Bari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1819 (9 August 2021)

Last Updated: 9 August 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1819

File number(s):	PEG 26 of 2020
Judgment of:	JUDGE LUCEV
Date of judgment:	9 August 2021
Catchwords:	MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Employer Nomination Scheme (subclass 186) visa – Public Interest Criterion 4020 – whether no evidence to make a finding – whether evidence to find that PIC 4020(1) not satisfied – whether Tribunal misconstrued PIC 4020(1) – whether information that is false or misleading in a material particular – reliance on Government or Ministerial policy – whether jurisdictional error WORDS AND PHRASES – “Evidence” – “no evidence” – “in a material particular” – “any”
Legislation:	Migration Act 1958 (Cth) Pt 5, ss 20(2)(b)(ii), 97, 353(a), 376, 476, Migration Regulations 1994 (Cth) cl 186.213, Sch 4 PIC 4020, PIC4020(1)(a), PIC 4020(1)(b), PIC 4020(4), PIC 4020(5),
Cases cited:	Aggarwal v Minister for Immigration and Border Protection [2015] FCCA 504 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11 Collins v Repatriation Commission [1980] FCA 105; (1980) 48 FLR 198 Dhillon v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 884; (1994) 48 FCR 107; (1994) 32 ALD 757 EMX17 v Minister for Immigration & Anor [2019] FCCA 284 Khan v Minister for Immigration and Citizenship [2011] FCA 75 Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060 Matthews v Hargreaves (No 4) [2013] FMCA 4; (2013) 274 FLR 138 MDXJ v Secretary, Department of Social Services [2020] FCA 1767 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 Minister for Immigration & Multicultural Affairs v N989/01 [2002] FCAFC 237 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12 Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348; (1992) 110 ALR 367 MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 Sandhu v Minister for Immigration and Citizenship [2013] FCCA 491 Sharma v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1280 Singh v Minister for Immigration and Border Protection [2019] FCAFC 22 Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555; (2014) 64 AAR 120; (2014) 322 ALR 581; 141 ALD 540 Sun v Minster for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220; (2016) 68 AAR 535 Talukder v Minister for Immigration & Citizenship [2009] FMCA 223; (2009) 108 ALD 583 Talukder v Minister for Immigration and Citizenship [2009] FCA 916; (2009) 111 ALD 405 VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 Victorian Chamber of Manufactures v The Commonwealth (Prices Regulations) [1943] HCA 19; (1943) 67 CLR 335; [1943] ALR 287; [1943] 17 ALJ 188
Number of paragraphs:	63
Date of last submission:	4 May 2021
Date of hearing:	4 May 2021
Place:	Perth
Counsel for the Applicant:	Mr D Estrin
Solicitor for the Applicant:	Esrin Saul Lawyers
Counsel for the First Respondent:	Ms G Ellis
Solicitor for the First Respondent:	Sparke Helmore
Second Respondent:	Submitting appearance, save as to costs

ORDERS

		PEG 26 of 2020
BETWEEN:	WASSIM BARI Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	9 AUGUST 2021

THE COURT ORDERS THAT:

1. The originating application filed 24 January 2020 be dismissed.

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION

1. The applicant in this matter (“Mr Bari”) filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) on
   24 January 2020. Mr Bari is seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively") made on 10 January 2020.
   The Tribunal Decision affirmed a 4 August 2017 decision of a delegate (“Delegate’s Decision”) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), not to grant Mr Bari an Employer Nomination Scheme (subclass 186) visa (“Employer Nomination Visa”) in the Temporary Residence Transition (“TRT”) stream.
2. The Judicial Review Application contains two grounds of review set out below at [5] (ground 1) and [40] (ground 2).

JUDICIAL REVIEW APPLICATION

Background

3. The relevant background to the matter is as follows:

(a) Mr Bari is a citizen of Belgium. Prior to applying for the Employer Nomination Visa, he was working in Australia on a subclass 457 visa applied for on 13 September 2012 (“457 Visa”): Court Book (“CB”) 148 at [9];
(b) Mr Bari, with the assistance of a migration agent, applied for the Employer Nomination Visa on 16 September 2016: CB 1-11. The nominated position in support of the visa application was “Bar Manager” for the employer, “William Street Bird” (“Sponsor”). Mr Bari’s employment with the Sponsor commenced 12 May 2012 and is ongoing;
(c) on 18 May 2017 the Minister wrote to Mr Bari inviting him to comment on evidence suggesting that Mr Bari provided, or caused to be provided, a bogus document or false or misleading information in a material particular, such that Mr Bari may fail to satisfy Public Interest Criterion (“PIC”) 4020(1) (“PIC 4020(1)”) of sch 4 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) and, as a result, may be refused the Employer Nomination Visa: CB 31-35. Specifically:

(i) Mr Bari declared in his Employer Nomination Visa application: CB 7, and in the application for his previously held 457 Visa: CB 32, that he had been employed at the Restaurant “Les Crustaces” in Belgium (“Restaurant”) from September 2006 to September 2010;
(ii) in the application for the 457 Visa, Mr Bari provided a letter of reference written on the Restaurant’s letterhead signed by Kevin Van Cauwelaert (“Employment Reference” and “Mr Van Cauwelaert” respectively), the last known owner of the Restaurant, who conducted business with his wife Julie Van Cauwelaert (“Mrs Van Cauwelaert”);
(iii) the Australian Embassy in Madrid (“Madrid Embassy”) contacted the Restaurant by telephone on 11 April 2017, and Mr Van Cauwelaert answered. As he was busy working, he provided the Madrid Embassy with the email [e-mail] (“Skynet email address”) for correspondence;
(iv) the Madrid Embassy emailed the Skynet email address in relation to Mr Bari’s employment, and, on 12 April 2017, received an email response (“12 April 2017 Email”) stating “I never heard about this person...”: CB 45-48;

(d) on 9 June 2017 Mr Bari requested an extension of time to respond to the invitation to comment on the basis Mr Bari had been “struggling” to contact Mr Van Cauwelaert and that Mr Bari had recently established contact with the owners of the Restaurant. The Minister refused the request as there was no evidence Mr Bari had called Mr Van Cauwelaert: CB 36-37;
(e) on 20 June 2017 Mr Bari provided the Minister with submissions (dated 19 June 2017) (“Bari’s Ministerial Submissions”) in response to the invitation. Bari’s Ministerial Submissions were written by Mr Bari’s lawyers in these proceedings. The purpose of Bari’s Ministerial Submissions was seemingly to demonstrate that there was insufficient probative evidence to invoke PIC 4020(1): CB 39-53;
(f) the Delegate’s Decision to refuse the Employer Nomination Visa was made on 4 August 2017. The Delegate was not satisfied that Mr Bari had met the requirements of PIC 4020(1) for the purposes of cl 186.213 of the Migration Regulations: CB 57-66. It is pertinent to note that the Delegate found that the information provided in the form of the Employment Reference as well as the statement made on the 457 Visa application form was false or misleading, and was so at the time it was given: CB 64, penultimate paragraph. The Delegate did not find that PIC 4020(1) was invoked because of statements given in the Employer Nomination Visa application;
(g) on 18 August 2017 Mr Bari, now solely represented by his lawyer, sought review of the Delegate’s Decision by the Tribunal: CB 67-68;
(h) on 29 August 2019 the Tribunal invited Mr Bari to attend a hearing on 25 September 2019: CB 80-83;
(i) on 11 September 2019 Mr Bari’s lawyer emailed the Tribunal and, among other things, made submissions on the papers in support of Mr Bari’s review application (dated 10 September 2019) (“Bari’s First Tribunal Submissions”): CB 84-89;
(j) on 25 September 2019 Mr Bari attended the Tribunal hearing: CB 101-104;
(k) on 17 October 2019 Mr Bari made submissions, generally in response to a “dob-in” letter which ultimately is not relevant to the case in this Court, but also reaffirming his position as to probative evidence under PIC 4020(1) (“Bari’s Second Tribunal Submissions”). Mr Bari also made a request for a further 21 days to make submissions on waiving the requirements of PIC 4020 under PIC 4020(4): CB 110-112;
(l) Mr Bari’s lawyer provided submissions on PIC 4020(4) on 4 November 2019 (“Bari’s Third Tribunal Submissions”). The essence of Bari’s Third Tribunal Submissions was that the Mr Bari is an integral part of the State Theatre precinct and a decision to affirm the Delegate’s Decision would harm business in Perth: CB 113-123. Letters of support from several Perth residents and institutions, predominantly those active in the entertainment precinct, were provided as evidence: CB 124-143. Additionally, the point in relation to PIC 4020(1) was reiterated; and
(m) the Tribunal Decision delivered 10 January 2020 affirmed the Delegate’s Decision to refuse to grant Mr Bari the Employer Nomination Visa: CB 144-165.

