Atkins v Minister for Home Affairs
[2019] FCCA 245
•6 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATKINS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 245 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – cancellation of protection (subclass 866) visa under s.109(1) of the Migration Act 1958 – whether the Tribunal was obliged to consider whether the applicant would be removed to a regional processing centre – whether the Tribunal gave adequate reasons for determining that the applicant was not at real risk of significant harm – whether the Tribunal’s findings were illogical or unreasonable. |
| Legislation: Acts Interpretation Act 1901, s.13 |
| Applicant: | HAROLD ATKINS (A PSEUDONYM) |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1491 of 2018 |
| Judgment of: | Judge Riley |
| Hearing dates: | 19 October 2018 and 14 November 2018 |
| Date of last submission: | 14 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2019 |
REPRESENTATION
| Counsel for the applicant: | Matthew Albert |
| Solicitors for the applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the first respondent: | Nick Wood |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The application filed on 29 May 2018 and amended on 26 September 2018 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1491 of 2018
| HAROLD ATKINS (A PSEUDONYM) |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs to cancel the applicant’s protection (subclass 866) visa under s.109(1) of the Migration Act 1958 (“the Act”).
Legislation
Section 101 of the Act provides that:
A non-citizen must fill in his or her application form in such a way that:
…
(b) no incorrect answers are given …
Subsections 107(1)(a), (b) and (c) of the Act provide that:
If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance – shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response – when that notice is given; or
(ii) if the holder gives the Minister a written response within that period – when the response is given; or
(iii) otherwise – at the end of that period; …
Section 108 of the Act provides that:
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non-compliance by the visa holder in the way described in the notice.
Subsection 109(1) of the Act provides that:
The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
Background
The applicant was born in Iran on 15 April 1984. He arrived in Australia on 2 April 2010 as an illegal maritime arrival. On 10 June 2010, he made an application for a refugee status assessment. On 20 December 2010, a delegate of the Minister found that Australia had protection obligations to the applicant and invited him to apply for a protection visa. The applicant applied for a protection visa on 17 August 2011. It was granted to the applicant on 24 August 2011.
The applicant’s claims for protection on 17 August 2011 were largely that:
a)he is an ethnic Kurd;
b)he had been targeted by the Basij in the past;
c)he deserted his military obligations to save his friend, who was a political prisoner; and
d)if he returned to Iran, he would be a failed asylum seeker and would be suspected of being critical of the regime.
In his protection visa application, the applicant also said that:
a)he left Iran illegally on an Iranian passport in the name of Mohammad, which is not his name;
b)a smuggler arranged the passport for him; and
c)he did not have an Iranian passport because he had not finished his national service.
On 16 November 2012, as the holder of a protection visa, the applicant departed Australia using an Australian Titre de Voyage. When he returned to Australia, the applicant completed an incoming passenger card, saying that he had spent most of his time abroad in Thailand.
Upon being interviewed by an officer at Melbourne Airport, the applicant was found to be in possession of an Iranian passport in his own name issued in Canberra on 19 October 2012. The applicant told the officer that, contrary to the declaration in his incoming passenger card, he had returned to Iran to visit family and see his mother who was in hospital. The passport was examined and found to be free of fraud or tampering. The passport contained an Iranian entry stamp dated 17 November 2012 and Iranian exit stamp dated 31 December 2012.
The passport also listed, as at the date of its issue on 19 October 2012, the day of the applicant’s last exit from Iran, being 5 March 2010.
In an application for citizenship lodged on 11 November 2015, the applicant confirmed that he had travelled to Iran between 16 October 2012 and 31 December 2012 to visit his sick mother in hospital.
On 26 June 2017, the applicant was given notice of the Minister’s intention to consider cancellation of the applicant’s protection visa. The applicant responded to that notice in writing on 10 and 12 July 2017.
The delegate considered that it appeared that the applicant had not complied with s.101(b) of the Act when he completed his protection visa application form. The delegate considered that it appeared that the applicant had not departed Iran illegally under an assumed name but had departed Iran legally in his own name on 5 March 2010. The delegate also noted that, since obtaining his protection visa, the applicant had returned voluntarily to Iran for six weeks in his own name and reported no difficulties.
