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Singh v Minister for Immigration & Anor [2016] FCCA 1663 (7 July 2016)

Last Updated: 8 July 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR


Catchwords:
MIGRATION – subclass 880 visa application – Waterfront Fish Market – bogus documentation – false and misleading information about hours worked at the venue at which work was allegedly performed.

ADMISSION – Made to Tribunal and in open court – effect of admission of falsity of information.


Legislation:
Commonwealth of Australia Constitution Act, s.75


Cases cited:
Arora v Minister for Immigration and Border Protection [2016] FCAFC 35
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492
Divcon (Australia) Pty Ltd v Devine Shipping Pty Ltd [1996] VicRp 58; [1996] 2 VR 79
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531
L’Estrange v F Graucob Ltd [1934] 2 KB 394
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248
Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Pioneer Plastic Containers Ltd v Commissioner of Customs and Excise [1967] Ch 597
Plaintiff M64/2015 v Minister for Immigration and Border Protection
[2015] HCA 50
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5
Re Registered Trade Marks Certina & Certina DS (1970) 44 ALJR 191
Saleem v Migration Review Tribunal [2004] FCA 234
SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176
SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Worldwide Timber Traders Pty Ltd v Brouwer (No 2) [2009] FCA 447


Applicant:
AMARPREET SINGH

First Respondent:
MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL

File Number:
MLG 1795 of 2014

Judgment of:
Judge Wilson

Hearing date:
7 March 2016

Date of Last Submission:
7 March 2016

Delivered at:
Melbourne

Delivered on:
7 July 2016

REPRESENTATION

Applicant in person

Solicitor-Advocate for the
First Respondent:
Ms A. Briffa

Solicitors for the First Respondent:
Australian Government Solicitor

ORDERS

(1) The name of the second respondent be amended to “Administrative Appeals Tribunal”.
(2) The application filed 2 September 2014 is dismissed.
(3) The applicant pay the costs of the first respondent fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1795 of 2014

AMARPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. By application filed on 2 September 2014, Amarpreet Singh
    (“the applicant”) sought an order calling upon the Minister for Immigration and Border Protection (“the first respondent”) to show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Act”).
  2. On 16 October 2013, the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), decided to affirm the decision of the Visa Cancellation Unit (“VCU”) of the Department of Immigration and Citizenship (“the Department”) made on
    22 November 2012.[1] The VCU decided to cancel the applicant’s Subclass 880 (Skilled – Independent Overseas Student) visa
    (“the visa”) granted on 7 February 2008.[2]
  3. The applicant sought judicial review of the Tribunal’s decision.
    He contended that the Tribunal fell into jurisdictional error by –
    1. failing to exercise jurisdiction;
    2. denying him natural justice; and
    1. failing to consider the key elements for a subclass 880 visa.[3]

Synopsis

  1. For the reasons that follow, in my judgment the Tribunal did not make any jurisdictional error. Accordingly, this application for judicial review failed.

Factual background

  1. The applicant applied for the visa by application dated
    27 June 2007 and signed by him.[4] The application was in standard form. In it, the applicant provided formal particulars about his identity and his family. In the visa application he supplied skills assessment details. He also provided details about his nominated occupation, described simply as “cook”. The applicant stated that
    Trades Recognition Australia (“TRA”) had provided a suitable skills assessment for his nominated occupation as a cook.[5] In response to questions about his past employment in the occupations listed on the skilled occupations list, the applicant stated he had worked from
    12 March 2006 until 15 February 2007 as a “cook – traning (sic)
    part time (volunteer work)” at Waterfront Fish Market.[6] In a handwritten document signed by the applicant entitled “Personal particulars for character assessment” dated 25 October 2007, the applicant declared in response to question 20 that he had worked from March 2006 to February 2007 as a cook at a restaurant at Crown Casino in Melbourne, Victoria called Waterfront Fish Market.[7] In a further handwritten document dated 25 October 2007 signed by the applicant entitled “Additional personal particulars information”, the applicant stated that between 12 March 2006 and 15 February 2007 he worked as a cook undertaking duties that involved “cooking variety (sic) of food items” at a restaurant called Waterfront Fish Market at Crown Casino.[8]
  2. By letter dated 20 February 2007 on the letterhead of Waterfront Fish Market, the author of the letter confirmed that the applicant had worked for more than 925 hours at Waterfront Fish Market on a
    part-time basis under the supervision of the author of the letter from January 2006.[9]
  3. The Department became aware of the work practices of several Melbourne restaurants where certain employees of those restaurants, visa applicants mainly, did not meet the 900 hours of work threshold.[10] One of those restaurants was Waterfront Fish Market, the executive chef of which was Peter Littlejohn, the author of the letter dated
    20 February 2007.
  4. As part of the Department’s investigations into nefarious activities of certain migration agents, the Department examined the employment particulars of persons working at Waterfront Fish Market.
    The Department ascertained that Waterfront Fish Market had no record of the applicant having been employed by Waterfront Fish Market in the period March 2006 to March 2009.
  5. On 16 August 2012, a VCU investigator wrote to the solicitors for the applicant with a notice indicating the Department’s intention to consider cancelling the applicant’s visa under s.109 of the Act by reason of the applicant’s failure to comply with ss.101(b) and 103 of the Act.[11] Section 109 of the Act provided as follows -
  6. Section 103 of the Act provided as follows –
  7. Section 97 of the Act defined the expression “bogus document” in the following terms –
  8. In the notice of intention to consider cancellation, the VCU investigator stated that –

