27 March 2017, the Department informed SGGS Transport that it was considering taking action under s 140M of the Act which might include barring it or cancelling its sponsor’s approval.

15    On 1 June 2017, a delegate of the Minister made a decision under s 140M cancelling the sponsor’s approval.

16    On 6 July 2017, a delegate then made the decision to refuse the approval for the nomination of Mr Singh.

17    SGGS Transport made separate applications to the Tribunal to review both decisions.

The Tribunal’s sponsorship decision

18    On 13 May 2020, the Tribunal made the sponsorship decision. In its reasons it recorded that the cancellation of SGGS Transport as a standard business sponsor followed from it having provided false or misleading information on two occasions; being in the nomination of Mr Singh and during the site visit on 28 February 2017 by the ABF. The Tribunal also recorded that the hearing in relation to the sponsorship decision was heard conjointly with the hearing in relation to the nomination decision.

19    The Tribunal identified that, in order for the Minister to take action under s 140L of the Act to cancel approval of a sponsor under s 140M, he must be satisfied pursuant to reg 2.90 of the Migration Regulations 1994 (Cth) (Migration Regulations) that the sponsor has provided false or misleading information to the Department or the Tribunal. It recorded that Mr Khangura of SGGS Transport had been asked whether he knew Mr Singh prior to his applying for the role and that he had provided false or misleading denials as have been set out above. It further recorded that the ABF was concerned as to whether Mr Singh had the experience for the position of transport manager and it had found that the work experience evidence provided for Mr Singh’s initial nomination in 2014 had been wholly contrived by SGGS Transport to secure Mr Singh’s continued presence in Australia. The Department had formed the view that the references as to Mr Singh’s practical experience in the transport industry in India had been fabricated.

20    Before the Tribunal it was submitted that Mr Khangura, on behalf of SGGS Transport, had not provided false or misleading information when interviewed by the ABF on 28 February 2017. It was argued that Mr Khangura had not been asked how he knew Mr Singh and that the statement that he knew him from India was, in effect, not false. This submission was, perhaps unsurprisingly, rejected by the Tribunal. It also rejected an explanation proffered by Mr Khangura for his false statements, being that he was under work related stress at the time and he feared that his relationship to Mr Singh would lead to a visa refusal in the future. As a result it concluded that Mr Khangura’s response to the ABF that he knew Mr Singh “not much” was false given their domestic relations. It also concluded that Mr Khangura’s response was a lie by omission and that he intended to mislead the ABF to believe that there was not a familial relationship between himself and Mr Singh. Therefore, in his capacity as director of SGGS Transport, he had provided false and misleading information.

21    The Tribunal also found that Mr Khangura had provided false or misleading information at the time of Mr Singh’s nomination in 2014 and during the investigation by the ABF. It examined the evidence relating to Mr Singh’s alleged work experience with Khangura Transport in India in the period between May 2007 and February 2010 which had been provided. It then observed that, according to his résumé, Mr Singh claimed to have completed a Diploma of Pharmacy in India and had been working as a manager for the Subash Medical Store between May 2007 and April 2010. The résumé made no mention of working for Khangura Transport during that period or at all.

22    It also observed that the purported references from Khangura Transport were inconsistent. One said that Mr Singh was a regular and ongoing volunteer whilst the other asserted that he was an assistant transport manager earning Rs25,000 per month. For the purposes of the hearing before the Tribunal, SGGS Transport had adduced further material on this issue and, in particular, an affidavit by Mr Gurcharan Singh, the former director of Khangura Transport and father of Mr Singh and Mr Khangura. It largely repeated the assertions in the letters of reference, although it remained vague as to whether Mr Singh was an employee or merely assisted on a voluntary basis. The affidavit also asserted that there were no documents from the business, which had been closed some nine years previously. A further letter was produced, purportedly being from a company called Pb National Enterprises, in which the owner, Mr Sukhwinder Singh, asserted that he had many dealings with Mr Singh in his capacity as Assistant Manager of Khangura Transport.

23    The Tribunal was not convinced by this new evidence and at [32] of its reasons stated:

The story the Tribunal is now told is that Khangura Transport Pvt Ltd was a small family business, established after Mr Khangura and Mr Singh’s father, Gurcharan Singh, left work as a Professor. Although the company purportedly operated for an 8-year period between 2003 and 2011, there is not a skerrick of legal evidence, pay evidence, accounting evidence, regulatory evidence, website evidence, or any evidence except that obtained from Gurcharan Singh by way of letter, and the 9 March 2020 letter from Mr Sukhwinder Singh, capable of corroborating Mr Singh’s work experience.

24    It was not prepared to accept the untested, written assertions of Mr Singh’s father or of the owner, Mr Sukhwinder Singh. In relation to the former’s evidence, it did not accept that there were no documents remaining which might have evidenced the operation of Khangura Transport.

25    As a consequence, it concluded (at [35]) that Mr Khangura had come to Australia before his brother, Mr Singh, and established a transport business. Mr Singh arrived subsequently and had undertaken various work and completed a number of qualifications. He wanted to stay and Mr Khangura assisted him to contrive an outcome through SGGS Transport’s business. It further found that the information provided by SGGS Transport about Mr Singh’s claimed work experience in the transport industry was wholly contrived to support the nomination to secure Mr Singh’s continued stay in Australia.

26    Accordingly, it was satisfied that the circumstances in reg 2.90 existed for the purposes of s 140M.

27    The Tribunal then considered the action which it ought to take given that it was satisfied of a relevant circumstance for the purposes of s 140L(1)(a) of the Act and it noted that, in doing so, it was required to have regard to prescribed criteria found in reg 2.90(3). In its reasons it addressed each such criteria per seriatum.

28    It found that the purpose for which the false information was provided by SGGS Transport was to secure a migration outcome for Mr Singh by creating an impression that Mr Singh was the best applicant for the nominated occupation for a Sub-class 457 visa. At [40] – [41] it said:

40.    The Tribunal is satisfied that on behalf of the applicant, Mr Khangura provided the false and misleading information about his relationship with Mr Singh, and in relation to Mr Singh’s claimed experience, in order to secure a migration outcome for his brother, by creating the impression that Mr Singh was the best applicant for the nominated occupation for subclass 457 visa purposes.

41.    While it is understandable that one would want to support their family, the Tribunal considers that this sort of conduct cuts against the very core of the Australian migration program. If unchecked, conduct of this nature, which is difficult for the Department to investigate, has the potential to encourage others who want to facilitate family migration to deliberately mislead the Department, and hope that their efforts are rewarded with a visa.

29    It concluded that SGGS Transport had provided false and misleading information to the Department at the time of the nomination application as well as during the ABF monitoring process. It also found that the information was intended to minimise the extent to which it appeared Mr Khangura and Mr Singh knew each other, to create the impression that Mr Singh had relevant prior experience, and that these matters were material to the application made to the Department. The Tribunal could not regard its conduct as being in good faith.

30    It further concluded that the provision of the false information would have a direct effect on Mr Singh and his family, no doubt because it would undermine the nomination application that was on foot. However, it recognised that Mr Singh was complicit in the provision of that false information. In addition it found that the conduct denied employment opportunities to other members of the Australian workforce. It also concluded that SGGS Transport did not notify the Department that the information was false or misleading but, in fact, sought to aver its accuracy.

31    The Tribunal took into account other factors such as the success of SGGS Transport and Mr Singh’s role in it. Nevertheless, regardless of what experience he now had, he did not have the relevant experience to begin with.

32    Consequently, it determined that SGGS Transport had breached reg 2.90(3) (sic (2)), that the conduct was deliberate and designed to obtain a migration outcome for Mr Singh, and that the provision of false or misleading information was serious and should be viewed dimly. In the circumstances, and having regard to the prescribed criteria, it concluded that the actions identified in ss 140M(1)(a) and (d), which would permit the cancellation of SGGS Transport’s approval as a business sponsor and prevent it from making future applications as a standard business sponsor for two years, should be taken.

33    The consequence was that the delegate’s decision was affirmed.

The Tribunal’s nomination decision

34    The nomination decision was delivered some two months following the sponsorship decision. The day after the latter decision, being 14 May 2020, the Tribunal wrote to SGGS Transport and invited it to comment on its decision to cancel the sponsorship approval insofar as that related to the nomination application in relation to Mr Singh.

35    On 28 May 2020, the migration agents acting for SGGS Transport provided substantial submissions to the Tribunal addressing that issue.

