Full Court Dismisses Visa Appeal Over Procedural Fairness Claims

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v Minister for Immigration and Border Protection [2017] FCAFC 220 Appeal from: [APPELLANT] v Minister for Immigration and Border Protection [2017] FCCA 721

File number: VID 433 of 2017

Judges: TRACEY, MORTIMER AND [NAME] of judgment: 20 December 2017

Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – where the trial judge dismissed an application for judicial review of a decision of the then-Migration Review Tribunal – where the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant a Skilled (Provisional) (Class VC) visa – where the Tribunal found that Public Interest Criterion 4020 was not satisfied on the basis of information that indicated that an imposter had sat the applicant's English test – where the Tribunal received an e-mail from an investigations manager which indicated that she was unable to provide any further information about the fraud – whether the trial judge erred by failing to find that the Tribunal committed a jurisdictional error by breaching s 362A of the Migration Act 1958 (Cth) by not giving the applicant access to that e-mail – whether the trial judge erred by finding that s 362A required the making of a request for specific documents before an entitlement arose – whether the trial judge erred by drawing an analogy between the searching of a court file and obtaining access to material under s 362A – whether the trial judge erred by failing to find that the Tribunal had deprived the applicant of a fair hearing under s 360(1) of the Migration Act 1958 (Cth)

Legislation: Migration Act 1958 (Cth) ss 20, 26(2), 268BG, 268CZ, 268CQ, 306G, 353, 357A, 357A-367, 357A(1), 357A(3), 359, 359AA(1), 360, 360(1), 362A, 366A, 374, 436, 487S, 487U, Pt 5 Div 5 Privacy Act 1988 (Cth)

Cases cited: Minister for Immigration and Border Protection v [NAME] (2014) 227 FCR 525; [2014] FCAFC 157 Minister for Immigration and Citizenship v [NAME] (2013) 249 CLR 332; [2013] HCA 18 [APPELLANT] v Minister for Immigration and Border Protection [2017] FCCA 721

Date of hearing: 14 August 2017

Date of last submissions: 18 August 2017 (The Appellant and the First Respondent)

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 59

Counsel for the Appellant: [redacted]

Solicitor for the Appellant: [redacted]

Counsel for the First Respondent: [redacted]

Solicitor for the First Respondent: [redacted]

Counsel for [RESPONDENT] Respondent: [redacted]

[APPELLANT] 433 of 2017

[APPELLANT] Appellant

AND: [APPELLANT] FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [RESPONDENT] Respondent

JUDGES: TRACEY, MORTIMER AND [NAME] OF ORDER: 20 December 2017

THE [APPELLANT] THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of [APPELLANT] is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT: 1 This appeal arises from decisions which rejected an application by [NAME] [APPELLANT] for a Skilled (Provisional) (Class VC) visa. In order to obtain the visa it was necessary for Mr [APPELLANT] to establish that he was competent in the English language. In his application he asserted that he had successfully undertaken an International English Language Testing System ("IELTS") test in July 2011 in India. He provided a reference number from the organisation which had conducted the test. 2 While a decision on the visa application was pending the Department of Immigration and Border Protection ("the Department") received advice from the [COMPANY] ("the IDP") that it appeared that an imposter had undertaken the English language test on behalf of Mr [APPELLANT] and that, as a result, IDP had cancelled the results of the test. 3 Mr [APPELLANT] was given an opportunity to comment on these allegations but did not respond. 4 A delegate of the Minister refused the application on the basis that Mr [APPELLANT] did not satisfy Public Interest Criterion 4020 ("PIC 4020") and that, as a result, he had not satisfied one of the criteria for the grant of a visa. 5 Mr [APPELLANT] then appealed to the former Migration Review Tribunal (now the Administrative Appeals Tribunal) ("the Tribunal"). 6 Before the Tribunal hearing Mr [APPELLANT] made a written submission which was headed "Request for evidential conclusion forming the basis of the refusal of my visa application." It was dated 24 June 2014. In the submission he asserted that he had taken the IELTS test himself and complained that he had "not been given a chance to look at any evidence which forms the basis of my refusal of the application and for which my whole lot of hard work has been rejected." He continued: I would like to make a humble request to you for kindly giving me a fair opportunity by letting me witness any investigation which has been conducted so as to form the basis of the refusal of my visa application. … I deserve to get a chance to know about the evidence which forms the reason of the refusal of my visa application. I would be very thankful to you for providing me with a chance by producing any investigated factual information which stands against the genuine standing of my IELTS … 7 The first of two hearings conducted by the Tribunal took place in July 2014. Mr [APPELLANT] again said that he had sat the test and asked how the IDP could have concluded otherwise. "[H]ow", he said, "can they find it out? Like is there any proof at least? Like is there any proof I can see like it wasn't me?" 8 Following the hearing the Tribunal asked the Department to supply "any further information in relation to [the] advice from the IDP, including on what basis they reached that conclusion." The response came in tabular form: IS No Point of Suspicion First Name Surname Date of Birth Gender Candidate No 319 AFTER THE TEST FROM [NAME] [APPELLANT] 07.02.1991 M 018648