By operation of s 99 of the Act, not only must there be no incorrect answers on the application form itself, there must also be no incorrect answers in any information that a non-citizen gives, causes to be given or that is given on his or her behalf (whether in writing or orally) to the Minister, an officer or a person or tribunal reviewing a decision under the Act in relation to the non-citizen’s application for a visa.[13]

  1. The notice further stated that the VCU investigator was satisfied that the applicant had not worked at Waterfront Fish Market and that the applicant thereby breached s.101(b) of the Act. The notice further stated that the applicant’s visa application was a bogus document within the meaning of s.103 of the Act. The document was said to have been bogus because, according to the VCU investigator, the applicant obtained the visa by providing to TRA false and misleading statements regarding the applicant’s work experience at Waterfront Fish Market. The visa application was also said to have been bogus because the employer’s reference dated 20 February 2007 given by Mr Littlejohn included details that were false and misleading.
  2. In the notice, the VCU investigator alerted the applicant to the provisions of s.108 of the Act that required the first respondent to consider any response from the visa holder before making a decision on cancellation. The notice also pointed out that under s.111 of the Act, for the purposes of cancellation under s.109 of the Act, it was not necessary that the visa holder deliberately misled the Department.
  3. In response to the notice dated 16 August 2012, the applicant’s solicitors wrote to the VCU investigator on 29 October 2012[14] stating that the applicant was “very concerned (about) his possible cancellation” (sic) and that he was “devastated that there is no paper trail” for him to establish that he did gain some work experience. The letter also stated that the applicant apologised that he relied on information that was flawed and that the applicant had suffered
    “severe stress and anxiety and a lot of expenditure as a result of this matter”.[15]
  4. On 22 November 2012, the delegate of the first respondent decided to exercise her discretion to cancel the visa and the applicant’s visa was cancelled on 22 November 2012.
  5. The reasons given by the delegate of the first respondent were largely similar to those given by the VCU investigator.
  6. On 26 November 2012, the applicant applied to review the delegate’s decision.[16]

