AEW17 v Minister for Immigration

[2018] FCCA 3578

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEW17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3578

Catchwords:
MIGRATION – Application for judicial review – protection visa – error of fact – application allowed.

Legislation:

Migration Act 1958 (Cth), s.101(b)

Cases cited:

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516

Applicant: AEW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 82 of 2017

Judgment of: Judge Riethmuller

Hearing date: 1 November 2018

Date of Last Submission: 1 November 2018

Delivered at: Melbourne

Delivered on: 1 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Vrachnas Lawyers

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue, quashing the decision of the Second Respondent dated 9 December 2016.

2. A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 82 of 2017

AEW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) to cancel a protection visa. The central point that arises in this case is whether or not the applicant gave false information when seeking his protection visa by claiming to be stateless, therefore in breach of s.101(b) of the Migration Act 1958 (Cth).

2. The central factual inquiry that the Tribunal had to undertake was to determine whether or not the applicant was born in Iraq, which would mean that he was not stateless, and therefore had breached s.101(b).

3. In undertaking this inquiry, the Tribunal considered a number of documents and the evidence of the applicant.  Three documents were central to the inquiry.  The first two were documents from Iraq: a passport and identity card, which the applicant said were obtained by his father on his behalf through bribery – they were the documents that he had used to travel.  The third document was a marriage certificate.  The marriage certificate was said to be a genuine document.  It was created by a sheikh as part of a formal marriage ceremony conducted between the applicant and a former wife.  There is nothing about the marriage certificate that was said to have been created fraudulently or by bribery.

4. Each of the three documents was said by the Tribunal to contain information recording the place of birth of the applicant. Relying upon these three documents and the Tribunal’s general assessment of the applicant’s demeanour, the applicant’s case was rejected. The Tribunal accepted that the applicant had been born in Iraq and consequently had given false information under s.101(b) of the Act.

5. The applicant has been fortunate that his solicitor identified that the marriage certificate itself does not in fact contain information setting out the applicant’s place of birth.  The findings of the Tribunal are therefore difficult to understand. 

6. It seems that in the Notice of Intention to Consider Cancellation of the visa (issued in May 2016), there was a statement that the applicant’s marriage certificate indicated that he was born in Iraq: see [23] at Court Book (‘CB’) p.71).  This statement was taken up by the delegate, who also accepted that the marriage certificate showed that the applicant was born in Iraq.  However, the applicant had provided a copy of the marriage certificate and a translation (which appear at CB p.91) demonstrating that the certificate did not contain any such information. 

7. The error seems to have been taken up by the Tribunal member in their discussions at the hearing where, over a number of pages, the Tribunal member questions the applicant in considerable detail about the marriage certificate: see pp.13 to 16 of the transcript. The applicant makes denials, although does not squarely say to the member that no place of birth appears on the marriage certificate. This, however, is in the context of the member putting the allegations to the applicant and him answering through an interpreter where the member is ultimately the decision-maker and is stating that it is clear that the marriage certificate contains this particular piece of information.

8. There is nothing about the answers in the transcript that could lead one to conclude that the applicant, in any sense, adopted or acquiesced to the claim that the alleged place of birth was set out in the marriage certificate.  The result is that the Tribunal has acted upon information that was not before it: there was no place of birth in the marriage certificate. 

9. This was a central piece of evidence, as is apparent from the Tribunal’s reasoning when it reached its conclusions (at [27] – [29]):