4. The Court made an order, by consent, on 26 February 2020 which set out the timeline for the filing of materials with the Court in the matter. Mr Bari filed submissions on 7 January 2021 (“Mr Bari’s Submissions”). The Minister filed a Court Book numbering 165 pages (Exhibit 1), written submissions on 21 January 2021 (“Minister’s Submissions”), and an affidavit of Georgina Roberta Ellis affirmed 21 January 2021 (“Ellis Affidavit”) which was read at hearing. The Ellis Affidavit contains a copy of the Employment Reference signed by Mr Van Cauwelaert and a copy of a certificate issued under s 376 of the Migration Act in relation to the dob-in letter (“Section 376 Certificate”).

Ground 1

5. Ground 1 of the Judicial Review Application is as follows:
   1. The decision of the Second Respondent was affected by jurisdictional error in that its finding that the Applicant did not meet Public Interest Criterion (PIC) 4020 in Schedule 4 of the Migration Regulations 1994 (Cth) (Regulations) was based on no evidence.

Particulars

The Second Respondent had no probative evidence on which to base the finding (at paragraph 55) that “on 12 April 2017 Kevin stated by email “I never heard about this person”.” and any other subsequent finding based on the original finding.

6. Mr Bari has consistently pressed this ground in materially the same form in:

(a) Bari’s Ministerial Submissions;
(b) Bari’s First Tribunal Submissions (attaching Bari’s Ministerial Submissions); and
(c) Bari’s Second and Third Tribunal Submissions, which reiterated the point, but did not add anything substantive.

Bari’s Ministerial Submissions and Bari’s First Tribunal Submissions

7. Mr Bari provided a statement of events explaining his attempt to contact the proprietors of the Restaurant after the invitation to comment was sent by the Department on 18 May 2017.
   In summary, it explains that contact was initially made with Mr Van Cauwelaert, but that
   Mr Van Cauwelaert failed to respond to further attempts to clarify the situation. Mr Bari speculated that Mr Van Cauwelaert failed to respond because he was worried about investigations by the Belgian tax authorities into historical business practices: CB 41 and 44.
8. When Mr Van Cauwelaert failed to respond to Mr Bari, Cedric Van Wichelen (“Mr Van Wichelen”), Mr Van Cauwelaert’s cousin and Mr Bari’s “Facebook friend”, contacted Mr Van Cauwelaert, purportedly, via Facebook: CB 41-42. The totality of the translated messages between Mr Van Wichelen and Mr and Mrs Van Cauwelaert (at CB 44) are as follows (hereafter referred to as “Facebook-Vodafone Screenshots”):

Vodafone AU 12:21pm
KEVIN
Monday 10:03pm
OK
Tuesday 2:47pm
From Cedric to Kevin
Is it possible to have the mails today? Because my friend is really stressing out, he may be kicked out of the country. Thank you and sorry for the trouble. Thanks Kev
Cedric
Tuesday 7:17pm
Is it possible to send it to me today?
OK. I need to find it.
Thank you
Wednesday 12:25
Hi this is Julie!!! How are things? I looked into the mail but in fact, at the time, they requested the personnel register and your friend was not in it, we can't do anything sorry☹
Hi Julie, I am fine thanks. Sorry to bug you with that paperwork, I know you are very busy with the restaurant. Could you send me the mail that the Australian immigration sent you and your response pls.
19/09/2012 at 5:57 am
Sorry for the late reply. I go on Facebook very rarely, but OK.
19/09/2012 at 10:07 am
All is fine. Everything has been fixed, thank you just the same, cousin;)
10/08/2014 at 1:47pm
Ok Tish

9. Mr Bari argued that the evidence was not sufficiently probative to give rise to PIC 4020:
   CB 41-42. The argument is in two parts. The first is that the Skynet email address contained no signature block or formality and is therefore insufficient evidence to establish
   Mr Van Cauwelaert sent the email: CB 40-42. The second concerns the plausibility of an alternative cogent explanation for the series of events: CB 87-88, and is that:

(a) Mr Bari worked at the Restaurant from 2006-2010;
(b) Mr Bari had never met Mrs Van Cauwelaert, who only married Mr Van Cauwelaert in 2014 (at which time the Mr Bari had already been in Australia for several years);
(c) it is entirely plausible that no historic staff records were kept;
(d) when the Madrid Embassy called Mr Van Cauwelaert, he was too busy and asked them to email his address, which he shares with Mrs Van Cauwelaert (who assists him with bookkeeping and administration);
(e) Mrs Van Cauwelaert answered the Madrid Embassy’s email with the 12 April 2017 Email (as she confirmed in the text message above) saying she had never heard of this person (which is true); and
(f) Mrs Van Cauwelaert checked whatever personnel register was in use in 2017 and could not find Mr Bari’s name, because Mr Bari had left the business seven years prior to her checking.

Tribunal Decision

10. Mr Bari provided the Minister’s Department with the following information concerning his employment history, which was also provided in support of his 457 Visa application: CB 148 at [8]-[9]:

Position: Bar Manager;
Employer name: Les Crustaces Restaurant;
Country: Belgium; Date from: 01/09/2006; Date to 30/09/2010;
Description of duties: Managing the premises, general maintenance & upkeep, stocktake, ordering

11. The Tribunal set out the details of the Delegate’s Decision, Bari’s Ministerial Submissions and Bari’s First Tribunal Submissions: CB 148-151 at [8]-[20].
12. The Tribunal then set out the matters discussed at the Tribunal hearing. Relevantly:

(a) the Tribunal asked Mr Bari about his employment at the Restaurant. Mr Bari stated that when he started going there in 2002-2003, there was “Francis”, seemingly a person who apparently owned the Restaurant. Mr Bari slowly started working with Francis over a number of years until he went to work at the Restaurant in 2004-2005. Francis was the Restaurant owner until September 2010 and Mr Bari came to Australia at the end of 2010. He was paid a weekly wage and given a piece of paper telling him his “accounts”, but he did not file a tax return as he was very young and irresponsible. When asked about his social security contributions he said he did not know: CB 151 at [22];
(b) the Tribunal asked Mr Bari how he got the Employment Reference from Mr Van Cauwelaert. Mr Bari stated that he did so through his friend Mr Van Wichelen,
the grandchild of Francis, who lives in Perth. Mr Bari’s response was that he did not get the Employment Reference himself because he was not friends on Facebook with
Mr Van Cauwelaert, and that it would be “impossible” to have sent a letter to Mr Van Cauwelaert: CB 151 at [23];
(c) the Tribunal discussed the Employment Reference and the Facebook-Vodafone Screenshots conversation between Mr Van Wichelen and Mrs Van Cauwelaert. Mr Bari said that Mr Van Wichelen provided him with the Facebook-Vodafone Screenshots in 2017. At CB 151-152 at [24]-[25] the Tribunal records that it put to Mr Bari that:

(i) the Facebook-Vodafone Screenshots did not appear to be dated;
(ii) the translation provided to the Minister had marked at the top “Vodafone AU 12:21pm”;
(iii) there were 2012 and 2014 dates, which is prior to the Madrid Embassy checks made in April 2017; and
(iv) the relevant conversations were not dated and do not refer to the name of the “friend” mentioned, and that as there were no names mentioned the messages were of little probative value;

and that Mr Bari responded that he is friends with Mr Van Wichelen on Facebook and that the 2012 date was “probably when he asked for the 457”.

