BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 635
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
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
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 the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
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
It is not in dispute that in the course of his immigration history, the applicant provided various inconsistent documents and statements about his identity. In particular, there were inconsistencies about the applicant’s:
·name;[15]
·place and date of birth;[16]
·marital status and person to whom he claimed to be married;[17] and
·family composition.[18]
[15] Court book at page 207.
[16] Court book at page 207.
[17] Court book at page 208.
[18] Court book at pages 208 to 209.
The applicant also initially claimed that the two young boys who accompanied him to Australia were his sons, whereas they were in fact his two half-brothers.[19]
[19] Court book at page 207 at paragraphs [50] to [52].
It is also not in dispute that as a result of fingerprint records being assessed, it became apparent that the applicant had spent some time living in the United Kingdom and in the USA, again under different names.[20] He also provided the authorities in each of those countries inconsistent details regarding his name, place and date of birth.
[20] Court book at page 208 at paragraphs [54] and [55].
Notwithstanding these discrepancies and notwithstanding that his initial application for a protection visa was rejected, following submissions made on the applicant’s behalf, and in particular on behalf of his two half-brothers,[21] as stated, in October 2010, the Minister intervened and granted the applicant a GSH visa.
[21] See Court book at pages 81 to 97.
It is also not in dispute that as part of the Ministerial intervention process, a submission was prepared by Mr Peter Vardos on 8 October 2010, in which the concerns about the applicant’s identity arising from the prior inconsistencies referred to above were discussed. Ultimately, however, these inconsistencies were not viewed as a barrier to Mr Vardos recommending that the Minister intervene and grant the applicant a visa.[22] In the course of the review proceedings before the Tribunal regarding the cancellation of his GSH visa, the applicant submitted a copy Mr Vardos’ report.[23]
[22] Court book at pages 134 to 141.
[23] Court book at pages 169 and 203.
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).
These documents were discussed with the applicant in the course of the Tribunal hearing and the applicant provided context and an explanation about them.[27]
[27] Tribunal decision record dated 13 May 2022 at paragraph [72] and following.
At paragraphs [74] to [78] of the Tribunal’s decision record, the Tribunal sets out its analysis of the evidence before it, including reference to its concerns about the applicant’s credibility and his acknowledged lack of truthfulness at times.
At paragraph [78], the Tribunal then concluded that, having regard to the evidence before it, its concerns about the applicant’s credibility and the inconsistent names and personal details:
78.… the Tribunal is not satisfied as to the applicant’s identity. Therefore, the Tribunal concludes that there are grounds to cancel the Global Special Humanitarian (Subclass 202) visa under s 116(1AA) of the Act. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
PRELIMINARY OBSERVATIONS
Before turning to the specific grounds of review, it is important to say something about the nature of the power conferred upon the Minister by section 116 of the Act to cancel a visa. In Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 (‘Hands’), the Full Court of the Federal Court considered judicial review of a decision to cancel a visa on character grounds under section 501 of the Migration Act.
Although the basis for cancellation in that case was different, the preliminary observations made by his Honour Chief Justice Allsop about the nature of the cancellation powers in the Act and the consequence of the exercise of those powers, are apposite and worth setting out in full.
His Honour said at paragraph [3]:
3.By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. … The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament. (emphasis added)
The consequences of the cancellation of a visa, particularly a visa which confers permanent residence on an applicant, is a very serious matter with very real and serious consequences to the applicant, and potentially to their family and broader community.
In the words of Chief Justice Allsop, it can indeed have ‘devastating consequences’. It is essential therefore that in considering whether grounds for cancellation exist and, if so, whether to exercise the discretion to cancel, the decision-maker must consider the human consequences of the exercise of that power within the confines of the legislative powers and obligations conferred upon them.
GROUNDS OF REVIEW
Ground 1
By ground 1, the applicant submits that the Tribunal erred by misunderstanding and therefore misapplying the law in relation to:
(a)the concept of ‘identity’ that is required for subsection 116(1AA) of the Act; or
(b)its assessment of the DNA evidence.
Tribunal’s assessment of ‘identity’ in subsection 116(1AA)
Section 116 of the Act sets out a range of bases upon which the Minister may cancel a person’s visa. There are also other provisions in the Act which permit the cancellation of a person’s visa. Relevantly, subsection 116(1AA) provides that ‘Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity’.
It is common ground that subsections (2) and (3) are not relevant for present purposes.[28]
[28] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [3].
Therefore, in order to cancel the applicant’s visa under subsection 116(1AA), the Tribunal had to have the requisite state of satisfaction (or lack thereof) as to the applicant’s identity, and then consider whether it ought to exercise its discretion to cancel.
There is no definition of the term ‘identity’ in the Act. Nor were the parties able to provide any case law which had considered the meaning of that term for the purposes of subsection 116(1AA). Both parties concede that in considering what the term ‘identity’ means, context is important.[29]
[29] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [27] and following; Minister’s Outline of Submissions filed on 13 February 2023 at paragraph [35] and following.
The applicant referred to the ‘National Identity Proofing Guidelines’, a document produced by the Commonwealth Attorney-General’s Department.[30] At paragraph [2.1.1] of that document, it states that identity ‘is highly dependent on context’ and is ‘some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context’. Although not binding, it was submitted that this provides some guidance on what is meant by the concept of ‘identity’.[31]
[30] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [27].
[31] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [28].
In the absence of any statutory definition or judicial consideration of the term, the starting point in any exercise of statutory interpretation is to give the words in a statute their ordinary meaning. ‘Identity’ is defined in the Oxford dictionary as ‘… the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality’.[32]‘Identity’ is similarly defined in the Macquarie dictionary as ‘the condition of being oneself or itself and not another’.[33]
[32] Oxford English Dictionary (online at 14 June 2023) ‘identity’ (def 2a).
