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1206330 [2014] MRTA  1607  (30 July 2014)

Last Updated: 6 August 2014

1206330  [2014] MRTA 1607  (30 July 2014)


DECISION RECORD


APPLICANTS: Mrs Rajwinder Kaur Rangi
Mr Kamaljit Singh

MRT CASE NUMBER: 1206330

DIBP REFERENCE(S): BCC2011/27172

TRIBUNAL MEMBER: Danica Buljan

DATE: 30 July 2014

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.


Statement made on 30 July 2014 at 2:59pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 April 2012 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under section 65 of the Migration Act 1958 (‘the Act’).
  2. The applicants applied for the visas on 14 January 2011. The delegate refused to grant the visa on the basis that the first-named applicant (‘the applicant’) did not satisfy public interest criterion 4020 in clause 485.224 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). Specifically, the delegate found that there was information before the Department of Immigration (‘the Department’) that the applicant had submitted false or misleading information that she had a valid skills assessment.
  3. The applicants lodged an application for review with the Tribunal on 11 May 2012. However, although the applicants included copies of the bio-data pages from their Indian passports with the review application, they did not provide a copy of the primary decision record to the Tribunal.[1]
  4. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under subsection 338(2) and that the applicants have made a valid application for review under section 347 of the Act. Accordingly, the decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.
  5. The Tribunal has before it the departmental file[2] relating to the applicant. The Tribunal has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]
  6. By letter dated 15 May 2012 the Tribunal acknowledged the applicants’ application for review and advised them, amongst other things, that they must tell the Tribunal immediately if they changed their contact details.[4] On 4 September 2013 the applicant submitted a ‘Change of Contact Details’ form to the Tribunal notifying a change of residential address.[5]

The Tribunal Invitations to Comment on or Respond to Information and to Provide Information:

  1. By letter dated 15 April 2014[6] the Tribunal wrote to the applicant about the issues raised in her review application and invited her to provide evidence that she had applied for a skills assessment at the time she lodged her visa application, and that her skill had been assessed as suitable for her nominated skilled occupation by the relevant assessing authority. This Tribunal letter invited the applicant to respond by 13 May 2014. However, the applicant failed to do so.
  2. As the applicant did not provide a copy of the primary decision record with her review application, by letter dated 3 July 2014[7], and in accordance with section 359A of the Act, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reasons, or part of the reason, for affirming the decision under review. In particular, the Tribunal invited the applicant to comment upon the following information:
  3. After setting out the relevant legislative requirements, the Tribunal letter informed the applicant that this information was relevant to the review for the following reasons:

that justified granting the visa and waiving the application of public interest criterion 4020 to the applicant in accordance with the requirements of subclause 4020(4), the Tribunal might find that the applicant did not meet the requirements of public interest criterion 4020 at the time of its decision.

  1. In addition, and in accordance with subsection 359(2) of the Act, the Tribunal invited the applicant to provide information that confirmed that there were compelling circumstances that affected the interests of Australia; or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justified granting the visa and waiving the application of public interest criterion 4020 to the applicant in accordance with the requirements of subclause 4020(4).
  2. This Tribunal letter informed the applicant that she had until 28 July 2014 to provide her comments or response, and the requested information, to the Tribunal.
  3. The Tribunal also referred to its letter dated 15 April 2014, and noted that it had not received the requested information by 13 May 2014. As a result, the Tribunal noted that the applicant had lost her right to a hearing as at the date of the Tribunal letter dated 3 July 2014.
  4. Therefore, the Tribunal informed the applicant that if it did not receive her comments or response within the period allowed, or as extended, it might decide to make a decision on the review without taking any further action to obtain her views on the information or to obtain the information.
  5. However, the applicant did not respond to the section 359A invitation for comment/response, or provide the information requested under subsection 359(2) of the Act, as set out in the Tribunal letter dated 3 July 2014 within the prescribed period. Nor did the applicant request an extension of time within the prescribed period in which to provide her response/comments or the requested information to the Tribunal. In addition, as at the date and time of decision, the applicant has not contacted the Tribunal about the review application.
  6. The Tribunal notes that both its letters dated 15 April 2014 and 3 July 2014 were sent to the last address for service provided by the applicant in connection with the application for review.[8]
  7. Specifically, subsection 359C(1) of the Act applies to the applicant’s failure to provide the information the Tribunal requested in its letter dated 15 April 2014 within the prescribed period. Further, as subsection 359C(1) applies to the applicant, subsection 360(3) states that she is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a person to do something he or she is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.
  8. In addition, the Tribunal has had regard to the fact that the Courts have held that where an applicant fails to provide the requested information within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.[9]
  9. In the alternative, the Tribunal finds that as the applicant also failed to provide her response and the requested information before the time for giving it has passed in relation to the Tribunal letter dated 3 July 2014, subsections 359C(1) and (2) of the Act would also apply and preclude the applicant from offering her a hearing.[10]
  10. Accordingly, as the applicant failed to give her response/comments and/or the information requested within the prescribed period, the Tribunal finds that she has lost her right to appear before the Tribunal to give evidence and present arguments relating to the review application.
  11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. The issue in this review is whether the applicant meets public interest criterion 4020 as required by clause 485.224 for the grant of the visa. Broadly speaking, this requires that:
  2. The requirements in subclauses 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: subclause 4020(4). However, this waiver does not apply to the identity requirements in subclause 4020(2A) and (2B). Public interest criterion 4020 is extracted in the attachment to this decision.