The review in the Tribunal

  1. After hearing from the applicant, the Tribunal affirmed the decision to cancel the applicant’s visa.
  2. The Tribunal identified s.109 of the Act as the enabling provision authorising the first respondent to cancel the applicant’s visa on account of the applicant’s failure to comply with ss.101 or 103, among other sections, of the Act. The Tribunal indicated that s.99 of the Act made it clear that for the purposes of s.101(b), any information given or caused to be given by the applicant to the first respondent in relation to his application for the visa was taken to be an answer to a question on the application form. Further, the Tribunal indicated that s.107 of the Act made provision for the first respondent giving the applicant a notice of intention to consider cancelling the applicant’s visa where the applicant had not complied with, relevantly, ss.101 or 103 of the Act.
  3. The Tribunal stated that in exercising its power of review under the Act in respect of a visa that was cancelled under s.109 of the Act,
    the Tribunal was first required to decide whether there was
    non-compliance in the manner described in the s.107 notice, being the manner particularised in the notice. In support of that proposition,
    the Tribunal cited Saleem v Migration Review Tribunal.[17] The Tribunal stated that if the Tribunal decided that there was non-compliance by the applicant in the way described in the s.107 notice, it was necessary to consider whether it was appropriate that the visa be cancelled.
    The Tribunal referred to the power contained in s.109 of the Act as being discretionary. It stated that in exercising that discretionary power, the Tribunal was required to consider the applicant’s response to the s.107 notice in respect of the non-compliance (if any) and to have regard to the prescribed circumstances set out in reg.2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”). At paragraph 12 of its reasons, the Tribunal recorded the prescribed circumstances set out in reg.2.41 of the Regulations.[18] So far as the weight to be given to any one factor or group of factors was concerned, the Tribunal stated that such weight was a matter for the decision-maker and would vary from case to case. The Tribunal stated that it was for the applicant to shape the decision-maker’s consideration of those matters by reference to his or her own individual circumstances and the extent to which the decision-maker was required to engage with each factor, depending largely on the matters put forward by the applicant, a point made in Minister for Immigration and Citizenship v Khadgi.[19]
  4. So far as the applicant’s claims and the evidence he adduced were concerned, the Tribunal referred to the applicant’s application for a subclass 880 visa in the occupation of a cook and that he lodged the application on 27 June 2007. The Tribunal referred to the fact that the applicant had provided a positive skills-assessment in the relevant occupation issued by TRA, a necessary condition for the grant of the visa. The Tribunal also referred to the provision by the applicant of details of his past relevant employment experience including his employment at Waterfront Fish Market. The Tribunal referred to the Department’s provision to the applicant of the s.107 notice on
    16 August 2012 and that on 29 October 2012, the applicant’s agent responded to the s.107 notice by claiming that the applicant was devastated that there was no paper trail to establish his employment history and that he had relied on flawed information. The Tribunal referred to the delegate’s decision made on 22 November 2012 to cancel the applicant’s visa based on the finding that the applicant’s work experience and reference letter from the Waterfront Fish Market were fraudulent and that his skills assessment had been obtained on the basis of information provided in a bogus document.
  5. The Tribunal referred to the applicant’s appearance before the Tribunal on 2 September 2013 during which he gave evidence, presented argument and was represented. The Tribunal referred to a concession given by the applicant and by the applicant’s agent that “they had no issue they wished to raise in respect to the validity of the s.107 notice”.[20] The Tribunal specifically addressed the falsity of the information provided by the applicant. The Tribunal recorded important aspects in the following terms –

He said that his agent asked him to sign the documents and he had no recollection of referring to the Waterfront as part of his application.[22]

  1. The Tribunal asked the applicant if he told the Department about the fraud of his prior migration agent. The applicant said that his agent “told him to pay him money and he would fix everything up for him”.[23] When asked what he understood that to mean, the applicant said that he had to pay him money and the agent would fix the work experience. When asked specifically what he understood his agent was doing for him, the applicant said that he just relied on him. He said that his agent said to “give him money and he would get a TRA skills assessment”.[24] The Tribunal put to the applicant that it appeared from his evidence that he knew he was breaking the relevant rules but he had done it because he was desperate and thought that this was the only way to get the visa. The applicant agreed that this was correct. He also agreed that he had never worked at the Waterfront Fish Market and had no recollection of seeing the relevant work reference letter.
  2. The Tribunal said in paragraph 29 of its reasons –
  3. The Tribunal then applied ss.101 and 103 of the Act. The Tribunal referred to the applicant’s concession that he had never worked at the Waterfront Fish Market and that it was therefore satisfied on the applicant’s own evidence that the information provided as part of his application regarding his employment at the Waterfront Fish Market between March 2006 and February 2007 was not correct, given that the applicant admitted to never having worked at that restaurant.
  4. The Tribunal also recorded at paragraph 32 of its reasons that it was also satisfied that the applicant’s TRA skills assessment was a bogus document within the meaning of s.97 of the Act. It so found on the basis that the Tribunal reasonably suspected that the document was obtained because of a false or misleading statement, whether or not made knowingly, in respect of his alleged employment experience at the Waterfront Fish Market, which the applicant acknowledged to have been false.
  5. The Tribunal further found that based on the applicant’s own admission at the hearing, the correct information was that the applicant never worked at the Waterfront Fish Market at all and that the information that he provided to the Department in respect of past employment at the Waterfront Fish Market was incorrect. Additionally, the Tribunal found that the applicant’s TRA skills assessment was a bogus document. The Tribunal found that it did not accept that the applicant’s casual employment with a different employer would have exceeded
    or even would have been counted towards the 900 hours of relevant work experience necessary to his obtaining his TRA skills assessment. Further, the Tribunal found that even if it were to accept that the applicant could have met the 900-hour employment requirement necessary to his obtaining his skills assessment through casual employment experience, if the Department had known that the applicant provided a bogus skills assessment on the basis of false work experience, this would have been likely to have led to a refusal of the visa application under cls.880.224 and/or 880.230 of the Regulations.
  6. The Tribunal concluded that there was non-compliance by the applicant in the way described in the s.107 notice. In reaching that conclusion, the Tribunal considered that the non-compliance was serious and, notwithstanding the applicant’s reliance on his former agent,
    the Tribunal considered that the applicant’s evidence made very clear that he was a knowing participant in the fraudulent conduct of his agent. The Tribunal found that at the very least, the applicant adopted a position of wilful blindness as to his agent’s conduct due to the applicant’s overriding desire to obtain permanent residency, notwithstanding the fact that he did not meet the necessary requirements.

