BMM18 v Minister for Home Affairs

[2018] FCCA 2646

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMM18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2646

Catchwords:
MIGRATION – Where the Applicant came to Australia legally on a Tourist Visa – where the Applicant was granted that visa after supplying misleading and false information – where adverse findings of credit – where Applicant claimed to be at serious risk of domestic violence if forced to return to PNG – where it was open to Tribunal to affirm decision of delegate – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 476

Cases cited:

MZXBQ v Minister for Immigration & Citizenship & Anor [2008] FCA 319

SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609

Applicant: BMM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 302 of 2018

Judgment of: Judge Egan

Hearing date: 12 September 2018

Date of Last Submission: 12 September 2018

Delivered at: Brisbane

Delivered on: 12 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Steele

Solicitors for the Applicant: Refugee and Immigration Legal Service Inc.

Counsel for the First Respondent: Ms Forder

Solicitors for the First Respondent:	MinterEllison Lawyers
Second Respondent:	Submitting an appearance

THE COURTS ORDERS ON A FINAL BASIS THAT:

1. Leave be granted to the Applicant to read and file a Further Amended Application dated 12 September 2018.

2. The Application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of seven thousand, three hundred and twenty-eight dollars ($7,328.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 302 of 2018

BMM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Papua New Guinea.  She arrived in Australia on 16 March 2016 on a tourist visa.  She had previously been granted the tourist visa on 20 August 2015. 

2. On the day of the expiration of the applicant’s tourist visa, she applied for a protection visa (class XA)(subclass 866).  The applicant claimed to fear harm from family members, as a result of her having been a victim of domestic and family violence, should she return to Papua New Guinea.  She claimed that the police in that country were corrupt and could not assist her and she feared for her life if she were returned. 

3. On 20 June 2017, a delegate of the Minister refused to grant to the applicant the protection visa.  The applicant sought review of the delegate’s decision before the Tribunal by application dated 5 July 2017. 

4. A hearing took place before the Administrative Appeals Tribunal (“the AAT”) on 15 February 2018.  On 19 February 2018, the AAT affirmed the decision of the delegate under review. 

5. The applicant filed an application for review on 26 March 2018, pursuant to the provisions of section 476 of the Migration Act 1958 (Cth) “the Act”). That application was subsequently amended by an amended application filed on 22 June 2018.

6. At the commencement of the hearing before this Court today, the applicant sought leave through her counsel, Mr Steele, to file a further amended application dated 12 September 2018. No objection to that course was made by or on behalf of the first respondent. That further amended application added ground 3, and asserted that the second respondent had failed to comply with the provisions of section 424AA(1) of the Act.

7. The AAT accepted that the applicant was a citizen of Papua New Guinea.  The Tribunal recorded that the applicant first arrived in Australia on 10 August 2015, pursuant to the tourist visa, but subsequently departed Australia in December 2015.  It was common ground that the applicant had returned to Port Moresby, her former place of residence, at that time. 

8. Ground 1 of the application and the particulars thereto are as follows:

   1. The decision of the second respondent was affected by jurisdictional error because:

   a. the Tribunal failed to afford the applicant procedural fairness in that:

   i. the Tribunal gave me only two days after the hearing from Thursday, 15 February until Saturday 17 February 2018 to provide further documents; and

   ii. the Tribunal did not obtain another interpreter after it became apparent that the interpreter did not speak the same language as me.

9. The particulars to the ground referred to above make specific reference to findings which are contended were not supported by any of the relevant evidence before the AAT.  The first paragraph of the reasons called into question in that regard is paragraph 28 which reads as follows:

   28. These statements indicate to the Tribunal that the applicant not only knew, but had assistance from friends in Queensland prior to her visit here. The Tribunal does not accept the applicant’s account that she only heard about protection applications when someone directed her to RAILS towards the end of her second trip to Australia in 2016. The Tribunal has formed a view that the applicant’s sole intention upon returning to PNG in December 2015 was to contrive a way of returning to Australia in order to seek protection.