(d) the Tribunal then questioned Mr Bari about the statement from Mr Van Cauwelaert’s email in the 12 April 2017 Email stating “I never heard about this person ...”. Mr Bari said that when he had asked for the emails that it was Mrs Van Cauwelaert who responded. When asked how he knew Mrs Van Cauwelaert was involved in the Restaurant he said that Mr Van Wichelen had told him but that he did not see Mr Van Wichelen much anymore. The Tribunal also put to Mr Bari that there was nothing on the face of the documents from the Restaurant which refers to him. Mr Bari said that Francis had passed away and that Mr Van Cauwelaert had sold the business: CB 152 at [26]-[27];
(e) the Tribunal explained that as Mr Bari was not named and the documents were undated it was of the view that the documents were of no probative value: CB 152 at [28]-[29];
(f) the Tribunal asked Mr Bari as to why he speculated that Mr Van Cauwelaert failed to respond because of investigations into his historical business practices. Mr Bari responded by saying that when he called Mr Van Cauwelaert about payslips he
“lost it”: CB 152 at [30]; and
(g) Mr Bari said that the Facebook-Vodafone Screenshots provide a plausible explanation of what happened: CB 152 at [33].

13. At CB 153-154 at [39]-[46] the Tribunal set out the relevant law, and then recorded its findings as follows:

(a) as to the plausibility of Mr Bari’s explanation the Tribunal observed at CB 154 at [48] as follows (footnotes omitted):

48. The applicant claimed to the Department when applying for the visa that he worked as a Bar Manager, at Les Crustaces Restaurant Belgium from 01/09/2006 to 30/09/2010. He provided the same information in relation to work experience when he applied for Class UC Subclass 457, on 13 September 2012. The Class UC subclass 457 application included a letter of reference on letterhead from "Restaurant Les Crustaces," signed Kevin Van Cauwelaert [Kevin]. The Department undertook checks and accepted an email from the restaurant owner that he had never heard of the applicant. The applicant provided an explanation that Kevin's wife, Julie, wrote the response as she assists him with the running of the restaurant and this was the reason for the owner's lack of knowledge of the employment of the applicant. The Tribunal places no weight on this explanation. The Tribunal accepts that Julie is married to Kevin, this information is available on Kevin's publicly available Facebook page. Merely because Julie works for her husband and they married in 2014 after the applicant left Belgium, these factors do not indicate that she was the author of the email to the Department.

(b) the Tribunal placed no weight on the Facebook-Vodafone Screenshots as the “friend” mentioned in the message was not named. It did not accept Mr Bari’s submission that the messages show, at best, that Mrs Van Cauwelaert, who Mr Bari says sent the
12 April 2017 Email, is not acquainted with Mr Bari or his employment history.
Nor did the Tribunal accept that the Restaurant did not keep records from 2006-2010 because there was no evidence to support that claim. Whilst it was claimed that Mr Van Cauwelaert’s cousin Mr Van Wichelen now lived in Australia, there was no evidence that Mr Van Wichelen had sent messages to Mr Van Cauwelaert on Mr Bari’s behalf: CB 154-155 at [49]-[51];
(c) the Tribunal did not accept that Mr Bari’s mother, sisters and a friend went to the Restaurant to see Mr Van Cauwelaert, that Mr Bari called Mr Van Cauwelaert on
24 May 2017, and that Mr Van Cauwelaert promised to help him, as there was no evidence to suggest this had occurred. As the Tribunal had rejected the Facebook-Vodafone Screenshots it rejected the claim that Mr Van Wichelen, Mrs Van Cauwelaert and Mr Bari were in an ongoing dialogue. Further, the Tribunal found that there was no evidence of an email chain between Mr Bari and Mr Van Wichelen showing that
Mr Bari was successful in making contact with Mr Van Cauwelaert : CB 155 at [52];
(d) noting that the Belgium Government requires taxpayers to file a tax return, the Tribunal accepted that Mr Bari did not keep payslips, but when asked about his tax returns
Mr Bari stated that he did not lodge them: CB 155 at [54];
(e) at CB 155-156 at [55] the Tribunal said as follows:

55. The Tribunal accepts that on 11 April 2017 the Department contacted "Les Crustaces" by telephone on the number provided on its website and spoke to the proprietor, Kevin, after having confirmed his identity. The Tribunal accepts that an email was sent to Kevin and he provided an email address for correspondence. The Tribunal accepts that the Department sent an email to the address provided by Kevin and received a response that email. The applicant claims that the email omitted a signature block or formality and that it is not probative evidence that Kevin sent the email. The Tribunal is satisfied, on the information before it, that the Department officer sent an email to the internet address provided by Kevin. The Tribunal is satisfied the Department officer received a response from the internet address where the Department had sent the email. The Tribunal does not accept that it is necessary for a signature block or formality on an email for the Tribunal to reach satisfaction about the author of the email or its contents. The Tribunal has rejected the suggestions made that the email to the Department was written by Kevin's wife, as discussed above. Therefore, the Tribunal is satisfied, in light of all the circumstances, that on 12 April 2017 Kevin stated by email "I never heard about this person."

(f) the Tribunal placed no weight on the Employment Reference, purportedly authored by Mr Van Cauwelaert, as evidence of Mr Bari’s employment at the Restaurant because Mr Van Cauwelaert “had denied the facts contained in that letter, ie the employment of the applicant” (the Court notes that that conclusion is one deduced by the Tribunal from Mr Van Cauwelaert’s statement in the 12 April 2017 Email that he had not heard of Mr Bari): CB 156 at [56];
(g) the Tribunal noted that in a merits review proceeding of this nature that there is no formal burden of proof. However, in the absence of other evidence, such as Mr Bari’s income tax returns, the Tribunal decided to place more weight “on the Department’s processes, and the information it obtained rather than ... [Mr Bari’s] assertions”:
CB 156 at [57];
(h) at CB 156 at [58] the Tribunal said as follows:

58. As the Tribunal accepts that Kevin provided information to the Department about not knowing the applicant and confirming that the applicant was not employed by him and as the Tribunal has rejected the applicant's claims that Kevin's wife Julie responded to the email, the Tribunal is satisfied that the applicant did not work at "Restaurant Les Crustaces" and the Tribunal is satisfied that the work reference provided by the applicant to the Department contains false and misleading information. The Tribunal is satisfied that the applicant is not a witness of truth who has created his explanations regarding Cedric, Julia and Kevin in order to obtain the visa sought.

