FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 635
File number(s): MLG 1207 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 21 July 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Global Special Humanitarian visa – where applicant provided inconsistent identity information and documentation – where applicant’s visa subsequently cancelled under s 116(1AA) of the Migration Act 1958 (Cth) – claim that Tribunal misunderstood and misapplied the law – consideration of the meaning of ‘identity’ in s 116(1AA) – claim that applicant was denied procedural fairness by Tribunal failing to invite his half-brother to comment on his visa being consequentially cancelled – consideration of procedural fairness obligations in s 140 – consideration of the meaning of ‘holder’ in s 119 – claim that Tribunal incorrectly applied Department policy guidelines – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss 5, 5A, 11, 29, 83, 116, 118A, 119, 139, 140
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth) sch 2, cls 202.2, 802.511
Cases cited: DCM20 v Secretary, Department of Home Affairs and Anor [2020] FCA 1022
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038
Farah v Minister for Immigration and Citizenship [2011] FCA 185
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Jabbour v Secretary, Department of Home Affairs [2019] FCA 452
Kaur & Ors v Minister for Immigration & Anor [2019] FCCA 168
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Division: Division 2 General Federal Law Number of paragraphs: 177 Date of last submission/s: 27 March 2023 Date of hearing: 27 February 2023 Place: Melbourne Counsel for the Applicant: Mr M Guo Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr T Lettenmaier Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 1207 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWS22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
21 July 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The applicant’s amended application filed on 3 February 2023 be dismissed.
3.The applicant pay the first respondent’s costs in a sum to be fixed, if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to…
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Details
- AGLC
- BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 635
- Case
- [2023] FedCFamC2G 635
- Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the applicant sought judicial review of a decision made by the Administrative Appeals Tribunal, which upheld the Minister for Immigration, Citizenship and Multicultural Affairs' decision to cancel the applicant's Global Special Humanitarian visa. The central dispute concerns the validity of the applicant's identity and the consistency of the information provided throughout his migration history. The applicant originally arrived in Australia on a tourist visa and subsequently applied for a protection visa, which was rejected. Eventually, the applicant was granted a Global Special Humanitarian visa. However, following a Notice of Intention to Consider Cancellation, the Minister's delegate decided to cancel the visa due to inconsistencies in the applicant's identity and information provided. The Tribunal upheld this decision, leading to the current judicial review.
The key legal issues addressed by the court were whether the Tribunal correctly applied the law in determining the applicant's identity and whether it appropriately considered the DNA evidence presented. The applicant argued that the Tribunal erred in not recognising the DNA evidence as conclusive proof of his identity and in not accepting the report by Mr Vardos, which supposedly established his identity. The court had to examine the Tribunal's assessment of the evidence and its reasoning in concluding that the applicant's identity could not be accepted as true.
In its judgment, the court found that the Tribunal did not misapply the law in determining the applicant's identity. The court emphasised that the Tribunal correctly identified the limitation of the DNA evidence, which showed familial association rather than conclusive proof of identity. The court also noted that the Tribunal appropriately considered the various documents provided by the applicant but did not accept his current claim of identity due to the inconsistencies over time. Furthermore, the court held that Mr Vardos' report did not provide a conclusive identity finding, and therefore, it did not settle the issue of the applicant's true identity. Consequently, the court upheld the Tribunal's decision, affirming the Minister's decision to cancel the applicant's visa.
The final orders of the court were to dismiss the application for judicial review, affirming the decision of the Tribunal. The court concluded that the Tribunal's decision was legally sound and appropriately considered all relevant evidence, including the DNA evidence and the report by Mr Vardos. The inconsistencies in the applicant's identity and the information provided over the years led the Tribunal to reasonably doubt the applicant's current claim of identity, which the court upheld.
The key legal issues addressed by the court were whether the Tribunal correctly applied the law in determining the applicant's identity and whether it appropriately considered the DNA evidence presented. The applicant argued that the Tribunal erred in not recognising the DNA evidence as conclusive proof of his identity and in not accepting the report by Mr Vardos, which supposedly established his identity. The court had to examine the Tribunal's assessment of the evidence and its reasoning in concluding that the applicant's identity could not be accepted as true.
In its judgment, the court found that the Tribunal did not misapply the law in determining the applicant's identity. The court emphasised that the Tribunal correctly identified the limitation of the DNA evidence, which showed familial association rather than conclusive proof of identity. The court also noted that the Tribunal appropriately considered the various documents provided by the applicant but did not accept his current claim of identity due to the inconsistencies over time. Furthermore, the court held that Mr Vardos' report did not provide a conclusive identity finding, and therefore, it did not settle the issue of the applicant's true identity. Consequently, the court upheld the Tribunal's decision, affirming the Minister's decision to cancel the applicant's visa.
