BYE17 v Minister for Immigration

[2018] FCCA 1625

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1625

Catchwords:
MIGRATION – Review of a decision of the Administrative Appeals Tribunal – s.91WA of the Migration Act 1958 (Cth) – bogus documents – whether Tribunal took explanation of the Applicant into account – s.438 of the Migration Act 1958 (Cth) certificates – non provision by Tribunal of particulars of adverse information for comment – legal unreasonableness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 91WA, 424A, 424AA, 422B, 438

Migration Regulations 1994 (Cth), Schedule 2 cl.866.221(2)

Cases cited:

Minister for Immigration and Citizenship v Brar [2012] FCAFC 240

Minister for Immigration and Citizenship v Chamnam You [2008] FCA 24

Minister for Immigration and Citizenship v Li [2013] HCA 18

Applicant: BYE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 914 of 2017

Judgment of: Judge Hartnett

Hearing date: 5 February 2018

Delivered at: Melbourne

Delivered on: 22 June 2018

REPRESENTATION

Counsel for the Applicant: Ms Costello

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $15,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 914 of 2017

BYE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Preliminary

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made 30 March 2017, which affirmed the decision of a delegate of the First Respondent, to refuse to grant to the Applicant a temporary protection (Class XD) visa (‘the visa’). The basis of such refusal was s.91WA of the Migration Act 1958 (Cth) (‘the Act’), which thereafter required the Minister to refuse to grant the visa under s.65 of the Act.

2. Section 91WA of the Act is as follows:-

   “MIGRATION ACT 1958 - SECT 91WA Providing bogus documents or destroying identity documents

   Providing bogus documents or destroying identity documents

   (1)  The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

   (a)  the applicant provides a bogus document as evidence of the applicant's identity, nationality or citizenship; or

   (b)  the Minister is satisfied that the applicant:

   (i)  has destroyed or disposed of documentary evidence of the applicant's identity, nationality or citizenship; or

   (ii)  has caused such documentary evidence to be destroyed or disposed of.

   (2)  Subsection (1) does not apply if the Minister is satisfied that the applicant:

   (a)  has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

(b)  either:

(i)  provides documentary evidence of his or her identity, nationality or citizenship; or

(ii)  has taken reasonable steps to provide such evidence.

(3)  For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.”

1. ‘Bogus document’ is as defined in s.5 of the Act:-

   “ ‘bogus document’ in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)  purports to have been, but was not, issued in respect of the person; or

   (b)  is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)  was obtained because of a false or misleading statement, whether or not made knowingly”

2. The Applicant argues that the decision of the Tribunal is affected by jurisdictional error. The Applicant submits the decision ought to be quashed and the matter remitted to the Tribunal for determination according to law. The Applicant seeks costs.  The Applicant relies upon submissions filed 6 November 2017 and 31 January 2018 and a further amended application filed 5 February 2018.

3. The Applicant advances four grounds of judicial review, they are:-

   “1. The Second Respondent breached s.424A/424AA of the Migration Act 1958 by not providing particulars of adverse information the subject of the purported s.438 certificates to the applicant for comment or response.

   2. The Second Respondent unreasonably did not exercise its discretion to disclose matters subject to the s.438 certificates.

   3. The Second Respondent erred in applying s.91 WA of the Migration Act 1958 by failing to consider the explanations proffered by the applicant.

   4. The decision is affected by jurisdictional error because the Tribunal acted on an invalid s.438 certificate dated 6 May 2014 (CB348).”

4. The Court has before it the evidence as contained in the Court Book filed on 29 June 2017. The Court also has before it a s.438 of the Act certificate signed by Fiona Wallace, which is marked ‘Exhibit 1’.

5. The First Respondent seeks dismissal of the application and costs. The First Respondent filed submissions on 20 November 2017, which are relied upon together with an affidavit of evidence affirmed by Thomas Simon Pierce on 31 January 2018 to which was annexed a transcript of the Tribunal hearing.  

Background

1. The Applicant claims to be a citizen of Iran born on 31 July 1996. He arrived in Australia on 24 July 2012 as an unauthorised maritime arrival and applied for the visa on 4 April 2013.

2. On arrival the Applicant claimed to be an unaccompanied minor. He provided a date of birth of 26 June 1996, however changed this at his arrival interview to 31 July 1996. An age determination process was conducted on 4 August 2012. An assessment by two officers of the Department of Immigration and Border Protection (‘the Department’) found the Applicant to be under the age of 18 years. A review of that assessment was undertaken on 31 July 2013. That review found the Applicant to be born on 31 December 1994, and over the age of 18 years. 