(i) the Tribunal rejected Mr Bari’s story that Francis was the owner of the Restaurant until 2010 and that Mr Bari was working for Francis, as it found that Mr Bari was not a witness of truth: CB 156 at [59]; and
(j) at CB 156 at [60] the Tribunal concluded as follows::

60. In light of all the information discussed above, the Tribunal is satisfied that the applicant has provided information that is false or misleading in relation to his employment history. In circumstances where the purpose of the employment history relates to the visa applicant's qualifications to perform work as the holder of an Employer Nomination (Permanent) Subclass 186 visa, the Tribunal finds that the information was false or misleading in relation to a material particular in relation to the application for the visa. Therefore, the applicant does not meet PIC 4020 (1).

14. The Court notes that in the Tribunal Decision the Tribunal did not specify whether it was paragraph (a) or (b) of PIC 4020(1) that was not met.

Mr Bari’s Submissions

15. Mr Bari’s Submissions on ground 1 are as follows:

(a) the Tribunal placed no weight on the Employment Reference, and made no findings as to whether it was bogus or not within the meaning of s 97 of the Migration Act;
(b) there is simply no evidence that Mr Van Cauwelaert wrote the 12 April 2017 Email;
(c) the Tribunal did not accept that it was “necessary for a signature block or formality on an email for the Tribunal to reach satisfaction about the author of the email or its contents”, but there still needs to be evidence for the finding that a person wrote an email;
(d) at best, the probative value of what was elicited by the Madrid Embassy inquiries is that a person who had access to the Skynet email address had never heard of Mr Bari;
(e) there was no follow-up to confirm the sender of the 12 April 2017 Email. In response to a question about the Tribunal not being bound by technicalities, Mr Bari submitted that there still needs to be evidence, and there was simply no evidence here, and that if there had been a follow-up call to confirm the sender that would have been sufficiently probative evidence of the authorship of the 12 April 2017 email;
(f) while the determination of what is a “bogus document” requires a standard of “reasonable suspicion”, the word “evidence” in the context of information is used to impose a requirement that the facts conveyed by the material be sufficiently probative to lead to the conclusion that the information was false or misleading in a material particular. A decision maker cannot simply take any information suggestive of falsity as sufficient for the purposes of PIC 4020(1);
(g) as there are two competing views about the evidence, one where fraud is present and the other where it is not, the Court should favour the latter;
(h) the Tribunal’s fact-finding must be founded on probative evidence; and
(i) the Tribunal’s findings here reached well beyond the material before it. In doing so, it committed jurisdictional error.

Minister’s Submissions

16. The Minister’s Submissions on ground 1 are as follows:

(a) to succeed on a ground of “no evidence”, Mr Bari must show that there was no evidence at all upon which the finding could have been based. Even if the Court holds that the evidence in support of a relevant finding was “slight”, that will be sufficient to defeat a “no evidence” challenge to the finding;
(b) the Tribunal relied on the uncontested fact that the Skynet email address had been provided to the Departmental officer personally by Mr Van Cauwelaert over the telephone, after the Departmental officer had confirmed Mr Van Cauwelaert’s identity with him, for the purpose of responding to the Department’s question to come to the conclusion that Mr Van Cauwelaert had authored the 12 April 2017 Email;
(c) the Tribunal also did not accept Mr Bari’s claim that the 12 April 2017 Email had been sent by Mrs Van Cauwelaert on the basis that there was no probative evidence to support the multifaceted explanation provided by Mr Bari. In particular, the Tribunal placed no weight on the Facebook-Vodafone Screenshots in circumstances where they did not contain dates for the relevant parts of the conversation and did not mention the name of the “friend” being discussed. As the Tribunal recorded, despite there being no formal burden of proof, in the absence of information and evidence supporting
Mr Bari’s assertions, the Tribunal placed more weight on the Department’s processes and the information thereby obtained rather than Mr Bari’s assertions. The Tribunal was entitled to draw inferences from the absence of evidence if there was reason to expect that such evidence would, in the usual course, exist;
(d) accordingly, and contrary to Mr Bari’s claim that there was “simply no evidence”,
the Tribunal’s finding that Mr Van Cauwelaert wrote the 12 April 2017 Email was open to it on the evidence before it for the reasons it gave, and was not a finding that no other rational or logical decision maker could have made. Simply because a differently constituted Tribunal might have come to a different conclusion does not show that the finding made by this Tribunal was illogical or irrational; and
(e) to the extent Mr Bari claims that two competing constructions of the evidence arise, such that the Court should favour the construction which finds no fraud was done,
the argument fails. This is because the Tribunal did have evidence before it that
Mr Bari’s information about his work at the Restaurant was false or misleading, namely,
the 12 April 2017 Email that the Tribunal found was authored by Mr Van Cauwelaert.

Consideration of ground 1

17. PIC 4020(1) is as follows:

(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a
Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.

18. Under PIC 4020(1), “no evidence” is a jurisdictional fact framed in the negative. A finding that there is “evidence” must lead a decision-maker to the non-discretionary conclusion that PIC 4020(1) is not satisfied. The question of whether there is “evidence” for the purposes of PIC 4020(1) is one of fact for the decision-maker: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 (“NADR”) at [9] per Heerey,
    RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 ("Wu Shan Liang"), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
19. What constitutes “evidence” for the purposes of PIC 4020(1) was dealt with in Talukder v Minister for Immigration & Citizenship [2009] FMCA 223; (2009) 108 ALD 583 (“Talukder”) at [17]-[20] per Driver FM, upheld on appeal in Talukder v Minister for Immigration and Citizenship [2009] FCA 916; (2009) 111 ALD 405 (“Talukder – Appeal”). In Talukder at [17]-[20] the Federal Magistrates Court observed that:
    17. I see no reason to depart from her Honour’s interpretation of the clause.
        The clause requires an objective assessment by the decision maker as to whether any “evidence” had become “available” since the time of the visa application that information given or used in order to establish a valid application was false or misleading in a material particular, that is that the information was false or misleading in a particular of substance bearing on the purpose for which the information was provided. I see no particular significance, in terms of the validity of the clause that it calls for an objective, rather than a subjective assessment. The question is whether the clause is manifestly unreasonable or disproportionate to the end sought to be achieved.
    18. I reject the applicant’s contention that the clause compels the rejection of a visa application if any evidence whatsoever becomes available of false or misleading information having been provided. The evidence must point to information having been false or misleading in a “material particular”.
        That goes to both the strength of the evidence and its relevance. An intellectual process is required from the decision maker as to whether the evidence available points to the information having been false or misleading in a material particular.
    19. The word “evidence” is undefined in the Migration Regulations. The third edition of the Macquarie Dictionary offers seven alternative meanings:
        1. ground for belief; that which tends to prove or disprove something; proof;
        2. something that makes evident; an indication or sign;
        100. law – the data, in the form of testimony of witnesses, or documents or other objects... identified by witnesses, offered to the Court or jury in proof of the facts at issue;
        4. to make evident or clear; show clearly; manifest;
        5. to support by evidence;
        6. in a situation to be readily seen, plainly visible, conspicuous; and
        7. law (of an accomplice in a crime) to become a witness for the prosecution against the others involved.
    20. The last specialised definition may be discarded. Also, in my view, the drafter of the clause did not intend to impose on decision makers under the Migration Act the strictures of proof applicable in a court by using the word “evidence”. In my view, the drafter intended that the word “evidence” should carry its ordinary or natural meaning in general parlance. In my view also, the word “evidence” was chosen deliberately as the word “information” is used elsewhere in the clause. The use of the word “evidence” in my view establishes that the clause requires something more than the mere existence of information suggestive of falsity. It requires some probative information. In other words,
        a decision maker cannot simply take any information suggestive of falsity as sufficient for the purposes of the clause. The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.
20. Talukder and Talukder - Appeal were discussed in Sharma v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1280 (“Sharma”) at [34]-[37] per Judge Manousaridis (footnotes omitted) as follows:
    34. First, both parties submitted that the decision in Talukder v Minister for Immigration is relevant to the exposition of the proper construction of the word "evidence" as it appears in PIC4020, even though Talukder was concerned with clause 886.224 of Schedule 2 to the Regulations which has been repealed, and which contains different words. I accept that submission.
    35. Second, although both parties submitted Talukder is relevant to this application for judicial review, the applicants emphasised the reasoning of Driver FM
        (as his Honour then was) whereas the Minister submitted that it is what Edmonds J said in the appeal from the decision of Driver FM that I must follow. That, of course, is correct. Edmonds J said: [35]

"In my view, the word 'evidence' is used, in contradistinction to the word 'information', which is also used in the clause, to impose a requirement that, whatever facts are conveyed by the material relied upon to establish that the information given to meet the requirements of item 1128CA(3)(k) of Schedule 1 was false or misleading in a material particular, are sufficiently probative to lead to that conclusion."