10. The complaint made by the applicant is that part of the reason why the applicant’s account was not accepted was that she only heard about protection applications when someone directed her to RAILS (Refugee & Immigration Legal Service) toward the end of her second trip to Australia in 2016. 

11. Importantly, however, the Tribunal recorded that the applicant’s sole intention upon returning to PNG in December 2015 was to seek a means of returning to Australia to seek protection.  Attempts were made to locate any evidence upon which the latter finding might have been supported in the transcript, but there was none. 

12. As to the question of whether the Tribunal was entitled to form such a view in the absence of evidence, the Court is of the view that it was not so entitled.  As to paragraph 54 of the reasons, such reasons are as follows:

    54. Despite being in Australia for over two years the applicant has not sought any help in the form of domestic violence counselling, for example, despite have access to RAILS. The Tribunal would have expected someone that has suffered as the applicant claims to have suffered, to have sought out and utilised the extensive and free counselling that is available to women in these circumstances in Australia. She did not.

13. The applicant asserts that there is no evidentiary basis for the finding that the applicant had not sought any help in the form of domestic violence counselling over a two year period in Australia when, again, there was no evidence in the transcript upon which any such finding could be based.  The Court is of the view that the finding in that regard is unsupportable. 

14. Paragraph 56 of the reasons provides as follows:

    The Tribunal finds the account provided by the applicant of her reasons for departing PNG and coming to Australia to seek protection to be fabricated in its entirety.

15. Paragraph 56 is a paragraph whereby the Tribunal has found that the applicant’s reasons for departing PNG were fabricated in their entirety.  In that respect, this Court is not entitled to undertake a merits review of the reasons why the AAT has arrived at its conclusions.  As will be discussed later, it was open for the Tribunal to make adverse findings as to credibility against the applicant.  For those reasons, the finding in paragraph 56 of the reasons was, at least, open to the Tribunal on the evidence, and no error has been established in terms of the claims made in ground 1 of the application. 

16. Reference is also made in the particulars to ground 1 to the assertion that the Tribunal took into account, when arriving at its decision, an irrelevant consideration.  In that regard, the applicant referred to paragraph 31 of the reasons which are as follows:

    31. The Tribunal put to the applicant the information she provided to the department in her tourist visa application including that she claimed she had a husband named Simon, and two sons named Jason and Bruce. And that she resided with her parents and her two siblings. All had their dates of birth and their address recorded. The Tribunal asked the applicant if this information was true and she claimed that it was not. She said that she just signed the application after she gave the information to Bernadette and the agent. The Tribunal put to her that it seemed and extraordinary effort to invent a husband and two sons, along with parents and siblings and she said that she didn't know anything about it. The applicant strongly denied being married, having children, or that her parents and siblings were alive. The Tribunal put to the applicant that she signed a form with that information and if it were incorrect, false or misleading then she would not pass the PIC4020. Asked for her response she claimed that she didn't know anything about the forms, but that she provided the correct information to Bernadette and signed the form. The Tribunal put to the applicant that if it formed a view that she did not met PIC 4020 she would be barred from re-entering Australia for 3 years. The applicant insisted that she did was not married and did not have any sons. She said she only had a long term friend named Duncan.

17. It can be seen from that paragraph that the AAT was, there, dealing with the application made by the applicant for a tourist visa.  In that application it was recorded that the applicant had a husband named Simon and two sons named Jason and Bruce.  It was also recorded that she resided with her parents and her two siblings.  The dates of birth and addresses were all recorded. 

18. The applicant admitted that the information contained in that tourist visa application was incorrect.  The Tribunal made reference to the fact that by filling out the tourist visa application form incorrectly, the applicant had provided information that was false or misleading in a material particular, contrary to Public Interest Criterion 4020 (“PIC420”), something which would have disentitled her from being granted a tourist visa in the first place. 