   27. The Tribunal has carefully considered the evidence independently and cumulatively. The applicant’s evidence is that the Iraqi passport, an Iraqi ID card and the marriage certificate contained incorrect information. His evidence in relation to the ID and the passport is that they were both obtained by bribery. He used a claimed passport containing false information to enter Iran. He stated that the marriage certificate referring to his place of birth as Iraqi is also incorrect. It is important to consider those explanations in the context that he had previously provided documents claimed to be containing accurate information. He claimed to fear harm in both countries but he returned to both. Even if the Tribunal were to accept the applicant's versions of the events, it is nevertheless difficult not to draw any adverse conclusions on the basis of his own evidence that he was prepared to use an Iraqi passport that contained incorrect information and that it had been obtained by bribery. Accordingly, the Tribunal is of the view that either version presents adverse credibility challenges for the applicant. The Tribunal discussed with the applicant in the course of the hearing the documents previously provided and having tested the evidence, and for reasons of adverse credibility, the Tribunal is satisfied that on balance, the applicant's Iraqi passport, his Iraqi ID card, and his marriage certificate passport contain true information. For those reasons, the Tribunal has decided not to give weight to the documents provided such as his certificate of completion for year five primary education in Iran, Green card validity letter, Iranian ID card, school reports. The Tribunal is not satisfied that those documents contain true and accurate information.

   28. It is not disputed that the applicant subsequent to being granted a protection visa returned to Iran. The Tribunal is satisfied that the fact that the applicant returned to Iran after being granted a protection visa is strong evidence undermining his protection claims of fearing harm of returning to Iran. Moreover, the fact that the applicant had returned to Iran supports the Tribunal's adverse findings.

   29. In consideration of the evidence as a whole and for the above stated reasons, the Tribunal is satisfied that contrary to the applicant's claims for protection, the evidence indicates that the applicant is not stateless and that he is an Iraqi national. Accordingly, the Tribunal finds that the applicant had provided incorrect information in the application for a protection visa and that the information was material to the grant of the protection visa.

10. Notably, in the context of this case (although not explicitly referred to by the Tribunal), the marriage certificate evidence, if it had have said what the Tribunal thought, would have been particularly weighty evidence. That is, it was said to be a document created by the consent of the applicant for the purpose of his marriage and thus there would be every reason to believe that the contents of it recorded the statements the applicant had made to the sheikh at the time, and in circumstances where there would be every reason to believe that those statements would have been truthful.

11. The other two documents, the passport and identity card, were said to have been obtained unlawfully through bribery and corruption, and in those circumstances there is not a strong reason to even believe that the contents of the documents are necessarily or likely to be true. Although the applicant’s preparedness to use false documents does reflect on his credibility.

12. The relevant tests, when one identifies that the Tribunal has made an error that could be described as an error of fact, are well summarised by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [54] – [55] where his Honour said:

    54    ... The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

    55    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

13. This is not a case where there was any factual material before the Tribunal whereby they could, in some way, form the view that they did, even erroneously.  There simply was no evidence of the place of birth in the marriage certificate.  Nor, is this a case where there is an independent basis for the Tribunal reaching the findings that it did. 

14. There is no question that the applicant faces a number of difficulties with respect to the credibility of his case.  The applicant’s case includes claims that he participated in and used documents obtained by bribery or fraud (the Iraqi passport and ID cards) and that he has returned to a place in the world where he said he was so fearful that there was a real risk that he would suffer serious harm.  If his presentation is as the Tribunal describes it, he does not present as a good witness.

15. However, whether these things would be sufficient without the alleged statement in the marriage certificate is not something that a Court hearing the matter on a judicial review can determine. Whether, when viewing the other matters without this piece of evidence, the Tribunal would come to the same conclusion or not, is a matter for the Tribunal and not for the Court.

16. It seems to me that in this case, it is simplest to classify the error as being the making of a finding upon which there was no evidence. That is, the finding that the marriage certificate set out a place of birth in Iraq. For that reason, I would allow the application. If it is to be categorised by one of the alternative legal categories, it certainly appears to be illogical or unreasonable to conclude that this marriage certificate set out a place of birth when, on the face of it, it does not do so. However it is categorised, it remains a finding so significant that the Tribunal’s decision cannot stand.

17. In the circumstances, I therefore allow the application that a constitutional writ issue.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  5 December 2018