Review in this Court

  1. In his application before this Court, the applicant identified his grounds in the following terms –
2. The tribunal constructively failed to exercise its jurisdiction
(i) The applicant provided information to the Tribunal to corroborate his claims.
(ii) The tribunal failed to comply with the rules of natural justice and contravened s.422B of the Migration Act 1958.
(iii) The tribunal gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the submission without engaging to the contents of these documents (sic)
(iv) It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
3. The applicant satisfies the key elements for a sub class 880 visa and the Tribunal has not considered this aspect and therefore made factual and legal errors.[26]

The nature and effect of the applicant’s admissions

  1. Before the Tribunal and before me, the applicant admitted that the visa application was false in that the applicant stated in it that he had worked for more than 900 hours in a particular restaurant. While frank, the applicant’s admission was nonetheless a concession of the falsity of a material particular on the visa application. While it may be true that others participated to a greater or lesser degree in the provision of false information to the Department by putting forward false information on that application, nevertheless the applicant as signatory to the visa application was ultimately responsible under s.98 of the Act for the correctness or falsity of the information provided to the Department. The other participants in the falsity of the information were the migration agent and the author of the letter of support. The author of the letter from Waterfront Fish Market, Mr Littlejohn, participated by providing a letter that contained false information in relation to the hours that the applicant worked at Waterfront Fish Market.
    The applicant’s migration agent also participated, although the precise terms of his involvement were not fully given in evidence.
  2. The fact of there being other participants in the provision of false information to the Department does not exonerate, excuse nor render blameless the applicant in the process of the applicant’s application for a visa for the purposes of the Act. Nor was the visa applicant required to have been knowingly complicit in the provision of purposely untrue material, as the Federal Court of Australia held in SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs.[27]
  3. The applicant voluntarily admitted the falsity of the information on the visa application. He was not coerced into giving the admission nor was he trapped into making the admission. The applicant volunteered the admission to the Tribunal and also to me. The following is a record of the relevant admission before me –
MR SINGH: That was false.
THE INTERPRETER: Yes. That was false.[28]
  1. As a matter of law, an admission is significant and carries far-reaching legal consequences. In cases involving pleadings, when an admission is made in a pleading, proof is no longer required or permitted of the fact admitted because the fact is no longer in controversy.[29] In certain circumstances, an unequivocal admission will support the entry of judgment against the party making the admission.[30]
  2. In this case, the admission represented a concession that the applicant actually made a false application or at least an application containing false information. Insofar as the letter of support from Mr Littlejohn was concerned, the applicant’s admission represented a concession that the letter from Mr Littlejohn was a bogus document. In Prodduturi v Minister for Immigration and Border Protection,[31] the Full Court of the Federal Court of Australia (Perram, Perry and Gleeson JJ) held that a court is not bound to find facts that are agreed between the parties. However, it held that a court will not depart from such agreements “where there is no room to doubt their correctness”,[32] citing
    Damberg v Damberg.[33] An admission represents not only an agreed fact on the matter admitted, but when given voluntarily (as admissions mostly are), the court can ordinarily proceed on the footing that the party making the admission has deliberately chosen to allow the court to take the admitted matter as correct.
  3. Acknowledging, as I do, that the grounds in support of the application for review were prepared by the applicant who was a litigant in person when legally unassisted, the task of capturing the essence of the applicant’s claims in those grounds is not easy. That said, in the passages below I have endeavoured to distil the real gravamen of the applicant’s contentions in respect of each ground. This was set against a backdrop where, on the hearing of the application before me,
    the applicant admitted in open Court that the document filed with the Department in which he stated he had worked for 900 hours at Waterfront Fish Market was false.

The grounds of review

Ground one

  1. In reality, ground one was not a ground of review at all. More properly, it resembled a prayer for relief. Accordingly, it is not necessary for me to consider it separately.