Has the Applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

  1. The term ‘information that is false or misleading in a material particular’ is defined in subclause 4020(5) and the term ‘bogus document’ is defined in section 97 of the Act (see the attachment to this decision).
  2. In contrast to the definition of ‘information that is false or misleading in a material particular’ in subclause 4020(5), the reference in section 97 to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa.[11]
  3. The requirement in subclause 4020(1) not to provide a ‘bogus document’, or ‘false and misleading information’, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: subclause 4020(3). It also applies whether or not the document was provided by the applicant knowingly or unwittingly.
  4. In addition, while public interest criterion 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for public interest criterion 4020 to be engaged.[12] On the other hand, the Court in Trivedi v Minister for Immigration and Citizenship[13] (‘Trivedi’s case’) also held that an element of fraud or deception is necessary in order to attract the operation of public interest criterion 4020. In other words, the Court considered that there must be some element of knowledge or intention on somebody’s part because public interest criterion 4020 is directed to information or documents which are purposely untrue, and not to innocent, unintended or accidental matters.

The Concept of “No Evidence” for the purposes of Subclause 4020(1):

  1. The Tribunal observes that the legislation does not define the concept of ‘no evidence’ in subclause 4020(1). However, there has been some judicial consideration of the concepts in public interest criterion 4020 in the context of both clause 485.224 and earlier similar provisions in the Regulations. For example, in Bushell v Minister for Immigration and Citizenship & Anor[14], Scarlett FM found there was jurisdictional error in a finding by the Tribunal (differently constituted) that there was ‘no evidence’ in circumstances where there was some evidence, albeit relatively slight, that supported the applicant’s claim. Accordingly, the Court held that in such a situation, it was not correct for the Tribunal to say there was ‘no evidence’.
  2. In addition, the Court in Talukder v Minister for Immigration and Citizenship[15] (‘Talukder’s case’) considered the term ‘evidence’, in the context of clause 485.223, the predecessor to clause 485.224, and the concept of ‘false or misleading information’. Specifically, Driver FM found that the word ‘evidence’ requires an assessment of the quality of the evidence being relied on by the Tribunal before finding whether an applicant fails to satisfy the criterion. The Court stated that the use of the word ‘evidence’ in clause 880.224 (as it was prior to 2 April 2011):
... establishes that the clause requires something more than 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.[16]
[Tribunal emphasis]
  1. On appeal to the Federal Court, the appellant applicant in Talukder’s case, in arguing that clause 880.224 was invalid, submitted that:
(1) ‘Evidence’, whether in the legal or lay sense, consists of information which includes an individual’s perception of facts. ‘Evidence’ cannot exist in the absence of information. Moreover, information is only ‘evidence’ if it is relevant to a particular proposition – something that has to be supported, denied, proved or disproved. In contrast, ‘information’ can of itself be entirely separate from anything that has to be proved.
(2) The existence of evidence is not dependent on its reliability, or any assessment thereof, other than that of basic relevance to the fact or proposition in issue. That evidence is not accepted, or is rejected in a particular case, does not mean that it becomes something else. The learned Federal Magistrate was in error in holding that the use of the word ‘evidence’ in the relevant provision invokes or requires a consideration or assessment of reliability.
(3) In the case of cl 880.224, the proposition to which the ‘evidence’ (or non-existence thereof) must be relevant is that information given for the purposes of item 1128CA(3)(k) of Schedule 1 is false or misleading in a material particular. On the plain wording of the provision, the existence of any evidence of falsity is sufficient to invoke the provision. If the decision-maker goes further and considers the quality or reliability of the evidence, he or she is acting ultra vires because the test is whether there is ‘no evidence’ of falsity – not that the evidence be considered or assessed.
(4) If that is correct then cl 880.224 is activated if there is any evidence no matter how slight, unpersuasive or even false or malicious. Thus, a person who is clearly telling the truth would be denied a visa because of something so unpersuasive as an unsubstantiated accusation based on, for example, an anonymous ‘dob in’ letter.
(5) A regulation with this effect fails to satisfy the standards of reasonableness in the exercise of the regulation-making power required under the general law...[17]
[Tribunal emphasis]
  1. In response to these arguments, the respondent Minister submitted:
(1) First, if the construction advanced by the appellant led to the invalidity of the clause, that would be an overwhelming reason not to adopt it: Legislative Instruments Act 2003 (Cth), s 13(1)(c); Airservices Australia v Canadian Airlines International Limited (2000) 202 CLR 133 at [229] and [408]; as to statutes generally see Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at [28]. Similarly, if the consequences of a particular construction include absurdity, that construction is to be avoided: Quarm v Minister for Immigration and Citizenship [2008] FCA 1156; (2008) 171 FCR 307 at [17]; Airservices Australia at [229] – [232] and [408] – [414]; Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336 at 350; Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977 at 983. The alternative construction, giving ‘evidence’ a more confined meaning, is clearly an available one. It is not necessary to label a provision as ‘ambiguous’ before entertaining alternative constructions of it: e.g. CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408.
(2) Second, quite apart from the need to avoid invalidity, the construction which treats ‘evidence’ as meaning persuasive evidence represents the preferable reading of the clause in its context. The Federal Magistrate was correct in regarding the clause as requiring from the decision-maker an ‘objective assessment’ of whether the relevant information was false.[18]
[Tribunal emphasis]
  1. In considering the arguments put forward by the parties, Edmonds J confirmed the approach and reasoning of the Federal Magistrates Court:
    1. I have reached the conclusion that it is not necessary to address the Minister’s alternative or ‘fall-back’ position that, even if the construction of cl 880-224 contended for by the appellant is the only construction open, and even if such a construction is ‘irrational’, ‘capricious’ or ‘unreasonable’, the provision is nevertheless valid as being within regulation-making power. This is so because, in my view, the construction contended for by the Minister is undoubtedly open and it is common ground that, if that construction is open, it is to be preferred because it does not lead to invalidity.
    2. 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.
    3. In my view, that construction of the word ‘evidence’ is not only open, both in ordinary parlance and in a forensic context, but is more likely than not to be the correct construction. The fact that such a construction avoids, even on the appellant’s premises, a conclusion of invalidity, provides a further reason as to why it should be embraced.
    4. For these reasons, the appeal must be dismissed with costs.
[Tribunal emphasis]
  1. The Tribunal acknowledges that Talukder’s case concerned a different legislative provision and that, therefore, it is not direct authority for the interpretation of subclause 4020(1). Nevertheless, the approach taken in that case was endorsed in Sharma v Minister for Immigration and Multicultural Affairs and Citizenship[19] (‘Sharma’s case’) where the Court expressly considered the meaning of ‘evidence’ in the context of public interest criterion 4020. Specifically, the Court in Sharma’s case held that the word ‘evidence’ is used 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 visa was false or misleading in a material particular, they must be facts that are sufficiently probative to lead to that conclusion.
  2. The Tribunal also observes that the Courts have held that the information which may comprise ‘evidence’ may come from sources other than the applicant.[20] Further, in Sran v Minister for Immigration and Border Protection[21] (‘Sran’s case’) the Court held that what a third party may have done in other cases could not:

...be a basis for establishing such a serious matter as fraud in the current case. While the circumstances may be “suspicious”, it is evidence about the applicant’s case that is necessary, not simply the drawing of inferences from the circumstances in other cases.

(a) What is the Information before the Tribunal?
  1. In the present review application, the visa application form lodged with the Department on 14 January 2011 positively stated that the applicant had received a skills assessment from Trades Recognition Australia on 23 September 2010 and it set out the purported reference number for that skills assessment.
  2. However, there is information that casts doubts upon the correctness of this information. Firstly, the fact that Trades Recognition Australia had no record of providing the skills assessment that was referred to in the applicant’s visa application to the applicant. Secondly, and as set out in the Tribunal section 359A invitation to the applicant dated 3 July 2014, documents or information relating to the applicant were located in the office of S & S Migration. Notably, this particular entity had been found to have lodged applications to the Department that contained false or misleading information.
  3. The question that then arises for the Tribunal is whether these facts, or information, are sufficiently probative to constitute ‘evidence’ for the purposes of subclause 4020(1).
  4. In the present matter, the central issue is whether the applicant provided “false or misleading information in a material particular” as defined in subclause 4020(5), rather than whether there is a “bogus document”, as defined in section 97 of the Act.
  5. Firstly, in order for information to be “false or misleading information in a material particular” paragraph 4020(5)(a) requires the information to be false or misleading at the time it was given.
  6. As set out above, the Tribunal section 359A invitation dated 3 July 2014 specifically invited the applicant to comment on the following matters:

The Department had invited the applicant on 20 February 2012 to comment on this information, but he applicant failed to do so; and

  1. However, as noted in the Tribunal invitation dated 3 July 2014, the applicant did not respond to the departmental invitation to comment upon the substantive matters raised by the Department. In addition, she did not offer any response or comment to the Tribunal letter dated 3 July 2014 that also invited her to comment on or respond to these substantive matters. Accordingly, the Tribunal observes that the applicant has not at any time disputed the accuracy of the finding that Trades Recognition Australia had no record of providing to her the skills assessment that was referred to in her visa application.
  2. Therefore, in the absence of any information to the contrary, the Tribunal finds that the information set out in the visa application lodged on 14 January 2011 that the applicant had applied for and received a skills assessment as a graphic pre-press trades worker from Trades Recognition Australia on 23 September 2010, was false and misleading at the time it was given for the purposes of paragraph 4020(5)(a).
  3. Secondly, paragraph 4020(5)(b) requires the information set out in the visa application to be relevant to any of the criteria that the Minister may consider in making a decision on a subclass 485 visa, whether or not the decision is made because of that information.
  4. Clause 485.221 is one of the criteria relevant to the grant of a subclass 485 visa and it specifically requires the applicant to demonstrate that her skills have been assessed by the relevant assessing authority as suitable for her nominated skilled occupation of a graphic pre-press trades worker at the time of decision.
  5. However, despite the invitation issued to the applicant on 15 April 2014 to provide information that her skills had been assessed as suitable for her nominated skilled occupation, the applicant did not do so. Correspondingly, the Tribunal also observes that although its section 359A invitation dated 3 July 2014 invited the applicant to respond or comment on the fact that there was no record that she had ever applied for a skills assessment from the relevant assessing authority for her nominated skilled occupation, and the fact that Trades Recognition Australia had no record in relation to her, the applicant did not provide any comment or response to this information. As a result, and given the information from Trades Recognition Australia that it had no record that it had provided the applicant with a skills assessment, the Tribunal finds that the applicant does not meet clause 485.221.
  6. Accordingly, the Tribunal is satisfied that the information that was included in the visa application lodged on 14 January 2011 that the applicant had applied for and received a favourable skills assessment from Trades Recognition Australia was relevant to clause 485.221. The Tribunal also finds that this is a criterion that the Minister may consider when making a decision on a subclass 485 visa. Therefore, the Tribunal finds that the information set out in the applicant’s visa application satisfied the requirements of paragraph 4020(5)(b).
  7. As a result, the Tribunal finds that the information set out in the visa application lodged on 14 January 2011 that the applicant had applied for and received a skills assessment from Trades Recognition Australia on 23 September 2010 was false and misleading in a material particular, as defined in subclause 4020(5).

(c) Did the Applicant give, or caused to be given a bogus document, or information that is false or misleading in material particular?

