FEDERAL COURT OF AUSTRALIA Sahota v Minister for Immigration and Border Protection [2016] FCA 217 Appeal from: Sahota v Minister for Immigration & Anor [2015] FCCA 2788 File number: NSD 1254 of 2015 Judge: RANGIAH J Date of judgment: 26 February 2016 Legislation: Migration Act 1958 (Cth) s 97 Migration Regulations 1994 (Cth) cl 485.224 of Sch 2 Date of hearing: 26 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 16 Counsel for the Appellant: The appellant did not appear Solicitor for the First Respondent: Ms K Hooper of DLA Piper Australia Counsel for the Second Respondent: The second respondent did not appear ORDERS NSD 1254 of 2015 BETWEEN: SATPAL SINGH SAHOTA Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Defendant ADMINISTRATIVE APPEALS TRIBUNAL Second Defendant JUDGE: RANGIAH J DATE OF ORDER: 26 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT RANGIAH J: 1 This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 1 October 2015. The primary judge dismissed the appellant's application for constitutional writs in respect of a decision of the Administrative Appeals Tribunal (formerly known as the Migration Review Tribunal) ("the Tribunal") made on 3 January 2014. The Tribunal's decision was to affirm a decision of a delegate of the first respondent refusing to grant the appellant a Skilled (Provisional) (Class VC) visa. 2 The appellant had provided a document called a "Skills Assessment" from Trades Recognition Australia ("TRA") to the Department of Immigration and Citizenship in support of his application for the visa. The Skills Assessment indicated that the appellant's skills had been assessed as suitable for his nominated occupation of hairdressing. 3 The Tribunal concluded that the Skills Assessment had been obtained because of false or misleading information provided by the appellant to TRA. The Skills Assessment had been obtained on the basis of a work reference purportedly from the owner of a hairdressing salon called Zane Hair Dezign, stating that the appellant had completed over 900 hours of work at the salon. The Tribunal found that the appellant had never, in fact, worked at the salon. The Tribunal found that the Skills Assessment submitted by the appellant was a "bogus document" within the meaning of that expression in s 97 of the Migration Act 1958 (Cth). 4 Clause 485.224 of Sch 2 of the Migration Regulations 1994 (Cth) required that the applicant for a Skilled (Provisional) (Class VC) visa satisfy Public Interest Criterion ("PIC") 4020. The Tribunal held that as the appellant had given the Department a bogus document it was not satisfied that the appellant met PIC 4020. It also found that there was no basis for any waiver of PIC 4020. The Tribunal accordingly dismissed the application. 5 The appellant then applied to the Federal Circuit Court. He filed an originating application and later an amended application. The appellant was self-represented at the hearing. The primary judge considered it appropriate to deal with both the original application and the amended application. 6 The sole ground in the original application said, relevantly: I don't know why my owner denied that I worked there. I believe that the MRT has fell into jurisdictional error by not beliving in me. (Errors in original.) 7 As to that ground, her Honour held that it was open to the Tribunal to find that the appellant was not a witness of truth and that it could not rely on his evidence concerning his claimed work experience. The Tribunal had noted that in an interview with the Department of Immigration and Citizenship, the owner had not identified the appellant as a person who had worked at the salon. Her Honour considered that it was open for the Tribunal to fail to be satisfied that the appellant had worked at the salon for the required 900 hours. Her Honour decided that there was no jurisdictional error demonstrated on the part of the Tribunal. 8 The second ground in the appellant's amended application was that the Tribunal erred in finding that the appellant had "provided information that is false or misleading". The particulars allege that the Tribunal placed "unreasonable and disproportionate" weight on the evidence of the owner of the salon and, in particular, did not take into account the "bias" of the owner, in that he may have denied signing the work reference because he would incriminate himself. 9 The primary judge noted that the Tribunal's decision was not based only on the evidence of the salon owner, but also upon the inconsistencies in, and unreliability of, the appellant's evidence. Her Honour held that the weight to be given to the owner's evidence was a matter for the Tribunal. Her Honour held that the Tribunal was not required to take into account the alleged "bias" of the employer, and that the Tribunal's decision was not irrational, illogical or unreasonable. 10 The third ground in the appellant's amended application was that the Tribunal erred in finding that the signature on the work reference was not that of the owner, when it relied on other documents with the owner's signature, without undertaking a forensic comparison of the signatures. Her Honour held that the Tribunal did not make any express finding that the owner's signature was forged. The Tribunal had accepted the owner's evidence that the appellant had not worked at his salon. Her Honour considered that it was open to the Tribunal to accept that evidence. 11 The appellant's grounds of appeal to this Court are as follows: 1. The Court erred by taking an irrelevant consideration into account. Particulars: (a) The Court considered and took into account, the original application and did not base its decision solely on the grounds and orders sought in the amended application. 2. The Court erred by making an error of law. Particulars: (a) The Court wrongfully held that the Second Respondent was not bound to take into account any alleged bias. 3. The Court erred in construing Ground 2. Particulars: (a) Ground 2 did not seek merits review. (b) Ground 2 sought review on the basis of the unreasonable exercise of power by the Second Respondent in placing too much weight on particular evidence. 12 When the appeal was called on for hearing, the appellant failed to appear. It is clear that the appellant had notice of the time, date and place of the hearing. I considered it appropriate to hear and decide the matter in the appellant's absence. The appellant has not filed any written submissions. 13 As to the first ground in the Notice of Appeal, there is no error occasioned by the primary judge in dealing with the ground in the appellant's original application to the Federal Circuit Court, as well as the grounds in the amended application. Her Honour seems to have taken that course because the appellant had prepared the original application himself, whereas the amended application appeared to have been prepared by legal representatives and the appellant's oral submissions reflected the ground in the original application. Her Honour seems to have decided the ground in the original application as a matter of fairness to the appellant so that he would not be disadvantaged by being required to rely only on the grounds in the amended application. Her Honour's course was designed to be fair to the appellant. It caused no disadvantage to him. There was no error in the course her Honour took. 14 As to the second ground of appeal, her Honour's reasons concerning the issue of the salon owner's "bias" were clearly correct. No error is demonstrated in her Honour's reasoning. 15 As to the third ground of appeal, the second ground in the amended application to the Federal Circuit Court certainly reads as if it seeks a merits review of the Tribunal's decision. Even if it is regarded as asserting that the Tribunal engaged in an unreasonable exercise of power by placing too much weight on particular evidence, there is no substance in the ground. Her Honour correctly decided it was open to the Tribunal to make its findings. 16 The appeal will be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 7 March 2016