3. On 26 July 2013, a delegate of the Minister for Immigration and Border Protection refused to grant the Applicant the visa on the basis he did not meet the requirements in s.36 of the Act.

4. The Applicant applied to the Refugee Review Tribunal (as it then was) for review of that decision. On 21 October 2013 the Refugee Review Tribunal found the Applicant did satisfy s.36(2)(a) of the Act and remitted the matter back to the Department.

5. On 5 March 2014 a delegate of the Minister refused to grant the visa on the basis that the Applicant did not meet cl.866.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The Applicant applied to the Refugee Review Tribunal for review of that decision. On 23 July 2014, the Tribunal found the Applicant did satisfy cl.866.221(2) of Schedule 2 to the Regulations and remitted the matter back to the Department for reconsideration.

6. The Applicant had originally claimed he was unable to provide to the Department identity documents as his father had burnt them. However, upon being requested by the Department by correspondence of 8 January 2016, to produce documentary evidence of his identity, nationality or citizenship for inspection by an officer of the Department under s.91WA(1) of the Act, with the Department noting the earlier request made by it for same, and the Applicant’s refusal to comply with that request, the Applicant provided to the Department Iranian identity documents, which he claimed to have obtained from his uncle, who obtained them from his mother. Those documents were a national identity card, a birth certificate, a school certificate and a statement from a witness attesting to the Applicant’s claimed identity.

7. On 6 August 2015, a delegate of the Minister wrote to the Applicant to invite him to comment on findings of the Document Examination Unit (‘DEU’) in relation to some of those documents. In that correspondence, the delegate, relevantly, said:-

   “The Shenasnameh [Iranian birth certificate] and Iran identity card that you provided as evidence of your identity, nationality or citizenship has [sic] been assessed to be bogus documents. A bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   a) purports to have been, but was not, issued in respect of a person;

   or

   b) is counterfeit or has been altered by a person who does not have authority to do so; or

   c) was obtained because of a false or misleading statement, whether or not made knowingly.

   A Departmental Document Examination Officer has determined that the Shenasnameh you have provided was fraudulently altered, with entries for birth date, birth location and issue date removed and then replacement entries added. The examining officer has also found that the Iran identity card you have provided is enitrely [sic] counterfeit.

   If it is assessed that you have produced a bogus document as evidence of your identity, nationality or citizenship, then your visa application may be refused under section 91WA(1) of the Act.”

8. The Applicant's representative provided a written response to the delegate, dated 9 September 2015. In summary, that response stated:-

   a)the Applicant believes the documents he provided were genuine documents that had not been altered;

   b)while in immigration detention the Applicant was asked by his case manager to obtain identity documents from Iran and upon request, his uncle forwarded the documents he provided;

   c)the Applicant assumed his uncle supplied the documents which had previously been obtained from the authorities by his family;

   d)to the best of the Applicant’s knowledge, the documents had not been changed or fraudulently altered; and

   e)in the circumstances, s.91WA(1) of the Act should not apply to the applicant's protection visa application.

9. As referred to in the delegate’s decision record, the DEU was unable to determine the legitimacy of the school certificate and returned with an ‘inconclusive’ result. The delegate’s decision noted the observations of the DEU which included that the quality of the security features limits the ability to determine whether this is a legitimately manufactured and issued document, and it does not present as a professional produced document. On 8 January 2016, the delegate wrote to the Applicant as follows:-

   “The school certificates provided by you list your date of birth as 1996. As per your Age Determination outcome the department is not satisfied that this is your true date of birth. A Departmental officer has assessed that your school certificates are counterfeit.

   If it is assessed that you have produced a bogus document as evidence of your identity, nationality or citizneship [sic], then your visa application may be refused under section 91WA(1) of the Act.

   You may provide comment on the above information.”

10. On 27 January 2016, the Applicant’s representative provided a written response to the delegate which in summary said:-

    a)it is the Applicant’s belief that the documents he provided in support of his application were genuine documents that had not been altered;

    b)the Applicant instructs his age and identity on the birth certificate and the school certificate are correct to the best of his knowledge and the documents are real;

    c)he instructs the documents were forwarded to him by his family, and that all the documents were submitted to the Department in original format;

    d)although the Department undertook an age determination in his case, the applicant does not accept the results and reiterates his date of birth is 31 July 1996;

    e)the Applicant instructs he used these documents while in Iran, as they are genuine, as such the documents are not bogus or fraudulent and reflect the date of birth that was registered for him in Iran.