36. Applying this passage to PIC4020, "evidence" is used in PIC4020 to impose a requirement that whatever facts are conveyed by the material relied upon to establish that information given in connection with the application for a skilled visa was false or misleading in a material particular, they must be facts that are sufficiently probative to lead to that conclusion. Stated more simply, "evidence", as that word appears in PIC4020, means material that is sufficiently probative to lead to the conclusion that information given in connection with the application for a skilled visa was false or misleading in a material particular.
37. Applying this construction of PIC4020 to the circumstances of this case, the Tribunal's task when reviewing the Delegate's decision was to consider whether there was material before it that was sufficiently probative to lead to the conclusion that the Axilleon reference letter contained a statement that was false or misleading in a material particular. If the Tribunal concluded there was such material, it could not conclude that PIC4020 was satisfied. If, on the other hand, it could not conclude there was any such material, the Tribunal would conclude PIC4020 has been satisfied.

See also, Sandhu v Minister for Immigration and Citizenship [2013] FCCA 491; Aggarwal v Minister for Immigration and Border Protection [2015] FCCA 504 at [48]- [51] per Judge Manousaridis.

21. In considering whether there was no evidence to find that PIC 4020(1) had not been met, or to demonstrate that there was no evidence to make a finding in the course of the Tribunal’s exercise of the power to refuse the Employer Nomination Visa, the principles in relation to the ground of review referred to as “no evidence” are relevant. Relevant to the present issue,
    the no evidence ground recognises that a decision-maker’s satisfaction can be vitiated if it is based on “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds”: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (“Eshetu”) at [147] per Gummow J; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [124] per Crennan and Bell JJ. To establish the ground, an applicant must show that there was no evidence “at all” to support a finding: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11, (“Australian Broadcasting Tribunal”), CLR at 355-356 per Mason CJ. It has been stated that a “no evidence” challenge will fail if “even a skerrick of evidence appears” to substantiate the relevant finding: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] per Murphy J, and that if the Court holds that the evidence in support of a relevant finding was “slight”, that will be sufficient to defeat a “no evidence” challenge to the finding: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]- [19] per Gray, Moore and Weinberg JJ. Evidence to support a finding or inference need not be direct, and a decision-maker may draw reasonable inferences from the information available to it in a particular matter: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [39]- [41] per Gummow and Hayne JJ; Australian Broadcasting Tribunal, CLR at 367 per Deane J.
22. It is also relevant to note that the Tribunal in this matter was not bound by legal technicalities and the rules of evidence: Migration Act, s 353(a), and see the erudite legal and historical analysis of such provisions and related evidentiary matters in relation to Commonwealth administrative decision-making in Sun v Minster for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220; (2016) 68 AAR 535 (“Sun”) at [52]-[81] per Flick and Rangiah JJ. However, as it was put in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555; (2014) 64 AAR 120; (2014) 322 ALR 581; (2014) 141 ALD 540 at [97] per Flick and Perry JJ:
    97. The procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.
23. As the Tribunal is not bound by the rules of evidence, the Tribunal can rely on any fact or facts which logically prove a finding. To suggest otherwise would be to narrow the Tribunal’s freedom as an administrative body not bound by the rules of evidence: Eshetu at [49] per Gleeson CJ and McHugh J.
24. It is useful to set out the entirety of the email chain between the Madrid Embassy and the Skynet email address at CB 45-46:

Dear Mr Kevin Van Cauwelaert,
As spoken over the phone, my name is [redacted] and I work for the Department of Immigration and Border Protection at the Australian Embassy in Madrid. We have received a visa application for Mr Wassim Bari who has included the attached employment reference letter signed by you. If you could please confirm the following details:

• Is the letter genuine? Has it been prepared and signed by you?
• Has Wassim Bari been employed by your restaurant? If so, could you please confirm the period, his position and the duties undertaken?
• Does your restaurant provide payslips? If it does, we will be able to request them from Mr Bari.
• Is Mr Wassim Bari family related?

...
[Response from Skynet email address]
I have never heard about this person...
[Response from Madrid Embassy]
Dear Mr Kevin Van Cauwelaert,
Thank you very much for your prompt action and collaboration with this matter.
...

25. The Tribunal found Mr Van Cauwelaert sent the 12 April 2017 Email to the Madrid Embassy: CB 155 at [55]. The Tribunal found that Mr Van Cauwelaert confirmed in the 12 April 2017 Email that Mr Bari did not work at the Restaurant: CB 156 at [58]. The Tribunal concluded that there was evidence that Mr Bari provided false or misleading information in his Employer Nomination Visa application by claiming to have been employed at the Restaurant: CB 156 at [60].
26. There is a difference between the Tribunal finding that Mr Van Cauwelaert sent the 12 April 2017 Email and the Tribunal finding that there was evidence under PIC 4020(1). Mr Bari's primary contention is that there was no evidence for the Tribunal to find that Mr Van Cauwelaert had sent the 12 April 2017 Email. However, Mr Bari also posits that the facts conveyed by the material must be sufficiently probative to lead to the conclusion that the information was false or misleading in a material particular.
27. In dealing with ground 1 the Court must answer the following two questions:

(a) was it open to the Tribunal to find that the 12 April 2017 Email was sent by Mr Van Cauwelaert; and
(b) if so, was it open to the Tribunal to conclude that the facts conveyed by the materials are “evidence” leading to the non-satisfaction of PIC 4020(1).

28. The following are uncontested facts, which the Tribunal expressly or impliedly relied on at CB 154 at [48] and CB 155-156 at [55] to find that Mr Van Cauwelaert sent the 12 April 2017 Email:

(a) the Madrid Embassy called the Restaurant on the phone number it obtained online and confirmed the identity of Mr Van Cauwelaert. Mr Van Cauwelaert provided an email address for correspondence. The Madrid Embassy sent an email to the email address provided by Mr Van Cauwelaert over the phone; and
(b) in the email sent by the Madrid Embassy, Mr Van Cauwelaert is referred to by his full name: “Mr Kevin Van Cauwelaert”. The following day, in the response to the Madrid Embassy email, the sender employs the pronoun “I”. In response, the Madrid Embassy thanked the sender, again addressing him as “Mr Kevin Van Cauwelaert”, which was not corrected.

These uncontested facts reveal a sufficiently logical basis for finding that Mr Van Cauwelaert sent the 12 April 2017 email to the Madrid Embassy.

