BMD20 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1059

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BMD20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1059  

File number(s): SYG 839 of 2020
Judgment of: JUDGE D HUMPHREYS
Date of judgment: 10 July 2025
Catchwords:  MIGRATION – Subclass 866 (Protection) visa – visa cancellation under s 109 – where the Tribunal found the applicant gave false information – where the Tribunal found the applicant should have provided both names that he is known by – whether the decision-maker made a finding based on an irrational or illogical reasoning process
Legislation: Migration Act 1958 (Cth) ss 101(a)-(b), 107, 109, 424AA, 430(1), 438
Cases cited:

AOJ18 v Minister for Home Affairs [2018] FCAFC 220

BHY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1146

Cotterill v Ministerfor Immigration and Border Protection (2016) 330 ALR 617

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

DAO v Minister for Immigration and Border Protection  [2018] FCAFC 2

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29

Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; 255 FCR 486

Hands v Minister for Immigration and Border Protection  [2018] FCAFC 225;

Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 2

Minister for Immigration and Border Protection v Ly [2018] FCAFC 123

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister for Immigration v Li  (2013) 297 ALR 225

NAJT v Ministerfor Immigration and Multicultural Affairs [2005] 47 FCR 51

Singh v Ministerfor Home Affairs [2019] FCAFC 3

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152

SZRHL v Minister for Immigration and Citizenship (2013) 136 ALD 641

WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131FCR 511

WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319

WAIJ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 74; 80 ALD 568
Division: Division 2 General Federal Law
Number of paragraphs: 128
Date of hearing: 1 July 2025
Place: Parramatta
Counsel for the Applicant: Ms Mcneil
Solicitor for the Applicant: Mr Alkafaji, Alkafaji Lawyers Pty Ltd
Counsel for the First Respondent: Mr Reilley
Solicitor for the First Respondent: Mr Sharma, HWL Ebsworth
Solicitor for the Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 839 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BMD20

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE D HUMPHREYS

DATE OF ORDER:

10 JULY 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to read ‘Minister for Immigration and…

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BMD20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1059
Case
[2025] FedCFamC2G 1059
Decision Date

CaseChat Overview and Summary

The Federal Court was presented with an application for judicial review by an Iraqi citizen, who sought to challenge the decision of the Administrative Appeals Tribunal (AAT) to affirm the delegate's decision to cancel his visa under section 109 of the Migration Act 1958 (Cth). The applicant, who had initially arrived in Australia as an unauthorised maritime arrival and was granted a protection visa, had his visa subsequently cancelled on the basis that he had provided false information regarding his identity and religion during his visa application process.

The central legal issues the court was required to address involved whether the decision-maker, the AAT, had made errors in its reasoning process or had acted in a manner that was procedurally unfair or irrational. Specifically, the court needed to determine if the AAT had erred in its assessment of the applicant's evidence and credibility, and whether the AAT's approach in weighing evidence before and after the notice of intention to cancel the visa was inconsistent and contradictory.

The court found that the AAT had indeed erred in its handling of the applicant's evidence. The Tribunal had given little or no weight to the testimony of two lay witnesses who attested to the applicant's Sunni Muslim faith, despite their long-standing observations of his religious practices. The AAT also rejected documentary evidence provided by the applicant, such as letters from Sunni religious authorities, without providing adequate reasons. Additionally, the court identified that the AAT had erred by drawing adverse inferences from the applicant's father's social media profile, which indicated adherence to the Shi'a faith, and by giving little weight to the applicant's claims about his mother and siblings' religious persecution in Greece, despite their independent visa applications. The court concluded that the AAT's reasoning process involved jurisdictional errors and was inconsistent, leading to an unfair and irrational outcome.