[33] Marquarie Dictionary (online at 14 June 2023) ‘identity’ (def 2). The Minister refers to the dictionary definition of ‘identity’ as being able to ‘recognise or establish as being a particular person or to attest or prove to be as purported’: Minister’s Outline of Submissions filed on 13 February 2023 at footnote 38; Macquarie Concise Dictionary (8th ed, 2020) ‘identity’.
The error which the applicant says the Tribunal made was to search for the applicant’s ‘true identity’ rather than by considering whether as a result of the various circumstances and the factual matrix that related to the applicant in this matter, there was sufficient evidence upon which the Tribunal could be satisfied as to the applicant’s identity.
At paragraph [29] of the applicant’s written submissions, it is submitted that:
29.… context is significant. The task of the Tribunal was not to be satisfied beyond all possible doubt of the Applicant’s identity. … Rather, the Tribunal’s task was to identify whether it was satisfied of the Applicant’s identity for the purpose of deciding whether to cancel the Applicant’s permanent visa, being a visa he had held for some 12 years and which was granted by the Minister, fully aware of the ‘discrepancies’ in data about the Applicant’s identity. (emphasis in original)
Moreover, it is submitted for the applicant that determining one’s identity for migration purposes is different to establishing one’s identity, for example, for the purpose of establishing parentage in family law proceedings.[34]
[34] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [30].
The applicant further submitted that, in determining one’s identity for migration purposes, and more specifically, for the purpose of determining whether there are grounds for the cancellation of a visa under subsection 116(1AA) of the Act, the specific circumstances of the applicant must be considered rather than simply determining whether the applicant was able to produce ‘valid ‘credentials’’.[35]
[35] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [30].
Further the applicant says that the Tribunal’s approach to the determination of the applicant’s identity, as a ‘simplistic abstracted exercise’, failed to give due regard to that purpose according to the applicant.[36] In particular, the applicant submitted that it was critical that the inconsistency in the evidence the Tribunal relied upon had not been a barrier to the Minister deciding to intervene and grant the visa in the first place, and that the Tribunal should have had regard to this critical factor in assessing the context in which its inquiry as to the applicant’s identity was undertaken.[37]
[36] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [32].
[37] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [33].
Further, it is submitted for the applicant that in focussing on determining the applicant’s ‘true identity’, the Tribunal failed to have regard to the fact that the applicant had consistently identified as XX (including at times, an Anglicised name of ‘XAA’) since at least 1998 and in Australia since his arrival in 2009.[38]
[38] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraphs [31] and [34].
In oral submissions, the applicant’s counsel further submitted that ‘identity’ in subsection 116(1AA) must mean something other than biometric identifiers, as those matters are dealt with in section 5A of the Act.[39] Moreover, counsel for the applicant submitted that part of the relevant context to which the Tribunal ought to have regard in assessing its state of satisfaction as to the applicant’s identity, was the fact that applicant had lived a consistent life in Australia with a particular identity since 2010 onwards. The applicant says that this ought to have been sufficient to satisfy the Tribunal of his identity.[40]
[39] Court transcript at page 4 and following.
[40] Court transcript at page 5.
In addition, the applicant further submitted that the interpretation now contended for by the Minister would have an absurd result.[41] The example given was that if a person escaped persecution and on arrival changed their identity, the Minister’s reading of subsection 116(1AA) would mean that 10, 20 or 30 years later, the Department could say, ‘you used to be called something else, I don’t really know who you are and I am not satisfied of your identity’. This result would be absurd, particularly if there were questions about the applicant’s identity at the time of the granting of the visa, as was the case here.
[41] Court transcript at page 5.
In response, the Minister concedes that the term ‘identity’ has not been judicially considered for the purposes of subsection 116(1AA), however, takes issue with the construction proposed by the applicant.[42] The Minister says that the term ‘identity’ for the purposes of subsection 116(1AA) ought to be interpreted by reference to ordinary rules of statutory interpretation. In particular, in interpreting the term, the court should have regard to its ordinary meaning as well as the context in which it appears.[43]
[42] Minister’s Outline of Submissions filed on 13 February 2023 at paragraphs [28] and [29].
[43] Minister’s Outline of Submissions filed on 13 February 2023 at paragraph [29] and following.
Subsection 116(1AA) was introduced into the Act as part of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Relevantly, this provision came into effect after the applicant was granted a GSH visa in 2010.
The Explanatory Memorandum which accompanied the Migration Amendment (Character and General Visa Cancellation) Bill 2014, relevantly states:
15.New subsection 116(1AA) of the Migration Act provides that, subject to subsections 116(2) and (3), the Minister may cancel a visa if the Minister is not satisfied as to the visa holder’s identity.
16.This amendment provides the Minister with a discretion to cancel a visa if, for example, two or more documents or pieces of information about a person’s identity have been given, furnished or provided by, on behalf of, or in relation to the applicant or visa holder that are inconsistent with each other and it is not possible to form a conclusion regarding which document or piece of information is genuine. Contradictory or inconsistent information or documents relating to a person’s identity will prevent the Minister from being satisfied as to a person’s true identity. The Minister’s discretion to cancel a visa also applies where the Minister is not satisfied as to the visa holder’s identity for any other reason.[44]
[44] Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), Schedule 2, Item 5 [15]-[16].
It is submitted that the Explanatory Memorandum, by referencing a person’s ‘true identity’, supports the interpretation urged by the Minister, namely that in seeking to determine the applicant’s true identity, the Tribunal did not err.[45]
[45] Minister’s Outline of Submissions filed on 13 February 2023 at paragraph [32] and following.
In addition, the Minister also refers to and relies upon the Procedural Advice Manual (‘PAM’) which relevantly provides:
A delegate may cancel a visa under [section] 116(1AA) if they are not satisfied as to the holder’s identity, such as situations where contradictory or conflicting identity information about a visa holder has been provided and the correct identity information is not known.