Ground two

  1. The applicant articulated ground two in a manner that was difficult to follow. The ground itself stated that the Tribunal “constructively failed to exercise its jurisdiction”.[34] Yet the particulars did not provide an elaboration of that assertion. Paragraph (i) to the particulars subjoined to ground two contained an assertion that the applicant provided information to the Tribunal to corroborate his claims. In and of itself, that particular did not detail any error committed by the Tribunal. Paragraph (ii) to the particulars subjoined to ground two contained an assertion that the Tribunal failed to comply with the rules of natural justice. No details were given of the alleged failure. Particular (iii) to the particulars subjoined to ground two contained an assertion that the Tribunal erred by failing to place any weight on the contents of “these documents” without identifying what those documents were.[35] Particular (iv) to the particulars subjoined to ground two contained an assertion that the Tribunal erred in assessing the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
  2. Starting with the wording of ground two, and before separately considering the four paragraphs subjoined to the particulars to
    ground two, the applicant asserted that the Tribunal “constructively failed to exercise its jurisdiction”.[36] As stated above, the particulars subjoined to ground two do not support the statement that there was any constructive failure to exercise the Tribunal’s jurisdiction.
  3. Considering this case in the knowledge that the applicant was not legally represented in this Court, I decided that it was better for me to descend to the details of his complaint about the way the Tribunal dealt with this case rather than focusing on the precise wording the applicant used when he stated in ground two that the Tribunal “constructively failed to exercise its jurisdiction”.[37]
  4. As is canvassed below, jurisdictional error enlivening this Court’s jurisdiction can flow from a tribunal identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material and in some instances making an erroneous finding or reaching a mistaken conclusion, although those are illustrations only of the ambit of jurisdictional error because it is neither possible nor necessary to mark the metes and bounds of jurisdictional error.
  5. Taking first particulars (i) and (ii), it is uncontroversial that the applicant provided information to the Tribunal in support of his claims. It was also uncontroversial that the Tribunal read and considered not only his application but documents that the applicant filed in support of the visa application. So much is apparent from the Tribunal’s reasons themselves. For that matter, the falsity of the information on which the first respondent relied was contained in the very documents that the applicant submitted for the Department’s consideration and which were subsequently considered by the Tribunal. That is enough to address particular (i). Insofar as the applicant complained in particular (ii) that the Tribunal failed to comply with the rules of natural justice,
    the applicant did not descend into the details of the precise way in which the Tribunal allegedly failed to comply with those rules. However, the Tribunal heard from the applicant in person and from the applicant’s migration agent, it read the documents submitted to it and it invited the applicant to make such submissions as he chose (or his migration agent chose) to advance.
  6. For that matter, the applicant’s admission about the falsity of the information provided to the Department was made during an exchange between the applicant and the Tribunal. He was invited to explain his position, details of which were given at paragraph 31 of the Tribunal’s reasons.[38]
  7. In the absence of a proper articulation of the way in which the Tribunal allegedly failed to comply with the rules of natural justice, it is impossible to understand the real point the applicant sought to make in particular (ii). In the hearing before me, the applicant did not elaborate on particular (ii), nor did he explain after being invited to do so precisely what he wanted to convey in respect of that ground.
  8. Similarly, the contentions advanced by the applicant in particular (iii) were also difficult to follow. The applicant appeared to contend that the Tribunal placed no weight on his submissions. Alternatively,
    he appeared to contend that the Tribunal made adverse credit findings against him. Again, the applicant appeared to contend that the Tribunal did not go to the contents of the documents put forward by the applicant. In each of the particulars in (iii) and (iv), the applicant advanced the contention that the Tribunal made adverse credit findings against him despite the contents of documents he put forward which he said supported his claims.

Ground three

  1. Ground three contained an assertion that the applicant met the key elements for a subclass 880 visa and that the Tribunal did not consider that aspect of his application and thereby made factual and legal errors.
  2. With that brief narrative about the grounds advanced by the applicant, it is next necessary to say something about privative clauses under the Act and the review of jurisdictional error.

Legal principles

  1. Under the Act, the power to make decisions about matters concerning visas is given to the delegate of the Minister. The Act, and the Regulations made under it, specify the things the delegate is required to take into account when an applicant seeks a visa. Different considerations apply depending on the type of visa the applicant seeks. The underlying intention of this field of the Act is to render decisions made by the delegate impervious to review by courts. That is the import and effect of s.474 of the Act. However, s.474 of the Act is subject to s.75 of the Commonwealth of Australia Constitution Act and must be construed in conformity with established principles of constitutional law. Hence, even though s.474 of the Act purports to mean that a privative clause decision cannot be reviewed, that statutory stipulation will be effective only if the relevant decision is not infected with jurisdictional error.
  2. In the passages below I set out (although not exhaustively) the lengths and breadths of administrative decisions that can be reviewed
    (because they are adversely affected by jurisdictional error) and the administrative decisions that cannot be reviewed (because they are not adversely affected by jurisdictional error).