  1. The Tribunal notes that the decisions in Ankit Batra v Minister for Immigration and Citizenship and the MRT[22] (‘Batra’s case’), both at first instance and on appeal, and in Mudiyanselage v Minister for Immigration and Citizenship[23] (Mudiyanselage’s case) confirm that approval of Trades Recognition Australia as a relevant assessing authority is immaterial to the question of whether an applicant has given a ‘bogus document’ or ‘information that is false or misleading in a material particular’ to the Minister for the purposes of public interest criterion 4020.
  2. In the present matter there are two factual scenarios in relation whether the applicant gave, or caused to be given, false or misleading information to the Department in relation to her subclass 485 visa application.
  3. Firstly, the visa application lodged on 14 January 2011 specifically states that the applicant did not receive any assistance in completing this form, whether that be from S & S Migration, or another person or business. In addition, and as noted previously in the Tribunal letter dated 3 July 2014, the applicant failed to provide any response to fact that the Department had alleged on 20 February 2012 that she had provided false or misleading information to it in relation to her subclass 485 visa application. Nor did the applicant respond to the Tribunal section 359A invitation dated 3 July 2014 to comment on these matters.
  4. Accordingly, in this factual scenario, the Tribunal observes that the applicant has not denied that she gave, or caused to be given, to the Department false or misleading information about having applied for and obtained a ‘skills assessment’ for the purposes of her subclass 485 visa application.
  5. The second factual scenario before the Tribunal relates to the fact that, notwithstanding that the visa application form lodged in the applicant’s name indicated that she had not received any assistance with this form, the Department had identified a file with the applicant’s personal details and the application reference numbers in the offices of S & S Migration. As a result, on 20 February 2012 the Department also invited the applicant to comment on the information relating to this information and the allegation that the applicant had lodged her subclass 485 visa application with the assistance of S & S Migration, which had been found to have lodged applications with the Department that contained false or misleading information.
  6. As noted above, the applicant did not provide a response to the Department in 2012 regarding these allegations. Nor has she since provided any submissions, evidence or information disputing the findings as set out in the Tribunal section 359A invitation issued to her on 3 July 2014. In other words, the Tribunal observes that the applicant has not denied that she gave, or cause to be given, to the Department through a third party (S & S Migration) false or misleading information about having applied for and obtained a skills assessment for the purposes of her subclass 485 visa application.
  7. As a result, the question arises in this second factual scenario as to whether it was the applicant who caused the false or misleading information in a material particular to be given to the Department on 14 January 2011.
  8. The Tribunal observes that in relation to the completion of a visa application section 98 of the Act provides:
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
  1. In this case the applicant has not provided any comment on the departmental finding that a file with her details and application reference number was found in the office of S & S Migration either in response to the departmental or Tribunal invitation to do so.
  2. As a result, despite the fact that the applicant’s visa application form specifically stated that she had not received assistance with this form, the applicant has not denied that S & S Migration was involved with the lodgment of a visa application in her name with the Department on 14 January 2011. Nor has the applicant denied the inference that she had authorised S & S Migration to provide false or incorrect information in her visa application and that, therefore, she had given, or caused to be given, the false or misleading information in a material particular that was included in her visa application form.
  3. The Tribunal also notes that the Courts have held that for the purposes of public interest criterion 4020, an applicant may have given, or caused to be given a bogus document, or information that is false or misleading in a material particular, either knowingly or unwittingly: Vyas v Minister for Immigration and Citizenship[24] (‘Vyas’ case’). In particular, in Vyas’ case Driver FM commented as follows:
    1. By contrast, some provisions concerning false information outside of the criminal context do not expressly contain a knowledge requirement. Nor is one implied. One example of a federal legislative provision where a mental element has been neither expressed nor implied was s.52 of the Trade Practices Act 1974 (Cth), which prohibited misleading or deceptive conduct by corporations. Doubtless, the importance of the consuming public not being misled or deceived was considered to outweigh the importance of restricting the civil liability of corporations.
    2. PIC 4020 is comparable. Its purpose is not penal or quasi-penal. Rather, it seeks to ensure that an applicant for a visa truly fulfils the criteria for the visa. The provision of a document that is bogus or false or misleading information would, left unchecked, enable a person who falls short of visa criteria nonetheless to be granted a visa. In this respect, it does not matter whether the document is provided by the applicant knowingly or unwittingly. Either way, a prohibition on the provision of relevantly defective documents is required. Otherwise, undeserving applicants could receive a visa.
    3. This is borne out by the Explanatory Statement (ES) to the MAR, which states:
It is intended that the reference to “information which is false or misleading in a material particular” in the new subclause 4020(1) will capture any information which is false or misleading that the applicant provides if it is relevant to the purpose for which it is made, namely the purpose being the assessment of the applicant against any of the criteria for the grant of the visa. (emphasis added)
  1. The ES thereby describes information broadly, emphasises the importance of the fulfilment of visa criteria and makes no mention of the state of mind of the party providing the information.
  2. It follows that, in using the words “given or caused to be given”, PIC 4020 should not be construed as importing a mental element.
[Tribunal emphasis]
  1. In other words, Vyas’ case supports the proposition that an applicant may come within the terms of subclause 4020(1), even if they were not aware that false or misleading information in a material particular had been put forward on their behalf in relation to a visa application.
  2. The Tribunal further observes that there is also other judicial authority that limits the scope to which an applicant can claim that they are not responsible for the actions of those engaged by them. For example, in SZGLO v Minister for Immigration and Citizenship[25](‘SZGLO’s case’), where the applicant had argued that he did not authorise his agent to lodge the application on his behalf or to provide false information, the Court made the following observations:
It is open to me to conclude that the applicant wanted a long term visa that carried with it work rights and was not too particular how he got it. A protection visa application proved to be the preferred mechanism but the applicant showed little concern as to its contents. His interest was in the outcome. I find that the applicant was indifferent as to the content of the protection visa application. His instructions to Mr Shiao were general. He expected a protection visa application to be lodged on his behalf and he expected Mr Shiao to do everything necessary for that to occur. That is what he paid for. ..