The final orders of the court were to dismiss the application for judicial review, affirming the decision of the Tribunal. The court concluded that the Tribunal's decision was legally sound and appropriately considered all relevant evidence, including the DNA evidence and the report by Mr Vardos. The inconsistencies in the applicant's identity and the information provided over the years led the Tribunal to reasonably doubt the applicant's current claim of identity, which the court upheld.
Orders
Orders of the court
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Background
Background to the litigation
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 May 2022, affirming a decision of a delegate of the first respondent, the Minister of Immigration, Citizenship and Multicultural Affairs (‘the Minister’), to cancel the applicant’s Global Special Humanitarian (Subclass 202) visa (‘GSH visa’).BACKGROUND The applicant initially arrived in Australia on 16 March 2009 with a tourist visa with his two half-brothers.[1] Upon arrival at Melbourne Airport, the applicant was assessed by immigration staff as not being a genuine visitor. His tourist visa was subsequently cancelled and he was placed in immigration detention.[2][1] Court book at page 27.[2] Court book at pages 27 to 28.Application for protection visa on 18 March 2009 On 18 March 2009, the applicant applied for a Protection (Subclass 866) visa (‘protection visa’) while in immigration detention.[3][3] Court book at page 28. On 1 May 2009, his application for a protection visa was rejected.[4][4] Court book at page 30.Grant of GSH visa on 11 October 2010 Ultimately, on 11 October 2010, the applicant was granted a GSH visa following Ministerial intervention.[5] The visa permitted the holder to reside in Australia permanently.[6][5] See Court book at page 25.[6] Migration Regulations 1994 (Cth), sch 2, cl 802.511.Application for Australian Citizenship on 3 November 2014 On 3 November 2014, the applicant applied for Australian citizenship by conferral.[7][7] Court book at page 32. On 21 June 2017, the applicant was interviewed in relation to his citizenship application.[8][8] Court book at page 33.Cancellation of GSH visa on 18 April 2019 On 28 February 2019, the Department of Home Affairs (‘the Department’) sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’) of his visa and invited the applicant to respond within a specified period.[9][9] Court book at pages 25 to 38. On 18 April 2019, a delegate of the Minister considered the relevant information, including the applicant’s response to the NOICC, and decided that a ground for cancellation under subsection 116(1AA) of the Migration Act 1958 (Cth) (‘the Act’) existed and that the visa should be cancelled.[10][10] Court book at pages 54 to 74.Application for review at Tribunal on 25 April 2019 On 25 April 2019, the applicant applied to the Tribunal for a review of the delegate’s cancellation decision.[11][11] Court book at pages 76 to 100. The applicant was invited to, and did attend a hearing before the Tribunal, which occurred on 13 April 2022.[12] The applicant also provided supporting material to the Tribunal, including an updated statement, a psychological report and a report on the applicant’s identity.[13][12] Court book at pages 164 to 166; 173 to 175.[13] Court book at pages 111, 123 to 127, 157 to 162, 172. On 13 May 2022, the Tribunal ultimately affirmed the delegate’s decision.[14][14] Court book at pages 192 to 215.Inconsistencies in applicant’s identity
Evidence
Evidence Before The Court
For each of these reasons, I do not accept that the Tribunal misapplied the law in relation to the concept of ‘identity’ for the purposes of subsection 116(1AA) of the Act.Tribunal’s assessment of DNA evidence As stated, an alternative argument in relation to ground 1 for the applicant is that the Tribunal erred in its consideration of the DNA evidence. The applicant asserts that the Tribunal incorrectly treated this evidence as only showing ‘familial association’ and did not consider that the DNA evidence itself was probative of the applicant’s identity contrary to the findings made at paragraph [73] of the Tribunal’s decision record.[50][50] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [35]. Whilst the applicant concedes that the weight to be given to this evidence was a matter for the Tribunal, the applicant says that the Tribunal erred in not acknowledging that the DNA evidence was relevant to the task before it, which was to determine the applicant’s identity. I do not accept the applicant’s submission in this regard. At paragraph [33] of the Tribunal’s decision record, the Tribunal refers to the DNA evidence as part of the evidence submitted by the applicant in support of his application, in the following terms:33.In the current matter, the applicant provided a number of relevant documents, including: … DNA test results dated 15 June 2010, which essentially confirm that (BB) and (CC) are full siblings and that they are the applicant’s half siblings … At paragraph [73] of its decision record, the Tribunal went on