Judicial review under s.474 of the Act

  1. Section 474 of the Act creates a statutory scheme providing for the finality of a privative clause decision. In essence, s.474(1) of the Act provides that a privative clause decision is final and conclusive and that it cannot be challenged or appealed against, nor can it be reviewed, quashed or called into question in any court. Further, under s.474,
    a privative clause decision is not subject to administrative law remedies of prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
  2. Under s.474(2) of the Act, a “privative clause decision” is a decision of an administrative character made, proposed to be made or required to be made under the Act.
  3. Privative clauses are strictly construed, as was held by the majority (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) in the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia[39] (“Plaintiff S157/2002”).
  4. An administrative decision will not be a valid privative clause decision if the relevant decision is infected with jurisdictional error. That is for the simple reason that an administrative decision which involves jurisdictional error is regarded in law as being no decision at all.
    So much was held by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[40]
  5. The majority in Plaintiff S157/2002[41] held to like effect. Accordingly, an administrative decision made under the Act may be amenable to judicial review if the applicant seeking judicial review can establish that the administrative decision is tainted by jurisdictional error.
  6. The circumstances exhibiting jurisdictional error have been described in a variety of ways. In Craig v State of South Australia[42] (“Craig”) the majority of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) held that jurisdictional error is at its most obvious when the inferior tribunal purports to act wholly or partly outside of the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.[43] In the same case, it was held that an inferior tribunal can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something it lacks authority to do.[44]
  7. Similarly, jurisdictional error will occur where an inferior tribunal disregards or takes into account some matter in circumstances where the statute establishing the tribunal and conferring its power requires that a particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the particular case.[45]
  8. Further, an administrative tribunal will exceed its authority and fall into jurisdictional error if it misconstrues the statute pursuant to which it was created and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of a particular case.[46]
  9. An administrative tribunal falls into error of law amounting to jurisdictional error with the effect of invalidating any order or decision of the tribunal if the tribunal –
    1. identifies a wrong issue;
    2. asks itself a wrong question;
    1. ignores relevant material;
    1. relies on irrelevant material; or
    2. in some instances, makes an erroneous finding or reaches a mistaken conclusion.[47]
The majority (McHugh Gummow and Hayne JJ) applied that test in the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf[48] (“Yusuf”).
  1. These are illustrations only of the ambit of jurisdictional error.[49] As the High Court in Kirk v Industrial Relations Commission (NSW)[50] (“Kirk”) held, it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error as the reasoning in Craig[51] does not provide a rigid taxonomy of jurisdictional error.
  2. So far as the onus of proving jurisdictional error is concerned,
    an applicant seeking judicial review must show that the approach adopted by the Tribunal manifested a legally erroneous view as to what it was about which it needed to be satisfied. The High Court said as much in Minister for Immigration and Multicultural Affairs v Eshetu.[52]
  3. It has been held that judicial review is concerned with whether the decision under review was authorised rather than it providing an appellate procedure enabling either a general review of the relevant decision or a substitution of the decision the court thinks should have been made. As recently as December 2015, the High Court so held in Plaintiff M64/2015 v Minister for Immigration and Border Protection[53] (“Plaintiff M64/2015”). In that case, the High Court approved earlier statements to similar effect in Minister for Aboriginal Affairs v
    Peko-Wallsend Ltd[54] and Attorney-General (NSW) v Quin.[55].
  4. In the context of administrative decision-making, the High Court instructs that courts are not astute to discerning error where an administrative officer makes a statement in the form of a broad administrative evaluation that was not, and was not intended to be,
    a statement of reasons in the nature of a judicial decision. Authority for that proposition is Minister for Immigration and Ethnic Affairs v
    Wu Shan Liang[56] as well as Plaintiff M64/2015.[57]
  5. The Full Court of the Federal Court of Australia held in Collector of Customs v Pozzolanic Enterprises Pty Ltd[58] that the reasons of the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.

Each ground of review considered

Ground one

  1. As is canvassed above, ground one was not in truth a ground of review. It was no more than a claim that the applicant sought judicial review of the Tribunal’s decision made on 16 October 2013 when the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa.
    I accept that. This judgment responds to that application. There is nothing for me to review in respect of ground one.