36    The Tribunal delivered the nomination decision and reasons on 15 July 2020. In its reasons it recognised that the delegate had rejected Mr Singh’s application for approval under reg 5.19 of the Migration Regulations and that, if the application had been made in accordance with reg 5.19(2) and met the requirements of either the temporary residence transition nomination stream or the direct entry nomination scheme, it must be approved. In this case Mr Singh claimed that he satisfied the requirements of the temporary residence transition nomination stream.

37    The substance of the delegate’s refusal had been that the applicant’s nomination did not satisfy reg 5.19(3)(g) because there was adverse material before the Department and it was not reasonable to disregard it. The Tribunal accepted that the sub-regulation would be satisfied only if there were no adverse information known to the Department about the nominator or a person associated with the nominator or, if there were, it was reasonable to disregard it.

38    The delegate had relied upon the adverse material that SGGS Transport had provided false and misleading information to the Department as a consequence of which a decision was made to cancel its approval as a sponsor and to bar it from being a sponsor for two years. Of course, by the time of the nomination decision, that decision had been affirmed by the Tribunal.

39    The Tribunal’s reasons incorporated a not insignificant portion of the earlier sponsorship decision which identified the gravamen of SGGS Transport’s conduct. It recorded that the applicant’s submissions of 28 May 2020, acknowledged the severity of the non-compliance with reg 2.90(2) and accepted the decision to affirm the cancellation of its approval as a standard business sponsor. Those submissions did not seek to suggest that the provision by it of false or misleading information was not of itself adverse information in relation to the application for nomination. However, they advanced the proposition that it was reasonable to disregard the information because that were no other instances of non-compliance with immigration laws, laws of the Commonwealth or laws of the States and Territories. It was also submitted that Mr Singh was indispensable to the transport business, he was positively capable of directing transport staff, and that his hard work and skills had aided the applicant’s business to expand and grow, providing employment to Australian workers. It was submitted that his absence from the business was likely to result in either the loss of work or need to turn work away resulting in Australian permanent residents losing their employment.

40    The Tribunal was prepared to accept that Mr Singh had been a beneficial worker and developed skills in his role, but did not accept that his departure would result in a loss of work or employment. It noted there was no evidence which demonstrated that SGGS Transport had made any efforts to replace him or train existing workers to fulfil his role.

41    As to whether it was reasonable to disregard the adverse information, the Tribunal concluded at [22]:

The Tribunal does not consider it reasonable, where it has found that the applicant contrived a family migration outcome (a reason central to the sponsorship bar), to overlook the adverse information. The Tribunal considers that overlooking the information would allow the applicant to benefit from its egregious conduct. In engaging in the conduct that is the subject of the adverse information before the Tribunal, the applicant has potentially denied an Australian worker the role, in circumstances where it has also benefitted from its own conduct already, given that Mr Harpreet Singh has performed the role for the two and one-half years now.

42    It further held that the conduct in question which led to the adverse information cut to the core of the migration system and considered that it was so contrary to the overall integrity of Australia’s business migration program that it could not be disregarded despite the contrition of those involved. Accordingly the requirement in reg 5.19(3)(g) was not met and the delegate’s decision was affirmed.

The FCC Decision

43    By an application filed on 17 June 2020 and amended on 19 April 2021, SGGS Transport sought judicial review of the Tribunal’s decisions from the FCC.

44    In relation to the sponsorship decision the grounds of review were first, that the Tribunal made a jurisdictional error by misconstruing reg 2.90(3) of the Migration Regulations or exercising its power under s 140M of the Act in a manner that was legally unreasonable. The second ground alleged a jurisdictional error by misconstruing reg 2.90(2) of the Migration Regulations.

45    In relation to the first ground, the applicant submitted that on a proper construction of reg 2.90(3) the information on which the Tribunal relies must be “false and misleading in a material particular”. It submitted that this was derived from a construction of the regulation itself and that, if the information was not false or misleading in a material particular, it would warrant less serious consequences than if it were. It was also submitted that the information had to be given to the Department or the Tribunal and not merely to the officers of the ABF.

46    The learned primary judge held that, merely because the impugned information must be considered in the light of “the purpose for which the information was provided”, it did not follow that it must be false or misleading in a material particular. All that is required is that the decision-maker consider the purpose for which the material was provided.

47    It was further submitted that the Tribunal had misunderstood the nature of the information which was false or misleading. The primary judge rejected that construction. He concluded that there was no doubt that the information which the applicant gave to the ABF on 28 February 2017 was false and misleading and that the Tribunal correctly determined that to be so. It was irrelevant that it was given to the ABF and not to the Department directly and he held the Tribunal was entitled to rely upon it as being false or misleading for the purposes of exercising the power under s 140M. As a result Grounds one and two failed.

48    Ground three of the sponsorship decision application for review alleged the Tribunal had acted illogically or irrationally or unreasonably in relation to the evidence from Khangura Transport. In substance it was submitted that there was insufficient material on which to conclude that the information suggesting that Mr Singh had worked for a transport company in India was false or misleading. This ground was also rejected by the primary judge and, particularly, because Mr Singh’s résumé was entirely inconsistent with the letters which were said to evidence that he had been working for Khangura Transport. In addition, the unconvincing circumstances surrounding these letters supported the conclusion.

49    The fourth ground was that the Tribunal had failed to undertake any further enquiries as to Mr Singh’s employment at Khangura Transport. It was submitted that it ought to have contacted the two authors of the letters, the contents of which it concluded to be false. After considering the circumstances the learned primary judge concluded that no error had been shown in this respect. There was no obvious line of enquiry which it was incumbent upon the Tribunal to pursue. The applicant had been given every opportunity to present its case and had done so to the extent to which it thought appropriate. This ground was thereupon rejected.

50    His Honour then turned to the application for review of the nomination decision.

51    The main ground advanced in this matter was that the information did not constitute “adverse information”. It was contended that, in order to satisfy that definition, the information in question must be of the character identified in subparagraphs 1(d) – (h) of reg 1.13A. The applicant submitted that, although the definition refers generally to adverse information about a person’s suitability, it then goes on to say that it “includes” other specified information. So the submission went, the reference to “and includes” ought to be construed as “means and includes” such that the definition exclusively referred to those matters in subparagraphs 1(d) – (h). That construction was also rejected by the learned primary judge who preferred the natural meaning of the words used which was unaffected by any contextual indicators of a narrower construction.

52    The other substantive ground in this application was that it was unreasonable not to disregard the adverse information in relation to SGGS Transport. That appeared to be based upon some assertion that the Tribunal had not considered all of the facts, however, that was rejected by the primary judge who identified that the Tribunal had in fact, considered all of the relevant material. His Honour concluded that this ground amounted to no more than an attempt at merits review.

53    As a result both applications to review were dismissed.

Legislation

54    Sections 140L and 140M of the Act read as follows:

140L Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled

Circumstances in which the Minister may take action

(1)    The regulations may prescribe:

(a)    either or both of the following:

(i)    circumstances in which the Minister may take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;

(ii)    other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and

(b)    the criteria to be taken into account by the Minister in determining what action to take under section 140M.

Circumstances in which the Minister must take action

(2)    The regulations may prescribe either or both of the following:

(a)    circumstances in which the Minister must take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;

(b)     other circumstances in which the Minister must take one or more of the actions mentioned in section 140M.

(3)    Different circumstances and different criteria may be prescribed for:

(a)    different kinds of visa (however described); and

(b)    different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.

140M Cancelling approval as a sponsor or barring a sponsor

Actions that may be taken in relation to approved sponsors

(1)    If regulations are prescribed under section 140L, the Minister may (or must) take one or more of the following actions in relation to an approved sponsor:

(a)    cancelling the approval of a person as a work sponsor or family sponsor in relation to a class to which the sponsor belongs;

(b)    cancelling the approval of a person as a work sponsor or family sponsor for all classes to which the sponsor belongs;

(c)    barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals as a work sponsor or family sponsor for different kinds of visa (however described);

(d)    barring the sponsor, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).

Action that may be taken in relation to former approved sponsors

(2)    If regulations are prescribed under section 140L and a person was an approved sponsor, the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).

55    The appropriate regulation is reg 2.90 which reads as follows:

2.90 Provision of false or misleading information

(1)    This regulation applies to a person who is or was:

(a)    a standard business sponsor; or

(b)    a professional development sponsor; or

(c)    a temporary work sponsor; or

(d)    a temporary activities sponsor.

(2)    For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that the person has provided false or misleading information to Immigration or the Tribunal.

(3)     For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

(a)    the purpose for which the information was provided; and

(b)    the past and present conduct of the person in relation to Immigration; and

(c)     the nature of the information; and

(d)    whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and

(e)    whether the information was provided in good faith; and

(f)     whether the person notified Immigration immediately upon discovering that the information was false or misleading; and

(g)     any other relevant factors.