Based on country information, the delegate noted that, to have departed Iran legally on a passport in his own name, the applicant would have needed to have completed his military service or obtained an exemption from it. Accordingly, the delegate considered that it appeared that the applicant gave an incorrect answer in his protection visa application form when he said that he had deserted his military service. As that claim was connected with the applicant’s claims about freeing his friend as a political prisoner, the delegate also considered that it appeared that the applicant had given incorrect answers about that issue as well. The delegate also identified a number of other answers that appeared to be incorrect in the applicant’s protection visa application form.
The delegate noted that the applicant maintained in his responses to the notice to consider cancellation that all of his answers in his protection visa application form had been correct. The applicant said in his responses that:
a)he had paid a bribe to an agent via his brother-in-law in Iran to get the passport issued by the Iranian Embassy in Canberra on 19 October 2012;
b)the agent told him to arrive in Iran and depart on specific dates, when the agent would be able to remove the relevant records to enable the applicant to navigate Iran’s strict entry and exit procedures;
c)he stayed in his brother-in-law’s apartment in Tehran and did not go out;
d)he told only his immediate family that he was there; and
e)he was very anxious about his safety while he was there.
The delegate did not accept the applicant’s claims. The reasons for that included that:
a)the financial information about the payment of the alleged bribe was not persuasive;
b)the timeframes for the applicant obtaining the passport with bribes were not plausible;
c)to have obtained the passport issued in Canberra on 19 October 2012, the applicant would have needed to provide his certificate of completion of military service or a certificate of exemption from military service;
d)the applicant said nothing in his response about that issue;
e)the applicant reported to the Victorian police on 28 June 2012 that he had lost his Iranian passport while moving from Burwood to Bulleen;
f)therefore, he must have had an Iranian passport at that time, for which he must have shown the appropriate military certificate;
g)the lost passport was presumably the legal passport in the applicant’s name that he used to depart Iran legally on 5 March 2010; and
h)the applicant spent six weeks in Iran in November and December 2012, and entered and departed Iran in his real name, without experiencing any difficulties.
The delegate considered that grounds to cancel the applicant’s protection visa existed. The delegate then considered whether to exercise the discretion to cancel the visa. The delegate noted, among other things, that the applicant had converted to Christianity, had a very good work record with Serco as an immigration detention centre guard, and that there would be various immigration consequences for the applicant if his visa were cancelled. However, in all of the circumstances of the case, the delegate decided to cancel the applicant’s visa.
Before the Tribunal, the applicant maintained his denials that he had given any incorrect answers in his protection visa application form. The Tribunal affirmed the delegate’s decision, for similar reasons to those provided by the delegate.
Ground 1
The first ground of review in the application filed on 29 May 2018 and amended on 26 September 2018 (“the application”) is:
The Tribunal failed to carry out its statutory task or alternatively, failed to have regard to a relevant consideration, namely that on cancellation of his visa the Applicant was at immediate and ongoing risk of being removed to Iran or taken to a regional processing country pursuant to s 198AD of the Migration Act 1958 (Cth).
The applicant referred to paragraphs 95 and 96 of the Tribunal’s reasons for decision and said that the Tribunal made its decision on the express basis that:
95.… The Iranian government … has refused to accept involuntary returnees and … as a result the applicant, if he were unwilling to return, would face indefinite detention …
96.… whether the applicant faces indefinite detention in Australia is dependent upon a choice he makes rather than the outcome of this decision.
The applicant said the Tribunal’s consideration of the applicant being indefinitely detained in Australia was an error, because, legally, the applicant had to be removed to a regional processing country, such as Nauru or Papua New Guinea, which would be worse than indefinite detention in Australia.
The applicant argued that s.198AD(2) of the Act applied to him. That subsection provided that:
An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.
The Minister said that s.198AD of the Act did not apply to the applicant. The Minister noted that s.198AD of the Act was inserted by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (“the Regional Processing Act”). Item 36 of Schedule 1 to the Regional Processing Act is an application provision, which provided that:
Section 198AD of the Migration Act 1958, as inserted by this Schedule, applies in relation to an offshore entry person who enters Australia on or after 13 August 2012.