Module Centre Preferred Test Report Type of malpractice Suspected ACADEMIC BHOPAL NA 11IN018658TA120A Impersonation CONFIRMED

9 Under a "remarks" column the following was recorded: "Test results cancelled". 10 The Tribunal conducted a [RESPONDENT] hearing in October 2014. Mr [APPELLANT] was provided with a copy of the advice from the IDP. He challenged the "impersonation" notation. Among other things he told the Tribunal that: Yeah, just a reason. Like what does it mean? The reason they are cancelling. Like, they are saying like a criteria in this sense. I mean just so like they got any photographs of it because I'm pretty sure I was in the test. I was the one who sat in the test and then I am not sure like – or like what's happened. … But I'm the only person like who gave the test. So that's why I am trying to find – like, have they got any proper evidence? I mean just so like they can show me a photo so that I can prove like it wasn't me, but its exactly me. … Like, I'm trying to find out like how they can say like what kind of proper evidence, proper proof they've got like it wasn't me. 11 After further protestations to like effect the Tribunal member told Mr [APPELLANT] that the Tribunal would write to the IDP with a view to the organisation providing "some sort of basis that they reached that conclusion." The member advised Mr [APPELLANT] that if the IDP didn't reply or reply satisfactorily she would proceed to make a decision. She also said that if advice was forthcoming and it was adverse or potentially adverse information, she would send it to Mr [APPELLANT] for comment before she made any decision. 12 As promised the Tribunal contacted the IELTS investigations manager at the British Council Scotland. Relevantly, the Tribunal's e-mail read: I currently have before me a case in which information the Department of Immigration and Border Protection received from IDP advised that the applicant's IELTS test results were cancelled due to impersonation. I have checked the test report form on www.ielts.org/trf and the results for each component are 0. … Could you please provide us with the following information: On what basis did you reach a conclusion that an imposter sat an IELTS test (11INO18658TA120A) in Bhopal, India on 30 July 2011, not the applicant? If possible, could you please respond by 27 October 2014? Thank you for your assistance. (Emphasis in original.) 13 After a delay of almost two months the response came. It was that: As this test was from 2011 we no longer hold the test materials for this candidate and therefore cannot offer you a conclusive response to your question. 14 This advice was sent by e-mail dated 15 December 2014. 15 Without further contact with Mr [APPELLANT] the Tribunal proceeded to make its decision. On 2 January 2015 it affirmed the delegate's decision. 16 Having reviewed the sparse evidence before it the Tribunal summarised its reasons for its decision as follows (at [22]): The Tribunal has considered the applicant's response to this information, as well as his other relevant submissions on his case, including his insistence that he sat the test in question. However, his assertions do not overcome the doubts raised by IDP and in the Tribunal's view the more likely explanation is that someone else sat the test on 30 July 2011. As a result it found that Mr [APPELLANT] did not satisfy criterion PIC4020. It further held that, in the circumstances of the case, compliance with the criterion should not be waived.