56    For the purpose of the nomination decision, reg 5.19(3)(g) provided that the Minister was obliged to approve a Temporary Residence Transition Nomination if the criteria in sub-paragraphs (a) to (h) were met. Relevant to the application before the Court, sub-paragraph (g) provided:

(g)    either:

(i)    there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

57    At the time, “adverse information” was defined in reg 1.13A in the following terms:

1.13A Meaning of adverse information

(1)    Adverse information is any adverse information relevant to a person’s suitability as:

(a)    an approved sponsor; or

(b)    a nominator (within the meaning of regulation 5.19); or

(c)    a maker of a nomination in accordance with a labour agreement;

and includes information that the person, or a person associated with the person:

(d)     has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or

(e)     has, to the satisfaction of a competent authority, acted in contravention of such a law; or

(f)    has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or

(g)    is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or

(h)    has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.

(2)    The matters are the following:

(a)    discrimination;

(b)    immigration;

(c)    industrial relations;

(d)    occupational health and safety;

(e)    people smuggling and related offences;

(f)    slavery, sexual servitude and deceptive recruiting;

(g)     taxation;

(h)     terrorism;

(i)     trafficking in persons and debt bondage.

(3)    The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years.

(4)    In this regulation:

competent authority has the meaning given by subregulation 2.57(1).

58    By reg 2.57(1), a competent authority was defined to mean “a department or regulatory authority that administers or enforces the law that is alleged to have been contravened”.

Sponsorship decision (QUD 189/2021)

Ground one – alleged misconstruction of reg 2.90 and unreasonableness

59    Relevant to this ground, the delegate and the Tribunal had identified that SGGS Transport had provided the Department with misleading information, including the statements of Mr Khangura, which failed to disclose his familial relationship with Mr Singh. They each concluded that this course of action was for the purposes of effectively suggesting that he was a mere acquaintance. Second, they also identified and relied upon the false and misleading information provided in relation to Mr Singh’s work experience which the Tribunal described as being “wholly contrived”.

60    The appellant’s first submission was that the primary judge erred in construing reg 2.90 because he failed to appreciate that the information in question had to be false or misleading in a material particular, being that it was relevant to the purpose for which the information was provided. It was submitted the Tribunal had failed to consider that issue of materiality with the result that the decision was unreasonable and further, that the primary judge had failed to identify that error.

61    As the learned primary judge observed, there is no specific requirement in reg 2.90 that the information be false or misleading “in a material particular”. That phrase does not expressly appear in the regulation even though it is used in other regulations: cf PIC 4020; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 421, Wigney J at [5] (where the words “in a material particular” are used). That tells strongly against there being any implication of the requirement in reg 2.90.

62    Mr Ower QC for SGGS Transport submitted that, given the potentially serious consequences, reg 2.90(3) should be construed so that the materiality of the falsity is a necessary part of the exercise of discretion. It was submitted that whilst any false or misleading information is sufficient to enliven the discretion, the materiality of the falsity is a matter which must be taken into account under sub-paragraph 3(a) or (g) of the regulation.

63    This submission cannot be accepted. When considering the consequences of the provision of false or misleading information, the decision-maker is obliged to take into account the purpose for which the information was provided (reg 2.90(3)(a)). The fulfilment of that obligation directs the decision-maker’s attention to, inter alia, whether the false or misleading information was provided in respect of issues which are directly relevant to any application in relation to a sponsored person or was provided in relation to other more general and less direct matters. Necessarily, if the false or misleading information was provided so as to misdirect the decision-maker in respect of an element or issue relating to the granting of a visa by the sponsor, it would more strongly impel the decision-maker to take substantive action than would a less significant falsity. Regulation 2.90(3)(a) indicates that all false or misleading information provided must be taken into account, but that it is to be weighed upon a metric which includes the purpose for which it was provided. Whether it was material to a particular decision falls within that analysis. It is open to the decision-maker to assess its relative importance to the matters in question and regard its conclusion in that respect as relevant to the seriousness of the consequences which ought flow from its provision.

64    The structure of reg 2.90(2) and (3) negates the suggestion that the material in question be false or misleading in a material particular. Sub-regulation (3) provides the relevant metrics against which the information is to be assessed and its materiality will be incorporated in that assessment.

65    In the light of this ground of review, it is not insignificant that at [48] of the Tribunal’s decision it said:

The Tribunal is satisfied that the information provided sought to minimise the extent to which Mr Khangura and Mr Singh knew each other, and to create the impression that Mr Singh had relevant prior experience, and was material to the application made to the Department.

(Emphasis added).

66    That emphatically demonstrates that the Tribunal did consider the materiality of the false information in determining whether SGGS Transport ought to be permitted to remain an approved sponsor. That rather emphatically tends to undermine the submission that the Tribunal failed to consider the materiality of the false information.

67    Otherwise, the false information was material to the issues to the question of whether the application for nomination made on 6 January 2017 should be granted. It went to the appropriateness of Mr Singh for the position in SGGS Transport and the veracity of the process by which he was offered it. It is difficult to see how it could be other than material. As Mr Byrnes for the Minister submitted, even if the Tribunal had failed to recognise this or there was some error in construction, it is difficult to ascertain how such an error could, itself, be material: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 445 [45] and [46], Bell, Gageler and Keane JJ; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134 – 135 [29] – [31], 147 [72].

68    As the false information was material to SGGS Transport’s application to sponsor Mr Singh, it was necessarily also material to the Tribunal’s determination to cancel SGGS Transport’s status as an approved sponsor. Sections 140L and 140M of the Act are concerned with the suitability of a person or entity to be an approved sponsor. The lack of suitability might arise as a result of particular applications made by the approved sponsor or their conduct otherwise. The obvious purpose of these provisions is to maintain the integrity of sponsored migration into the country. It follows that any entity providing false or misleading information to the Department or to the Tribunal, regardless of whether it was directed to a specific application or not, is relevant. However, where the false information is provided in the course of seeking approval to sponsor a person, the conduct goes to the core of the sponsor’s suitability.

69    The assertion that the Tribunal’s reliance upon the false or misleading information was misplaced was not seriously pressed. That is not surprising. It was not controversial that Mr Khangura in his capacity as director of SGGS Transport had provided false and misleading information to the ABF by which he sought to diminish his association with Mr Singh. It is also apparent that the Tribunal correctly found that Mr Khangura had provided false and misleading information in relation to Mr Singh’s claimed experience in order to secure a migration outcome for Mr Singh by creating the impression that Mr Singh was the best applicant for the nominated occupation for Sub-class 457 visa purposes.

70    The appellant appeared to submit that no false or misleading information had been provided by Mr Khangura or SGGS Transport to secure a migration outcome as the initial application for the visa occurred in 2014. Instead, the false or misleading information was provided in February 2017. However, as the above recited chronology discloses, SGGS Transport had made a further application for nomination on 6 January 2017, and the false and misleading information about the lack of any familial relationship between Mr Singh and Mr Khangura was made in February 2017 to secure the granting of the further visa.

71    SGGS Transport also submitted that the Tribunal erroneously relied upon the false information and the purpose for which it was provided. At [40] of the sponsorship decision the Tribunal identified the misleading information concerning the relationship between Mr Khangura and Mr Singh as well as Mr Singh’s claimed experience in transport management. At [42] it said:

The Tribunal considers that had the applicant not engaged in this conduct, the nomination would not have been approved, and Mr Singh would not have been granted a visa.

72    It is submitted that the misleading statement about the lack of familial relationship occurred in February 2017 and, as a result, there was no likelihood of it having the effect of securing the grant of Mr Singh’s visa on 20 October 2014.

73    However, the primary judge concluded that the reference in [42] to “conduct” was wider than the provision of false or misleading information in relation to Mr Khangura and Mr Singh’s familial relationship. It referred to Mr Khangura’s and SGGS Transport’s actions more broadly, including the prior claims of Mr Singh’s experience and the facilitation of Mr Singh’s migration as a family member. In other words, the conduct was a reference to the matters referred to in [41] of the reasons which deprecated the use of sponsored visas to facilitate family migration. In this respect, Mr Singh would not have been granted the visa but a more appropriately qualified person would have been employed.

74    As Mr Byrnes submitted, the Tribunal’s reasons ought not be construed minutely and with an eye keenly attuned to the perception of error bearing in mind the nature of the decision-making process: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259, Brennan CJ, Toohey, McHugh and Gummow JJ at 272.