The ground should be used only if the delegate is not satisfied as to the [visa] holder’s correct identity.
Section 116(1AA) will not apply if:
•the visa holder has used a fraudulent identity to obtain a visa but their true identity is later confirmed or
•in response to a notice under [section] 119, the visa holder satisfies the delegate as to their true identity.[46] (emphasis added)
[46] Minister’s Outline of Submissions filed on 13 February 2023 at paragraph [33].
The Minister says that the issue of identity goes to the very question of whether the person is who they say they are.[47]
[47] Minister’s Outline of Submissions filed on 13 February 2023 at paragraph [34].
Subsection 116(1AA) is drafted in broad terms. It is not limited in its terms in the manner contended by the applicant. As stated at the commencement of these reasons, I accept that the consequences of a decision to cancel a visa are significant for the applicant, particularly in circumstances where having been granted a permanent visa, he has set about establishing a life for himself in this country and contributing to the community for over 12 years.
However, on the plain words of subsection 116(1AA), grounds for cancellation exist where the Tribunal is not satisfied as to the applicant’s identity. This means where the Tribunal is not satisfied as to the applicant’s true identity. In this case, on the evidence before it, it was open to the Tribunal to reach this state of satisfaction (or lack of satisfaction), given the inconsistent evidence about the applicant’s identity. It is not sufficient to establish that the applicant himself has consistently identified himself as ‘XAA’ for a period of time.
The Tribunal’s ultimate finding was open on the evidence before the Tribunal and is not evidence of a misunderstanding or misapplication of the law. The concept of identity, contrary to the submissions made by the applicant, relates to the ability to identify a particular person as the person he or she claims to be.
Whilst on the evidence before the Tribunal, it was also open to the Tribunal to accept the applicant’s explanation for the inconsistencies in the information submitted about his identity, ultimately, it did not do so. The Tribunal weighed all of the evidence before it and reached a decision which was open to it.
The notion that what is required by subsection 116(1AA) is that the Minister is satisfied of the applicant’s true identity, rather than a consistent identity adopted by the applicant since his arrival in Australia, is also consistent with the Explanatory Memorandum.
Similarly, it is also consistent with the PAM, a copy of which is annexed to the affidavit of Ms Rachel Mason, in particular, at page 51 where it states, under the heading ‘s116(1AA) – Not satisfied as to identity’:
A delegate may cancel a visa under 116(1AA) if they are not satisfied as to the holder’s identity, such as in situations where contradictory or conflicting identity information about a visa holder has been provided, and the correct identity information is not known.
…
In deciding whether they are satisfied as to a visa holder’s identity, delegates must consider the visa holder’s individual circumstances, and take into account the fact that some visa applicants will have had legitimate difficulties in obtaining evidence of their identity, particularly those who have refugee status.[48]
[48] Affidavit of Ms Rachel Mason affirmed and filed on 6 February 2023 at Annexure 1.
As stated, it is conceded that at the time the GSH visa was granted, the Minister was well aware of the inconsistencies in the applicant’s various identity documents and his own information as to his name, date of birth and other relevant information. It is submitted for the applicant that in interpreting subsection 116(1AA), regard should be had to this fact.[49] If this is not taken into account, the applicant contends that subsection 116(1AA) would effectively result in unfairness to the applicant.
[49] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [29].
Whilst I accept that there may be a level of unfairness with such an interpretation, subsection 116(1AA) has an inbuilt protection against such unfairness, to the extent that where a ground for cancellation exists, the decision-maker is then required to consider whether or not to exercise the cancellation power.
In doing so, the decision maker would have regard to the very factors which the applicant now points to. That is, the decision-maker could have regard to the applicant’s contribution to the society, his reliance on the visa to remain in this country and make a life here and the hardship that he would face if he had to return, among other considerations, before any decision to cancel is made.
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.
Mr Vardos then went on to observe that:
In this case, the younger brothers are orphans and they have no safe family network in Nigeria that is able to support them. Indeed, their remaining relatives in Nigeria can be expected to be hostile to the return of the boys.
After discussing the potential that the younger brothers had for a successful academic career if supported in Australia, Mr Vardos went on to say:
Finally, it would be detrimental to the psychological well being of the younger boys if their older brother was removed from Australia and they were allowed to stay. Despite any character flaws their older brother may have, they have relied on his unwavering support and protection since the death of their parents.[52]
[52] Court book at page 137.
Mr Vardos concluded with the following, under the heading ‘Preferred option’:
I consider that intervention under section 417 of the Act may be appropriate in this case. This case raises issues which may invoke Australia’s obligations as a signatory to the CROC. Were the younger boys to remain in the country on a permanent basis, it would be in their best interests for their older brother, (AA), to also remain with them as their guardian, in loco parentis. … I consider it appropriate to also intervene in the case of [the applicant].[53]
[53] Court book at page 139.
It is clear from the report prepared by Mr Vardos that a key issue was whether to recommend intervention for the brothers individually or as a family unit. In this context, establishing that the applicant and his half-brothers were, in fact, related was important, particularly when regard is had to the otherwise inconsistent evidence otherwise given by the applicant.
In this context, the DNA evidence was partially relevant to the issue of the applicant’s identity and served to link him to the two half-bothers, but it did not go any further than that and identify the applicant beyond that familial connection.
Ultimately, the finding that the Tribunal made that the DNA was not conclusive was open and did not reflect an error of law.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant asserts that the Tribunal denied him procedural fairness by failing to invite his half-brother to comment on the prospect of his visa being consequentially cancelled under section 140 of the Act.
This argument was ultimately put on two bases.