THE FEDERAL CIRCUIT COURT'S

DECISION 17 Mr [APPELLANT] sought judicial review of the Tribunal's decision in the Federal Circuit Court ("[NAME]"). 18 He alleged that the Tribunal had made three jurisdictional errors. Only two of these allegations remain relevant on this appeal. 19 The first allegation was that the Tribunal had breached s 362A of the Migration Act 1958 (Cth) ("the Act") by failing to give Mr [APPELLANT] access to the e-mail dated 15 December 2014. 20 The other allegation of jurisdictional error was related to the first. It was that the Tribunal had failed to comply with the obligations imposed on it by ss 357A and 360 of the Act by depriving Mr [APPELLANT] of access to the e-mail. 21 [NAME] rejected both allegations of error. 22 In dealing with the first it recorded a concession made by the Minister that, although s 362A did not, in terms, impose a requirement that the Tribunal provide access to written material in its possession, such a requirement was to be implied having regard to the applicant's entitlement to have access to such material. It was also common ground that an applicant could seek access to relevant material by making a request. It was not necessary that such a request be made in any particular form. It was further agreed that the material covered by s 362A could be either favourable or unfavourable to the interests of the applicant. [NAME] rejected a submission by the Minister that Mr [APPELLANT]'s 24 June 2014 request only picked up written material then in the possession of the Tribunal. We interpolate at this point that the Minister did not seek to contest this aspect of [NAME]'s decision on this appeal. The terms of the request were, it held, wide enough to include a request that the Tribunal obtain relevant documents and then provide them to him. 23 [NAME] did, however, accept submissions by the Minister that neither the written request, made on 24 June 2014, nor the oral request, made during the hearing on 7 October 2014, constituted a request for access to material of the kind contained in the 15 December 2014 e-mail. 24 [NAME] further held that an applicant's right to access material pursuant to s 362A depended on the making of a request and the terms of that request. [ADDRESS] drew an analogy with Court documents. Although a Court is under no obligation to provide litigants with a copy of every document filed in proceedings to which they are a party, litigants could ask to inspect the Court file and are, normally, permitted to do so. No such request had been made by Mr [APPELLANT] in relation to the Tribunal file. 25 The trial judge found that the failure to provide Mr [APPELLANT] with a copy of the e-mail had not given rise to any practical injustice. This was because the Tribunal had told Mr [APPELLANT], at the hearing on 7 October 2014, that it had limited evidence that he had not sat the test and that it was possible that the request for further information might not elicit any additional material. No additional information had been forthcoming.

THE APPEAL TO THIS COURT 26 Mr [APPELLANT] appealed to this Court from [NAME]'s judgment. He relied on four grounds. 27 The first three were related. They were founded on s 362A of the Act. He contended that [NAME] had erred by rejecting his claim that the Tribunal had breached s 362A by not giving him access to the e-mail sent by the IELTS. He also challenged the trial judge's finding that s 362A required him to make a request for specific documents before an entitlement arose for him to have access to evidence held by the Tribunal and the drawing of the analogy between the searching of a Court file and obtaining access to material under s 362A. 28 The fourth ground was that, by not providing him with access to the e-mail, the Tribunal had deprived him of the fair hearing to which he claimed to be entitled under s 360(1) of the Act.

THE LEGISLATION 29 Sections 360 and 362A provide: 360 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. … 362A Applicant entitled to have access to written material before Tribunal (1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review. (2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information. (3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1). 30 Both these sections appear in Part 5 of the Act. When conducting reviews under Part 5 the Tribunal is not bound by technicalities, legal forms or the rules of evidence and is required to act according to substantial justice and the merits of the case: see s 353. 31 Section 357A(1) of the Act provides that the provisions of Division 5 of Part 5 (ie, ss 357A to 367) are taken to be an exhaustive statement of the requirements of natural justice in relation to matters with which those provisions deal. By s 357A(3) the Tribunal is required, in exercising its powers under Division 5, to "act in a way that is fair and just." 32 Section 359 empowers the Tribunal to "get any information that it considers relevant." If the Tribunal obtains such information it is required to have regard to it in making its decision. 33 Section 359AA(1) provides that, if an applicant appears at a hearing because an invitation has been extended under s 360, the Tribunal may provide oral particulars to the applicant "of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review", explain to the applicant the significance of the information and provide the applicant with an opportunity to comment on it. 34 Section 368(1), to which reference is made in s 362A(3), relevantly requires the Tribunal to make a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of facts; and (d) refers to the evidence or any other material on which the findings of fact were based; and (e) … ; and (f) records the day and time the statement is made.