The applicant asserts that the protection visa application is invalid, not only because he did not sign it, but because the content of it was in part false. That may be so (I do not know) but, in my view, an applicant is just as responsible for a false application when he is indifferent as to its contents as where he has been found to be knowingly concerned with the making of a false application.[26]
[Tribunal emphasis]
  1. This decision was subsequently upheld on appeal.[27] Similarly, in SZMME v Minister for Immigration and Citizenship[28] (‘SZMME’s case’), where the applicant had acknowledged that he had signed a visa application form leaving the details to his migration agent to complete, the Court found that the actions of the migration agent did not invalidate the visa application and that, therefore, the applicant had made a valid application for the visa.
  2. More recently, in Kaur v Minister for Immigration and Anor and Prodduturi v Minister for Immigration and Anor[29](‘Kaur/Prodduturi’s case’) the Court held that, even if it were proved that the migration agent had exceeded his instructions, that fact would not make the applications invalid for the purposes of the Act. The Court found that this was because the applicants had given the migration agent authority to lodge an application on their behalf, and they were aware that a visa application was being made, even if they were not aware of the contents of the applications. In addition, the Court held that in such circumstances there was no fraud committed on the Commonwealth because both the delegate and the Tribunal were aware of the untruthful nature of the contents of the visa application. The Court also held that the operation of section 98 was not subject to any express or implied limitation in circumstances where a visa application was associated with, or the product of, unlawful conduct.[30]
  3. Correspondingly in Gill v Minister for Immigration & Anor[31] (‘Gill’s case’) the migration agent failed to convey the contents of a departmental letter requesting further information to the appellant. However, the Court did not accept that this constituted fraud upon the delegate or the Tribunal in the sense set out in the sense considered in SZFDE v Minister for Immigration and Citizenship[32] (‘SZFDE’s case’), finding that it was more likely that the migration agent had been negligent or incompetent. As a result, the Court found that the jurisdiction of the Tribunal to review the delegate’s was not affected in any way, as the visa application lodged by the migration agent had been a valid application.
  4. In addition, in Sran’s case the Court considered an applicant’s claims that the false and misleading information (a non-existent TRA skills assessment reference) was provided in the visa application as a result of migration agent fraud. In that case, the applicant had instructed the agent to lodge a visa application; a fee was discussed; and the applicant knew that the visa application was to be made. Notably, the Court considered these facts were sufficient to ground the Tribunal’s finding that an agency agreement was established for that purpose and that the visa application was validly made.[33]
  5. In relation to the question of whether the applicant had ‘given or caused to be given’ false or misleading information, the Court in Sran’s case accepted the applicant did not physically ‘give’ the information to the Minister.[34] However, in circumstances where the applicant was indifferent to the detail of the application and where the agent had acted within the scope of its authority, the Court held that it was open for the Tribunal to find that the applicant had ‘caused’ the process of making the application for the visa, which extended to the giving of false and misleading information.[35]
  6. Finally, the Tribunal notes that the general principles of agency in Australian law[36] indicate that the relationship between principal and agent can arise in several ways:
  7. In the current matter, the applicant’s failure to respond to the departmental findings in respect of the location of her visa application details at the offices of S & S Migration, as well as the information from Trades Recognition Australia, which were also summarised in the Tribunal letter dated 3 July 2014, point to an agency relationship between the applicant, as principal, and S & S Migration, as her agent, as a result of an agreement between the two of them, whether express or implied. Alternatively, the applicant’s silence on these matters both before the Department and Tribunal amounts to either ratification of the conduct of acts done by S & S Migration, or the conferral of apparent authority by the applicant upon S & S Migration, such that the agency relationship was created and in existence between them at the time the visa application was lodged with the Department.
  8. In addition, the applicant’s conduct in this matter would appear, like the applicant in SZGLO’s case, to indicate that she wanted a long term visa, and that she was not too particular about how this was achieved because her interest was in the outcome. Although there is little in the evidence to confirm whether the applicant gave express instructions to S & S Migration to give false or misleading information in her visa application, there is also little in the way of other evidence to counter this view.
  9. As a result, the Tribunal finds that the applicant was indifferent to the contents of the information set out in her visa application because she was far more interested in the outcome of that application, namely, securing the grant of a subclass 485 visa. As a consequence, the Tribunal is satisfied that there is evidence before it that indicates the existence of an element of fraud or deception as envisaged in Trivedi’s case.
  10. The Tribunal has considered whether it should defer its decision to allow the applicant additional time in which to obtain further evidence that S & S Migration acted without her instructions. Yet, despite ample time since the refusal of her visa application and the lodgment of the review application, the applicant has not taken any steps to obtain and provide this, or any other supporting evidence, or to make any legal submissions to the Tribunal regarding her review application. Nor did she respond to either of the Tribunal letters dated 15 April 2014 or 3 July 2014 that raised these matters.
  11. As a result, the Tribunal gives little weight to the possibility that the applicant was the victim of inappropriate conduct by S & S Migration. Consequently, having regard to the evidence before it, section 98 of the Act, the case law set out above, and the general principles of agency in Australian law, the Tribunal does not accept that the applicant did not give, or cause to be given, false or misleading information in a material particular to the Department in relation to the application for a subclass 485 visa that was lodged with the Department on 14 January 2011.
  12. Accordingly, in respect of the evidence and the two factual scenarios before it, the Tribunal finds that, in respect of the first factual scenario, the applicant gave the false or misleading information regarding her skills assessment directly to the Department. In the alternative and as regards the second factual scenario, the Tribunal also finds that the applicant caused the false or misleading information regarding her skills assessment to be given to the Department through S & S Migration as her migration agent.
  13. Therefore, the Tribunal finds that the applicant gave, or caused to be given, false or misleading information in a material particular regarding whether her skills had been assessed by the relevant assessing authority when the visa application in her name was lodged on 14 January 2011.

