Ahmadi v Minister for Immigration

[2015] FCCA 1407

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMADI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1407

Catchwords:
MIGRATION – Migration Review Tribunal – Child (Subclass 101) visa – compliance with PAM3 – no jurisdictional error.

Legislation: 

Migration Act 1958 ss.107, 109, 140, 476, 499
Migration Regulations 1994 reg.2.41

Applicant: SHFQAT ALI AHMADI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 324 of 2014

Judgment of: Judge Street

Hearing date: 18 May 2015

Date of Last Submission: 18 May 2015

Delivered at: Adelaide

Delivered on: 18 May 2015

REPRESENTATION

Counsel for the Applicant: Mr S. Ower

Solicitors for the Applicant: McDonald Steed McGrath

Counsel for the Respondent: Mr K. Tredrea

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 324 of 2014

SHFQAT ALI AHMADI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal affirming a decision of the delegate not to grant the applicant a Child (Subclass 101) visa.

2. In relation to the application, ground 1 was not pressed and the only ground pressed is as follows:

   2. The Second Respondent committed jurisdictional error in exercising the discretion whether the cancel or not cancel the Applicant’s permanent resident visa and failed to give proper consideration to the likelihood that the Applicant would suffer persecution in Afghanistan if for if forced to leave Australia.

   3. Particulars

   3.1 The Second Respondent found that it had considered a submission that the Applicant would suffer persecution in Afghanistan and Pakistan, but nevertheless found that these claims could be canvassed in any application for a Protection visa. The Second Respondent therefore did not consider this matter as a factor weighing in favour of an exercise of the discretion not to cancel the visa held by the Applicant.

3. In this case there is no issue that there was non-compliance by the applicant falling within s.109 of the Migration Act 1958, and the argument of jurisdictional error is advanced under s.109(1)(c) which requires the Tribunal to have regard to any prescribed circumstances.

4. It is relevant in the application for an offshore humanitarian visa the applicant was asked this question:

   Do any people included in this application have children from a previous marriage, relationship including customary marriage?

5. The applicant ticked no.  It was conceded that was not a correct answer.

6. 6.  There was a further answer to question 11 which does not appear to be correct.  It was also raised with the applicant that the answer given to the declaration was incorrect, namely:

   I declare that the information I have supplied on and with this form is complete, correct and up-to-date in every detail.

7. On the refugee and special humanitarian proposal the answer to question 6 – ‘never married’ – was not correct.

8. A s.109(1)(b) notice, as required under s.107(1)(b), was served on the applicant in relation to the non-compliance.

9. The delegate refused the application on 4 December 2013, prior to which the applicant had provided a statutory application in which the applicant contended:

   To be honestly, I was advised to make an application for a Protection Visa as I had this option available after arriving in Australia. I strongly believe that my application for a protection visa would be considered as my father was previously granted asylum in Australia and our whole family have faced discrimination in Afghanistan and in Pakistan.  But I still want to ask Department of Immigration to keep my Child visa 101 valid and my wife’s application to be remained active.  (sic)

10. The delegate addressed the issue of the applicant’s contention that Australia failed in an obligation of protection by returning him to Afghanistan where he alleged he faced a real chance of being persecuted or facing a serious harm.  The delegate said:

    I have taken these claims into consideration and do not consider that, should his visa be cancelled and he is returned to Afghanistan, this would be a breach of Australia’s non-refoulement obligations.

11. At the end of the decision the delegate said:

    Lastly, I find that Australia has no non-refoulement obligations in relation to the visa holder.  As a result, I find that, when considered as a whole, the reasons for not cancelling the visa provided by the visa holder do not outweigh the reasons for cancellation in this case.

12. The applicant appeared before the Tribunal on 2 July 2014 to give evidence and present arguments and was represented by his registered migration agent and had the assistance of an interpreter.

13. It is common ground that the Tribunal had regard to and took into account submissions provided on 9 July 2014 that expressly addressed the Minister’s guidelines in the Procedures Advice Manual (PAM3) and advanced arguments in relation to a non-refoulement obligation owed to the visa applicant.

14. The non-compliance was not a matter directly conceded and candidly explained by the visa applicant, so in those circumstances the Tribunal said:

    23. The Tribunal did not find the visa applicant to be a satisfactory witness.

15. The Tribunal made a finding that he was in a married relationship at the time of the visa application and was married at the time of the application and during the course of the processing of his application for a child migrant visa.

16. The Tribunal took into account what was said by the delegate, as the Tribunal said:

    25. …The Tribunal is satisfied he was non-compliant in the way specified in the notice where the delegate relies on him being in a relationship.