The Minister said that the fact that s.198AD of the Act did not apply to the applicant was confirmed by note 2 to s.198AD of the Act, which stated:
This section does not apply in relation to a person who entered Australia by sea before 13 August 2012 …
The applicant entered Australia by sea prior to that date, on 2 April 2010. Consequently, the Minister submitted, s.198AD of the Act did not apply to him.
However, the applicant said that the exclusion in the Regional Processing Act applied to unauthorised maritime arrivals. The applicant said that, when he arrived in Australia on 2 April 2010, the Act did not refer to unauthorised maritime arrivals. It referred to offshore entry persons. When the applicant arrived in Australia, he was an offshore entry person. The amendment which changed references in the Act to offshore entry persons to unauthorised maritime arrivals took effect from 1 June 2013.
The applicant submitted that the change of description was not retrospective. That is, anyone who had been an offshore entry person did not automatically become an unauthorised maritime arrival. The applicant said that he is not now an offshore entry person, because there is now no such entity under the Act. However, the applicant argued that he met the current definition of unauthorised maritime arrival, so he was caught by s.198AD(2) of the Act.
Section 5AA(1) of the Act defines unauthorised maritime arrival as follows:
For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a) the person entered Australia by sea:
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section; and
(b) the person became an unlawful non-citizen because of that entry; and
(c) the person is not an excluded maritime arrival.
It was not disputed that the applicant met that definition.
The applicant submitted that note 2 to s.198AD of the Act, which provided that:
This section does not apply in relation to a person who entered Australia by sea before 13 August 2012 …
applied to s.198AD(2A) of the Act, and not to s.198AD(2) of the Act.
The applicant said that was apparent from the placement of note 2 and from the placement of a note immediately below s.198AD(1) of the Act. To understand that argument, it is necessary to set out more of s.198AD of the Act, as follows:
(1) Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189.
Note:For when this section applies to a transitory person, see section 198AH.
(2) An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.
(2A)However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person’s parent mentioned in the relevant subsection entered Australia before 13 August 2012.
Note 1:Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances.
Note 2:This section does not apply in relation to a person who entered Australia by sea before 13 August 2012 …
(3) …
(4) …
I do not accept that note 2, under s.198AD(2A) of the Act applies only to s.198AD(2A) of the Act. That is because note 2 refers to This section. It does not refer to This subsection. It seems to me that note 2 was placed after s.198AD(2A) of the Act because it applied to both s.198AD(2) and s.198AD(2A) of the Act. The placement of the first note after s.198AD(1) of the Act does not assist the applicant.
In the alternative, the applicant submitted that note 2 to s.198AD of the Act could not be relied upon to modify the ordinary meaning of s.198AD of the Act. Section 13 of the Acts Interpretation Act 1901 in the past provided that notes were not to be taken to be part of an Act. However, that section has been amended and now provides that:
Material that is part of an Act
(1) All material from and including the first section of an Act to the end of:
(a) if there are no Schedules to the Act – the last section of the Act; or
(b) if there are one or more Schedules to the Act – the last Schedule to the Act;
is part of the Act.
(2) The following are also part of an Act:
(a) the long title of the Act;
(b) any Preamble to the Act;
(c) the enacting words for the Act;
(d) any heading to a Chapter, Part, Division or Subdivision appearing before the first section of the Act.
(3) However, text is not part of an Act, or a compilation of an Act within the meaning of the Legislation Act 2003, if the text:
(a) only indicates the effect of an element of the Act; and
(b) is accessible in an electronic version of the Act or compilation; and
(c) does not appear in the printed text of the Act (or any amendment of the Act) as enacted by the Parliament, or any other printed version of the Act or compilation.
Note: This text is known as alternative text or “alt text”. Alternative text may be accessible in an electronic version of an Act or compilation that is published on an approved website under the Legislation Act 2003. This text may, for example, aurally indicate the effect of a graphic image in an Act to assist users of the website who have visual disabilities.
Therefore, notes form part of the Act. However, the applicant submitted that note 2 to s.198AD of the Act had a different meaning to item 36 of Schedule 1 to the Regional Processing Act. That item provided that:
Section 198AD of the Migration Act 1958, as inserted by this Schedule, applies in relation to an offshore entry person who enters Australia on or after 13 August 2012.