Ground two

  1. For reasons canvassed above, the applicant did not articulate his grounds with any comprehensible detail. I make that observation fully acknowledging that he appeared in person and without the benefit of legal assistance in this Court. However, nowhere among the material before the Tribunal was there evidence of a denial of natural justice upon which the applicant could rely. To the contrary, the Tribunal gave the applicant an abundance of opportunity to ventilate his claims.
    He was specifically asked about the falsity of the information in his visa application and in the letter of reference provided by
    Mr Littlejohn. In the face of that questioning, the applicant admitted that he had not worked at Waterfront Fish Market. That made the letter of reference from Mr Littlejohn false and the information in his visa application in which he stated that he had in fact worked at the Waterfront Fish Market equally false. The Tribunal made no error in questioning the applicant about the admission in those respects.
  2. So far as any credit findings were made by the Tribunal, the Tribunal did little more than put to the applicant the fact of there being a polarised discrepancy between the information in his visa application about the number of hours he had worked at the Waterfront Fish Market and the reality of his answers that he had never heard of the Waterfront Fish Market and had never been there. To my mind, it was entirely proper for the Tribunal to have found as it did that the information given by the applicant on his visa application (supported by the erroneous letter of reference from Mr Littlejohn) was false.
  3. The applicant criticised the findings of the Tribunal in his assertion in the particulars subjoined to ground two that the Tribunal made adverse credit findings against him placing no weight on his submissions and “without engaging to the contents of these documents” (sic).[59]
    The documents did not assist the applicant. In fact, the false information in the visa application about the number of hours he worked at the Waterfront Fish Market together with the false information in the letter of reference were the documentary sources of the falsity upon which the first respondent relied. Far from the Tribunal failing to ‘engage’ in relation to the contents of the documents (whatever that may mean), the Tribunal relied on those documents, being documents volunteered by the applicant, as the source of the Tribunal’s finding that the applicant had placed false information before the Department when applying for the visa.
  4. Not only did that information demonstrate the correctness of the Tribunal’s findings and of its conclusions in this case, it demonstrated that the applicant failed at the threshold to make out his claim for jurisdictional error. For that matter, in the proceeding before me the applicant was in truth engaging in a merits review when contending that the documentation “corroborated his claims”.[60] Time and again the courts have held that judicial review on the ground of jurisdictional error does not mean undertaking a merits review and that a court, when undertaking judicial review for the demonstration of jurisdictional error is not permitted simply to substitute a different conclusion because the court regards that decision as preferable on the facts.[61]
  5. Before leaving ground two, it is necessary for me to say something about the characterisation of certain of the applicant’s documentation as “bogus documentation”. The Tribunal addressed the status of the applicant’s documentation, or some of it, as bogus documentation.
    The subject of bogus documents and an applicant’s state of knowledge about the contents of the bogus document containing false or misleading information was addressed by the Full Court of the
    Federal Court in Trivedi v Minister for Immigration and Border Protection.[62] In that case the Court held that it was not necessary for an applicant to know that the information in a bogus document was false or misleading for the document to acquire the status under the legislation as being “bogus”. That concept was recently affirmed by a differently constituted Full Court of the Federal Court of Australia in Arora v Minister for Immigration and Border Protection.[63]
  6. The point is relevant in this case because of the contentions advanced by the applicant to the effect that his migration agent completed the visa application documentation and appended to it the false letter of reference given by Mr Littlejohn. Those decisions make clear that a document can acquire the status of being a “bogus document” whether or not the applicant knew it to be so. In this case, the applicant signed the visa application form together with other documents lodged by him in support of his visa application. Applying principles of general law,
    a person is presumptively bound by a document he or she signs.
    The learning on that point is of considerable veneration[64] as recently affirmed by the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd.[65] Here, the applicant signed the relevant documentation and submitted it then later admitted to the falsity of some of the information on it.
  7. In my judgment, the applicant failed to make out any of the bases for which he contended in ground two of his application.