17. Having identified the visa applicant as being an unsatisfactory witness in circumstances where a characterisation that his answers were not correct is a generous characterisation the Tribunal concluded that the visa applicant was non-compliant in the manner specified in the notice in failing to declare his child and that he failed to declare a relevant change in circumstances, being the birth of his second child, and the Tribunal found that there had been non-compliance in the way specified in the notice by the applicant causing incorrect information in statutory declarations from two people to be provided to the Tribunal.

18. It was in this context that the Tribunal came to deal with the requirements of s.109(1)(c), which requires regard to any prescribed circumstances. Prescribed circumstances are set out in reg.2.41, which are as follows:

    Reg.2.41 – Whether to cancel visa--incorrect information or bogus document (Act, s 109(1)(c))

    For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

    (a)  the correct information;

    (b)  the content of the genuine document (if any);

    (c)  whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

    (d)  the circumstances in which the non-compliance occurred;

    (e)  the present circumstances of the visa holder;

    (f)  the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

    (g)  any other instances of non-compliance by the visa holder known to the Minister;

    (h)  the time that has elapsed since the non-compliance;

    (j)  any breaches of the law since the non-compliance and the seriousness of those breaches;

    (k)  any contribution made by the holder to the community.

    Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel

19. The Tribunal, in para.28, summarised the gist of reg.2.41 and then continued in para.29 as follows:

    29.    While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

20. PAM3 relevantly provides, in respect of the Role in decision-making:

    PAM3 instructions are statements of departmental policy and procedure.

    As statements of departmental policy, PAM3 instructions must be considered and given due weight by ministerial delegates (decision-makers) in deciding visa applications or exercising associated decision-making powers. Policy must not, however, be regarded as inflexible and decision-makers must not give it the same force as law.

21. In relation to considering cancellation, para.15.1-.3 of PAM3 provides as follows:

    15.1      Discretionary power to cancel

    The delegate may cancel a visa under s109 after:

    - Issuing a s107 notice to the visa holder and

    - considering any response given by the visa holder and

    - deciding there was non-compliance by the visa holder in any way described in notice and

    - having had regard to prescribed circumstances – see section 15.2 Matters that must be taken into account.

    This is the case even if the delegate previously made a decision not to cancel the visa despite an instance of non-compliance, provided the cancellation is based on another instance of non-compliance (Act, s112(2)).

    However, the delegate does not have to cancel the visa even if there has been non-compliance by the visa holder in the way described in the notice. Section 109 is a discretionary cancellation power.

    Note the Australian law requires a high standard of satisfaction (for example, documentary proof of the non-compliance) of a delegate in finding that the facts relied on in a s109 cancellation exist.

    15.2       Matters that must be taken into account

    If the delegate has decided under s108 that there was non-compliance by the visa holder in the way described in the s107 notice, the delegate must have regard to the following matters – prescribed in regulation 2.41 – in deciding whether to cancel the visa:

    - the correct information

    - the content of the genuine document (if any)

    - the likely effect of the correct information of the genuine document on a decision to grant a visa or immigration clear the visa holder

    - the circumstances in which the non-compliance occurred

    - the visa holder’s current circumstances

    - the visa holder’s subsequent behaviour in regard to their obligations under Subdivision C of Division 3 of Part 2 of the Act

    -  any other instances known to the delegate of non-compliance by the visa holder

    - the time that has elapsed since the non-compliance

    - any breaches of law since the non-compliance and the seriousness of those breaches and

    - any contribution to the community made by the visa holder

    15.3      Matters that should be taken into account

    - whether the visa would still have been granted if the correct information had been given – if so the visa should not be cancelled.

    - whether there are persons in Australia whose visas would, or may be cancelled under s140 – see Act, s140 – Consequential cancellation

    - whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:

    - if there are children in Australia who interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children – see:

    - Australia’s international obligations and

    - PAM3: Act – CCR resolution – Guiding principles – Treatment of children

    - whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that it, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment – see Australia’s international obligations and

    - any other matters raised by the visa holder in their response.

    In addition, before making a decision to cancel a visa under s109, it is policy that delegates consult National Office in the following circumstances.

    Compliance [email protected] is to be consulted if:

    - a cancellation decision, and/or any consequential cancellation under s140 of persons in Australia, may result in adverse media or public comment or

    - the case is sensitive

    Protection Support Section is to be consulted (email Refs Help Onshore) if the visa is a Protection Visa or the visa holder has made, or indicates their desire to make, a Protection visa application.

    Framework and Training Section is to be consulted if the query relates to the legal operation of the Refugees Convention and Protocols.