THE APPELLANT'S CASE 35 Mr [APPELLANT] submitted that the 15 December 2014 e-mail fell within the terms of his requests for evidence which had been submitted on 24 June 2014 and 7 October 2014. He had an entitlement to access to the e-mail, pursuant to s 362A of the Act, and the Tribunal's failure to provide him with a copy, prior to making its decision, constituted jurisdictional error. 36 Mr [APPELLANT] disputed [NAME]'s finding that any entitlement, conferred by s 362A, only arose if a request was made. In this context he challenged the efficacy of the analogy drawn by [NAME] relating to access to documents held on court files. 37 Mr [APPELLANT] also complained that the Tribunal had breached s 360 of the Act by depriving him of what he said was his right to give evidence and make submissions about the contents of the e-mail. The failure to give him the document had unfairly deprived him of an opportunity to make further submissions or provide further evidence to support his case.

CONSIDERATION 38 The first issue which falls for consideration is the construction of s 362A(1) of the Act. This subsection provides applicants in the Tribunal with an entitlement "to have access to any written material … given or produced to the Tribunal for the purposes of the review." The subsection does not, in terms, impose any obligation on the Tribunal. It does not prescribe a means or a process whereby an applicant might obtain access to documents which have been given to the Tribunal. 39 The subsection is plainly intended to be of assistance to applicants, many of whom will not have legal or other assistance in prosecuting their appeals to the Tribunal. A construction which furthers this objective is to be preferred to one which would render the provision of little practical assistance to applicants. 40 The principal meaning attributed to the word "entitle" in the Macquarie Dictionary is: "to give (a person or thing) a title, right, or claim to something; furnish with grounds for laying claim." The existence of the entitlement is separate from the process whereby the entitlement (in this case access to documents) might be secured. 41 The word "entitled" appears in many other provisions of the Act. A review of these provisions confirms the importance of identifying precisely what entitlement is being conferred. This is because, as the Minister, correctly in our view, accepts, an entitlement may give rise to a correlative obligation on some other party and the nature and scope of such an obligation will depend on the relevant entitlement. 42 A number of sections (see, for example, ss 20, 268BG, 306G, 374 and 436) provided that a person is entitled to payments by way of compensation in respect of expenses incurred in complying with obligations imposed by the Act. The sections are silent as to the processes whereby payment of the compensation is to be obtained. It is implicit in these provisions that, before any payment can be obtained, some calculation of the quantum of the compensation is undertaken and advised to the person or institution who is under the obligation (express or implied) to make the payment. 43 The word "entitled" is also used in various sections which deal with procedural protections such as entitlements to be heard in support of or against applications for extensions of time (ss 268CQ and 487S), having the assistance of another person when presenting arguments to the Tribunal (s 366A) and entitlements to observe the execution of warrants (ss 268CZ and 487U). The person on whom entitlements of this kind are conferred must assert the right before an obligation falls on some other party to facilitate its exercise. 44 A further example is provided by s 26 of the Act which empowers the Minister to take and retain documents about unlawful non-citizens which have been produced pursuant to notices given under s 18. Section 26(2) provides that: The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy. 45 In both instances the word "entitled" is used in the sense of "right". The person who has produced the document under a coercive process is the person who would otherwise be entitled to possession of the document. He or she is also the person who is entitled to be supplied with a copy of the document. That right carries with it, in the context of s 26(2), an obligation on the Minister to supply a certified copy of the document to the person otherwise entitled to possession of the original. 46 No equivalent obligation to supply documents falls on anyone under s 362A(1). Such obligation as does arise is an obligation to facilitate access. Unless the Tribunal, on which the obligation falls, is aware that an applicant wishes to have access to a document which has been given to it, it will not be aware that access is desired and will not know that the occasion for the facilitation of access has arisen. There is no general obligation (express or implied) on the Tribunal to supply or provide all documents it holds relating to a particular review. 