First, it was said that the wording of subsection 140(1) itself imposed an obligation on the decision-maker to put the applicant’s half-brother on notice that his visa might be consequentially cancelled by operation of section 140.[54] The applicant submitted that the failure to comply with this obligation amounted to a breach of procedural fairness to him.
[54] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [37] and following.
In addition, the applicant submitted that in circumstances where the applicant was under a mistaken belief that the cancellation of his visa would not lead to the consequential cancellation of anyone else’s visa, the Tribunal was required to ‘afford directly procedural fairness to [the applicant’s] half-brother’.[55]
[55] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [46].
In the course of the hearing, in exploring the second basis upon which ground 2 was advanced, an issue arose as to whether the procedural fairness obligations in subdivision E of the Act themselves required the decision-maker to give notice to any person who fell within the meaning of the term ‘holder’ as defined.[56]
[56] See Court transcript at page 24 and following.
This aspect of ground 2 required a consideration of the interpretation of section 119 of the Act, and in particular, the words, ‘the Minister must notify the holder that there appear to be grounds for cancelling …’ (emphasis added).
I granted the parties leave to file further written submissions on this issue and any judicial consideration of the meaning of the term ‘holder’ for the purposes of understanding the breadth of the obligation to give notice under section 119.[57]
[57] Orders of Deputy Chief Judge Mercuri dated 27 February 2023.
The Minister submits that this ground is not made out on any of the bases advanced.[58]
[58] Minister’s Outline of Submissions filed on 13 February 2023 at paragraph [44] and following; Minister’s Further Submissions filed on 20 March 2023.
Status of applicant’s half-brothers’ visas
Before turning to consider the parties’ submissions, one needs to understand the factual situation in relation to the applicant and his half-brothers as it existed at the time of the Tribunal’s determination.
As stated above, the applicant arrived in Australia with his two half-brothers who were then minors. On arrival, the applicant applied for a protection visa. Although the applicant’s claim for a protection visa was rejected, the Minister ultimately intervened and granted the applicant a GSH visa. It is common ground that the applicant’s half-brothers were also granted such a visa on the basis that they were dependents of the primary visa holder.
However, it is not clear on the evidence whether the applicant and his brother were each granted a separate visa or whether they were all included in the same visa.
For the following reasons, however, this distinction does not affect the conclusions that I have reached in relation to ground 2 and therefore it is not necessary to make a factual finding on this issue.
It is also apparent from the delegate’s cancellation decision record that one of the applicant’s half-brothers has subsequently obtained citizenship in his own right and was therefore no longer dependent on the applicant’s visa remaining in force.[59] The other half-brother, it appears, remained in Australia on the initial GSH visa obtained as a dependent of the applicant.[60] The reference in this section of my reasons to the applicant’s half-brother, unless otherwise stated, is a reference to the latter half-brother.
[59] Court book at page 72.
[60] Court book at page 72.
The parties agree that the applicant’s half-brother was not notified of, or invited to comment upon, the possible cancellation of the applicant’s visa, or the consequential cancellation of his own visa.[61]
[61] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [43]; Minister’s Outline of Submissions filed on 13 February 2023 at paragraph [44] and following.
It is also apparent from the applicant’s correspondence to the Tribunal that he was under the mistaken belief that no other person’s visa would be affected by the cancellation of his visa. At page 45 of the court book, in response to a question in the NOICC as to whether there are any persons in Australia whose visas would or may be cancelled if his GSH visa was cancelled, the applicant said:
At this juncture it is important to state that my half brothers and wife were granted visas on their own merits and I understand that I would be the only person who will be solely impacted by the Departments’ (sic) negative decision on my visa.
At paragraph [98] of the Tribunal’s decision record, the Tribunal said:
98.The delegate’s decision record indicates that despite the applicant’s claim that his half‑brothers were granted visas on their own merit and that there would not be consequential cancellation, there is evidence that (CC) was granted a visa on the basis of being a dependent on the global special humanitarian visa.
The applicant relies upon this statement as evidence that the Tribunal was aware that the applicant was under a mistaken belief as to the impact of the cancellation of his visa on his half-brother and was therefore under an obligation to give notice to the applicant’s half‑brother and invite him to make submissions.[62]
[62] See, for example, Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [39].
It was not submitted for the applicant that the Tribunal is required in all cases to notify every person who has a dependent visa of the possible cancellation of the primary visa holder’s visa. Rather, in oral submissions, counsel for the applicant said:
So I’m not saying … expressly disclaim any submission that goes this far, that is, the mere failure to send a notice to everyone else who’s a dependent visa holder makes the decision invalid – I’m not going that far because, your Honour, of course, we have to go and consider questions of materiality and so forth. Now, if it turns out that they’re all still living together and that the primary visa holder does make a submission on behalf of everyone else, there’s actually no issue.
…
But, in a situation apparently not as common, like the current one, where a dependent has gone off on his own and lived a life of his own and developed what he has of his own accord, then, if this exposes a gap, then it’s for Parliament to fix, with respect.
…
I’m not saying that the error flowed or began to run from the point of the delegate not sending a letter to the dependent half-brother. I’m not saying that’s where the error crept up. It’s really right at the end of the process, where the tribunal is on notice, knows for itself … and accepts the evidence that the applicant had not had contact with the half-brother for some time, is otherwise seemingly aware that the half-brother had not separately been notified: that’s the error.[63]
[63] Court transcript at pages 28 to 29.
The difficulty with this submission is, irrespective of the applicant’s knowledge at the time that he provided a response to the NOICC, by the time he applied to the Tribunal for a review of the cancellation decision, the applicant was expressly on notice that one of his half-brothers was, in fact, exposed to the consequential cancellation of his dependent visa.
At page 72 of the court book, the cancellation decision dated 18 April 2019 contains the following statement:
The visa holder has two claimed half-brothers residing in Australia, with one half‑brother being an Australian citizen. I acknowledge a visa cancellation outcome would cause some hardship in maintaining close physical proximity to his half-brother in Australia.
