BYT20 v Minister for Home Affairs
[2020] FCCA 2191
•7 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYT20 v MINISTER FOR HOME AFFAIRS | [2020] FCCA 2191 |
| Catchwords: MIGRATION – Review of a decision of a delegate of the Minister – refusal to revoke a visa cancellation – applicant recognised as a refugee from Afghanistan but later found to be an imposter from Pakistan – whether the cancellation delegate failed to comply with s.129 of the Migration Act 1958 (Cth), whether the applicant was denied procedural fairness, whether the decision was unreasonable or whether the decision was affected by an apprehension of bias considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.57, 116, 127A, 128, 129, 131, 359A, 414, 424A Migration Regulations 1994 (Cth) |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88 Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 Hu v Minister for Immigration [2004] FCAFC 63 Khan v Minister for Immigration (2011) 192 FCR 173 Wei v Minister for Immigration (2015) 257 CLR 22 |
| Applicant: | BYT20 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 1091 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Law |
| Counsel for the Respondent: | Mr B D Kaplan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
A writ of certiorari shall issue, removing the record of the delegate’s decision made on 3 April 2019 into the Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Minister to redetermine according to law whether the cancellation of the applicant’s visa should be revoked.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1091 of 2019
| BYT20 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of a delegate of the Minister (delegate) made on 3 April 2019. The delegate refused to revoke a prior cancellation of the applicant’s resident return visa that had been granted to him on 5 August 2017.
The following statement of background facts is derived from the submissions of the parties.
On 3 July 2012 the applicant lodged an application for a subclass 866 permanent protection visa.[1]
[1] Court Book (CB) 1-59
The applicant claimed to be an Afghan national of Hazara ethnicity and Shia Muslim religion, born in Afghanistan on 10 January 1993. At the age of two his father had moved the family to Quetta in Pakistan where they had remained illegally until he left that country and travelled to Australia via Malaysia and Indonesia, arriving by boat without a visa at Christmas Island on 21 February 2012. His father had been a member of the Hizb-e Wahdat Shia party which exposed the family to the risk of being killed by the Taliban.
The applicant had been interviewed after arrival and spoke the Hazaragi language fluently, and was consistent in his description of where he had been born and where his family had lived, leading the delegate to be satisfied that his claims were true and that he had no right to enter or remain in Pakistan.[2]
[2] CB 60-72
Lodged with his protection visa application was an Afghan identity document, known as a Tazkara,[3] containing a photograph of the applicant and personal details, specifically his name, his father’s name, his grandfather’s name and his date of birth.
[3] CB 42-43
On the application form,[4] the applicant gave his father's name and stated that he was approximately 52 years old and was missing.
[4] CB 13
Also on the application form,[5] he listed his employment history, claiming in particular to have been employed as a designer by a firm in Quetta, Pakistan from January 2009 to November 2011.
[5] CB 31
On 19 October 2012 the applicant was granted a subclass 866 permanent protection visa for the reason that he was found to be a person to whom Australia had protection obligations.[6]
[6] CB 60-72
On 5 August 2017 the applicant was granted a subclass 155 resident return visa.[7]
[7] referred to at CB 111
The applicant travelled out of Australia on the following occasions:[8]
Depart Arrive
21 April 2013 6 June 2013
12 September 2014 6 December 2014
29 March 2016 27 June 2016
20 August 2017 17 November 20176 September 2018[8] listed at CB 120
On 29 June 2018 the Australian Federal Police made an "Information Report (IR)".[9] The IR gave details of an email allegation which identified the applicant by his name, his father's name, an address in Quetta, a telephone number and a "passport number", and alleged that although he had claimed on arrival in Australia by boat in 2012 to be a refugee from Afghanistan he was actually a "fake and spy" who had never been to Afghanistan and “came to Pakistan last year 2017 when he renewed his CNIC”,[10] the details of which were given. After some redacted material the email went on to allege that the applicant was employed as a constable in the Pakistani police, identified by number, and that he came to Pakistan every year to "join his service for three months" and then return to Australia. It said that his father was a retired police officer identified by his name and CNIC. Further redacted material followed.
[9] redacted copy at CB 73-77
[10] Pakistan Computerised Nation Identity Card
Attached to the IR are:
a)a copy of the applicant's Refugee Convention Titre de Voyage issued by Australia with the number given in the email;[11]
b)a document in English and Urdu which appears to be a CNIC in a particular name which also gives a father’s name, date of birth and identity number. The document contains a photograph and was issued on 24/04/2017;[12]
c)a different type of document dated 29/06/2012 entirely in Urdu with a photograph of a different person, and a different number.[13]
[11] CB 74
[12] CB 75
[13] CB 76
The IR was given an "admiralty rating" of "F-6", meaning that neither the reliability of the source nor the credibility of the information could be judged.