Note 2 said that:
This section does not apply in relation to a person who entered Australia by sea before 13 August 2012
As can be seen, the note referred to the bare fact of entry by sea, whereas item 36 said s.198AD of the Act referred to offshore entry persons. That is, the note goes further than the Act. In the past, it would have been uncontroversial to state that a note cannot be relied upon to alter the ordinary meaning of a section or subsection of an Act. However, the amendments to s.13 of the Acts Interpretation Act 1901 were obviously intended to change that position. Therefore, it follows that s.198AD should be read as not applying to people who entered Australia by sea before 13 August 2012.
Even if that is not correct, the Minister noted that the Regional Processing Act inserted s.198AD(2) of the Act in the following terms:
An officer must, as soon as reasonably practicable, take an offshore entry person to whom this section applies from Australia to a regional processing country.
The Minister further noted that item 36 of Schedule 1 of the Regional Processing Act provided that:
Section 198AD of the Migration Act 1958, as inserted by this Schedule, applies in relation to an offshore entry person who enters Australia on or after 13 August 2012.
The Minister then noted that the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (“the Unauthorised Maritime Arrivals Act”) made amendments to the Act by which references to offshore entry persons were amended to be references to unauthorised maritime arrivals.
Item 60 of Schedule 1 to the Unauthorised Maritime Arrivals Act provided that:
Application provision – subparagraph 5AA(1)(a)(i) of the Migration Act
(1) This item applies to an unauthorised maritime arrival who entered Australia by sea as mentioned in subparagraph 5AA(1)(a)(i) of the Migration Act, as inserted by this Schedule.
(2)The amendments made by items 18 to 47 of this Schedule apply in relation to the unauthorised maritime arrival only if he or she entered Australia by sea as mentioned in that subparagraph on or after 13 August 2012.
Item 20 of Schedule 1 to the Unauthorised Maritime Arrivals Act provided that:
Subsections 198AD(1) and (2)
Omit “offshore entry person”, substitute “unauthorised maritime arrival”.
It was common ground that the applicant fell within item 60(1) of Schedule 1 to the Unauthorised Maritime Arrivals Act. The Minister submitted that the changes introduced by that Act were obviously not intended to change the status of people who had entered Australia prior to 13 August 2012.
The Minister conceded that the applicant is an unauthorised maritime arrival as defined in the Act. However, the Minister submitted that s.198AD did not operate to require his removal to an offshore processing centre, because of the application provisions in the Regional Processing Act and the Unauthorised Maritime Arrivals Act.
I accept the Minister’s argument on this point. That is, leaving aside the argument about note 2, I do not accept that s.198AD operates to require the applicant, as an unauthorised maritime arrival, to be removed to an offshore processing country, because he arrived in Australia prior to 13 August 2012. The Minister’s submissions are in accordance with the ordinary meaning of the relevant provisions.
In the alternative, the applicant argued that he continued to be an offshore entry person, by a parallel version of s.198AD of the Act, and, under the parallel version of the Act, he was required to be removed to an offshore processing country. However, the Minister submitted that, under the so-called parallel version of the Act, item 36 of Schedule 1 of the Regional Processing Act applied to mean that the applicant did not need to be removed to a regional processing country. I accept that argument. Again, it accords with the ordinary meaning of the legislation.
In the further alternative, the applicant argued that s.198 of the Act required an officer to remove a person in the applicant’s position from Australia. The applicant noted that s.197C of the Act provided that:
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
That is, the applicant argued that he would not be kept in indefinite immigration detention, as the Tribunal considered, but would be removed from Australia, as the Tribunal failed to consider.
The Minister argued that:
a)the obligation to remove the applicant under s.198 of the Act was expressly stated to be as soon as reasonably practicable;
b)that meant as soon as another country would take him; and
c)the only country that could reasonably be expected to take the applicant was Iran.
The Tribunal noted at paragraph 95 of its reasons for decision that:
… The Iranian government, for example, has refused to accept involuntary returnees and … as a result the applicant, if he were unwilling to return, would face indefinite detention.
That is, the Tribunal was well aware of the provisions of s.198 of the Act, and understood that the reality was that, if the applicant did not voluntarily return to Iran, he would remain in indefinite detention. That is why the Tribunal considered that point.