Ground three

  1. In ground three, the applicant made assertions that were akin to a merits review. He contended that he satisfied the key elements for a subclass 880 visa but that the Tribunal did not consider that aspect.
    The applicant contended that in so doing, the Tribunal made factual and legal errors.
  2. Assuming the truth of that contention, factual errors of themselves would only support a submission of jurisdictional error if they took the form adumbrated in such decisions of the High Court as Craig, Yusuf and Kirk. The applicant did not put ground three in that way.
  3. That aside, in my view the Tribunal was entitled to conclude as a threshold issue whether the statements put forward in the visa application were false. The Tribunal affirmatively concluded that they were, contrary to the interests of the applicant.
  4. In those circumstances, the Tribunal correctly determined that the applicant was not entitled to a subclass 880 visa.
  5. In my judgment, no error was demonstrated by ground three.
  6. Accordingly, the application filed in this Court on 2 September 2014 is dismissed.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 7 July 2016

[1] Court Book filed 19 December 2014 at pp.104-115.
[2] Court Book filed 19 December 2014 at pp.64-77.
[3] Application filed 2 September 2014 at p.2.
[4] Court Book filed 19 December 2014 at pp.1-12.
[5] Court Book filed 19 December 2014 at pp.20-21.
[6] Court Book filed 19 December 2014 at p.10.
[7] Court Book filed 19 December 2014 at p.25.
[8] Court Book filed 19 December 2014 at p.30.
[9] Court Book filed 19 December 2014 at p.35-37.
[10] Court Book filed 19 December 2014 at p.40.
[11] Court Book filed 19 December 2014 at p.46.
[12] Migration Act 1958 (Cth), s.109.
[13] Court Book filed 19 December 2014 at p.49.
[14] Court Book filed 19 December 2014 at p.60.
[15] Ibid.
[16] Court Book filed 19 December 2014 at pp.78-88.
[17] [2004] FCA 234 at [46].
[18] Court Book filed 19 December 2014 at p.106.
[19] [2010] FCAFC 145; (2010) 190 FCR 248.
[20] Court Book filed 19 December 2014, p.108 at [21].
[21] Court Book filed 19 December 2014, p.108 at [22].
[22] Court Book filed 19 December 2014, p.109 at [23].
[23] Court Book filed 19 December 2014, p.109 at [25].
[24] Ibid.
[25] Court Book filed 19 December 2014 at p.110.
[26] Application filed 2 September 2014 at p.2.
[27] [2006] FCA 393 at [12] and [16].
[28] Transcript of Proceedings, 7 March 2016, p.27 at lines 6-11.
[29] See Divcon (Australia) Pty Ltd v Devine Shipping Pty Ltd [1996] VicRp 58; [1996] 2 VR 79 and Pioneer Plastic Containers Ltd v Commissioner of Customs and Excise [1967] Ch 597.
[30] See Re Registered Trade Marks Certina & Certina DS (1970) 44 ALJR 191 and Worldwide Timber Traders Pty Ltd v Brouwer (No 2) [2009] FCA 447.
[31] [2015] FCAFC 5.
[32] Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 at [23].
[33] [2001] NSWCA 87; (2001) 52 NSWLR 492.
[34] Application filed 2 September 2014 at p.2.
[35] Ibid.
[36] Ibid.
[37] Application filed 2 September 2014 at p.2.
[38] Court Book filed 19 December 2014 at p.110.
[39] (2003) 211 CLR 476 at [72].
[40] [2002] HCA 11; (2002) 209 CLR 597, 614-615 at [51], 618 at [63] and 614-615 at [152].
[41] (2003) 211 CLR 476 at [76].
[42] [1995] HCA 58; (1995) 184 CLR 163.
[43] [1995] HCA 58; (1995) 184 CLR 163 at 177.
[44] Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177.
[45] Ibid.
[46] Ibid.
[47] Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163.
[48] [2001] HCA 30; (2001) 206 CLR 323, 351 at [82].
[49] See MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [33].
[50] [2010] HCA 1; (2010) 239 CLR 531 at [71] and [73].
[51] [1995] HCA 58; (1995) 184 CLR 163.
[52] (1999) 197 CLR 611, 629 at [55].
[53] [2015] HCA 50 at [23].
[54] [1986] HCA 40; (1986) 162 CLR 24 at 41-42.
[55] (1990) 170 CLR 1 at 45-46.
[56] [1996] HCA 6; (1996) 185 CLR 259.
[57] [2015] HCA 50.
[58] [1993] FCA 456; (1993) 43 FCR 280 at 287.
[59] Application filed 2 September 2014 at p.2.
[60] Ibid.
[61] See Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 585; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration and
Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 and 291; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 372 at [153]; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 286-287; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222, 254 at [105]; SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176 at [20]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 1005 at [73].
[62] [2014] FCAFC 42.
[63] [2016] FCAFC 35.
[64] See L’Estrange v F Graucob Ltd [1934] 2 KB 394.
[65] (2004) 219 CLR 165.

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