The following folios of the court book appear to set out details of the response of the Minister’s Department to the allegations:
a)what appears to be a letter from the Office of the Inspector General of Police, Quetta in reply to a request from a visa officer at the Australian High Commission in Islamabad relating to the "Bio-data of [a named person]". The information provided includes that the officer was enrolled as a full-time constable in the District Police Quetta from 12/06/2007 until he was dismissed on 27/04/2012 "on account of Absent";[14]
b)a "Job Details Report" generated on 11/10/2018[15] summarising and to some extent repeating the information contained in the IR with the following further information or allegations:
i)the "POI" (ie the applicant) "will take bribes from Afghan's and also send people from Indonesia to Australia".
ii)besides going to Pakistan every three months "he is on duty again";
c)confirmation from NADRA[16] that two numbered CNICs belong to named people;
d)the allegations had been referred to the Citizenship Branch of the Minister’s Department.
[14] CB 78
[15] CB 79-109
[16] the Pakistani National Database and Registration Authority
On 14 November 2018, while the applicant was outside Australia, the delegate decided to cancel his subclass 155 visa under s.128 of the Migration Act 1958 (Cth) (Migration Act) and sent the applicant a notice of that cancellation purporting to have been made under s.109.[17]
[17] CB 111-126
Commencing on 3 December 2018 the applicant made various representations and requests to the Minister’s Department in connection with the cancellation, including a response to the possible source of the allegations against him.[18]
[18] CB 127-150
On 11 December 2018 a formal request for revocation of the cancellation was made through the applicant's legal representative.[19] The representative submitted that the "particulars" given in the notice of cancellation were insufficient and requested further particulars, specifically:
a)the CNIC of a named person bearing a photograph which it is alleged bears a strong resemblance to photographs of the visa holder held by the Minister’s Department;
b)the photographs held by the Minister’s Department which it is alleged bear a strong resemblance to the photograph on the CNIC;
c)copies of all of the information provided by District Police Quetta, including the exact termination date of the named police officer (noting that the applicant arrived in Australia in February 2012 after a journey of several weeks);
d)full details of the checks with the Pakistani authorities that confirmed that there was a father son relationship of the named person.
[19] CB 151-157
On 12 December 2018 the Minister’s Department replied to the representative to the effect that the further particulars would have to be requested under Freedom of Information procedures and that a decision on the request for revocation would not be "delayed" to "accommodate" any such request.[20] The person who made the reply became the delegate who decided the revocation request.
[20] CB 158
A FOI[21] request was lodged on 12 December 2018.[22]
[21] Freedom of Information
[22] CB 161
On 18 December 2018 the representative sent two documents to the Minister’s Department as evidence of the applicant's identity.[23]
[23] CB 162-164
On 3 January 2019 the representative sent further documents relating to the applicant's presence and status in Pakistan as a non-citizen.[24]
[24] CB 165-169
The applicant made further submissions direct to the Minister’s Department between 19 January and 28 January 2019.[25]
[25] CB 170-186
On 13 February 2019 a Forensic Facial Image Examiner with the Minister’s Department provided a Facial Image Comparison Report apparently in response to a request made by the delegate on 12 December 2018.[26]
[26] CB 187-190
On 27 February 2019 the representative emailed the delegate to repeat the request that the further particulars be provided, noting that the applicant was in a precarious position as a temporary resident in Pakistan.[27]
[27] CB 191
On 5 March 2019 the delegate replied to the representative stating that she did not intend to provide any further information to the representative.[28]
[28] CB 192
On 5 March 2019 the representative emailed the Assistant Secretary of the Character Assessments and Cancellations Branch to complain about the Minister’s Department's refusal to provide further particulars as requested.[29]
[29] CB 194-195
After further correspondence, the Director of the General Cancellations Network replied to the representative on 2 April 2019[30] stating that the Minister’s Department was satisfied that the requirements of s.129 had been met and providing any additional information "would have an unmanageable resource impact", and repeating that the decision would not be delayed to accommodate the FOI request.
[30] CB 199
On 2 April the representative replied to the Director requesting further information:[31]
a)whether any attempt had been made to contact the person to whom the CNIC was issued; and
b)how the CNIC was applied for, noting that the applicant was in Australia on the date it was issued.
[31] CB 203, 2nd item in thread
Later the same day the representative sent a further email to the Director attaching a copy of a Department of Foreign Affairs and Trade Country Information Report on Pakistan.[32]
[32] CB 205, 2nd item in thread
On 3 April 2019 the representative sent the delegate a copy of email correspondence with the Deputy Director of the Pakistani National Database and Registration Authority.[33]
[33] CB 250-252
On 3 April 2019 the delegate decided under s.131 not to revoke the cancellation of the applicant's visa.[34] As noted above, this is the decision which is the subject of the present application for judicial review.
[34] CB 256-272
Approximately one hour after the non-revocation decision, the applicant’s representative wrote to various departmental officers to complain about that decision and “urge[d] [them] to intervene to overturn” what was described as an “absurd decision”.[35]
[35] CB 273-274
On 4 April 2019, Sally Pfeiffer, Assistant Secretary in the Character and Cancellations Branch of the Department, wrote to the applicant’s representative to inform him that she had reviewed the non-revocation decision and that it was “lawful” “and as such there are no grounds to intervene and overturn the decision”.[36]
[36] CB 273
The current proceedings
These proceedings began with a show cause application filed on 6 May 2019.
