Australian Immigration Daily News

Legal cases can sometimes seem like a tangled mess of yarn!! 

You don’t need to go any farther than the case of Josan v Minister for Immigration & Anor (2016) FCCA 493 (11 March 2016) to understand how true this can be! 

The puzzle in this case involved this (complicated!) question: Suppose the AAT incorrectly finds that an applicant has failed to satisfy PIC 4020, but for other reasons, the applicant is still not entitled to the grant of the visa in question.  

In that situation, is there any point at all to going to court to seek to get the AAT’s decision “quashed”? 

More to the point, if you can persuade the Court that the AAT incorrectly found that an applicant had failed to satisfy PIC 4020, can you get the client “out from under” the 3 year exclusion period? 

That is an important question (I hope you will agree!). 

So if you have managed to get this far, keep reading (unless you are compelled to check the New York Times Website to find out the latest news from the Republican Convention in Cleveland, Ohio (be very glad if you are reading this in Australia and not in Cleveland, it ain’t a tourist destination!). 

The very messy, convoluted situation in the Josan case starts with a fact pattern that is all too familiar: 

The applicant in this case was a national of India who had originally come to Australia on a student visa (then subclass 572). 

After obtaining a certificate in retail baking and a diploma in business management, he applied for a Subclass 886 (Skilled – Sponsored) visa. 

The problem with his application was that it was premised on a letter that had been provided to the Trades Recognition Authority which claimed that the applicant had gained 900 hours of work experience as a pastry cook.  However, a delegate had found that the letter contained false or misleading information because it had been produced by a person who had pleaded guilty to manufacturing and selling false work references in order to assist clients to seek visas in Australia. 

What happened next was that the applicant sought review in the AAT (it was his claim that he truly was qualified as a pastry cook, and that he had actually been employed by the bakery in whose name the work reference had been provided to the AAT). 

In the context of the AAT merits review proceeding, the applicant sought copies of all documents held by the Tribunal under section 362A of the Migration Act. 

The Tribunal then issued a Summons to the Department requiring production of the documents. 

In reply to this Summons, the Department produced certain file material, but also gave a certificate under section 375A to the effect that that certain materials in the file should be disclosed only to the Tribunal. 

A hearing was then held before the Tribunal.  And following the hearing, the Tribunal issued a letter under section 359A which stated particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the refusal of the visa application.  (Case law says that the Tribunal is required to give such particulars even when a 375A non-disclosure certificate has been issued by the Department (!) 

The problem was that the 359A letter did not include information from the person who had fraudulently produced the work references in which this person stated he had “no way of knowing” whether the students for whom he had produced the references had actually gone through the training, or not. 

A very similar fact pattern had unfolded in a case that had previously come before the Full Court, Minister for Immigration and Border Protection v Dillon (2014). 

And in that case, the Full Court found that the Tribunal’s failure to provide the applicant with potentially exculpatory material had effectively resulted in a denial of procedural fairness to the applicant. Thus, the findings in Dhillon and Josan that the applicant had run afoul of PIC 4020 were legally flawed (by reason of jurisdictional error). 

Ready for the next twist?  In Josan, the applicant conceded that he was actually not entitled to the visa in question, because he admitted that the business management qualifications that he had obtained were not “closely related” to the nominated occupation of pastry cook for which he sought the visa. 

So what was the applicant trying to accomplish in court? 

He was seeking a “declaration” that the finding of the Tribunal that he had failed to satisfy PIC 4020 was incorrect? 

Why? Because he apparently intended to seek another visa, and did not want to be captured by the exclusion period that would attend non-satisfaction of PIC 4020. 

And was that effective to get the applicant out from under PIC 4020? 

No, it wasn’t! 

Why? Because the court, relying on another decision, in a case known as Prodduturi, concluded that even if the Tribunal’s decision that the applicant had failed to satisfy PIC 4020 were to be quashed, the result would be that the decision of the delegate that the applicant had failed to satisfy PIC 4020 would still stand.  And in the view of the court in Prodduturi, which was adopted in Josan, the only way to challenge a primary decision of a delegate that PIC 4020 was not satisfied would be to go to the High Court.  

The end result was that the applicant would be subject to a 3 year exclusion period running from the date of the delegate’s original decision that PIC 4020 had not been satisfied.  

So, what was the ultimate result? The court in Josan determined that it was appropriate to grant the applicant a declaration that the AAT’s decision that he had not satisfied PIC 4020 was incorrect.  The reason this declaration was made was to protect the applicant’s reputation.  

But what the decision did not do was get the applicant out from under the preclusive effects of PIC 4020. 

Seems like this was the classic Pyrrhic victory” doesn’t it? It ain’t exactly as if anyone is ever going to be discussion with friends or business colleagues whether another person has failed PIC 4020, is it? Or talk about PIC 4020 at family picnics!

Does this seem like an odd legal result to you? Wouldn’t it seem that if a court concludes that a finding by the Tribunal that a person did run afoul of PIC 4020 was incorrect that it would also effectively set aside a decision of a delegate to the same effect?  

Don’t complain to me – I only write these articles! 

Could the result have been different here if the applicant had actually been entitled to the visa, and the only reason that it had been refused was a wrongful determination that the applicant had failed to satisfy PIC 4020? 

In my opinion, the answer to that question is “yes”,  because the exclusion period only applies under PIC 4020 if the Department has refused the previous visa application. If the previous refusal is effectively vacated, then PIC 4020 would not apply.

Thoughts?

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