I note the other half-brother who was granted a dependent Global Special Humanitarian, has been residing in Australia since 2009. I consider during this time he would have formed some ties to Australia. I acknowledge a cancellation outcome may cause a number of personal hardships to him.
Given the above information, I consider that the visa holder and his family are likely to experience some degree of hardship should his visa be cancelled and give this consideration some weight in the visa holder’s favour.
Further, at page 73 of the court book, the cancellation decision continues:
The visa holder claims that his half-brothers and his wife were granted visas on their own merits and would not result in consequential cancellation.
However according to departmental records, the following person is currently in Australia as a dependent on the visa holder’s Global Special Humanitarian visa.
Name: (CC)
Date of birth: […]
Relationship to visa holder: Half-brother
Therefore, if I decide to cancel the visa holder’s visa this will result in a consequential cancellation by operation of law under section 140 of the Act, of the secondary visa of the above person.
Before the Tribunal, when asked about his half-brothers, the applicant simply said that ‘they do not stay in touch any longer … the relationship has been severed but he is aware that the older brother is in Melbourne’.[64]
[64] Tribunal’s decision record dated 13 May 2022 at paragraph [45].
There is no evidence that the applicant tried to contact either of his half-brothers about his possible visa cancellation or seek to have the half-brother whose visa faced consequential cancellation appear before the Tribunal or make submissions in relation to the possible cancellation of the applicant’s visa and the consequential impact on him.
Procedural fairness obligations in section 140 of the Act
Turning then to the first argument raised by the applicant in ground 2, the applicant submits that it is clear from the wording of section 140 of the Act that where a person’s visa is to be cancelled as a consequence of a cancellation under section 116 of the visa of a primary visa holder, there is a statutory obligation to notify the secondary visa holder.[65]
[65] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [37] and following.
Section 140 of the Act relevantly provides:
(1)If a person’s visa is cancelled under section … 116 … a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2)If:
(a)a person’s visa is cancelled under section … 116 …; and
(b)another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the other person’s visa.
The applicant submits that there is a clear distinction between subsections 140(1) and 140(2) in that the latter expressly provides that cancellation can occur without notice to the secondary visa holder whereas no express provision exists in relation to subsection 140(1).[66] The applicant submits that the absence of the words ‘without notice to the other person’ in subsection 140(1) implies that cancellation under that provision must be on notice to the secondary visa holder.
[66] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [44].
Consequently, it is said for the applicant that a failure to notify the secondary visa holder of the possible cancellation of his visa meant that the secondary visa holder was not given an opportunity to make any representations against the cancellation of the primary visa holder’s visa.[67] It is further submitted that in circumstances where any such representations may have swayed the Tribunal to exercise its discretion not to cancel the applicant’s visa, the failure in this case to notify the secondary visa holder is a breach of procedural fairness to the applicant.
[67] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [45].
Respectfully, I do not accept the applicant’s submissions in relation to this aspect of ground 2.
In support of this aspect of ground 2, the applicant refers to and relies upon the comments made by the High Court in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (‘Saeed’) at paragraphs [14] to [15] where the court said:
14.In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by “plain words of necessary intendment”. And in Commissioner of Police v Tanos Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from “indirect references, uncertain inferences or equivocal considerations”. Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.
15.The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union, “governs the relations between Parliament, the executive and the courts”. His Honour said:
“The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.”
This court is clearly bound by that authority. The issue before me, however, is the nature of the cancellation power in subsection 140(1) of the Act.
The nature of the cancellation power under subsection 140(1) was considered by Justice Jessup in a different context in Farah v Minister for Immigration and Citizenship [2011] FCA 185 at paragraph [2] where his Honour noted:
2.The second, third, fourth and fifth appellants were also applicants in the Federal Magistrates Court. Their visas depended upon their status as family members of the first appellant. Their visas were cancelled not by the delegate under s 109, but by operation of s 140 of the Act itself. Although they purported to apply to the Tribunal for a review of the delegate's decision to cancel their visas, the Tribunal held, rightly in my view, that it did not have jurisdiction to review the operation of s 140 of the Act. Both the proceedings before the Tribunal and the application in the Federal Magistrates Court were concerned wholly with the circumstances of the first appellant, and it is likewise those circumstances which should govern the disposition of the present appeal. Unless that appeal is successful, the visas of the other appellants will remain cancelled by the operation of s 140 …[68]
[68] See, also, Kaur & Ors v Minister for Immigration & Anor [2019] FCCA 168 at [51].
In this case, it is clear from the terms of subsection 140(1) that the legislature has determined that in certain circumstances, a secondary visa holder’s visa will be cancelled by operation of law, and without any further intervention by anyone, where the primary visa holder’s visa is cancelled. In those circumstances, no discretion is exercised and no decision is made in the course of which procedural fairness can be afforded to the affected person.
The difference in the wording of subsections 140(1) and 140(2) is explained by the different manner in which a secondary visa holder’s visa may be cancelled. Subsection 140(2) confers upon the Minister a discretion, in certain circumstances, as to whether or not to cancel the visa holder’s visa.
Absent the express words in subsection 140(2) permitting the Minister to cancel without notice, the Minister would be required to provide notice to a person prior to cancellation for the reasons articulated in Saeed.[69] By comparison, subsection 140(1) expressly provides that in certain cases, the visa of a secondary visa holder is automatically cancelled by operation of law. There is no decision to be made, in respect of which procedural fairness must be afforded.
[69] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [11]-[12] and cases referred to therein.
To put it another way, there must be a process of decision-making in the course of which procedural fairness can and, unless excluded, must be afforded. In this case, that process is the process of cancellation of the applicant’s visa. That process requires that the applicant be given notice and an opportunity to make submissions, and that the decision-maker have regard to those submissions in making a decision.