29. Mr Bari argues that, even if the Tribunal did not accept that it was “necessary for a signature block or formality on an email for the Tribunal to reach satisfaction about the author of the email or its contents”: CB 156 at [55], there still needs to be evidence for a finding that Mr Van Cauwelaert sent the 12 April 2017 Email: Bari Submissions at [24]; Transcript p 7 [25].
    That evidence is founded in the matters set out at [28(b)] above, by the use of the pronoun “I” in response to the email from the Madrid Embassy addressed to Mr Van Cauwelaert, and is supported by the matters set out at [28(a)] above, which establish that Mr Van Cauwelaert existed, still worked at the Restaurant and provided the email address used in the correspondence. In effect, the uncontested facts allowed the Tribunal to draw a reasonable inference that the email was sent by Mr Van Cauwelaert.
30. The fact that there is no signature block or evident formality in the 12 April 2017 Email, which is not from a government department, corporation or institution, but was found by the Tribunal to be from the proprietor of a family run restaurant, does not of itself appear surprising or unusual, and Mr Bari’s submission that the 12 April 2017 Email might have been written by Mrs Van Cauwelaert is entirely speculative.
31. It is not for the Court to determine the correctness of the Tribunal’s factual finding that Mr Van Cauwelaert sent the 12 April 2017 Email. Rather, it is for the Court to come to a conclusion on whether the finding was open to be reached by the Tribunal in accordance with the law: NADR at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Sun at [38] per Flick and Rangiah JJ.
    In circumstances where the Tribunal’s process of reasoning reveals a logical basis founded on slim, but certainly probative, evidence, the Tribunal’s finding that Mr Van Cauwelaert sent the 12 April 2017 Email was open to it. Such is the flexibility afforded to decision-makers under Part 5 of the Migration Act.
32. In relation to the question of whether the 12 April 2017 Email was sufficiently probative evidence that Mr Bari provided false or misleading information in relation to his claim to have been employed at the Restaurant, the starting point is the Tribunal’s acceptance that Mr Van Cawelaert was the sender of the 12 April 2017 Email. As Mr Van Cauwelaert, the owner of the Restaurant and alleged author of the Employment Reference, stated that he did not know
    Mr Bari, the probative value of the 12 April 2017 Email as evidence that Mr Bari had given false or misleading information in his claim to have worked at the Restaurant is apparent, and the Tribunal found accordingly: CB 156 at [56] and [58]. This is so in circumstances where the only evidence Mr Bari produced in support of his claim to have worked at the Restaurant was the Employment Reference. Importantly, the Madrid Embassy questions concerned Mr Bari’s employment at the Restaurant, his relationship with Mr Van Cauwelaert, the Employment Reference and payslips. This supports the inference that Mr Van Cauwelaert, by stating in the 12 April 2017 Email that he did not know Mr Bari, was saying that he was not employed by the Restaurant, and that he was therefore not able to provide the other information sought by the Madrid Embassy.
33. Relevantly, the Tribunal did not accept, afforded no weight, or noted the absence of, all other relevant evidence to the question of whether Mr Bari provided false or misleading information. That is:

(a) the Tribunal rejected Mr Bari’s account of events, including Mr Bari’s alternative construction of the evidence set out above at [9], finding that he was not a “witness of the truth”;
(b) the absence of any evidence of Mr Bari’s Belgian tax returns indicating that he worked at the Restaurant; and
(c) that no weight was afforded to the Employment Reference because Mr Van Cauwelaert denied knowing Mr Bari.

34. In light of these findings, it was open to the Tribunal to be satisfied that what was conveyed by the 12 April 2017 Email was sufficiently probative to establish that Mr Bari had provided false or misleading information in his Employer Nomination Visa application. This approach demonstrates an active intellectual process by the Tribunal in determining whether the evidence available points to the provision of false or misleading information: Talukder at [18] per Driver FM.
35. Mr Bari also relies on a passage in Dhillon v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 884; (1994) 48 FCR 107; (1994) 32 ALD 757 (“Dhillon”) at 128 per French J.
    In Dhillon the provision of “false or misleading information” was in issue under a now superseded provision of the Migration Act, in relation to which the Federal Court found what was said in a “statement” to be capable of multiple constructions. Mr Bari’s submission is directed at the construction of the materials as “evidence” under PIC 4020(1) in circumstances where there is said to be a plausible alternative construction of the materials.
    Again, this extends beyond a simple challenge to the finding that Mr Van Cauwelaert sent the 12 April 2017 Email to the Madrid Embassy.
36. Dhillon concerned the making of allegedly false or misleading statements in a statutory declaration under s 20(2)(b)(ii) (superseded) of the Migration Act, in force shortly after the 1989 amendments to the Migration Act, which read:

(2) This sub-section applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if:
(a) ...
(b) in respect of the grant of that entry permit:
...
(ii) the person made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, a statement that was false or misleading in a material particular.

37. It is useful to set out the relevant passage, in Dhillon at 128 per French J, in its entirety, as follows:

It would not be necessary, in order to falsify the statement in the statutory declaration, to show that the marriage was a sham. But to characterise a statement as false or misleading in a material particular is a serious matter with serious personal consequences for the maker of the statement. Where such a statement is reasonably capable, in context, of at least one construction which is not false or misleading then, absent evidence that it carried the false or misleading construction, the Court should not find that it was false or misleading.

38. The Court does not consider that the passage in Dhillon applies to the present case for the following reasons:

(a) the statutory provision the Federal Court was considering was not concerned with evidence, but rather with the making of statements, notably in that case a statement made in a statutory declaration by an applicant. Evidence in the context of PIC 4020(1) is either sufficiently probative evidence of the provision of false or misleading information, such that it is open to a decision-maker to find PIC 4020(1) was not satisfied, or it is not. Once it is accepted that it was open to the Tribunal to find that there was evidence invoking PIC 4020(1), as the Court has done: see [33]-[34] above, Dhillon has no relevance;
(b) the 12 April 2017 Email is capable of being characterised as a statement, but not a formal statement made by an applicant for a visa to a person exercising powers or performing functions under the Migration Act, as was the case in Dhillon, but rather a statement by a third party responding to an inquiry;
(c) unlike the statements in Dhillon, where a specific statutory provision under the Migration Act applied to the conduct of an applicant in making a statement to the relevant official, the 12 April 2017 Email found to be sent by Mr Van Cauwelaert is not the subject of a specific statutory provision, but rather is material before the decision-maker which is relevant insofar as the Tribunal finds it to be relevant in the exercise of its fact-finding function; and
(d) further, as noted out above at [33(a)], the Tribunal rejected Mr Bari’s alternative explanation of the evidence. It follows that the Tribunal did not fail to consider the alternative explanation proffered by Mr Bari, but considered it and rejected it, as it was entitled to do in the discharge of its statutory task.

39. It follows from the foregoing that the Court considers that ground 1 is not made out, and does not establish jurisdictional error in the Tribunal Decision.

Ground 2

40. Ground 2 of the Judicial Review Application is as follows:
    1. The decision of the Second Respondent was affected by jurisdictional error in that it misconstrued PIC 4020.

Particulars

The Second Respondent found that the Applicant did not meet PIC 4020 because he had provided information that was “false or misleading in relation to his employment history. In circumstances where the purpose of the employment history relates to the visa applicant's qualifications to perform work as the holder of an Employer Nomination (Permanent) Subclass 186 visa, the Tribunal finds that the information was false or misleading in relation to a material particular in relation to the application for the visa”.
There is no criterion under the Temporary Residence Transition stream of clause 186 of Schedule 2 of the Regulations which relates to employment history or qualifications. Any information provided in relation to the Applicant’s employment history was therefore not “in relation to a material particular” to the subclass 186 visa Temporary Transition Stream as required by PIC4020.