Summation:

  1. Consequently, for the purposes of subclause 4020(1), the Tribunal considers that the information that Trades Recognition Australia had no record of providing the skills assessment that was referred to in the applicant’s visa application, or any other skills assessment, constitutes probative evidence that the applicant gave, or caused to be given false or misleading information in a material particular in relation to her application for a subclass 485 visa.
  2. As a result, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority information that is false or misleading in a material particular in relation to her application for a Skilled (Provisional) (Class VC) visa.
  3. Accordingly, the Tribunal finds that the applicant does not meet the requirements of paragraph 4020(1)(a) and subclause 4020(1).

The Waiver in Paragraph 4020(4):

  1. Subclause 4020(4) provides, in part, that the requirements in paragraph 4020(1)(a) can be waived if there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, which justify the granting of the visa. In other words, not only must there be compelling and/or compassionate circumstances, they must be such as to justify the grant of the visa at the time of the Tribunal’s decision.
  2. For instance, in Minister for Immigration and Multicultural Affairs v Dunne[41] it was not contested that compelling reasons must involve something in addition to the basic pre-requisite criteria for the grant of the visa. However, the term ‘compelling’ was not further defined.
  3. In relation to the words ‘compelling or compassionate’, in Thongpraphai v Minister for Immigration & Multicultural Affairs[42], O’Loughlin J considered that:
There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.
  1. As regards the waiver of the health provisions, in Bui v Minister for Immigration & Multicultural Affairs[43], the Full Federal Court considered that ‘compelling’ had a wider ambit than ‘compassionate’.[44]
  2. In the case of Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal[45], which involved the issue of compelling reasons for an applicant’s absence from Australia in relation to a resident return visa, the Federal Court held that the ordinary meaning of ‘compelling’ is ‘forceful’ and that forceful reasons for an absence may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing.
  3. Therefore, taking into account the case law, what amounts to ‘compassionate or compelling circumstances’ in each case is a question of fact, having regard to all the circumstances of the particular case. In the absence of specific legal definitions, PAM3 recommends consideration of the ordinary everyday meaning of the phrase.
  4. The Tribunal also notes that according to the Macquarie Dictionary Online[46] the term ‘compelling’ is defined to mean: “1. demanding attention or interest...2. convincing: a compelling argument”. It defines ‘compassionate’ to mean: “1. having or showing compassion. 2. on the grounds of compassion: compassionate leave...4. to have compassion for; pity”. Similarly, the Oxford Dictionaries Online[47] defines ‘compelling’ to mean: “evoking interest, attention, or admiration in a powerfully irresistible way...not able to be refuted; inspiring conviction...not able to be resisted; overwhelming”. It defines ‘compassionate’ to mean: “feeling or showing sympathy and concern for others”.
  5. Although the Tribunal is not bound by policy, it has had regard to the elements emphasised in PAM3 in terms of the exercise of discretion. In particular, the policy guidelines in ‘Sch4/4020 - PIC 4020 - The Fraud PIC’ state the following in respect of compelling and/or compassionate circumstances:
27 Compelling and/or compassionate circumstances
...
27.2 Compelling circumstances affecting the interests of Australia 4020(4)(a)
There may be compelling circumstances affecting the interests of Australia if:
It is departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances if the non-citizen merely claims that, if granted the visa, they would:
• work and pay taxes in Australia or
• pay fees to an education provider or
• spend money in Australia.
27.3 Compassionate or compelling circumstances affecting the interests of an Australian resident, permanent resident or eligible New Zealand citizen 4020(4)(b)
The circumstances for consideration must be of compassionate or compelling nature in the way they affect the Australian citizen, permanent resident, or eligible New Zealand citizen. Compassionate or compelling circumstances that affect the applicant are not relevant for consideration unless they also directly affect an Australian citizen, permanent resident or eligible New Zealand citizen.
The wording of PIC 4020(4)(b) requires that either compassionate or compelling circumstances exist that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.
To waive the requirements of any or all of PIC 4020(1)(a), 4020(1)(b) and 4020(2), the applicant’s claims must have a compelling or compassionate element particular to that individual case that are beyond those usually present in that visa caseload.
For example, applications under the Family Stream are based on a close family relationship, and the possible separation of family members should a visa be refused would not generally be considered sufficient to waive the requirements of PIC 4020.
Factors for considering a waiver of any or all of PIC 4020(1)(a), 4020(1)(b) and 4020(2), would include, but are not limited to, the following:
• a child who is an Australian citizen, permanent resident or eligible New Zealand citizen residing in Australia who would be adversely affected by a decision not to waive. Factors to consider would include:
• existing family networks already in Australia
• whether the applicant is part of the child’s immediate family
• whether there are any significant health or welfare issues affecting an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Factors to consider:
• absence of other carers in Australia
• whether the illness of the Australian citizen, permanent resident or New Zealand citizen is debilitating, permanent and requires ongoing care (that is, it is not a temporary illness, or an illness that does not require continuous care)
• where a decision not to waive would result in the continuing separation of immediate family members, because of an inability of the Australian citizen, permanent resident or eligible New Zealand citizen to reside in the applicant’s country of residence or a third country. Factors to consider include:
• the applicant’s country of residence is a war zone or the sponsor has been found to be a person to whom Australia owes protection.
• the nature and extent of the fraud. Factors to consider include:
• the extent of false or misleading information or documents (for example, multiple falsities or misleading information)
• a past history of attempting fraud against Australia’s migration program.