19. It was submitted on behalf of the applicant that paragraph 31 of the reasons ought to be read in conjunction with paragraph 55 of the reasons, such paragraph providing as follows:

    55. The Tribunal has considered the letter from Pastor Noah stating that the applicant is not a married woman; however in the context of all the circumstances, the Tribunal is not minded to give this document counterbalancing weight. The Tribunal notes that the applicant and Mr Tudor, her supporter, assert that the applicant is a truthful woman and would not deliberately deceive the government. The Tribunal notes Mr Tudor's concern, in particularly, however the evidence is clearly that the applicant declared a husband, son, parents, siblings and children in her visitor visa application that she signed and submitted and which resulted in the grant of a visitor's visa. Mere protestations of innocence are utterly insufficient in these circumstances, particularly as the applicant has provided no reliable evidence to the contrary and no persuasive argument as to why she would unknowingly sign a false document.

20. The relevance of the latter paragraph is that paragraph 55 appears after the heading “Findings and Reasons”.  Though reference is made in paragraph 55 to the discrepancy between what appears on the tourist application form and what the applicant admitted to being the real state of affairs, there is no mention in paragraph 55 to PIC4020. 

21. It is, in fact, the case that, as was common ground at the hearing, the information contained in the tourist application form was false.  Paragraph 55 of the reasons refers to that falsity and constitutes a basis upon which an adverse credibility finding might have been made by the Tribunal against the applicant.  That was made clear in the last sentence of paragraph 55 of the reasons.  Accordingly, there is no demonstrated error on the part of Tribunal in having made the adverse findings as to credibility, which it did, in those circumstances. 

22. It has not been demonstrated that the AAT fell into error by arriving at a decision which was legally unreasonable or otherwise premised on irrational or illogical reasoning.  The AAT, clearly, did not believe the applicant would suffer harm if she was returned to Papua New Guinea (more particularly, Port Moresby).  The Tribunal took into account the fact that the applicant had returned to Port Moresby in December 2015, pointing out that someone who expressed the fears which she did, would have been unlikely to do so had those fears been real. 

23. There was evidence upon which to base the findings which were made.  The claims made in ground 1 of the application for review have not been made out and are without merit. 

24. Ground 2 asserts that the AAT had regard to an irrelevant consideration, namely, whether the applicant satisfied PIC4020 in making the “fabrication finding”, the latter being a term used by the applicant to refer to the adverse findings as to credit made against the applicant. 

25. The Court was taken by counsel for the applicant to page 18 of the transcript.  Reference was made in the transcript to the following dialogue:

    Senior Member: Well, then, you shouldn’t have signed it.  Not only do we now have to sort out your protection claims, because you have provided false and misleading information to the department and to me, you fail to meet Public Interest Criteria 4020, which says that if you produce false and misleading information to the department, your visa will be refused and you will be barred from entering Australia for a period of up to three years.  So this is important because, in effect, it will prevent you from re-entering Australia for up to three years and will form the reason, or part of the reason, why I will affirm this decision, so I would like to view your comments about that.

    Applicant: I didn’t know anything. 

26. It was submitted on behalf of the applicant that by the senior member having stated in the paragraph attributed to him that the provision of false and misleading information formed the reason, or part of the reason, why he would affirm the decision of the delegate, that the AAT was having regard to an irrelevant consideration.  The irrelevant consideration asserted was that regard ought not to have been had to the criteria relating to the issue of a tourist visa, when the subject matter for consideration by the AAT were those criteria relevant to the grant of a protection visa. 

27. It was asserted that because the senior member had said that his consideration of those matters would form the reason, or part of the reason, why he would affirm the decision of the delegate, constituted an error which permeated the whole decision-making process.  Had it been the case that under the heading “Findings and Reasons” the AAT had made specific reference to PIC4020, and its breach by the applicant when making her application for a tourist visa, there may have been merit to the submission made on behalf of the applicant in that regard. 

28. However, as referred to earlier, the fact of the making of a false declaration in one application was a matter which was of obvious relevance to the AAT when considering the circumstances surrounding the applicant’s having made application for a protection visa at a later time.  It is also relevant that no mention was made of PIC4020 and any breach of its criteria as constituting a basis for the decision to refuse the protection visa. 

29. There is no merit in that claim and ground 2 is dismissed.

30. The third ground is as follows:

    The decision of the second respondent was affected by jurisdictional error because the Tribunal failed to afford the applicant procedural fairness in that the second respondent was obliged, but failed, to comply with s 424A(1) of the Migration Act 1958.