11. On 8 February 2016, the Applicant provided additional identity documents to an officer of the Department.

12. On 3 January 2017, a delegate of the Minister refused to grant the Applicant the visa pursuant to s.91WA of the Act. The delegate found that the Applicant had provided bogus documents as evidence of his identity, nationality or citizenship. Those documents were a birth certificate (being the Shenasnameh) and a national identity card. Additionally, the delegate found that the school certificate which purported the Applicant’s date of birth to be ‘1996’ to be a bogus document as defined in s.5(1) of the Act when considering the departmental documentary forensic examination, as well as the age determination process. The delegate was not satisfied that the Applicant had satisfied s.91WA(2)(b)(i) or (ii) by providing satisfactory documentary evidence of his identity, nationality or citizenship or by taking reasonable steps to provide such evidence. In finding that the birth certificate and the national identity card were not genuine, the delegate referred, in the reasons for her decision, to information in a report prepared by the DEU. In particular, the delegate stated that:-

    “11. The applicant's national identity card and birth certificate were assessed by the Document Examination Unit (DEU) where it was found that the birth certificate was fraudulently altered with entries for birth date, location and issue date removed and replacement entries added. The national identity card was found to be entirely counterfeit. Following forensic examination by the Department, I find that the birth certificate and national identity card are bogus documents in accordance with s 5(1)(b).

    In relation to the altered birth certificate, a Farsi interpreter has advised that the applicant's date of birth was originally recorded on the document as (converted from Persian calendar) 29 January 1989. The applicant's date of birth on departmental systems is currently recorded as 29 January 1989.”

13. On 11 January 2017, the Applicant applied to the Tribunal for review of the delegate's decision. At this time, the Applicant lodged with the Tribunal a copy of the delegate's decision.

The Tribunal hearing

1. The Tribunal had before it the Department’s file relating to the Applicant’s visa application and the Tribunal’s file relating to the review application. The Tribunal also had the delegate’s decision record including the information as contained therein, as placed before it by the Applicant.

2. Following an invitation to attend a hearing of 28 February 2017, the Applicant and his registered migration agent appeared before the Tribunal on 9 March 2017 to give evidence and present arguments. The Applicant was assisted by an interpreter in the Persian and English languages.

3. Before the Tribunal, the Applicant submitted that at all times he had considered the birth certificate and the national identity card to be genuine. He submitted that those documents were provided to him by his uncle and, prior to giving them to the Department, he had only inspected them briefly. He said that Iran was not a place where documents could be altered. He submitted that he had given other documentary evidence of his identity, nationality and citizenship to the Department, being a copy of a school certificate and a witness statement. He also submitted, through his representative as set out in the Tribunal Decision Record:-

   “38… that in the event the Tribunal finds the documents are bogus, the applicant has provided a reasonable explanation, and notes the Department’s Procedural Advice Manual indicates a reasonable explanation for the purposes of s.91W and s.91WA includes when an unaccompanied minor who presents a bogus document and claims it was given to them by family members”.

   The Applicant further submitted that, having regard to his status as an unaccompanied young person in immigration detention, who had been found to be owed protection obligations, he could not be said to have failed to take reasonable steps to provide such evidence.

4. The Tribunal informed the Applicant and his migration agent that there were two s.438(1)(a) of the Act certificates and one s.438(1)(b) of the Act notification on the Department’s file. The Tribunal gave a copy of the certificates and notification to the Applicant’s representative.

5. The Tribunal said in its Decision Record as to those certificates and notification the following:-

   “13. The Tribunal noted the two s.438(1)(a) certificates related to substantially the same documents and information. The one difference was to a folio which is an ICSE record screen shot of information the Tribunal does not consider relevant to the review.

   14. While the Tribunal indicated its preliminary view that one of the certificates was invalid, it also indicated its preliminary view that the other certificate was valid. The Tribunal noted the relevant information covered by the certificates is the age determination process, which is also referred to in the delegate’s decision record.

   15. The Tribunal also noted its preliminary view that the s.438(1)(b) notification was valid, and that the relevant information was the forensic document examination, which is also referred to in the delegate’s decision record.