    Legal Policy Section is to be consulted if:

    - Australia has obligations under international agreements (such as the Convention on the Rights of the Child or the International Covenant on Civil and Political Rights (ICCPR)) that would or may be breached as a result of the visa cancellation or

    - the visa holder is stateless,

    Humanitarian Branch (email [email protected]) is to be consulted if the person or a family member holds:

    - a Temporary Safe Haven (Class UJ) visa

    - a Refugee and Humanitarian (Class XB) visa or

    - a Temporary (Humanitarian Concern) (Class UO) visa

    Visa holder’s capacity to understand and engage

    In all cases, particular care should be exercised if there are concerns that a visa holder lacks mental capacity, for example due to mental health issues, to understand and engage in the cancellation process. In these circumstances, it may be inappropriate or even unlawful or even unlawful to cancel the visa. Delegates should contact Legal Opinions Section about such cases before issuing a s107 notice.

22. Counsel for the visa applicant focused on the third dot point under 15.3 and the seventh dot point in relation to an alleged non-refoulement obligation owed by Australia to the applicant. The first argument advanced by counsel for the visa applicant was that the mandatory requirements of reg.2.41(e), in referring to “the present circumstances of the visa holder” required as a mandatory consideration the non-refoulement obligation allegedly owed to the applicant. I do not accept that this is the correct construction of reg.2.41. The present circumstances are, in my opinion, clearly a reference to the physical, economic, emotional and relationship circumstances that can be described as being present circumstances. I do not accept that reg.2.41 requires as a mandatory consideration a determination of Australia’s protection obligations to the applicant.

23. In any event, even if it were the case that such a construction was required of reg.2.41, this is a case where it is clear that the Tribunal did have regard to the alleged circumstances. The Tribunal said in paras.40 and 41 as follows:

    40. The Tribunal has considered his submission, but is satisfied that his claims can be canvassed in any application for a protection visa. 

    41. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

24. Counsel for the applicant contended that the Tribunal had not dealt with the argument in relation to Australia owing the applicant a protection obligation.  On a fair reading of the Tribunal’s decision as a whole, para.41 is, in my opinion, a rejection of the contention that Australia owed any protection obligation to the visa applicant.  The applicant’s argument is flawed and, in my opinion, is reading the Tribunal’s decision with an eye to error. The decision must be read as a whole, particularly in light of the finding of the visa applicant being an unsatisfactory witness, and taking into account the clear finding of the delegate that Australia did not owe the applicant a protection obligation and that there was not a non-refoulement obligation owed to the applicant. Further to read the reference to “regard to all relevant circumstances” as not including that contention by the visa applicant has in my opinion no proper foundation.

25. It is clear from the language used by the Tribunal that it had regard to the protection claims advanced and the asserted claim of a non-refoulement obligation. In these circumstances, even if a broader construction of reg.2.41 were to be applied, there was no jurisdictional error by reason of a failure to comply with reg.2.41. In relation to PAM3, this was a case in which it was not common ground whether this was a document that was a direction under s.499 of the Migration Act 1958.  For the purpose of this case, I accept that a failure to comply with the obligation to have regard to the PAM3 would, on existing authorities, constitute a jurisdictional error.

26. Counsel for the applicant contended that para.15.3, in reference to the proposition matters that should be taken into account, should be construed as matters that must be taken into account. That is inconsistent with the language used elsewhere in the PAM3. The consideration identified was clearly a discretionary consideration, but for the reasons I have already given, it is clear that the Tribunal did have regard to the alleged obligations, and rejected, on a fair reading of its decision, the contention that the applicant was owed such a non-refoulement obligation. There is no substance in the contention of non-compliance with the PAM3, and to the extent relevant, this is not a case where there is any breach of s.499, to the extent that the PAM3 is a direction under that provision.

27. Counsel for the applicant further advanced the argument along the lines that as the non-refoulement obligation was an obligation under an international treaty, it was one to which the administrative decision maker must regard. For the reasons I have identified, it is clear that the Tribunal did have regard to the argument of non-refoulement in the context of the statutory obligations under s.109(1)(c). In my opinion, the argument advanced by the applicant is, in substance, an impermissible challenge to the adverse finding of fact made by the Tribunal in para.41. I find that the Tribunal had regard to all the relevant circumstances, including the circumstance of the alleged non-refoulement obligation.

28. There was no denial of procedural fairness by the Tribunal in relation to the argument advanced by counsel for the applicant.  To the extent that it is contended that there was an implied obligation of a mandatory relevant consideration, having regard to the subject matter, scope, and purpose of the Act, again, I am satisfied that the Tribunal did have regard to the alleged non-refoulement obligation. I find on a fair reading of the Tribunal’s reasons there is included a finding that the Tribunal does not accept any such obligation as owed to the visa applicant.

29. The application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 May 2015