The effect of the decision to cancel in this case is that it may have an effect on a third party. That is a factor that the applicant was invited to comment upon. To that extent, the applicant was afforded procedural fairness when he was invited to comment on whether any other person would be affected by the cancellation of his visa.
Moreover, as stated above, notwithstanding the initial misunderstanding of the situation when the NOICC was issued about the status of his half-brother’s visa, the applicant was put on notice that his understanding was incorrect by the delegate’s decision. He was therefore put on further notice, and in effect, given a further opportunity to put any evidence he wanted the Tribunal to consider before the Tribunal about the impact of the cancellation of his visa on his half-brother. As stated above, he did not do so, nor did he provide any evidence about the steps he had taken to advise his brother of the potential cancellation of his visa.
Meaning of ‘holder’ in section 119 of the Act
As stated, the second aspect of ground 2 arose following submissions made by the applicant’s counsel in reply:
… my learned friend made some submissions about how, in his submission, the Act only requires the visa holder at the primary stage to comment and only the visa holder is invited to comment. Your Honour, that submission really highlights the problem because even a dependent visa holder is still a visa holder. So the … provisions that the Minister refers to in support of that submission … [that] only the primary visa holder is entitled to be heard on any of this, doesn’t find any support in the terms of the Act itself.[70]
[70] Court transcript at page 27.
To make good this submission, the applicant pointed to the reference in section 119 of the Act to the need for the Minister, when considering the possible cancellation of a visa under section 116, to notify ‘the holder that there appear to be grounds for cancelling’ the visa (emphasis added).[71] The applicant’s counsel then took the court to the definition of ‘holder’ in section 5 of the Act which is relevantly in the following terms, ‘in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or the person included in it’.
[71] Court transcript at page 28.
The applicant therefore submitted that the term ‘holder’ in section 119 does not just include the applicant but includes any person included in the visa namely, both a ‘primary’ and a ‘secondary’ visa holder.[72] If the applicant’s submission is correct, section 119 would have required the Minister to give notice of the possible cancellation of the visa to both the applicant, as the primary visa holder, as well as to the applicant’s half-brother(s), as secondary visa holders, both of whom fell within the definition of ‘holder’ as defined in section 5.
[72] Court transcript at page 28 and following.
In the alternative, it was submitted that if the definition of ‘holder’ did not extend to dependent visa holders, then the exhaustive statements in section 118A do not apply to a secondary visa holder because subdivision E does not deal with secondary visa holders.[73]
[73] Court transcript at page 28.
In either case, the applicant submits that the failure to notify the applicant’s half-brother constitutes a breach of procedural fairness to the applicant.
As stated, the parties were granted leave to file supplementary written submissions on the issue of the meaning of the term ‘holder’ and its relevance to the procedural fairness obligations.
In the applicant’s further written submissions, it is said that:
(a)the term ‘holder’ clearly may include multiple holders in respect of the same visa;[74]
(b)the procedure for cancellation under subdivision D may apply to any person who is a holder of a visa in respect of which cancellation is being considered;[75] and
(c)where multiple people hold a single visa, the natural justice requirements must be afforded to all of the individual visa holders pursuant to section 139 of the Act.[76]
[74] Applicant’s Further Submissions filed on 14 March 2023 at paragraph [4].
[75] Applicant’s Further Submissions filed on 14 March 2023 at paragraph [5].
[76] Applicant’s Further Submissions filed on 14 March 2023 at paragraph [6].
At the heart of the applicant’s submission is that if the applicant and one or both of his half‑brothers held the same visa, then they both needed to be notified of the possible cancellation and given an opportunity to be heard before a cancellation decision was made.
I accept the applicant’s submission that it is possible for more than one person to hold the same visa. So much is evident from the terms of sections 11 and 29 of the Act, which clearly contemplate that to be the case. Similarly, section 139 expressly provides that if more than one person holds the same visa, then the provisions in subdivisions C, D, E, F and FA apply to each them ‘as if each of them were the holder of the visa’ (emphasis added).
The Minister does not take issue with this proposition, but does take issue with the proposition that the facts in this case support a conclusion that the applicant and one of his half-brothers were, in fact, the holders of the same visa.[77] Relevantly, subsection 29(4) of the Act expressly provides that a visa may be held by two or more persons. Section 83 of the Act further provides that there are circumstances in which a person is taken to be included in another person’s visa. Section 139 also provides that a visa may be held by two or more persons.
[77] Minister’s Further Submissions filed on 20 March 2023 at paragraph [6].
Clause 202.2 to Schedule 2 of the Migration Regulations 1994 (Cth), which deals with the GSH visa which was granted to the applicant, provides primary criteria which must be satisfied by all applicants, ‘except certain applicants who are members of the family unit…’. That provision goes on to say that such applicants only need to satisfy the secondary criteria.
On the basis of the evidence before the court, it is not possible to make a definitive finding as to whether the applicant and his half-brothers both hold the same visa or whether they each hold a visa, albeit one as a primary visa holder and the other as a dependent or secondary visa holder. However, for the following reasons, it is not necessary to make such a finding to determine whether there has been a denial of procedural fairness.
It is clear that the wording of the definition of ‘holder’ and ‘visa holder’ contemplates that a visa may be held by more than one individual person. However, there is nothing in sections 116(1AA), 119 or 140(1) of the Act which suggests that the word ‘holder’ must be a reference to each of the holders of a visa if there are more than one holder in any particular case.
The plain wording of subsection 116(1AA) entitles the Minister to cancel a visa if the Minister is not satisfied as to the visa holder’s identity. If the visa is held by more than one person, the plain reading of this section is that it would entitle the Minister to cancel the visa in respect of any one of those persons, if not satisfied as to that person’s identity.
