Australian Immigration Daily News

There are times when the fate of a visa application can turn on a seemingly complex or obscure legal question. 

This is equally true in the case of an application for judicial review of a decision by the Tribunal to affirm the refusal of an application: fine points of law can and do make a difference. 

And there are times where the failure of the Tribunal to comply with the requirements of section 359A of the Act to give an applicant “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”,  and to give the applicant an opportunity to comment or respond to the information, can prompt a Court to conclude that the Tribunal has committed jurisdictional error, such that the Tribunal’s decision is “quashed” or overturned.  

All of these concepts were on display in a decision that was handed down late last week by Judge Jarrett of the Federal Circuit Court, Singh v Minister for Immigration & Anor (2016) FCCA 2464 (23 September 2016). 

On the surface, this case might have appeared standard, routine and uncontroversial. 

At issued was an application for a Skilled (Provisional) visa (subclass 487). 

The criteria for this now-extinct subclass of visa apparently required that an applicant demonstrate that she/he had gained at least 900 hours of work experience in a particular skilled occupation. 

In this case, the applicant nominated the occupation of “motor mechanic” as his nominated skilled occupation.  In support of the application, the applicant provided a copy of a skills assessment from the Trades Recognition Authority.  In turn, the applicant had provided a reference letter from a claimed employer which apparently attested that the visa applicant had completed the required amount of work experience. 

The problem, as we have seen in many other cases, was that the work reference letter turned out to have been fraudulent. 

Accordingly, the Department refused the visa application on the basis that the applicant had failed to satisfy Public interest Criterion 4020(1).  

When an application for merits review of the refusal came before the Tribunal, the Tribunal also found that the applicant had run afoul of PIC 4020(1). The Tribunal concluded that the positive skills assessment had been obtained on the basis of a bogus document – the fraudulent work reference

Letter – and that this letter had also contained information that was false and misleading in a material particular. 

Case over? Not so fast! 

After the visa applicant sought merits review of the visa refusal before the Tribunal, the Department gave the Tribunal a certificate under section 375A to the effect that that disclosure of any matter contained in documents referred to in the 375A certificate would be contrary to the public interest, and that the document or information referred to in the certificate must not be disclosed to any person other than the Tribunal. 

So the questions in this case were: 

Was the Tribunal required to disclose the existence of the 375A certificate to the applicant? 

And, was the Tribunal required to give the applicant particulars of the information covered by the 375A certificate? 

Judge Jarrett answered both of these questions in the affirmative:  His Honour concluded that principles of procedural fairness required the Tribunal to disclose both the existence of the 375A certificate, and the terms of the certificate, to the applicant.  In Judge Jarrett’s view, failure on the part of the Tribunal to give the applicant a copy of the 375A certificate amounted to jurisdictional error. 

Readers should note that there is another important decision about the interplay between 375A certificates and the Tribunal’s obligation to afford an applicant procedural fairness under section 359A. 

That case was Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1455.  In this decision, Judge Wilcox ruled that although section 375A prevents the Tribunal from disclosing the information or documents that are identified in the 375A certificate, but at the same time does not prohibit the Tribunal from giving clear particulars of the information or document if they would form a reason, or part of the reason, for affirming the refusal of a visa application. 

A bit confusing? All the Burton case means is that while the actual documents or information described in the 375A certificate may not themselves be disclosed, particulars of that information must be given to the applicant due to the procedural fairness obligations imposed by section 359A. 

Here’s a short summary of the case: Where the Department has issued a 375A certificate to the Tribunal, the Tribunal has to let the applicant know about it, and, under Burton, also has to give the applicant clear particulars of the information or documents referred to in the certificate.  Failure to do so is jurisdictional error which will cause the Tribunal’s decision to be vacated (quashed).

Why is disclosure of the 375A certificate required? Because otherwise an applicant may not know that the certificate has been issued; may not have an opportunity to challenge the validity of the certificate; and may not be able to enquire how the Tribunal intends to use or rely on the material that is the subject of the certificate.

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