Note: The interests of the applicant are not relevant when considering whether a waiver should apply. A waiver must apply to compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.
28 When it would be appropriate to exercise discretion
Under policy, if an applicant was a minor when they were included as a family unit member in an application where false or misleading information and/or a bogus document/s was given, the minor should not be penalised if they subsequently apply for a visa in their own right as a primary applicant.
This is because it would be difficult to find that a minor can be taken to be attributed the actions of a parent/s, such that the minor fails to satisfy PIC 4020(1) and therefore fails to satisfy PIC 4020(2) for the following three years.
...
  1. The Tribunal notes that in its subsection 359(2) invitation dated 3 July 2014 it specifically set out in full the requirements of subclause 4020(4) and it invited the applicant to provide information that would confirm that she met either of the requirements in paragraph 4020(4)(a) or (b). However, the applicant did not respond to this letter or provide the requested information. Nor has she since provided any further information or submissions in support of her review application.
  2. Notably, the Courts have also held that an applicant will have to supply the relevant facts of the individual case, in as much detail as is necessary to enable a decision maker to establish the relevant facts. A decision-maker is also not required to make the applicant’s case for it. Nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.[48]
  3. Accordingly, in light of this and the policy guidance set out above, the Tribunal now turns to consider whether there is anything in the applicant’s circumstances that would justify the waiver of paragraph 4020(1)(a) in her case.
  4. In relation to paragraph 4020(4)(a) the Tribunal has considered whether ‘compelling circumstances that affect the interests of Australia’ exist to justify the waiver of paragraph 4020(1)(a) in the applicant’s case.
  5. There is very little evidence before the Tribunal to suggest that Australia’s trade or business opportunities would be adversely affected, that its relationship with a foreign government would be damaged, or that Australia would miss out on a significant benefit that the applicant could contribute to Australia’s business, economic, cultural or other development if he is not granted the subclass 485 visa. On the basis of the evidence before it, the Tribunal finds that there is little in the evidence to suggest that there are compelling circumstances outside the policy guidelines that would affect the interest of Australia within the terms of paragraph 4020(4)(a).
  6. The Tribunal has considered the fact that according to the visa application form lodged with the Department the applicant has purportedly undertaken and successfully completed studies in graphic design in Australia. However, there is little in the evidence submitted by the applicant to confirm that this is, in fact, the case. Even if the Tribunal proceeds upon the basis that the applicant did complete such studies in Australia, there is little in the evidence to indicate that, as a result of the applicant’s completion of these studies, Australia would miss out on a significant business, economic, cultural or other benefit if she was not granted a subclass 485 visa to remain in Australia.
  7. As discussed above, the Tribunal has considered whether the applicant was the victim of unethical conduct by S & S Migration in terms of the possibility that it acted without her instructions when it submitted false or misleading information in the visa application lodged with the Department on 14 January 2011. However, as noted previously, given the applicant’s failure to respond to any of the issues that have been raised with her, or to submit any evidence or legal arguments addressing the substantive matters raised by and in support of her review application, there is little before the Tribunal to establish this particular claim.
  8. Consequently, given all the evidence before it, the Tribunal is not satisfied that these matters constitute compelling circumstances affecting the interests of Australia that would justify the grant of a subclass 485 visa to the applicant.
  9. Accordingly, having regard to the dictionary meaning of ‘compelling’, the relevant case law cited above, and the policy guidelines, the Tribunal is not satisfied that the claims and evidence before it, either on an individual or cumulative basis, constitute compelling circumstances that affect the interests of Australia justifying the granting of a subclass 485 visa to the applicant, notwithstanding paragraph 4020(1)(a). Therefore, the Tribunal finds that the applicant does not satisfy paragraph 4020(4)(a).
  10. In relation to the paragraph 4020(4)(b) the Tribunal notes that there is little in the evidence the applicant has submitted that would identify any Australian citizen, Australian permanent resident, or eligible New Zealand citizen, whose interests would be affected if she were not granted a subclass 485 visa.
  11. As discussed above, the Tribunal has considered the possibility that S & S Migration acted without the applicant’s instructions or authority when it submitted false or misleading information to the Department in the visa application lodged on behalf of the applicant. However, in this case the applicant has failed to respond to any of the issues that have been raised with her at any time, whether before the Department or the Tribunal. In addition, the Tribunal has considered the impact upon the applicant’s spouse, the second-named applicant, if her visa application is refused. Nevertheless, it also observes that paragraph 4020(4)(b) does not have any focus on circumstances that might affect the applicant, or members of her family, personally.
  12. Therefore, given the evidence before it, the Tribunal is not satisfied that there are any circumstances in the applicant’s case that affect an Australian citizen, Australian permanent resident or eligible New Zealand citizen, either on an individual or cumulative basis, that are of a compelling or compassionate nature that they justify the waiver of public interest criterion 4020 and the grant of a subclass 485 visa to the applicant.
  13. The Tribunal has also considered whether there are any circumstances outside the policy guidelines in this case that would justify the grant of a subclass 485 visa to the applicant. However, having regard to the totality of the evidence before it, the Tribunal is not satisfied that there are any such circumstances. Nor has the applicant put any additional circumstances forward for the Tribunal to consider. Accordingly, the Tribunal finds that the applicant does not satisfy paragraph 4020(4)(b).