75    One might also add that, even if the comment in [42] were construed as the appellant submits, it is hardly an error which could possibly be material. It was, at most, an historical observation rather than a finding in relation to the specific issues to be determined.

76    It follows that there is no merit in Ground one and it should be rejected.

Ground two – Mr Singh’s claimed employment experience

77    By this ground the appellant first submitted that for the purposes of exercising the discretion under s 140M(1) of the Act in relation to its approved sponsorship status, the Minister was obliged to be reasonably satisfied or satisfied that the provision of false or misleading information had occurred. That is, with respect, a misreading of the section. Regulation 2.90(2), together with s 140L(1)(ii) create a subjective jurisdictional fact the satisfaction of which enlivens the discretionary power in s 140M(1). That subjective jurisdictional fact is the Minister’s satisfaction that the person in question has provided false or misleading information to the Department or the Tribunal. Once the power is enlivened the Minister’s discretion is relatively untrammelled.

Reasonableness or illogicality / irrationality

78    Despite the appellant’s mischaracterisation of the nature of the power in issue, it can be accepted that the complaint is that the Tribunal’s state of satisfaction was vitiated by reason of the manner in which it was concluded that false or misleading information had been provided. Specifically, it was submitted that in reaching the required state of satisfaction, the Tribunal failed to act in accordance with the requirements of legal reasonableness. However, legal unreasonableness, in the administrative law sense, generally founds a remedy in relation to the exercise of discretionary power. The cognate principle which applies in relation to the valid formulation of the statutorily prescribed state of mind is that a state of mind which is formed illogically or irrationality is not one which satisfies the statutory requirement: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). The illogicality or irrationality may infect the putative state of mind at either the fact-finding stage or that point where the state of mind is formed.

79    Whilst there may be some debate as to the extent to which concepts of illogicality and irrationality differ from legal unreasonableness, if at all, for present purposes, the several judgments in SZMDS identify the principles on which a court might conclude that a putative state of mind on which a power is conditioned is vitiated by reason of illogicality or irrationality. Their Honours, Gummow ACJ and Kiefel J, albeit dissenting, identified that within the scope of illogicality or irrationality were concepts of arbitrariness, capriciousness or illogicality as well as an absence of bona fides. They also held that it extended to an unsoundness of reasoning in the mental process forming the opinion where there was no basis in the evidentiary material, where a conclusion or the conclusion was contrary to the overwhelming weight of the material, where there was as contradiction in the process by which conclusions were reached, or where the drawing of inferences were not properly open. Their Honours further observed that any conclusion of illogicality or irrationality of a finding of fact would not be lightly made.

80    Their Honours, Crennan and Bell JJ, whilst emphasising they were not sanctioning merits review, accepted that illogicality or irrationality or basing a decision on findings or inferences of fact not supported by logical grounds, might found a ground for relief. In ascertaining whether the level of illogicality or irrationality was sufficient to vitiate a subjective jurisdictional fact their Honours relied upon principles of unreasonableness in the context of jurisdictional error and concluded that a state of satisfaction of the repository of power was invalidated when it was “one which no rational or logical decision-maker could arrive on the same evidence” (at 648 [130]). Their Honours emphasised, however, that not every lapse of logic will give rise to a relevant error and courts should be slow, albeit not unwilling, to interfere in an appropriate case. They added that where a complaint is of illogicality in the reasoning process, the test focuses on the conclusion reached and, if a logical or rational person on the material before the decision-maker could have reached the same conclusion, no relevant error will have occurred. They said at 648 [131]:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

81    In other words, their Honours supported the approach that all that the legislature requires is that the decision be “justifiable rather than justified” and that the power is validly exercised if it can be characterised as being “the right result albeit wrong reasoning”.

Illogicality or irrationality in the present case

82    In substance, the appellant’s complaint appeared to be that the Tribunal’s finding in [36] of its reasons lacked logic or rationality. That finding was:

The Tribunal finds that the information provided by the applicant about Mr Singh’s claimed work experience in the transport industry has been wholly contrived to support the nomination applicant, and secure Mr Singh’s continued stay in Australia.

83    In 2012 Mr Singh had supplied to the Department information for assessment, presumably in relation to the initial 457 visa for which he applied. In it he included two letters allegedly from Khangura Transport. Neither were on formal letterhead (although the name of the company appeared across the top of the documents) nor did they provided details of the company. One was dated 15 September 2014 and it advised that between May 2007 and February 2010 Mr Singh had undertaken voluntary work experience with the company “on a regular and on-going basis”. It identified a number of functions which Mr Singh allegedly performed as the Assistant Manager of the business. The second, which was undated, asserted that Mr Singh was employed on a full time basis as an Assistant Manager, earning a monthly income of Rs25,000. It also purported to list the functions which Mr Singh carried in the course of his alleged employment. These letters had also been relied upon by SGGS Transport for the purposes of its nomination of Mr Singh as a manager in its business and later for the purposes of supporting its claim that his appointment had been merit-based.

84    The conflicting and suspicious nature of these letters were referred to in the ABF’s decision of 1 June 2017, cancelling the approval of SGGS Transport as a sponsor. It rejected the veracity of those letters and concluded that Mr Singh’s work history was wholly contrived to support the nomination (AB437).

85    Mr Singh had also included his résumé in the material which was provided to the Department. Under a heading, “Education”, it identified that he had obtained a diploma of Pharmacy from an educational institution in India in 2007. Under a heading “Experience” it indicated that from May 2007 to April 2010 he worked at a business called Subash Medical Store. It made no mention of having obtained experience as the manager of a transport company at Khangura Transport, either as a volunteer or employee.

86    Shortly prior to the Tribunal’s review hearing in May 2020, the appellant’s migration agent sent to the Tribunal a document said to be a notarised affidavit by Mr Gurcharan Singh. In it Mr Gurcharan Singh restated the matters from one of his earlier letters, and asserted that Mr Singh “helped” in his transport business as the Assistant Manager, although it did not identify whether he had been an employee or volunteer. It explained that there were no documents of the Khangura Transport business which had closed some nine years previously and there were no computer records or hard copies of documents. Subsequent to the hearing, the appellant’s migration agents sent a copy of a letter said to be from a business called “Pb National Enterprises” which identified itself as being a contractor and supplier. It was under the hand of a Mr Sukhwinder Singh and asserted that his business had dealt with Khangura Transport from May 2003 to November 2011 and that it had established a good relationship with, amongst others, Mr Singh in his capacity as the Assistant Manager.

87    Mr Khangura and Mr Singh gave evidence to the Tribunal to the effect that Mr Singh had obtained relevant and suitable work experience by working for Khangura Transport in India. It had been alleged, that in that role, he had gained management qualifications and competencies relevant to management of operational plans, projects, budgets and financial plans, people performance, industrial relations, customer service and ensuring a safe workplace. It was also said that he had practical experience in the transport industry in India.

88    The Tribunal found (at [28]) that by relying upon Mr Singh’s alleged work experience at Khangura Transport for the purposes of the nomination application SGGS Transport had provided false and misleading information in the nomination process and that was perpetuated by Mr Khangura during the monitoring by the ABF.

89    It found that the narrative of Mr Singh having previously worked for or gaining experience at Khangura Transport was contrived. In particular, because:

(a)    There was an absence of objective evidence to support a finding that Mr Singh worked at Khangura Transport ([30]). This was a reference to the fact that there were no contemporaneous documents evidencing the existence of the company or its employment or engagement of Mr Singh.

(b)    The pieces of the story told by Mr Khangura and Mr Singh did not “fit together” ([30]). This was a reference to the inconsistency between the letters of reference from Khangura Transport and Pb National Enterprises suggesting that Mr Singh worked at the former between 2007 and 2010 whereas Mr Singh’s own résumé not only identified that he was working at a medical store at the time, but omitted to make any mention of Khangura Transport.

(c)    The letters from Khangura Transport were inconsistent in that one identified that he was an employee receiving a wage and the other alleged that he helped as a volunteer: [31].

(d)    It was only lately disclosed that Khangura Transport was a small family company owned by the father of Mr Khangura and Mr Singh which operated for eight years although there was no documentary evidence of its existence or that Mr Singh gained any work experience there: [32].

(e)    The absence of any oral evidence from Mr Gurcharan Singh and Mr Sukhwinder Singh to support the statements in their letters or, in the case of Mr Gurcharan Singh, in his affidavit: [33].

(f)    Although the Tribunal made no finding as to whether any advertisement for the position was undertaken, it concluded that it was always intended that the position would be given to Mr Singh: [34].