Mr Bari’s Submissions

41. Mr Bari’s Submissions in relation to ground 2 are as follows:

(a) the Delegate found that Mr Bari had provided information that was false or misleading in a material particular in relation to the 457 Visa, whereas the Tribunal found that
Mr Bari had provided information which was false or misleading in a material particular in relation to the Employer Nomination Visa;
(b) Ministerial policy demonstrates that Mr Bari’s employment history information was not relevant to any of the criteria in the TRT stream. Therefore, Mr Bari’s employment history was not “in relation to a material particular” of the Employer Nomination Visa, and the Tribunal, by relying on a matter which was not relevant to the Employer Nomination Visa, misconstrued PIC 4020;
(c) by misconstruing PIC 4020, the Tribunal fell into jurisdictional error in a way that its exercise or purported exercise of power was affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to it under the Migration Act; and
(d) the error is material and relief would not be futile in circumstances where a Tribunal differently constituted would be considering whether information is false or misleading in relation to a previous visa application, which, in circumstances where a finding of fraud is made, results in a very different inquiry as to the proper way to assess that fraud. Further, the different inquiry with respect to the error in PIC 4020(1) might impact the assessment of discretionary waiver of the requirements of PIC 4020(1) under PIC 4020(4).

Minister’s Submissions

42. The Minister’s Submissions in relation to ground 2 are as follows:

(a) Mr Bari conceded in his submissions to the Tribunal dated 10 September 2019 at CB 86 at [8] that he had no objection to the information provided in his 457 Visa application being classified as in relation to a material particular of the Employer Nomination Visa criteria;
(b) as the Tribunal found, in circumstances where the purpose of Mr Bari’s employment history related to his qualifications to perform work under an Employer Nomination Visa, the false and misleading information in relation to Mr Bari’s employment history was in relation to a material particular. The information was not merely trivial or inconsequential in the context of Mr Bari’s application for the Employer Nomination Visa. Mr Bari also claimed that his employment history was relevant to the Employer Nomination Visa Application. Accordingly, it was open to the Tribunal to find that the false or misleading information provided about Mr Bari’s employment history was in relation to a material particular;
(c) the information given with respect to the 457 Visa cannot be irrelevant, given that it was the 457 Visa which must be held for two years prior to the application for the Employer Nomination Visa;
(d) remittal would be futile, and any error not material, as the Tribunal would simply find that PIC 4020(1)(b), rather than PIC 4020(1)(a), was not satisfied. Further, the issue concerning whether the fraud was done on the Employer Nomination Visa application or the 457 Visa could not reasonably be seen as impacting discretionary waiver of the requirements of PIC 4020(1) or (2) under PIC 4020(4).

Consideration of ground 2

43. Ground 2 is premised on the fact that the Tribunal’s conclusion at CB 156 at [60], set out above at [13](j)], was reached solely on the basis of a consideration of PIC 4020(1)(a). The Tribunal did not specify whether its conclusion was reached based on a consideration of PIC 4020(1)(a) or (b), or both. As will be evident from what follows more specificity in this regard in this regard by the Tribunal may have been helpful.

Reading the Tribunal Decision as a whole

44. In considering the conclusion reached in the Tribunal Decision at CB 156 at [60] it is necessary to read the Tribunal Decision fairly and as a whole, not overzealously in search of error, and a reasonably liberal and benevolent approach to the wording ought to be taken: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration & Multicultural Affairs v N989/01 [2002] FCAFC 237 at [17] per Heerey, Carr and Mansfield JJ; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ; EMX17 v Minister for Immigration & Anor [2019] FCCA 284 at [10] per Judge Lucev.
45. When the Tribunal Decision is considered as a whole it can be seen that:

(a) at CB 150 at [15] the Tribunal noted the finding in the Delegate’s Decision:
... that a the applicant has indicated he worked for a period of 4 years between 2006 and 2010 and his claimed employer had no knowledge of the applicant and as the statement was made on the Class UC Subclass 457 application form, it is false and misleading, and was such at the time it was given. The delegate also found that pursuant to PIC 4020(1)(b), the information was relevant to a visa that the applicant held in the period of 12 months before the application was made.
(b) at CB 150 at [16] the Tribunal noted the submission to the Tribunal by Mr Bari’s “advisor” that “the applicant has no objection with the information provided in the subclass 457 visa application being classified as in relation to a “material particular” of the visa criteria”, without specifying that the “material particular” related to PIC 4020(1)(a), or PIC 4020(1)(a) or (b);
(c) at CB 150-151 at [19] the Tribunal said that the “evidence provided ... to the Delegate by Madrid is not sufficiently probative to give rise to PIC 4020” (emphasis in original), again without specifying PIC 4020(1)(a), or PIC 4020(1)(a) or (b);
(d) at CB 151 at [20] the Tribunal refers to Mr Bari’s submissions that the “Department’s inquiries were insufficiently thorough to amount to evidence as required by PIC 4020(1)”, once again without specifying PIC 4020(1)(a), or PIC 4020(1)(a) or (b);
(e) at CB 153 at [39] the Tribunal referred to the Delegate’s refusal of the Employer Nomination Visa on the basis of non-satisfaction of the “PIC 4020” criteria, and again without specifying PIC 4020(1)(a), or PIC 4020(1)(a) or (b);
(f) at CB 153 at [40] the Tribunal set out in words what was required by the PIC 4020 criteria, but again without specifying PIC 4020(1)(a), or PIC 4020(1)(a) or (b); and
(g) at CB 153 at [41] and CB 154 at [43], [44] and [45] the Tribunal referred to PIC 4020 and PIC 4020(1), but without referring specifically to PIC 4020(1)(a) or (b).

46. Thus, in terms of specificity, it is only PIC 4020(1)(b) that is specifically referred to in the Tribunal Decision, albeit in the context of setting out the finding made in the Delegate’s Decision. PIC 4020(1)(a) is not specifically referred to or expressly set out at all anywhere in the Tribunal Decision, and when the terms of PIC 4020(1)(a) are “[b]roadly” set out at CB 153 at [40], so too are the terms of PIC 4020(1)(b), but only “PIC 4020(1)”, without specification of paras (a) and (b), is actually referred to by the Tribunal. It is not evident that PIC 4020(1)(a) was specifically or exclusively at the forefront of the Tribunal’s consideration when drawing the conclusion reached at CB 156 at [60].
47. In considering the issues prior to reaching the conclusion at CB 156 at [60] the Tribunal specifically referred to its:

(a) satisfaction that the Employment Reference, as provided to the Department contained false and misleading information: CB 156 at [58]; and
(b) non-acceptance of Mr Bari’s various claims concerning the work he allegedly performed in Belgium from 2002 to 2010, and its further satisfaction that Mr Bari was not a witness of truth: CB 156 at [59].

48. It is thus clear that in its consideration of the issues prior to reaching its conclusion at CB 156 at [60] the Tribunal was focussed on information that was material to the grant of the 457 Visa which Mr Bari had held in the 12 months before the Employer Nomination Visa application was made. That is, it was focussing on matters pertinent to PIC 4020(1)(b), not PIC 4020(1)(a).
49. The focus on matters pertinent to PIC 4020(1)(b) flows over into the conclusion at CB 156 at [60] where the Tribunal refers to:

(a) provision of “information that is false or misleading in relation to his employment history”; and
(b) the “purpose of the employment history” as it relates to Mr Bari’s qualifications to carry out the work as the holder of the Employer Nomination Visa,

and makes it plain that the Tribunal here had in mind PIC 4020(1)(b). And whilst it concluded that the information was false and misleading in relation to a material particular “in relation to the application for the visa”, using the same language as appears in PIC 4020(1)(a), there is nothing to prevent that phrase, as it appears in the Tribunal Decision at CB 156 at [60],
from being read in a broader sense as relating to Mr Bari’s application for the Employer Nomination Visa in its totality, rather than in the narrower sense in PIC 4020(1)(a). Read in that more benevolent and liberal way, and having regard to the Tribunal Decision as a whole,
the underlying premise of Mr Bari’s argument in relation to ground 2, that the conclusion in the Tribunal Decision at CB 156 at [60] was made solely by reference to PIC 4020(1)(a),
is therefore not made out.