Summation:

  1. As a result, the Tribunal finds that the applicant does not satisfy paragraphs 4020(4)(a) and (b) and subclause 4020(4). Therefore, given its earlier finding in relation to subclause 4020(1), the Tribunal finds that the applicant does not satisfy the requirements of public interest criterion 4020 at the time of its decision. Consequently, the Tribunal finds that the applicant does not meet the requirements of subclause 485.224(a) and clause 485.224 at the time of decision and the visa application fails on this basis.

Clause 487.228

  1. In order to meet the criteria for a Subclass 487 (Skilled – Regional Sponsored) visa, the Tribunal observes that the applicant must meet clause 487.228 at the time of its decision. Clause 487.228 is drafted in similar terms to clause 485.224 and it also requires the applicant to meet public interest criterion 4020.
  2. Accordingly, for the reasons set out above in relation to public interest criterion 4020 and clause 485.224, the Tribunal also finds that the applicant does not satisfy clause 487.228 at the time of its decision. Consequently, the visa application also fails on this basis.

The Second-named Applicant

  1. To meet either clause 485.321 or 487.321 the second-named applicant (‘the secondary applicant’) must be the member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 485 or 487 visa. As the applicant does not satisfy the primary criteria for a subclass 485 or 487 visa, or any other subclass, the Tribunal finds that the secondary applicant also does not satisfy clause 485.321 or 487.321 and, therefore, the criteria for either a subclass 485 or 487 visa, or any other subclass.

CONCLUSION

  1. Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.

DECISION

  1. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Danica Buljan
Member


ATTACHMENT

Migration Regulations 1994
Schedule 4

  1. (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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.

(2) The Minister is satisfied that during the period:

(a) starting 3 years before the application was made; and

(b) ending when the Minister makes a decision to grant or refuse the application;

the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(2A) The applicant satisfies the Minister as to the applicant’s identity.

(2B) The Minister is satisfied that during the period:

(a) starting 10 years before the application was made; and

(b) ending when the Minister makes a decision to grant or refuse the application;

neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

(a) compelling circumstances that affect the interests of Australia; or

(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

(5) In this clause:

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

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

(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.


Note Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

Migration Act 1958
97 Interpretation

In this Subdivision:

...

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a) purports to have been, but was not, issued in respect of the person; or

(b) is counterfeit or has been altered by a person who does not have authority to do so; or

(c) was obtained because of a false or misleading statement, whether or not made knowingly.

...

[1] T1, f.1-13 & 18-20
[2] D1 - Departmental file BCC2011/27172, folio numbered 1-45

[3] T1 - MRT case file 1206630, folio numbered 1-41
[4] T1, f.21-26
[5] T1, f.27-28
[6] T1, f.31
[7] T1, f.33-35
[8] T1, f.28, 31 & 35

[9] See Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]

[10] See Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333; Minister for Immigration and Multicultural Affairs v Sun [2005] FCAFC 201; (2005) 146 FCR 498

[11] Batra v Minister for Immigration and Citizenship [2013] FCA 274
[12] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

[13] [2014] FCAFC 42 31 May 2013
[14] [2008] FMCA 1193
[15] (2009) 111 ALD 405; [2009] FMCA 223
[16] [2009] FMCA 223 at [20]
[17] [2009] FCA 916 at [15]
[18] [2009] FCA 916 at [16]
[19] [2013] FCCA 1280 (Judge Manousaridis, 6 September 2013) at [33]-[37]
[20] Luthra v Minister for Immigration and Citizenship [2009] FCA 575; (2009) 109 ALD 492 at [27]
[21] [2014] FCCA 37 (Judge Nichollas,17 January 2014) at [71]
[22] [2012] FMCA 544 per Riley FM at [45]; [2013] FCA 274, 28 March 2013
[23] [2013] FCA 266
[24] [2012] FMCA 92
[25] [2005] FMCA 1349
[26] [2005] FMCA 1349 at [39]
[27] [2006] FCA 393
[28] [2009] FMCA 323
[29] [2013] FCCA 1805 (Cameron J, 1 November 2013)
[30] [2013] FCCA 1805 (Cameron J, 1 November 2013) at [38]-[39]
[31] [2013] FCCA 2122 (Riley J, 11 December 2013)
[32] [2007] HCA 35; [2007] 232 CLR 189 (2 August 2007)

[33] [2013] FCCA 37 (Judge Nicholls, 17 January 2014) at [44], [53], [64] and [78]

[34] [2013] FCCA 37 at [111]

[35] [2013] FCCA 37 at [83] and [111]-[112]

[36] See The Laws of Australia, Legal Online, Geoff Masel (1993 – 2001) at TLA [8.1.9]: http://legalonline.thomson.com.au/tla/resultDetailed.jsp?tlaTitle=8.1c2&hitlist=%2Ftla%2FresultSummary.jsp&id=8.1.9&start=1
[37] See above at [8.1.10] – [8.1.11]
[38] See above at [8.1.12] – [8.1.21]
[39] See above [8.1.22] – [8.1.24]
[40] See above at [8.1.25], [8.1.32] – [8.1.37]
[41] [1999] FCA 204
[42] [2000] FCA 1590 at [21]
[43] [1999] FCA 118
[44] At [47] – [48]
[45] [2005] FCA 211
[46] http://www.macquarieonline.com.au
[47] http://english.oxforddictionaries.com/definition/compelling

[48] See MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA [1985] FCA 47; (1985) 6 FCR 155 at 169-70

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