I am not persuaded that the Tribunal erred in not considering whether the applicant would be removed to an off-shore processing centre, because that would not happen. I am also not persuaded that the Tribunal erred in considering that the applicant may remain in indefinite detention, because that was a realistic possibility. The Tribunal also considered that the applicant did not face a real risk of serious or significant harm in Iran, so could return there voluntarily and avoid indefinite detention if he so chose. Ground 1 is not made out.
Ground 2
The second ground of review in the application is:
The Tribunal erred by failing to perform its statutory task, namely by failing to give reasons for concluding that the Applicant was not at real risk of significant harm other than in respect of his conversion to Christianity.
The applicant submitted that he made claims for complementary protection in the following terms:
a)he was at risk of degrading treatment by reason of being Kurdish;
b)he was considered by the Iranian authorities to be inferior and an outsider;
c)Kurds were constantly called traitors and labelled as backwards; and
d)he was made to stand at the front of the class when degrading remarks would be made about Kurdish dress and customs.
The applicant said that the sum total of the Tribunal’s reasoning on this point was set out at paragraph 93 of the Tribunal’s reasons for decision, which is as follows:
I have also considered whether each of the integers of claims identified above would amount to the applicant being at real risk of significant harm and have found them not to be so.
The Minister noted that the Tribunal also dealt with these issues at paragraph 59 of its reasons for decision, which is as follows:
The Tribunal sought information from the applicant about the harm he claims to have suffered prior to departing Iran as a result of his Kurdish ethnicity. The applicant’s evidence amounts to what could be identified as harassment, teasing and possibly bullying, but most certainly not significant harm envisaged by the Refugees Convention and Australia’s Migration Act. The Tribunal is not satisfied that the applicant was or would suffer significant harm as a result of his Kurdish ethnicity, if he was returned to Iran.
I consider that the Tribunal dealt adequately with the question of significant harm. That is, I consider that it was open to the Tribunal to characterise the applicant’s complaints of significant harm as harassment, teasing and possibly bullying but not significant harm as defined in the Act. The brevity of the Tribunal’s reasoning on this issue is not indicative of error. Ground 2 is not made out.
Ground 3
The third ground of review in the application is:
The Tribunal erred by making a decision which was legally unreasonable, in that it made adverse credibility assessments which were perfunctory, emphatic and unsustainable on their own terms.
The applicant noted that the Tribunal’s credibility findings are not immune from judicial review, and a Tribunal’s decision can be set aside if credibility findings are made without a logical or probative basis. The applicant argued that the Tribunal’s finding that it was implausible that the applicant had paid $22,000 for a false passport in his own name was illogical and unreasonable.
The applicant submitted that it was entirely plausible that he would have paid $22,000 for a false passport in his own name, because travelling to and from Iran on a false passport was inherently more risky.
The applicant, in relation to this ground, has somewhat misunderstood the Tribunal’s reasoning. The applicant said in paragraph 36 of his written submissions that the Tribunal considered that the Iranian passport that the applicant used to leave Iran in 2010 was the same Iranian passport that the applicant used to enter and depart Iran in 2013.
However, that was not the Tribunal’s understanding of what occurred. The Tribunal said at paragraph 49 of its reasons for decision, while summarising the Tribunal hearing, that it told the applicant that it was forming the view that he had left Iran on his own passport lawfully and had obtained a new one lawfully. That view is implicitly the finding made by the Tribunal, and the delegate.
In any event, the question for the court is whether the Tribunal’s finding that it was implausible that the applicant had paid $22,000 for a false passport in his own name was illogical and unreasonable. I do not consider that it was. If the applicant had genuinely been in fear of the authorities in Iran, it would have been surprising for him to have returned to Iran on a passport in his own name. While reasonable minds may have differed on the plausibility of the applicant’s explanation about how he was able to spend six weeks in Iran and enter and leave Iran in his own name, it does not seem to me that the Tribunal’s reasoning on this issue can be assessed as illogical or unreasonable so as to set aside the Tribunal’s decision. This ground is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs. As there were two days of hearing in this matter, I will hear the parties on the question of costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 6 February 2019
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