The TRT stream criteria and PIC 4020(1) and (5)

50. Mr Bari applied for the Employer Nomination Visa under the TRT stream.
51. PIC 4020(5) defines “information that is false or misleading in a material particular” to mean information that is:
    • false or misleading at the time it is given; and
    • relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
52. The phrase “information that is false or misleading in a material particular” was discussed in Khan v Minister for Immigration and Citizenship [2011] FCA 75 (“Khan”) at [28] per Moore J as follows:
    28. However the provision concerns information which is false and misleading in a material particular. It would be material because it is information which might influence the conclusion the decision maker might reach and, because it is false or misleading, underpin or at least contribute to a decision being made which might not have been made had the true position been known to the decision maker. In this way the provision appears to me to address the character of the information before or least at the time of the decision (in this case the assessment by the TRA) being made. The provision raises for consideration both the significance of the information and the possible consequences on the subsequent decision-making (in this case the assessment by the TRA) of it being false and misleading.
53. In Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348; (1992) 110 ALR 367 (“Dela Cruz”), FCR at 352-354 per Black CJ, Davies and Neaves JJ the Full Court of the Federal Court identified three principles which it considered applied to the construction of the expression “false or misleading in a material particular in relation to: (a) the application for the visa” in a similar context in the Migration Act. The principles were cited with approval in relation to PIC 4020(1) by the Full Court of the Federal Court in Singh v Minister for Immigration and Border Protection [2019] FCAFC 22 (“Singh”) at [3] per Reeves J (with whom Jagot and Derrington JJ agreed):
    3. In Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348 at 352‑–354 (Black CJ, Davies and Neaves JJ) a Full Court of this Court identified the following three principles which, it considered, applied to the construction of the expression presently under consideration in a similar context in the Migration Act 1958 (Cth):

(1) that the word “material” requires “no more and no less than that; the false particular must be of moment or of significance, not merely trivial or inconsequential”;
(2) that a “statement will be relevant to that purpose if it may – not only if it must or if it will – be taken into account in making a decision under the [Migration] Act as to the grant of the visa or entry permit in respect of which the statement is made”; and
(3) that the expression had to be assessed objectively.

54. PIC 4020(5) (set out at [51] above) defines “information that is false or misleading in a material particular” to include information that is relevant to “any” of the criteria the Minister may consider when making a determination on an application, whether or not the decision is made because of that information. The word “any” is of wide import and application, and ordinarily excludes qualification or limitation: Victorian Chamber of Manufactures v The Commonwealth (Prices Regulations) [1943] HCA 19; (1943) 67 CLR 335; [1943] ALR 287; [1943] 17 ALJ 188; CLR at 346 per Williams J; Collins v Repatriation Commission [1980] FCA 105; (1980) 48 FLR 198 at 213 per Fisher J; Matthews v Hargreaves (No 4) [2013] FMCA 4; (2013) 274 FLR 138 at [128] per Lucev FM. It is certainly wide enough to catch that part of the criteria in PIC 4020(1)(b) (set out at [17] above]) which refers to a visa that an applicant held in the period of 12 months before the application was made.
55. In this case Mr Bari held the 457 Visa in the 12 months before the Employer Nomination Visa application was made (a fact not in dispute). On that basis the Tribunal was entitled to take “into account”: Singh at [3] per Reeves J, quoting from Dela Cruz at 352 per Black CJ, Davies and Neaves JJ, the Employment Reference in considering the criteria under PIC 4020(1).
    And, importantly, the Employment Reference is therefore capable of being information that is false and misleading in a material particular given, or caused to be given, during the review of a Part 5-reviewable decision. This is not really in dispute for two reasons:

(a) first, as Counsel for Mr Bari conceded, that if, on the reading of the Tribunal Decision contended for by Mr Bari, the matter had been determined having regard to the
457 Visa and not the application for the Employer Nomination Visa alone, there would be no basis for the Judicial Review Application as presently framed because the Employment Reference was relevant to the PIC 4020(1)(b) criteria; and
(b) second, because before the Tribunal, the lawyers acting for Mr Bari (being the same lawyers that act for him in these proceedings) conceded in written submissions
(at CB 86 at [8]) that:
The Applicant has no objection with the information provided for in the subclass 457 visa application being classified as in relation to a “material particular” of the visa criteria.

56. The construction of PIC 4020(1) contended by Mr Bari in these proceedings is, however,
    either wrong or too narrow. When regard is had to Khan, Dela Cruz and Singh, it can be seen that what is being said is that if “in relation to” either (“either” because of the use of the disjunctive “or” between sub-paragraphs (a) and (b) of PIC 4020(1)) an application for a visa (here, the Employer Nomination Visa) or a visa held in the period of
    12 months before the application was made (here, the 457 Visa), any information which was false or misleading in a material particular, and which was given, or caused to be given, in the course of the review of a Part 5-reviewable decision, would mean that the PIC 4020(1) criteria is not met. Thus, provided there is review of the relevant kind, the Tribunal can have regard to false or misleading information in the course of the review, whether that information was given in the application for the visa (here, the Employer Nomination Visa) or a visa that an applicant held in the period of 12 months before the application was made (here the 457 Visa). On that basis the Tribunal was correct to have regard to the Employment Reference as information so given, because it was information related to the 457 Visa held by Mr Bari in the 12 months before the Employer Nomination Visa application was made.

Reliance on Government or Ministerial policy

57. Mr Bari also relies on Ministerial policy as evidencing error for the purposes of ground 2 because it is said that the relevant Ministerial policy demonstrates that employment history was not relevant to any of the criteria in the TRT stream. For the reasons set out at [43]-[56] above that assertion is erroneous, but in any event a failure to follow Ministerial policy would not have occasioned jurisdictional error by the Tribunal.
58. It is also useful to set out the role of. The role of Government or Ministerial policy in administrative decision-making was recently precisely summarised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767 (“MDXJ”) at [17] per Besanko J:
    17. The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642–643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself (Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569).
59. In Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060 at [60] per Judge Lucev this Court, having cited the above passage from MDXJ, observed as follows:
    60. The application, or non-application, of government policy by an administrative decision-maker, such as the Tribunal, does not automatically relieve the administrative decision-maker from considering a claim made by an applicant for judicial review where the claim has a basis in the relevant criteria, and “a Minister’s policy must leave ... [the Minister] free to consider the unique circumstances of each case”: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 641 per Brennan J; see also Perder Investments Pty Ltd v Lightowler [1990] FCA 239; (1990) 25 FCR 150; (1990) 101 ALR 151, FCR at 157 per Spender J; Zhang at [36] per Cameron FM. Government policy cannot form a pre-determined frame outwith the Tribunal ought not, where it is appropriate to do so, venture.
60. Thus to the extent Mr Bari’s submissions rely on the application of Ministerial policy guidelines, the Court is not persuaded by that reliance, as the relevant criteria for the Employer Nomination Visa is not specifically determined by Ministerial policy, but rather by the prescribed legislative criteria.

Conclusion on ground 2

61. For the reasons set out at [43]-[60] above the Court concludes that ground 2 has not been made out, and does not establish jurisdictional error in the Tribunal Decision.

CONCLUSION AND ORDERS

62. The Court has concluded that the two grounds of the Judicial Review Application have not been made out. It follows that the Tribunal Decision is not affected by jurisdictional error. Accordingly, there will be an order dismissing the Judicial Review Application.
63. The Court will hear the parties as to costs.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated: 9 August 2021