Was the Tribunal’s conclusion illogical or irrational

90    The basis on which it was submitted that the Tribunal’s conclusion that “information provided by the applicant about Mr Singh’s claimed work experience in the transport industry has been wholly contrived” was illogical, irrational or even unreasonable was not entirely clear. The above demonstrates that there was more than sufficient material on which the Tribunal could conclude that the narrative provided concerning Mr Singh’s prior work history was false or misleading and, in particular, that his claimed work history with Khangura Transport was contrived.

91    The applicant’s difficulty is that the Tribunal had before it conflicting evidence as to Mr Singh’s employment in the period from 2007 to 2010. It accepted the accuracy of the entry in his résumé that, having obtained his diploma in pharmacy in 2007, he thereafter worked at a medical store during from then until 2010. Once that conclusion had been reached, the material proffered to support the suggestion that he worked as an Assistant Manager at Khangura Transport must necessarily have been false and misleading. The Tribunal’s ability to reject that material was supported by the internal inconsistencies in it and apparent lack of credibility. On the material there was nothing arbitrary or capricious about the Tribunal’s conclusions that the material advanced by SGGS Transport was false and misleading. As an administrative decision-maker, it was entitled to rely upon any piece of inconsistent evidence to reach the conclusion which it did.

92    Mr Ower QC for the appellant submitted that some higher standard of satisfaction was required by the administrative fact finder in the circumstances of this case and that, given the gravity of such a finding, the Tribunal should have been cautious before concluding that a wilful false fabrication had occurred. However, Mr Ower QC was not able to articulate any relevant principle on which the Court might act to assess the sufficiency of the Tribunal’s conclusion in that way. Moreover, that submission lends more to the curial process than it does the administrative one. The administrative fact finder is entitled to rely upon the material which is considers to be appropriate. Subject to the limitations referred to in SZMDS, so long as it acts upon relevant information and evidence, it is entitled in the exercise of its decisional process to prefer any one or more pieces of evidence over others. On the basis of its conclusion that Mr Singh worked in a medical store from 2007 to 2010, which was supported by his own résumé, it was only logical for the Tribunal to conclude that the references which alleged that he had worked in a transport company were fabricated. Indeed, it was the only possible conclusion in the circumstances and it was one supported by the surrounding circumstances.

93    Mr Ower QC further submitted that, as the two letters from Khangura Transport were part of the original nomination application in 2014 which had been approved, it followed that they were of acceptable evidentiary value. This, so it was said, undermined any suggestion of the fraternal relationship being somehow hidden from the Department. However, it is unclear how that might be said to support the conclusion that the finding on the subsequent application that the letters were false was somehow illogical or irrational. There was no evidence that the letters had been given the same level of scrutiny on that earlier occasion. The fact that the internal inconsistencies or inconsistency with Mr Singh’s résumé had not previously been noticed did not foreclose the issue of whether the information in the letters was misleading or deceptive.

94    It was also submitted that the Tribunal had acted irrationally or illogically in concluding that the pieces of the story told by Mr Singh and Mr Khangura did not “fit together”, that such a conclusion was not the only one which could be drawn, and it was “perverse”. However, this submission is founded upon a misunderstanding of the Tribunal’s conclusion. It did not say that it was the only conclusion it could reach and, as has been shown above, it was a conclusion which was open on the material. Moreover, as the Tribunal clearly demonstrated, the information in the letters relied upon by the appellant were significantly inconsistent with the content of Mr Singh’s résumé.

95    It was further submitted that the Tribunal did not appropriately attempt to harmonise the letters from Khangura Transport and that it ought to have tried to resolve the apparent inconsistency. Whilst it may be correct that the Tribunal did not record any attempt by it to give each of the letters a meaning which would render them consistent, that may be due to the fact that it was not possible to do so. It is telling that no submission was made as to how that might occur given the diametrically opposed statements in them as to Mr Singh’s employment status.

96    Reference was also made to the rejection of the evidence of Mr Gurcharan Singh and the description of it as having been given by way of letter or untested written assertions when, in fact, the evidence was by affidavit. However, it was not doubted that Mr Gurcharan Singh also gave evidence by way of an affidavit dated 4 February 2020. It was prepared following the decision of the ABF on 1 June 2017 to cancel the approval of SGGS Transport as a standard business sponsor. In its decision the ABF had noted the inconsistencies in the letters from Khangura Transport, one stating that Mr Singh was an employee, the other that he was a volunteer. Unfortunately, Mr Gurcharan Singh’s affidavit did not greatly clarify the position. Whilst acknowledging that Mr Singh was not formally employed, it was alleged that he “helped” in the business but no mention was made of whether he was paid for his work. Moreover, it is not in doubt that the Tribunal was correct to describe the evidence of Mr Gurcharan Singh and Mr Sukhwinder Singh as being by way of “untested written assertions”. It was also correct to describe the evidence as not being supported by “any objective evidence”, and it could also not be denied that Mr Gurcharan Singh’s evidence was not consistent and was directly inconsistent with Mr Singh’s statements in his résumé.

97    No error has been shown in the manner in which the Tribunal dealt with this evidence and, in particular, it was not shown that its treatment was illogical or irrational. The Tribunal was entitled to reject the evidence for the reasons which it gave and the primary judge did not err by failing to detect any error in this respect.

98    It was next submitted that the learned primary judge erred because, even if it was open to the Tribunal to find the evidence concerning Mr Singh’s employment was deliberately false, the trial judge’s conclusion about the veracity of that evidence was based upon his own analysis of the material rather than the Tribunal’s. In that respect, the learned primary judge had said at [75]:

75.    It seems to me that there was more to the process of reasoning than just those matters. The consideration also entailed these other facts:-

(a)    the letters (CB 23 and CB 24) were inconsistent with the CV of the employee (CB 26). It could be asked rhetorically how could the employee be working in a profession consistent with his educational qualifications (pharmacy) between 2007 and 2010, if he is working for his father’s company during the same time and being paid Rs. 25,000 a month;

(b)     the letters (CB 23 and CB 24) were authored by the father of the employee (and the employer) without that fact being revealed to the Department;

(c)     the letters (CB 23 and CB 24) did not have the proper letterhead of a company but attempted to give the impression that it was a proper letterhead;

(d)     there was no independent corroborative evidence that the company, at which the employee had purportedly worked, actually ever existed. There were no records, accounts, website presence or any of the other indicia of existence even accounting for the claim that the company had ceased to exist some nine years beforehand;

(e)    a similar problem was present for the statement written by Sukhwinder Singh. There was no corroborative material that his company/business ever traded with the company of the father of the employee and employer.

(f)     The excuse that the company ceased trading in 2011 rings hollow when the letters (CB 23 and CB 24) are purportedly written on company letterhead even though they are authored some three years after the company ceased trading.

99    Here, despite the wording in the chapeau of that paragraph, the learned primary judge was merely elucidating those matters taken into account by the Tribunal. Each arose out of the Tribunal’s reasoning and whilst the primary judge may have provided greater explication of them, they were the considerations on which the Tribunal relied. Even a cursory perusal of the matters referred to in paragraph 89 above, and the matters identified by the learned primary judge disclose that to be so.

100    In any event, the question in issue was whether the Tribunal’s decision was illogical or irrational. Even if the primary judge had made his own analysis, which is doubtful, it does not detract from the proposition that the Tribunal’s decision was justifiable for the reasons which it gave. Further, even if the primary judge was able to identify additional justifications for the Tribunal’s conclusion, if that is what he did that only demonstrates that the conclusion reached by the Tribunal was one which a logical and rational decision-maker could reach: SZMDS at 647 – 648 [130] – [131]. That being so it is not possible to determine that the Tribunal’s conclusion was one which no logical, rational or reasonable Tribunal could reach.

101    It follows there is nothing which satisfies the stringent tests to be applied by which a conclusion could be reached that it was illogical or irrational. Ground 2 of the appeal necessarily fails.

Ground three – alleged failure to enquire

102    By this ground the appellant submitted that certain material it produced to the Tribunal, being an affidavit or notarised statement by Mr Gurcharan Singh and a letter from Mr Sukhwinder Singh, was inappropriately rejected by the Tribunal on the basis of the absence of supporting objective evidence. In particular, it submitted that the contents of the documents required the Tribunal to undertake further enquiries in relation to their veracity and, in particular, by conducting an additional hearing in order to test their accuracy.