Whilst the definition of the term ‘visa holder’ may include more than one person, it is the holder of the visa which is proposed to be cancelled that is entitled to procedural fairness under section 119.
Subsection 116(1AA) is a cancellation ground on the basis of a lack of satisfaction as to identity. Identity can only relate to one person (at a time). If, in this case, there was a concern about the identity of both the applicant and the applicant’s half-brother, then subsection 116(1AA) could operate in such a way as to require each visa holder to be given notice of the potential grounds for cancellation in respect of each of them, whether they held the visa jointly or separately.
This interpretation is consistent with the distinction made in section 140 of the Act itself. Subsection 140(1) distinguishes between the manner in which a primary visa holder’s visa may be cancelled and the manner in which a visa held by a person may be cancelled ‘because of being a member of the family unit’. It does not distinguish between whether the latter person holds a visa jointly or separately from the primary visa holder.
Notwithstanding this, in the case of the primary visa holder, that person is to be given notice and an opportunity to give evidence and make submissions before a cancellation decision is made. In the case of the latter, however, the cancellation operates consequentially.
In this case, the concern raised by the delegate related to the applicant’s identity. As such, section 119 required the applicant to be given notice of a possible cancellation of his visa and the reasons for the possible cancellation. Having done so, there has been no denial of procedural fairness and therefore this aspect of ground 2 is not made out.
For each of these reasons, ground 2 is not made out.
Ground 3
By ground 3, the applicant asserts that the Tribunal erred by its application of PAM policy in the manner in which it purported to consider the applicant’s purpose for travel to Australia.
In response, the Minister submits that there was no misapplication of the policy,[78] but in any event, even if there was, the Tribunal was not required to apply the PAM and therefore any error, which is not conceded, in the application of that policy could not and did not amount to jurisdictional error.[79]
[78] Minister’s Outline of Submissions filed on 13 February 2023 at paragraph [52].
[79] Minister’s Outline of Submissions filed on 13 February 2023 at paragraphs [53] to [54].
The relevant PAM is annexed to the affidavit of Ms Rachel Mason affirmed and filed on 6 February 2023 at Annexure 1.
At page 60 of that annexure is a section headed ‘s116 – Deciding whether to cancel’. It relevantly states that there are no prescribed matters that a delegate must consider in determining whether to cancel a visa under section 116 but then provides:
It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters (sic), even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder.
Included in the matters listed is:
•The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.
At paragraphs [80] to [85] of the Tribunal’s reasons, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal purported to consider this matter.
The applicant submits that in considering his purpose for travel to Australia, the Tribunal mistakenly considered that he had travelled here for tourism purposes.[80]
[80] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [48].
The applicant further submits that whilst not bound to apply the policy, a failure to apply it correctly can, and in this case, does, amount to jurisdictional error.[81]
[81] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [47].
In DCM20 v Secretary, Department of Home Affairs and Anor [2020] FCA 1022 at paragraph [20], Justice Perry noted that:
20.… in certain circumstances, a misconstruction of Ministerial policy may lead to a finding that the decision is illogical and perverse even where, as here, the decision-maker is not bound to take the policy into account. …
Justice Perry then went on to quote Justice Robertson in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452 at paragraph [89] where the court said:
89.It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else … This may be an example of ‘an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria … (emphasis as added by Justice Robertson)
The effect of this reasoning, as noted by Justice Perry at paragraph [21], is that
21.… where a decision-maker purports to apply a policy which has no binding status, a “more radical” misconstruction or misunderstanding of the policy is required in order to establish legal unreasonableness, than in the case of a policy which the decision-maker is bound to take into account … Nor in any event, are Ministerial policies to be construed and applied “with the legal nicety of a statute” (emphasis in original)
In this case, as stated above, it is common ground that the applicant in fact did initially travel here on a tourist visa but then immediately applied for a protection visa immediately following arrival. In those circumstances, it was therefore reasonable for the Tribunal to have regard to that initial visa as part of its assessment of the applicant’s initial purpose of arrival and stay in Australia.
In any event, the Tribunal then went on to consider the applicant’s application for a protection visa as an additional reason for the applicant wishing to travel to and remain in Australia.[82] The Tribunal also went on to consider whether there were compelling reasons for the applicant to remain in Australia.
[82] Tribunal’s decision record dated 13 May 2022 at paragraph [80] and following.
The suggestion that the Tribunal misapplied the PAM is not supported by a fair reading of the Tribunal’s reasons.
The applicant further submits that the Tribunal erred in stating that the applicant’s application for protection was exhausted in circumstances where his protection visa application was determined in 2009 prior to amendments to the Act in 2011, which saw the introduction of a complementary protection regime.[83] As such, it is submitted for the applicant that his protection claims have not been assessed against the complementary protection provisions in the Migration Act.
[83] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [49].
No error is disclosed by the way in which the Tribunal assessed the status of the applicant’s protection visa application. Whilst it is the case, as submitted by the applicant, that at the time of his application for a protection visa, subsection 36(2)(aa) of the Act did not exist, and this may have provided an alternative basis for an application for a protection visa, the applicant could not pursue such a claim whilst in Australia unless and until the bar to such a claim in section 48A was lifted.
For each of these reasons, ground 3 does not disclose any jurisdictional error.
Ground 4
By ground 4, the applicant takes issue with the way in which the Tribunal weighed certain matters against the applicant in circumstances where the PAM said that ‘[g]enerally, matters must be weighed in favour of the visa holder, not against the visa holder’. Again, the applicant submits that in not complying with the policy, when the Tribunal said it was doing so, the Tribunal erred and that error constitutes a jurisdictional one.[84]
[84] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [52].
The applicant submits that the Tribunal’s reasons do not ‘suggest that the ‘general’ statement of policy was consciously departed from let alone that it should be departed from’.[85]
[85] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [53].
I do not accept this submission.