As a result of the court's findings, the application for judicial review was successful. The court quashed the AAT's decision and remitted the matter back to the AAT for reconsideration, ensuring that the applicant's evidence was properly assessed and that any potential jurisdictional errors were rectified.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons set out below, the application must be dismissed.BACKGROUND The applicant is a citizen of Iraq. On 5 January 2010, the applicant arrived at Christmas Island by boat as an unauthorised maritime arrival. On 20 April 2010, the applicant applied for the visa. In his application he made statements in respect of his name, his father’s name, that he was a Sunni Muslim and feared harm on that basis. On 22 April 2010, the delegate granted the applicant a protection visa. On 9 May 2014, the applicant applied for Australian citizenship. On 15 August 2016 and 11 November 2016, the applicant attended interviews in relation to the citizenship application. On 22 March 2017, the applicant was notified of, and invited to comment on, a Notice of Intention to Consider Cancellation (NOICC) of his visa. The NOICC identified the applicant had provided incorrect information in relation to his name, his father's name, and both his and members of his extended family's religion. On 1 April 2017, the applicant's representative responded to the NOICC by providing a submission addressing the matters raised in the NOICC, as well as other supporting documents, including a letter from the applicant’s treating psychologist and letters of support confirming that the applicant is a Sunni Muslim. On 5 June 2017, the delegate found that the applicant failed to comply with ss 101(a)-(b) of the Migration Act 1958 (the Act). After considering all of the relevant circumstances, the delegate was not satisfied there were any compelling reasons that the visa should not be cancelled. Accordingly, the delegate cancelled the applicant's visa under s 109 of the Act. On 7 June 2017, the applicant applied to the Tribunal for merits review of the cancellation decision. On 8 December 2017, the Tribunal informed the applicant that the Department of Immigration and Border Protection (the Department) had informed the Tribunal that “the officer who made the decision to cancel your visa did not have the delegated power to cancel visas under s 109 at the time they made that decision”, but the Department’s view was that the cancellation decision stands. On 6 January 2020, with the assistance of an Arabic Interpreter and his representative, the applicant attended a hearing before the Tribunal to give evidence and present arguments. The applicant also called two lay witnesses. At the hearing, the applicant was advised of the presence of a certificate issued under s 438 of the Act. The Tribunal put to the applicant information in accordance with s 424AA of the Act and advised the applicant that he would be given time to provide evidence regarding a fabricated Facebook profile that he said was made for his father. On 8 January 2020, the applicant provided written submissions and supporting documents to the Tribunal. On 11 March 2020, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.THE TRIBUNAL’S DECISION The dispositive issue before the Tribunal was whether the ground for the cancellation of the applicant’s visa under s 109(1) of the Act was made out, and if so, whether the visa should be cancelled.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 11 March 2020, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.THE TRIBUNAL’S DECISION The dispositive issue before the Tribunal was whether the ground for the cancellation of the applicant’s visa under s 109(1) of the Act was made out, and if so, whether the visa should be cancelled. At [7], the Tribunal noted that the exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the applicant under s 107 of the Act, providing particulars of the alleged non-compliance. At [8], the Tribunal was satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements. At [9]-[24], the Tribunal set out the background of the matter and detailed the answers given by the applicant in his application for the visa, more specifically Form 866 Application for a protection (Class XA) visa. At [26], The Tribunal noted that whilst the applicant consistently stated that his family name was ‘X’, the information before the department and according to his Iraqi identity documents indicated that this was not the case. At [28], the Tribunal noted that the applicant’s father’s name as stated in the Identity interview differs to that provided at the Protection visa processing stage. The Tribunal noted that it was put to the applicant that an image, on his social media account, depicts him at the Imam Al Abbas Shrine/Mosque in Kerbala in 2007 [29]. The Tribunal noted that the holy site is known as a Shi’a holy site referred to as the ‘Al Abbas Mosque’. Whilst the applicant initially claimed he had never been to any such named mosque or location, when shown the image he acknowledged it was him in the photo and that it is a Shi’a holy site [30]. The applicant stated that he went to the ‘shrine’ on a pilgrimage to Kerbala, that he had no issues accessing or attending and praying at such a prominent Shi’a location and that he did not actually pray inside the tomb [30]. At [32], the Tribunal noted that the applicant’s father’s social media profile revealed that the applicant’s father subscribes to the Shi’a faith and not Sunni faith. Whilst it was put to the applicant that these images indicate his father is Shi’a and not Sunni as claimed, the applicant denied this stating all his family including paternal uncles are Sunni. Based on this information, it appeared to the Tribunal that that the applicant and members of his extended family including his father, are Shi’a and not Sunni as claimed at the time of the visa application [39]. Further, the name the applicant provided on entry to Australia and as part of his Protection visa application also did not appear to be his correct name. The Tribunal noted that these discrepancies raised doubts as to the applicant’s identity. The applicant was advised about the presence of a s 438 certificate and that it covered internal Departmental correspondence, including some that related to accusations against him [41].