    Particulars

    3.1 There was “information” hat the second respondent considered would be the reason, or part of the reason for affirming the decision that was under review; namely that the application for the Applicant’s Visitor Visa included information about a spouse and children which the applicant confirmed was false (Adverse Information).

    3.2 The second respondent was obliged, but failed, to comply with s 424AA(1) of the Migration Act 1958 in relation to the Adverse Information on the basis that the second respondent conducted a hearing of the review application on 15 February 2018, during which time:

    3.2.1 The second respondent invited the applicant to comment on the Adverse Information stating it “will form the reason, or part of the reason why I affirm this decision”

    3.2.2 The second respondent did not correctly explain or ensure, as far as was reasonably practicable, that the applicant understood why the information was relevant to the review, and the consequences of that information being relied on;

    3.2.3 The second respondent did not advise the applicant that the applicant could seek additional time to comment on or respond to the Adverse Information neither at the time the Tribunal invited the Applicant to comment on the information nor at the end of the hearing.

    3.3 The second respondent gave its decision after one business day after the hearing, effectively depriving the applicant of a reasonable opportunity to provide further documents.  

31. At the outset, counsel for the first respondent, Ms Forder, properly conceded that had there been a requirement to do so, neither of the obligations prescribed in section 424A or 424AA of the Act had been complied with. Rather, it was submitted by counsel on behalf of the first respondent that there was no “information” which, relevantly, gave rise to the exercise of the obligations imposed by either such section.

32. It was submitted on behalf of the applicant that the application for the tourist visa which contained patently false information was “information” as countenanced by each of section 424A and section 424AA of the Act.

33. It was submitted on behalf of the applicant that the fact that the senior member stated in the transcript referred to above that the provision of false and misleading information “will form the reason, or part of the reason why I will affirm this decision” was something which elevated the contents of the false tourist visa application form to something other than evidence from which findings might be made on the issue of credibility. 

34. It was submitted that paragraph 31 of the reasons of the AAT ought to be read in conjunction with the findings at paragraph 51 - 57 of the reasons, such that there could not be any distinction drawn between the factual recording of the circumstances in which the PIC4020 criteria had not been complied with, as set out in paragraph 31 of the reasons, with the reasons for the adverse findings in fact arrived at by the Tribunal.  However, as referred to above, paragraph 31 of the reasons ought not to, necessarily, be read in conjunction with the findings at paragraphs 51 - 57 inclusive of the reasons, because of the fact that no direct reference was made to PIC4020. 

35. A number of helpful authorities were referred to the Court on the question of what, relevantly, ought to constitute “information” under section 424A and section 424AA. The case of SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 dealt with section 424A. At [18] when discussing what constituted information, the Court said:

    Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information".

    "does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".

    If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

1. It is relevant that the Court made reference to the Tribunal’s disbelief of the appellant’s evidence in that case as not constituting “information” within the meaning of paragraph (a) of section 424A(1). It is also of significance that the Court was not prepared to impose onerous obligations upon a Tribunal to give notice, not merely of its reasons, but of each step in its prospective reasoning process.

2. In MZXBQ v Minister for Immigration & Citizenship & Anor [2008] FCA 319, Heerey J at [27] held as follows:

   SZBYR, and in particular [17] of the majority judgment, essentially says that a court must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa. It would “undermine” his claims to have well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention. This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.

3. It is relevant to note that Heerey J drew a distinction between a written statement which, if provided by a third party, contradicted a fundamental claim made by an applicant for a visa, with an allegation made by a different person relating to the applicant having worked under a false name and evaded tax whilst living in Australia.  One went to an issue of credibility, whereas the former would constitute information.

4. In the present case, the relevant consideration made by the Tribunal arising out of the false tourist application form being completed by the applicant was that, in the light of such information on the form being false, the contents of the form were matters which went to issues of credibility, such as not to constitute the document being “information” for the purposes of section 424A or 424AA of the Act.

5. The ground 3 claims have, accordingly, not been made out. 

6. I dismiss the application.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 25 September 2018