As indicated by the Minister, the relevant section of the PAM provided:
The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder.[86] (emphasis added)
[86] Minister’s Outline of Submissions filed on 13 February 2023 at paragraph [59].
It is clear from the context in which this statement exists that whilst generally matters must be weighed in favour of the applicant, the PAM acknowledges that ultimately the weight to be given to individual matters is a matter for the decision-maker.
Moreover, the force of the PAM has been the subject of judicial consideration on various occasions and is not a binding document such that a failure to comply with it strictly gives rise to an error of law, let alone a jurisdictional error.[87]
[87] See Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 at [54]-[56] and the cases referred to therein.
In particular, as noted by Justice Gray in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038 at paragraph [45]:
45.A failure to apply the [PAM] guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
In circumstances where the applicant does not specifically identify any particular matter which was weighed against him in the Tribunal’s consideration of whether to exercise the discretion to cancel his visa, there is no basis in my view to conclude either that the Tribunal failed to comply with PAM or that any such failure amounts to jurisdictional error.
At paragraph [85] of its decision record, the Tribunal weighed the consideration of the purpose of the applicant’s travel to Australia and any need to remain in Australia and took the view for the reasons given that it was not satisfied that the applicant’s situation in this regard ought weigh in the applicant’s favour. That finding was reasonably open to the Tribunal.
Similarly, at paragraph [95], the Tribunal formed the view that for the reasons given in paragraphs [92] to [94] of its reasons that the circumstances in which the ground for cancellation arose was one which justified a finding that this matter weighed in favour of the cancellation. Again, having regard to the Tribunal’s reasons, this finding was reasonably open to it and does not disclose a failure by the Tribunal to apply the approach indicated in the PAM.
For these reasons, ground 4 is not made out.
Ground 5
By ground 5, the applicant claims that, contrary to its obligation to do so, the Tribunal failed to consider the mandatory legal consequences of its decision. The applicant says that at paragraphs [100] to [102] of its decision record, the Tribunal purported to consider the mandatory legal consequences of its decision, but applied tautologous reasoning such that it effectively failed in its task.[88]
[88] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraphs [56] to 58].
The applicant relies upon the decision in Hands in support of this ground.[89] Relevantly, in Hands, after reciting the applicant’s history and how he came to be the subject of a mandatory visa cancellation decision under section 501 of the Act, his Honour Chief Justice Allsop said that it was against this background that the operation of the Act and the decisions of the Executive are to be understood.
[89] See Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [58].
At paragraph [23] of Hands, his Honour noted that:
23.… The mandatory operation of s 501(3A) can be undone by the revocation of the mandatory decision. The will of Parliament is that the evaluative assessment as to whether someone who is a non-citizen who has a “substantial criminal record” should remain is to be made by the Minister in this framework of revocation.
Chief Justice Allsop concluded that there was no rational or probative basis for the Tribunal’s conclusion that any emotional and psychological harm to the applicant from his removal would be short term and that this therefore gave rise to a jurisdictional error.
His Honour went on to say at paragraph [44] and following:
44.… All the material, if considered, would lead any reasonable person to a conclusion that this decision, unrevoked, will cause lifelong grief and psychological hardship to a number of people, including Mr Hands. …
45.This was a central and crucial consideration. The separation of Mr Hands from his community, his wider family, his partner, his children, grandchildren and step-grandchildren is a life-changing decision, potentially life-destroying. The statements that he “may experience some emotional and psychological hardship” and “may experience short term hardship, [but] would be capable of settling in New Zealand without undue difficulty” are findings of fact simply incapable of being reasonably made by any decision-maker, there being no evidence at all to support them, and all evidence being to the contrary to a reasonable decision-maker.
…
47.The fact that this could be said raises doubt that those drafting the reasons and the Minister adopting them have considered the whole human consequences of the decision, and thus whether real consideration was given to the totality of the representations. It is sufficient to rest, however, on the conclusion that a central finding of fact was made without any probative foundation.
…
51.… Mr Hands’ place in that community and the effect on the Aboriginal community of his removal were matters of significant importance. They were not considered or barely considered by the Assistant Minister. ...
It is submitted that the Tribunal’s reasoning in this matter suffered from the same fault.[90] Namely, it is submitted that the Tribunal failed to give proper consideration to the mandatory legal consequences of cancellation.
[90] Applicant’s Outline of Submissions filed on 7 February 2023 at paragraph [58].
Relevantly at paragraphs [100] to [102] of its reasons, the Tribunal said:
100.In the case of cancellation, the applicant could become an unlawful non-citizen and could be detained under s 189 and removed under s 198 of the Act. The applicant would also be subject to Public Interest Criterion 4013, which would prevent the applicant from being granted a further visa for three years.
101.The Tribunal is of the view that although the applicant could be detained indefinitely and that he has mental health challenges, these potential consequences are intended legislative consequences and, in the applicant’s case do not outweigh the reasons to cancel the visa.
102.The Tribunal gives this consideration neutral weight.
I accept that the Tribunal did not extensively go into detail in considering the mandatory legal consequences of cancellation on the applicant. However, read fairly, it is clear that the Tribunal properly identified the mandatory legal consequences for the applicant of cancellation.
Moreover, it also is apparent from the reference to the applicant’s mental health that the Tribunal considered the impact of those consequences on the applicant himself and did more than just recite the mandatory legal consequences.
Importantly, the last part of paragraph [101] of the Tribunal’s reasons indicates that the Tribunal weighed the mandatory legal consequences and the impact they would have on the applicant and concluded, on balance, that they did not outweigh the reasons to cancel, being those reasons articulated elsewhere in the Tribunal’s decision record.
For each of these reasons, ground 5 is not made out.
CONCLUSION
As none of the grounds of review is made out, the applicant’s application is dismissed with costs at a sum to be fixed if not agreed.
I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 21 July 2023