Ratio Decidendi

Legal Principle Established

The applicant’s seven grounds of judicial review are contained in an Amended Application filed with the Court on 30 November 2020. The grounds are as follows (less particulars):1. The applicant brought two witnesses to the hearing before the Tribunal to give evidence concerning the applicant's religion. Both witnesses had observed the applicant pray at a Sunni mosque in a Sunni manner over many years. The Tribunal, in its findings at [93] of its decision dated 11March 2020, dealt with, and discounted to the point of giving no weight to, the evidence of the two witnesses. The Tribunal's reasoning process involves jurisdictional error.2. The Tribunal was concerned as to whether the applicant provided his correct family name in his protection visa application. The Tribunal found at [93]-[94] that the applicant "did give false information" and "was not truthful" in relation to the provision of a name in his protection visa application. There was no proper basis for the Tribunal to make these findings. This was a jurisdictional error.3. The applicant, to help prove he was Sunni, provided documentary evidence that his uncle worked as a security guard for the Sunni endowment fund in Dhi Qar, being a letter from the Dhi Qar Sunni Endowment dated 14 May 2008 at CB 101-102. The Tribunal rejected the letter which was a critical document, as fabricated without putting the applicant on notice of its concerns. This was a denial of procedural fairness and jurisdictional error.4. The applicant provided documentary evidence that he attended a Sunni mosque in Iraq before he departed for Australia, being a letter from Dhi Qar Sunni Religious Endowment at CB 97-98. The Tribunal fell into jurisdictional error in dealing with the letter.5. The applicant gave evidence that his mother and some siblings applied for and obtained protection visas in Greece on the basis that they were Sunnis who experienced persecution on grounds of being Sunni. The Tribunal at [93] placed "little weight" on the evidence. The reasoning process by which the Tribunal placed little weight on the claims made by these family members in Greece involved jurisdictional error.6. A reason the Tribunal found that the applicant was Shi’a arose from his father's social media page. The Tribunal at [93] drew adverse inferences against the applicant's father and the applicant based on information on the father's social media page. The manner in which the Tribunal drew adverse inferences involves jurisdictional error.7. The Tribunal significantly discounted the evidence that the applicant's mother and siblings made Sunni-based claims for protection in Greece because, by the time they made the claims, the applicant had received the notice of intention to cancel his visa and therefore the family knew the Department had put in issue whether the applicant was Sunni. Yet the applicant provided evidence to the Tribunal from two suitably qualified witnesses that they had observed the applicant praying in the Sunni way on many occasions before the applicant received the notice of intention to cancel his visa. But the Tribunal placed no positive weight on the evidence given that it concerned a• period of time before the applicant received the notice of intention to cancel his visa. Thus, there was an inconsistent and contradictory application by the Tribunal of the different weight which may be given to evidence depending on whether the evidence concerned a period of time before, or alternatively after, the applicant received a notice of intention to consider cancelling a visa. The inconsistent and contradictory approach by the Tribunal involved jurisdictional error.CONSIDERATION