   16. The Tribunal granted the representative’s request for five days to make any further written submission. As noted below the Tribunal has taken the written submission received on 14 March 2017 into account, and notes that in relation to the s.438 certificates and notification the representative submits that any evidence or information that may be relied upon to affirm the Department’s decision should be presented to the applicant for comment if it has not been done so thus far.

   17. As noted below, the relevant information covered by the certificates and notification was referred to in the delegate’s decision record, a copy of which the applicant provided to the Tribunal, and discussed with the applicant during the hearing.”

6. The Tribunal noted further in its Decision Record that:-

   “In accordance with the Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.”

7. On 30 March 2017, the Tribunal affirmed the delegate's decision to refuse to grant the Applicant a protection visa pursuant to s.91WA of the Act.

8. For the purposes of s.91WA(l) of the Act, the Tribunal found that the birth certificate and the national identity card were bogus documents. The Tribunal made that finding on the basis of information in the delegate’s decision record. The Tribunal found relevantly, as follows:-

   “42. While the Tribunal has considered the applicant’s written comments and oral evidence and the written submissions made by the representative, the Tribunal accepts the DEU has expertise in document examination and the Tribunal has placed significant weight on the findings of the DEU as reported in the delegate’s decision record.

   43. While the Tribunal accepts the information provided in the delegate’s decision record does not include the nature of the forensic examination undertaken by the DEU, the delegate’s decision record does report that the DEU found the birth certificate provided by the applicant was fraudulently altered with entries for birth date, location and issue date removed and replacement entries added.

   44. Based on all the available evidence, including the DEU findings, the Tribunal finds that the birth certificate provided by the applicant to the Department as evidence of his identity, was fraudulently altered with entries for birth date, location and issue date removed and replacement entries added. The Tribunal finds this document has been altered by a person who does not have authority to do so.

   45. For the same reasons noted above, the Tribunal also finds that the national identity card provided by the applicant to the Department as evidence of his identity, is entirely counterfeit.

   46. Given the DEU’s inconclusive finding in relation to the school certificate and no findings in relation to the witness statement, the Tribunal makes no findings in relation to those documents being bogus documents.”

1. In respect of s.91WA(2) of the Act, the Tribunal stated:-

   “49. During the hearing the Tribunal spoke with the applicant about this [the matters the subject of s 91WA(2) of the Act] and has taken his oral evidence and the written submissions into account.

   50. While the Tribunal notes the representative's written submissions that the applicant is relatively young and provided documents sent to him by his family, and was only able to examine the documents briefly before submitting them to the Department, the Tribunal also notes the applicant does not agree that he has provided bogus documents.

   51. While the Tribunal notes the written submission in relation to the applicant also providing a school certificate and witness statement as evidence of his identity, the Tribunal also notes these documents were provided with the birth certificate and national identity card, and support the information which was found to be fraudulent and counterfeit in those bogus documents.

   52. The Tribunal is not satisfied the applicant has provided a reasonable explanation for providing the bogus documents, and it is not satisfied he has provided documentary evidence of his identity, nationality or citizenship or taken reasonable steps to provide such evidence.

   53. Therefore the Tribunal is not satisfied s.91WA(2) applies to the applicant.”

Ground One

1. Section 424A of the Act is as follows:-

   “MIGRATION ACT 1958 - SECT 424A Information and invitation given in writing by Tribunal

   Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)  invite the applicant to comment on or respond to it.

   (2)  The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies--by one of the methods specified in section 441A; or

   (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (2A)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)  This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application for review; or

   (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)  that is non-disclosable information.

   (4)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”

2. The Applicant gave the Tribunal a copy of the delegate’s decision record. As such, the Applicant is taken, for the purposes of s.424A(3)(b) of the Act to have given the information to the Tribunal for the “purpose of the application for review”[1]. Accordingly s.424A of the Act does not apply to the information in the decision record in the circumstances of this case.

   [1] Minister for Immigration and Citizenship v Brar [2012] FCAFC 240; Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241.

3. The Tribunal observed that all of the information in the certificates and notification on which the Tribunal intended to rely was set out in the delegate’s decision record. The Tribunal, said relevantly:-

   “I also note that the information that I think is relevant that is covered by those certificates is information that’s already been referred to in the decision record. So it’s information you already have.”[2]

   [2] Affidavit of Thomas Simon Pierce affirmed 31 January 2018, annexure “TSP-1” at page 8.