103    It is not to be overlooked that SGGS Transport was legally represented at all stages by experienced lawyers/migration agents. It was far from an impecunious party with little or no understanding of the processes involved, and those advising it were acutely aware of the issues to be determined by the Tribunal; namely whether it had provided false or misleading information to the Department in relation to Mr Singh’s relationship with Mr Khangura and his work history and experience. Those responsible for the advancement of its case put forward the information which they regarded as appropriate and called the witnesses of their choice to give evidence. There was no prohibition on them making arrangements for Mr Gurcharan Singh and Mr Sukhwinder Singh to give oral evidence to the Tribunal although it is apparent that they chose not to do so. It is not immediately clear why, given the doubt cast upon the original letters from Khangura Transport by the ABF. The forensic decision was taken not to call those persons and it is, perhaps, wise not to revise that decision with the benefit of hindsight.

104    The Tribunal is to undertake a review and it is not obliged to make enquiries on its own behalf other than obvious enquiries about a critical fact, the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 [25] (SZIAI). Moreover, the procedural fairness required by the Tribunal does not oblige it to put its thought processes to the parties before it, including concerns about gaps or inconsistencies in evidence, or to undertake further enquiries on its own behalf: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [1], [18] and [25]. (In the context of Pt 7, the relevant Pt 5 sections are of the same effect). See also Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 at [6].

105    As was said in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36] and Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [36] and [49], the Tribunal is not required to actively assist a party in putting its case, to carry out an enquiry in order to identify what that case might be, nor enquire to determine whether the case could have been better put.

106    The Tribunal was entitled to conduct its hearing and provide the appellant with the appropriate opportunities to adduce what evidence it thought appropriate in that process. After conducting the hearing on 11 February 2020, it was entitled to review the material produced and reach such conclusions as it thought appropriate to make.

107    Mr Ower QC for the appellant relied heavily upon the decision of Logan J in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 (SZLGP). In that case, the Tribunal had misapprehended the nature of a document and made an incorrect assumption as to why it was in the possession of the appellant. It had, thereupon, disregarded the contents of the letter and made adverse findings of the appellant’s credibility as well. His Honour concluded that in the circumstances a jurisdictional error had arisen as a result of an irrational or illogical finding of fact. That finding was easier to reach given the critical importance of the document in question and its effect upon the appellant’s credibility. His Honour also considered the possibility that the error gave rise to a denial of procedural fairness because it had proceeded to answer the question before it on the basis of a blatant misapprehension as to a critical document capable of corroborating the appellant’s case. His Honour referred to that line of cases which have accepted that a denial of procedural fairness had occurred as a consequence of a Tribunal failing to truly engage with a claim presented by a visa applicant. In particular, he relied upon a passage of the decision of Lee and Moore JJ in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 [53] (WAIJ) where their Honours said:

It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respect and no ground for such a course is provided by the documents on their face or by other facts.

108    In the case before him, Logan J concluded that although the document in question was rejected based upon a finding as to the applicant’s credibility, that finding was itself founded upon a false premise. On that basis, he concluded that a jurisdictional error had occurred. His Honour then went on to consider whether the Tribunal was obliged to seek further information. He noted the recent High Court decision in SZIAI to the effect that, although the Tribunal was a type of inquisitorial forum, it was not under any general duty to conduct enquiries of its own motion. However, he held that the singular circumstances of a particular case may exceptionally give rise to an obligation on the part of the Tribunal to make its own enquiry with respect to a critical fact. Failure to do so could, in such a circumstance, give rise to a conclusion that it had failed to exercise its review jurisdiction. In the matter before him, he considered that, given the nature of the class of visa sought (a protection visa) and the impact the information in question would have had on the assessment, it was necessary for the Tribunal to make an enquiry in relation to the issue thereunder consideration. He held that the case before him was one of those exceptional cases in which it could be held that the Tribunal had constructively failed to exercise the review jurisdiction.

109    There is, with respect, a deal of difficulty in relying upon the observations in SZLGP in this case. In relation to the first type of jurisdictional error identified, there were substantial grounds arising from the face of the documents and from the surrounding facts which justified the conclusion that they lacked veracity or, indeed, were contrived. That is quite different to the circumstances of SZLGP. The Tribunal had observed the inconsistencies in the information pertaining to Mr Singh’s work at Khangura Transport between May 2007 and February 2010. Not in the least was Mr Singh’s own résumé given to the Tribunal which not only did not mention that he had held any such position, but asserted that during that period he worked at Subash Medical Store. That was consistent with the fact that he had completed a Diploma of Pharmacy in India shortly prior to that time. Those pieces of evidence are directly inconsistent with the assertions in the several letters and affidavit that he was the assistant manager at Khangura Transport or helped out there. Further, the original two letters were contradictory. One asserted that he was a regular and ongoing volunteer and the other that he was employed as the assistant transport manager and earning a salary. That significant inconsistency undermined the veracity of the subsequently produced evidence. Further, as the Tribunal noted, there was a distinct lack of evidence of any contemporaneous documents relating to Mr Singh’s alleged employment.

110    These matters provided a solid foundation for the Tribunal to reject the probity of the letters and affidavit. Further, the Tribunal was entitled to take into account that neither Mr Gurcharan Singh nor Mr Sukhwinder Singh gave oral evidence. That is particularly poignant in circumstances where the letters from Mr Gurcharan Singh submitted in support of the original nomination application had been rejected as being “wholly contrived” by the ABF.

111    It follows that, unlike the circumstances in SZLGP, here there was a plethora of material, including issues of inconsistency in the documents on their face and other facts, on which the Tribunal was entitled to disregard Mr Sukhwinder Singh’s letter and Mr Gurcharan Singh’s letters and affidavit.

112    As to the second type of jurisdictional error identified in SZLGP, this case is far removed from the exceptional circumstances pertaining there. This was not a protection visa case involving the serious consequences necessarily appertaining to applications for visas of that type. Further, here the appellant was represented by migration agents who were acutely aware of the reasons why the nomination approval had been cancelled and, in particular, of the conclusion that the letters from Khangura Transport were contrived. The appellant chose not to adduce oral evidence from Mr Gurcharan Singh nor Mr Sukhwinder Singh in relation to that issue before the Tribunal, and was content to substitute the earlier written assertions with later ones.

113    There was nothing in the circumstances of this case which required the Tribunal to undertake any further investigation prior to rejecting the veracity of the documents relied upon by the appellant. That conclusion is not altered by the fact that not only did the Tribunal disregard the letters, it concluded that they were part of the contrivance. On this issue, Mr Ower QC submitted that if on any occasion in the course of its deliberative process the Tribunal reaches a conclusion that certain evidence of a party or witness is to be disbelieved, it is obliged to undertake a further hearing. No authority was cited for that proposition. Were that required, it would place an intolerable burden on any administrative decision-maker who, after hearing the available evidence and in the course of its consideration, reaches the conclusion that some evidence before it is untrue. In support of his submission, Mr Ower QC relied upon SZIAI, however, that decision provides no assistance. At best, it identifies that there may be circumstances where a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could supply a sufficient link to a conclusion that there has been a failure to review. As was held by the primary judge in the present case, if it be assumed that the Tribunal telephoned Mr Gurcharan Singh and Mr Sukhwinder Singh and they asserted the truth of the documents, the Tribunal would have had nothing more than is conveyed by the documents themselves. See the observations in SZIAI at p 436 [26]. The Tribunal is not obliged to contact people who have provided statements and ask them whether they are true.

114    The appellant also relied on the decision in WAIJ and, in particular at 580 [52] – [54]. However, that case has been discussed above in the context of reviewing the decision in SZLGP and it adds nothing further to the current circumstances. Here there was an abundance of evidence which demonstrated the unreliability of the documents in question.

115    Similarly reliance was placed on BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 and in particular at 306 [45]. There the Full Court (Perram, Perry and O’Callaghan JJ) said:

In our view, however, these passages reveal a failure by the Tribunal to give a proper, genuine, and realistic consideration to the evidence of Mr C. In this respect, it is true that the High Court held in S20/2002 that it is not irrational (albeit not necessarily preferable) for the finder of fact to focus “first upon the case as it was put by the appellant”, before considering the alleged corroboration. However, this does not mean that the finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectually active way (WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [27] (Lee and Moore JJ); semble SZDGC at [23] (Finkelstein J)). For example, as in DAO16, a finding that a visa applicant’s evidence is not credible may not of itself provide a logical or rational basis on which to dismiss all of the corroborative evidence and, once the corroborative evidence is considered, it may at least raise a doubt about whether the whole of an applicant’s claims should in fact be rejected, thereby enlivening the obligation to consider the alternative scenario that the applicant’s claims might be correct.