to say that:73.Although during the hearing, the applicant accepted the provision of inconsistent information, he contended that the DNA test proves his identity. The Tribunal discussed with the applicant the DNA test results and indicated that the results demonstrate that he has two half-brothers and that the half-brothers are full siblings. The Tribunal indicated that it did not consider the DNA test results to be conclusive evidence of the applicant’s identity – the results show familial association. … (emphasis in original) The Tribunal did not err in its consideration of the DNA evidence. In its reasons for its decision, the Tribunal did not say that the DNA evidence was not relevant to determining the applicant’s identity. Rather, it simply identified, correctly in my view, the limitation of that evidence. The Tribunal found that the DNA evidence established a familial relationship between the applicant and his two half-brothers. The issue of the applicant’s relationship to his half‑brothers was relevant in the context of the issues which were the subject of the submission prepared by Mr Vardos, namely whether the Minister should intervene in circumstances where the two half-brothers were minors and pursuant to Australia’s obligations under the Convention on the Rights of the Child (‘CROC’). Relevantly, in his report, Mr Vardos referred to the CROC, and in particular, the principle that ‘[children] should not be separated from their parents against their will as far as possible and should be protected from situations of abuse and neglect’.[51][51] Court book at page 137.
Decision
Reasons for decision
In that report, under the heading ‘Background’, Mr Vardos addressed the applicant’s identity in the following terms:The older client, Mr (AA), has been known by that name and an alias, (XAA) and this is the preferred name used by his Authorised Representative. The Department’s formal recognition of him is, however, by the name (AA) and I will refer to him by that name in this submission for the sake of consistency.…The two younger clients, (BB) and (CC) are full brothers. Mr (AA) is their half brother. The three brothers had the same mother but different fathers. The relationship has been proven through DNA testing to the satisfaction of the Department. For the purposes of this submission, I shall refer to (AA) as the ‘older brother’ of (BB) and (CC).[24][24] Court book at pages 134 to 135.TRIBUNAL DECISION The Tribunal’s decision record of 13 May 2022 is at pages 194 to 215 of the court book. The issue before the Tribunal was whether grounds for cancellation existed under subsection 116(1AA) of the Act, and if so, whether the Tribunal ought to exercise its discretion to cancel the applicant’s visa.[25][25] Tribunal decision record dated 13 May 2022 at paragraph [2]. The Tribunal set out the various inconsistencies in the applicant’s evidence about his name, his date of birth and his relationship to his two half-brothers over the course of his migration history.[26][26] Tribunal decision record dated 13 May 2022 at paragraph [12] and following. At paragraph [66] of the Tribunal’s decision record, the Tribunal accepted that the applicant suffered from mental health issues but did not accept that his psychological vulnerabilities explained or accounted for the extent and seriousness of the incorrect and inconsistent information and documentation provided by him. Ultimately, at paragraph [67], the Tribunal found that:67. … it is difficult to accept the applicant’s versions as they have changed over time, raising legitimate credibility concerns. The inconsistent information means that the Tribunal cannot accept the applicant’s current claim of his true identity. (emphasis in original) At paragraph [68], the Tribunal considered the applicant’s submission that it ought to give significant weight to the report prepared by Mr Vardos, which the applicant said considered and determined the issue of his identity and that of his brothers. At paragraph [69], the Tribunal said that it was of the view that Mr Vardos did not make a ‘conclusive identity finding’, and therefore, the report by Mr Vardos did not settle the issue of the applicant’s identity. At paragraph [70], the Tribunal considered the various documents, which the applicant said supported his claim to be ‘XAA’. However, the Tribunal went on to say at paragraph [71] that in addition to these documents the Tribunal also had before it:·a Nigerian Passport in the name of (AA) (date of birth 10 October 1968);·a Nigerian Passport in the name of (XX) (date of birth 17 June 1975);·a Nigerian birth certificate in the name of (AA) (date of birth 10 October 1968);·a Nigerian birth certificate in the name of (XX) (date of birth 17 June 1975);·an affidavit of Loss of Business Registration Certificate by (XAA) (July 2007);·Nigerian Income Tax Certificates for (AA) for 2004 to 2007; and ·Nigerian driver’s licences in the name of (XX) (date of birth 17 June 1973) and (XX) (date of birth 17 June 1975).
Ratio Decidendi
Legal Principle Established
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