4. Further, the Tribunal orally addressed the information as contained in the s.438 of the Act notification with the Applicant:-

   “As I said before what I need to consider is whether you provided bogus documents and certainly I’ll take into consideration everything that you have said today as well as the information that’s provided in the Delegate’s decision record. Particularly the information in relation to the Document Examination Unit’s assessment. And if I do find that you have provided bogus documents then I’ll certainly consider whether you provided a reasonable explanation for providing those documents and where you’ve provided other documents in relation to your identity or taken reasonable steps to provide such evidence. Now I’m going to give your representative a… ohh, sorry? I’m going to give your representative an opportunity to make oral submissions but I just wanted to give you another opportunity to say anything further that you would like to say.[3]”

   [3] Affidavit of Thomas Simon Pierce affirmed 31 January 2018 , annexure “TSP-1” at page 6.

5. The Applicant argued that the Tribunal was factually in error by treating the two s.438(1)(a) of the Act certificates as containing “substantially the same documents and information”. The Applicant asserts that one of the s.438(1)(a) of the Act certificates contained “material that is adverse in that it is material from sources other than the Applicant that makes observations and gives reasons and shares opinion as to why he’s not under 18”.[4] The Applicant submitted that as the information covered by the certificates was substantially different, the Tribunal made a jurisdictional error by relying on the valid certificate to not disclose the information in the invalid certificate to the Applicant for comment or response.

   [4] Transcript of proceedings dated 5 February 2018.

6. The First Respondent submitted in reply, that the statement relied upon by the Applicant of the certificates containing “substantially the same documents and information” was a preliminary view of the Tribunal, not a conclusive one. The First Respondent submitted that when the Tribunal decision is read as whole, it is clear that the Tribunal did not rely upon the age determination process in making its decision, and it was therefore not relevant to the decision.

7. The critical question for the Court to determine is what information did the Tribunal itself consider would be the reason or a part of the reason for affirming the decision under review. In this case, there is no evidence or necessary inference that the Tribunal considered or had any opinion about the age determination review process materials that were the subject of the certificate or certificates.

8. It is clear that the Tribunal proceeded on the basis of its finding that the Applicant had provided to the Department a bogus document. Not only one, but two. Either, individually, enlivened the power in s.91WA of the Act. The Tribunal was cognisant of that fact. The national identity card was not related to the age determination process. Both the birth certificate of the Applicant and the national identity card were assessed as bogus documents with that assessment, deriving from the DEU, being put to the Applicant for his comment. What was put, was that the forensic investigation of the two documents, that is an investigation as to their ‘physical qualities’ as said by Counsel for the First Respondent, revealed the documents to be bogus documents which had been fraudulently altered. This information derived from the delegate’s decision as placed by the Applicant before the Tribunal. It did not derive from the age determination process. The Tribunal’s reasoning and decision making relied upon the findings of the DEU.

9. Aside from the age determination process covered by the certificates, the birth certificate was also assessed by the DEU and found to be bogus. The DEU findings did not, in respect of the birth certificate, relate simply to the date of birth, it also related to the location of birth and the issuing date of the document. All entries were found to have been erased and replaced.  This did not concern an evaluation of the age of the Applicant, but an examination of the physical qualities of the document.

10. Even if the Applicant’s birth date was 1996 and not 1989 as determined by the DEU, the document showed an imprint for the date of birth which referred to 1989. Whatever the Applicant’s date of birth was, the document was bogus because it had been fraudulently altered.

11. The information relied upon by the Tribunal as the reason, or a part of the reason, for affirming the delegate’s decision was information derived from the delegate’s decision which fell within the terms of s.424A(3)(b) of the Act. This ground cannot succeed.

Ground Two

1. Section 438 of the Act is as follows:-

   “MIGRATION ACT 1958 - SECT 438

   Tribunal's discretion in relation to disclosure of certain information etc.

   (1)  This section applies to a document or information if:

   (a)  the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

   (b)  the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

   (2)  If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

   (a)  must notify the Tribunal in writing that this section applies in relation to the document or information; and

   (b)  may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

   (3)  If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

   (a)  may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

   (b)  may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

   (4)  If the Tribunaldiscloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.”

2. The Tribunal is not obliged to exercise the discretionary power in s.438(3) of the Act however, in particular circumstances, it may be unreasonable for the Tribunal not to exercise that discretion.[5]

   [5] Minister for Immigration and Citizenship v Li [2013] HCA 18.