116    However, again, the present case has no commonality with the circumstances there considered. Here, given the contradictory and inconsistent evidence relating to Mr Singh’s work experience, the Tribunal was entitled to prefer that contained in the résumé to that articulated in the letters. It ought to be kept in mind that the Tribunal gave careful consideration to the issue of Mr Singh’s claimed work history. The letter and affidavit in question went to support his claims in that respect and they were largely similar to previous documentary evidence. It cannot be said that the Tribunal did not give real and genuine consideration to the case sought to be made by the evidence or the evidence itself.

117    It follows that no error as alleged arose as a consequence of the Tribunal failing to make its own further enquiries as to the veracity of the letters or the affidavit of Mr Gurcharan Singh. Necessarily, there was no error by the learned primary judge in not detecting any such error.

Conclusion on appeal in QUD 189/2021

118    It follows that none of the grounds of appeal are made out. The learned primary judge did not err in any of the ways alleged. The appeal should be dismissed with costs.

Appeal in QUD 190/2021

Ground one – adverse information and reg 1.13A

119    By this ground the appellant contended that the primary judge erred in his conclusion as to what constituted “adverse information” for the purposes of reg 1.13A. As discussed above, the Tribunal had concluded that there existed adverse information about SGGS Transport as the nominator and, further, that it was not reasonable to disregard that adverse information.

120    It is to be recalled that the Department had, by a letter of 14 May 2020, alerted SGGS Transport to the existence of what it regarded as adverse information. It was identified as being:

On 13 May 2020, the Tribunal affirmed the decision to cancel the approval of Sri Guru Gobind Singh Transport Pty Ltd, and bar them from making future applications for approval as a standard business sponsor for two (2) years.

121    The appellant was advised that the adverse information may provide a ground to affirm the decision under review and it was invited to provide comments on or to respond to it. It did so by letter of 28 May 2020, in which it repeated and relied upon its submissions made in relation to the sponsorship decision. Whilst it acknowledged its lack of candour in providing information to the Department and to the ABF, it nevertheless made substantial submissions as to why the adverse information should be disregarded.

The construction issue

122    The focus of the appellant’s submissions was that, in order for information to be “adverse information”, it must fall within the categories identified in sub-paragraphs (d) to (h) of the definition and that is to be achieved by reading the words, “and includes” as “means and includes”.

123    It was submitted that the learned primary judge erred in that, despite the use of the term “includes” in the definition, the text and context of reg 1.13A supported the construction that the examples given after this word were exhaustive or exclusive. This would have the effect of limiting the scope of “adverse information” to that specified in sub-paragraphs (d) to (h). In support of this submission, the appellant relied on YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 (YZ Finance). In that case, the issue was whether a promissory note fell within the definition of ‘security’ for the purposes of the Moneylenders and Infants Loans Act 1941 (NSW). Whilst the ordinary meaning of “security” would include a promissory note, s 24(2) of that Act provided that the term included various items (e.g. bill of sale, mortgage), but a promissory note was not mentioned. The High Court concluded the matters listed in that subsection all fell within the ordinary meaning of “security” and, by majority, held that the list of matters was exhaustive even though the word “includes” had been used.

124    The appellant’s reliance on YZ Finance does nothing to advance their case. First, in the majority’s view, when the Act was considered as a whole, the drafter had used “means” and “includes” on an inconsistent basis when drafting other definitions. No such argument was advanced by the appellant. More pertinently, given the subject matter in question, it was open for the High Court in YZ Finance to conclude that the reference to “includes” in the subsection was equivalent to “means and includes” which thereby made the definition of security an exhaustive one: YZ Finance at 399. No similar construction applied in relation to reg 1.13A.

125    Undoubtedly, YZ Finance does not stand for the proposition that a “means and includes” definition should always be construed exhaustively. Whilst the appellant did not suggest this to be the case, it was submitted that the matters referred to in sub-paragraphs (d) to (h) fell within the ordinary meaning of “adverse information” and added nothing to the definition. This, so it was said, was reinforced by the submission that those matters could not be said to be operating cumulatively upon the ordinary meaning of the expression in question such as to confer added meaning for the purposes of the regulation. The appellant made reference to the contrary position in Federal Commissioner of Taxation v St Hubert’s Island Pty Ltd (in liq) (1978) 138 CLR 210 at 216. In that case, one of the issues considered was the definition of “trading stock” in s 6 (1) of the Income Tax Assessment Act 1936 (Cth) which provided it “includes anything produced, manufactured, acquired or purchased or purposes of manufacture, sale or exchange, and also includes live stock”. In considering the construction of the words “trading stock”, Stephen J at 216 stated that:

This intention has sometimes been obscured in s. 6 (1) by including meanings which would in any event be included in a word's ordinary meaning; the meaning given to “trading stock” provides an example of this. This is due, no doubt, to the draftsman's desire to avoid any possible doubt concerning the extent of the ordinary meaning.

Nevertheless, in the case of a sub-section constructed as is s. 6 (1), using both “means” and “includes”, a meaning which is expressed in terms of “includes” and which may be seen to be at least partially expansive in its operation should not, I think, be treated as an exclusive definition, but rather as operating cumulatively upon the ordinary meaning of the word or phrase in question and conferring added meaning for the purposes of the Act.

126    This observation by Stephen J is apt in the circumstances and supports a construction of reg 1.13A that is non-restrictive such that it should operate cumulatively. The Minister is correct in submitting that there is no indication that the intention is to limit the meaning of adverse information by the listed matters. Indeed, there is nothing in the text, context or purpose of the regulations that would support that construction. The Minister’s reference to Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658 is also relevant and applicable in the circumstances. In that case, Young CJ, Starke and Gray JJ stated at 661 that “when the word includes is used in a definition section, it is generally used to enlarge the meaning of the word it describes, that is to say to bring within the word something that would otherwise not be within it”. Clearly, the definition of adverse information is an enlarging one and not an exhaustive definition merely because of the use of the word “includes”.

127    In addition, the natural reading of the definition of “adverse information” does not support the appellant’s construction. The chapeaux refers to, “any adverse information”, which supports a broad construction to the phrase “and includes”. In these circumstances inserting the word “means” in front of, “and includes”, would neither make grammatical sense nor provide a logical structure for the section.

128    Rather, the operation of the definition of, “adverse information” is that it refers to any information which is adverse to the person’s suitability for one of the three identified capacities in sub-paragraphs (a) to (c). The inclusive statement from the words “and includes information” – being that in the following sub-paragraphs – provides a logical structure and operation of the definition for the following reasons:

(a)    First, the matters in sub-paragraphs (d) to (h) are expressly identified as being time limited. That is, by sub-reg (3) the matters in question which might give rise to “adverse information”, must have occurred within the three years prior to the making of the relevant decision. The legislature has isolated those matters as having a limited operation for the purpose of the definition.

(b)    Second, some of the matters there referred to might not usually be regarded as adverse. A reasonable and intelligent person would not necessarily regard an investigation into a person or a person being subject to disciplinary action or legal proceedings, to be adverse information. Similarly, being the subject of administrative action for a possible contravention of a law is also not, per se, adverse to the person in question. Similar comments can be made about the other sub-paragraphs. The point to be made is that the legislature has specifically identified such matters as “adverse information”, albeit it has given them a limited operational effect; ie three years.

(c)    Third, for the purposes of reg 5.19, the consideration of adverse information is qualified by the obligations on the decision-maker to ascertain whether it is reasonable to disregard it. In other words, the potential scope of the operation of the definition of “adverse information” is ameliorated by the ability of the decision-maker to disregard a matter where appropriate. On that basis, there is no reason to impose any artificial restrictions upon the definition’s scope.

(d)    Fourth, the proposed interpretation offered by the appellant is extremely restrictive. It would confine adverse information to the five specific matters in sub-paragraphs (d) to (h), the majority of which are limited to possible infractions of laws concerned with specific matters. The appellant’s construction would have the curious result that a person who has been known to have committed or is under investigation for drug trafficking would not fall within the operation of the section. Similarly, a person under investigation or convicted of serious dishonesty offences would not be a person in respect of which there is “adverse information”. Other examples are myriad. There are no textual or contextual matters which might justify such a construction.

129    As a result, the ordinary meaning of the words used in the definition of “adverse information” and the structure of the definition support the interpretation given to it by the Tribunal and, prior to that, the delegate. It ought to be recognised that such an interpretation gives the sections in which it applies and, in particular reg 5.19, greater operation than would the appellant’s proposed construction. The Minister’s construction gives full amplitude to the decision-maker’s ability to refuse a nomination where appropriate. That broad scope, however, is ameliorated by the decision-maker’s ability to disregard adverse information when it is reasonable to do so. The factors strongly weigh against adoption of the appellant’s proffered construction.