47 The next question which arises is whether Mr [APPELLANT] had sought access to documents of the class into which the e-mail fell. 48 The terms of Mr [APPELLANT]'s request for information, which was made in June 2014, is set out above at [6]. In particular he asked for the assistance of the Tribunal in "producing any investigated factual information which stands against the genuine standing of my IELTS …". The factual information (such as it was) which was in the Tribunal's possession, on which the Tribunal's decision was based, is set out above at [8]. At the October 2014 hearing Mr [APPELLANT] asked the Tribunal to make further enquiries to see whether there was any additional evidence to support the view that someone else had sat the IELTS. The Tribunal said that it would make further enquiries and advise him if such enquiries yielded any information which was adverse to his interests. The Tribunal made the enquiries. The response was a non-response. All that was contained in the 15 December 2014 e-mail was advice that no further information could be provided because the IELTS no longer held any relevant materials. That non-response did not contain any factual information relating to the question of who had sat the test. There was nothing in the e-mail which was material to the outcome of the review, even if it be accepted that the e-mail should have been treated as falling within the terms of Mr [APPELLANT]'s request for information made orally at [RESPONDENT] Tribunal hearing. 49 The analogy, drawn by the trial judge, between access to Tribunal files and court files may not be considered to be entirely apt but nothing turns on it for the purpose of this appeal. 50 Mr [APPELLANT] has not established any appealable error by [NAME]. Grounds 1 to 3 must be rejected. 51 The remaining issue relates to the complaint that the Tribunal breached s 360 of the Act by conducting an unfair hearing. 52 The principal authority relied on by Mr [APPELLANT] was Minister for Immigration and Border Protection v [NAME] (2014) 227 FCR 525; [2014] FCAFC 157. In that case the applicant had requested that the Tribunal provide him with its entire file "including file notes, case notes etc, including investigation file if any": at 529 [7] (Allsop CJ, [NAME] and [NAME]). The material was provided but some documents had been redacted purportedly because of a need to comply with provisions of the Privacy Act 1988 (Cth). At first instance the trial judge quashed the Tribunal's decision on the ground that the applicant had been denied procedural fairness as required by s 360 of the Act because he had not been given the redacted material. 53 The Minister's appeal succeeded on another ground but the [ADDRESS] held, obiter, that the trial judge had been correct to hold that the Tribunal had breached s 360. [ADDRESS] identified the purpose of s 360(1) as being to ensure that an applicant "is given a proper opportunity to present his or her case": at 540 [22]. [NAME] referred to the dictum in Minister for Immigration and Citizenship v [NAME] (2013) 249 CLR 332 at 362; [2013] HCA 18 at [61] (Hayne, [NAME] and [NAME] [NAME]) that s 360(1) requires that "the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case". [ADDRESS] then continued (at 540 [22]): The extent of the duty imposed upon the Tribunal under s 360(1) must, however, be understood in light of the express terms of s 357A that the provisions of Pt 5, Div 5 are taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". [ADDRESS] went on to hold that the Tribunal had contravened s 360 by refusing to provide access to the redacted material. [NAME] said (at 543 [25]) that: The Tribunal's decision not to give [the applicant] access to the redacted material (by wrongly deciding not to provide access under s 362A(1)) meant that the Tribunal decided the Public Interest Criterion without the fair hearing to which [the applicant] was entitled under s 360 of the Migration Act 1958 (Cth). 56 For the reasons which we have already explained, the Tribunal did not, in the present case, do anything which breached s 362A of the Act. The adverse information, on which the Tribunal's decision was based, was available to Mr [APPELLANT] at [RESPONDENT] of the two hearings which it conducted. He had the opportunity to make any submissions which he wished in relation to that information. He drew attention to what he said was the inadequacy of that material. 57 There was nothing in the 15 December 2014 e-mail which in any way supplemented the information which was before the Tribunal and available to Mr [APPELLANT] in October 2014. No practical injustice was suffered by Mr [APPELLANT] when the Tribunal proceeded to make its decision on his appeal on the basis of the material which it had before it in October 2014 and on which Mr [APPELLANT] had had the opportunity to make submissions. 58 This ground has not been made out.

DISPOSITION 59 The appeal will be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] and [NAME].

Associate: Dated: 20 December 2017