3. The First Respondent submitted that an assertion of legal unreasonableness cannot be used to extend the circumstances in which adverse information might be required to be given to a person beyond those which are set out in s.424A of the Act. Section 422B of the Act makes clear that, in terms of that matter as it is dealt with in s.424A of the Act, it is an exhaustive statement of the natural justice hearing rule. The Applicant submitted that was a legally incorrect submission in that s.438(3) of the Act gave the Tribunal a discretion to have regard to matters contained in the document/s covered by the certificates, and, if the Tribunal thought it is appropriate to do so, disclose the matter to the Applicant. The Applicant argued that the documents the subject of the certificates were relevant, adverse and helpful and it was therefore unreasonable for the Tribunal not to use its discretion to disclose that material to the Applicant.

4. Was it unreasonable for the Tribunal not to disclose the documents subject to the certificates and notification  to the Applicant? The Court finds that the material subject to the certificates, unless set out in the delegate’s decision, did not form any part of the reason for the Tribunal’s decision. As such, it was not unreasonable for the Tribunal to use its discretion to not disclose the material the subject of the certificates and notification. In all the circumstances the Tribunal’s Decision Record indicates an obvious and intelligible justification for the exercise of its discretion in the manner adopted.

Ground Three

1. The Applicant submitted that the Tribunal failed to take into account the explanation given by him in relation to providing bogus documents for the purposes of s.91WA(2)(a) of the Act.

2. The Applicant argued the Tribunal failed to take into account the following:-

   a)the fact that the Applicant was an unaccompanied minor when he provided the relevant documents found to be bogus;

   b)the Applicant only had brief custody of the documents before handing them to the Department;

   c)the Applicant was a refugee with a well-founded fear of returning to Iran and limited capacity to obtain his documents from Iran because he was in detention and a refugee fearing Iranian authorities;

   d)the Applicant’s capacity to explain why the documents were counterfeit was limited due to his lack of access to the forensic document examination report;

   e)the applicant’s father had destroyed his documents in the context of his father’s anger at the Applicant for being homosexual and his mother/uncle had sent what they could;

   f)the statutory declaration from a witness attesting to the Applicant’s identity and birth date; and

   g)the fact that the Tribunal found the Applicant had provided bogus identity documents was not the same thing as finding he did not have the identity and birth date he claimed.

3. The Tribunal however did consider these matters. The Tribunal made clear that in accordance with Ministerial Direction No.56 made under s.499 of the Act, the Tribunal took into account the policy guidelines prepared by the Department PAM 3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines to the extent that they were relevant to the decision.

4. The findings of the DEU were put to the Applicant prior to the delegate making a decision. The Applicant’s response to the delegate was summarised by the Tribunal in paragraph 25 of its Decision Record. The Tribunal considered that response, and further submissions of the Applicant’s representative, and concluded that:-

   “52. The Tribunal is not satisfied the applicant has provided a reasonable explanation for providing the bogus documents, and it is not satisfied he has provided documentary evidence of his identity, nationality or citizenship or taken reasonable steps to provide such evidence.”

   This was a finding of fact as to the Tribunal’s lack of satisfaction that either of the cumulative requirements of s.91WA(2) of the Act were met. The Applicant did not argue against the Tribunal’s finding in respect of the requirements in s.91WA(2)(b) of the Act. I accept the submission of the First Respondent that as a consequence “any error in the Tribunal’s consideration of the requirement in s.91WA(2)(a) could not of itself affect the exercise of power in such a way as to give rise to jurisdictional error or, alternatively, to warrant the grant of relief.” Regardless, having considered the various explanations and obviously so, the Tribunal did not, as a factual finding open to it, as I find, on the evidence, accept such explanations as reasonable. This was also in the context of the Applicant continuing to assert the genuineness of the bogus documents. This ground cannot succeed.

Ground Four

1. The Applicant argued that although the Tribunal indicated that one of the certificates appeared to be invalid, the Tribunal in effect, acted on an invalid certificate by treating both s.438(1)(a) of the Act certificates in the same way.

2. The First Respondent submits that the Tribunal did not act on the information relevant to the certificates unless that information was already set out in the delegate’s decision record. The Court finds the Tribunal acted on neither certificate.

3. This ground cannot succeed including for the reasons outlined under Ground One. 

Conclusion

1. The application is dismissed and costs shall follow that event.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  22 June 2018