130    The appellant’s second substantive argument was that the subsequent amendments to the definition of “adverse information” disclose that the legislature considered that its meaning was as per its proffered construction. The new definition was:

1.13A    Meaning of adverse information

(1)    Adverse information about a person is any adverse information relevant to the person’s suitability as:

(a)    an approved sponsor; or

(b)    a nominator (within the meaning of regulation 5.19).

(2)    Without limiting subregulation (1), adverse information about a person includes information that the person:

(a)    has contravened a law of the Commonwealth, a State or a Territory; or

(b)    is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or

(c)    has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law; or

(d)    has become insolvent (within the meaning of section 95A of the Corporations Act 2001); or

(e)    has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.

(3)    Nothing in this regulation affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

(4)    In this regulation:

information that is false or misleading in a material particular means information that is:

(a)    false or misleading at the time it is given; and

(b)    relevant to any of the matters the Minister may consider when making a decision under the Act or these Regulations, whether or not the decision is made because of that information.

131    Mr Ower QC submitted that the alteration to the definition indicated that the legislature intended to change its meaning with the result that the interpretation adopted by the delegate, the Tribunal and the learned trial judge was incorrect. He added that, as the interpretation of the former definition of “adverse information” was ambiguous, the terms of the amended provision necessarily indicated that the unamended provision did not have the meaning of the new provision. Reliance was placed on Deputy Federal Commissioner of Taxes v Elders Trustee and Executor Co Ltd (1936) 57 CLR 610, 625 – 626 and the cases cited therein as well as on the observations in Palace Gallery Pty Ltd v WorkCover Premium Review Panel (2014) 119 SASR 408 (Palace Gallery). In the latter case a majority observed (at 418 [27]):

[27] … A subsequent amendment may inform the construction of the original words of a statute to the extent, at least, that the original provision should not be given a meaning which renders the amendment mere surplusage. However, courts recognise that a subsequent amendment which appears to have been unnecessary, may have been enacted to remove doubt. In my respectful opinion, the qualification appears to reflect a misapplication of the principle of statutory construction that courts will strive to give meaning and effect to every part of a statute. That principle applies to the construction of a statute, as a whole, as it stands at a particular point in time. In undertaking that task a court may find that a number of the statute’s provisions, when read together, support a particular construction which might also have been given to one of those provisions even if it had stood alone. However, that circumstance does not render the other provisions surplusage; it is simply the manifestation of a more laborious drafting style. Be that as it may, the question whether or not a particular construction will render otiose some words of a statute is not the same as asking whether it was necessary to make a particular amendment. The latter question may well be answered negatively even though all of the words of the amended Act have work to do.

132    And later at [29] added:

[29] The legislative history of a statute is an important aid to its construction but it is an important principle of statutory construction that the meaning of legislation, as in force from time to time, must be ascertained from the words of its provisions, in their current statutory context, and so that the statute operates as a coherent whole.

133    The approach in Palace Gallery is but one method of construction. Importantly, it proceeds upon the notion that the amendment would otherwise be unnecessary and the common presumption is that it should not be so regarded. As the learned authors, Herzfeld and Prince opined in Interpretation, Second Edition, Thomson Reuters, 2020, 185 – 186 [8.330], that is not a sound notion. They observe that those responsible for the amendment may simply have been mistaken about its meaning. Second, the amendment may have been simply to clarify the provision so that it has the meaning it always was intended to have. The learned authors also note that it would be odd that the words of a statute might have a particular meaning at one point in time but, because of a subsequent amendment which makes no retrospective alteration, the original meaning is now taken to be something different.

134    In this case the subsequent amendments are not inconsequential in that they make a substantial alteration to both the nature and structural format of the definition. The subsequent version is not a slight alteration to the original. On that basis, the observations in Palace Gallery do not assist.

135    In any event, comfort can also be drawn from the explanatory statement issued by the Minister for Citizenship and Multicultural Affairs which accompanied the suite of amendments which included the amendment to the definition of “adverse information”. In that document (to which both parties referred without objection) it was observed in relation to the new definition:

Adverse information is defined in regulation 1.13A as any information relevant to the person’s suitability as a sponsor or nominator. The definition makes it clear that the examples of adverse information in sub-regulation 1.13A(2) do not limit the meaning of adverse information…

136    To the extent to which it is relevant, that tends to support the view that the subsequent amendment sought only to clarify that which was intended of the original provision.

137    The appellant’s submissions as to the meaning of “adverse information” should be rejected. The learned primary judge was correct to construe the definition in accordance with that adopted by the Tribunal and as not being limited to the matters in sub-paragraphs (d) to (h).

138    Mr Owen QC further submitted that, in accordance with reg 1.13A, the “adverse information” had to arise within three years of the date of the relevant decision. That is a misreading of the regulation. The three year limitation was restricted to those matters in sub-paragraphs (d) to (h) and not otherwise.

139    In this case the “adverse information” relied upon was the Tribunal’s earlier sponsorship decision. It was not submitted that the Tribunal’s earlier decision could not amount to adverse information. That lack of opposition was correct as it is apparent that executive action or decisions against a person amounts to “adverse information”, even if the facts undermining that action might also be taken to meet the definition.

140    It follows that Ground 1 of this appeal must be rejected.

Ground two – Mr Singh’s work experience and adverse information

141    Mr Ower QC submitted that this ground was identical to Ground two of the appeal in QUD 189 of 2021. For the reasons discussed there, it also fails on this second appeal.

142    It was additionally submitted that the Tribunal was required to make a finding as to whether there was “adverse information” and whether it was reasonable to disregard it. However, the context in which the decision was made is important. As mentioned, on 14 May 2020, the Tribunal wrote to SGGS Transport identifying the adverse information, being its decision to affirm the decision to cancel the approval of SGGS Transport. Submissions were invited in relation to that and subsequently were provided. These matters are recorded in the Tribunal’s decision at [15] – [18]. At the latter paragraph the Tribunal set out some of the appellant’s submissions in which it addressed the identified adverse information, being the Tribunal’s earlier decision in respect of it. It is, with respect, clear that the Tribunal proceeded on a correct analysis of the “adverse information” in question. There was no error by the learned primary judge in allegedly failing to recognise that.

Ground three – illogicality or legal unreasonableness and Mr Singh’s role

143    The appellant contended that the primary judge erred by failing to conclude the Tribunal had acted irrationally or unreasonably in relation to its consideration of Mr Singh’s role at SGGS Transport and the impact to its business were his nomination not to be approved. The Tribunal had concluded that Mr Singh’s departure would not necessarily equate to a loss of work to SGGS Transport’s business or the employment of others within it. In particular, it identified there was no evidence of any attempt to replace Mr Singh or to train existing workers to fulfil his role. The complaint appears to be that the Tribunal had ignored the facts that Mr Singh’s replacement would have to be found leading to a period during which the position would be unoccupied, that the replacement would have to be trained to gain experience during which time productivity would be lost, and that the replacement would have to take time to build a rapport with other drivers.

144    However, this ground misapprehends what the Tribunal decided. Its analysis was directed to causation. In effect, it observed that Mr Singh’s departure would not cause detriment to SGGS Transport, but the company’s failure to take steps to ensure that his role might be quickly and efficaciously be filled if his nomination was rejected would. There is nothing illogical or irrational about that conclusion which is based on common sense causation principles.

145    There is, with respect, no foundation to this ground either and the learned primary judge was correct to reject it.

146    It may have been that the ground was sought to be advanced as one of a decision-maker failing to give real and genuine consideration to a claim, or a clearly articulated argument, or to facts which arose on the materials or from a finding. However, the claim or the facts which it is alleged the Tribunal ignored were not established. They were matters of mere speculation and the point would only arise if SGGS Transport had not taken any steps to ensure a smooth transition to a new transport manager. The facts relied upon were not obvious as the appellant submitted and the primary judge did not err in concluding to the contrary. In essence, this ground is merely a subterfuge for merits review and ought be rejected.

Ground four – alleged failure to enquire

147    As Mr Ower QC submitted, this ground is identical to Ground three of the sponsorship decision. It ought also be rejected for the reasons identified above.

Conclusion on appeal in QUD 190/2021

148    It necessarily follows that none of the grounds of appeal in this matter can succeed. No error was shown in the reasons of the learned primary judge in rejecting the grounds of review advanced to him. The appeal must be dismissed with costs.

Associate:    

Dated:    18 February 2022