On 22 July 2020 the applicant served a draft amended application on the Minister’s solicitors. The amended application was handed up in court at the trial of this matter on 10 August 2020 and I granted the applicant leave to file and rely upon it.
There are four grounds in the application as thus amended:
1. The [cancellation] delegate failed to comply with the requirements of s 129 of the Act.
Particulars
The notice of cancellation under s 128 failed to provide sufficient particulars of the information because of which the ground for cancellation was considered to exist.
2. The delegate denied the Applicant procedural fairness.
Particulars
(a) The delegate refused to provide the Applicant with copies of the photographs and other documents which were said to establish that the Applicant was a Pakistani citizen.
(b) The delegate failed to make obvious enquiries about critical facts which could have established whether the Applicant and the Pakistani citizen were the same person, in particular:
(i) whether the Pakistani citizen's identification card was applied for online or in person;
(ii) if applied for online, the identity of the Pakistani government official who had attested it.
(c) The delegate failed to inform the applicant that a specialist forensic facial examiner had noted several similarities and several dissimilarities between the photographs and that it was not possible to form an opinion as to whether they represented the same person or not.
3. The delegate's decision was unreasonable.
Particulars
(a) The delegate acted unreasonably in failed to engage in an active intellectual process in relation to the evidence before it by:
(i) disregarding the opinion of the specialist forensic facial examiner in favour of her own lay opinion without any intelligible justification for doing so; or
(ii) ignoring or failing to consider evidence in support of the Applicant's claim not to have been employed as a Pakistani police officer.
(b) The delegate engaged in a circular process of fact finding which was illogical, irrational and legally unreasonable.
(c) The delegate made critical findings of fact for which there was no probative evidence with regard to:
(i) the respective genealogies of the Applicant and the police officer, or
(ii) the method by which the Pakistani citizen's identification card was obtained.
4. The delegate's decision was affected by apprehended bias, in that a fair-minded lay person might reasonably apprehend that she did not bring an impartial mind the request for revocation.
In addition to the court book lodged on 6 August 2019, I received as evidence the affidavit of Asha D’Silva made on 23 July 2020, annexed to which are three colour screenshots from a computer which depict a female apparel business and the applicant working in it, apparently performing a design function.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial. I have been assisted by those submissions.
Consideration
Ground 1 – did the cancellation delegate fail to comply with the requirements of s.129 of the Migration Act?
Applicant’s submissions
The applicant's visa was cancelled under s.128 of the Migration Act which provides:
If:
(a) the Minister is satisfied that:
(i)there is a ground for cancelling a visa under section 116; and
(ii)it is appropriate to cancel in accordance with this Subdivision; and
(b) the non‑citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
The decision not to revoke the cancellation was purportedly made under s.131, which requires the Minister in certain circumstances to revoke a cancellation decision made under s.128:
(1)Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:
(a)if not satisfied that there was a ground for the cancellation; or
(b)if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
(2)The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.
There are no circumstances prescribed for subsection (2).
Having made a decision to cancel a person's visa under s.128, the Minister is required by s.129(1) to give the former visa holder a notice:
(a) stating the ground on which it was cancelled; and
(b)giving particulars of that ground and of the information (not being non‑disclosable information) because of which the ground was considered to exist; and
(c)inviting the former holder to show, within a specified time, being a prescribed time, that:
(i)that ground does not exist; or
(ii)there is a reason why the visa should not have been cancelled; and
(d)stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e)stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
According to the decision record of the cancellation[37] the ground of cancellation was s.116(1)(d):
(d)if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared.
[37] CB 115-126
Subdivision C (of Division 3 of Part 2) permits cancellation on the grounds of non-compliance with certain obligations on visa applicants, including that no incorrect information or bogus documents be provided in connection with the application or the application for a visa previously held by the person.
The particulars of the ground of cancellation as set out in the decision record were that the applicant would be liable to have his visa cancelled because when he applied for his protection visa he had provided incorrect information and bogus documents relating to his nationality, place and date of birth, and whether he had a well-founded fear of persecution in his claimed country of nationality, Afghanistan. It alleged that the correct information was that the Applicant was a citizen of Pakistan, born on a different date, and had no fear of persecution because he could return to Pakistan.
The information upon which the ground of cancellation was considered to exist consisted entirely of the following pieces of evidence:
a)a scanned copy of a Pakistani CNIC issued on 27/04/2017 giving the holder’s name, his father’s name and a date of birth;
b)what were said to be photographs of the applicant held by the Minister’s Department which were said to "bear a strong resemblance" to the photo on the card;
c)evidence from the Pakistani authorities of a named person who was the son of a second named person (those being similar to the names of the applicant's father and grandfather);[38]
d)evidence that a CNIC could only be issued to a citizen of Pakistan.[39]
[38] CB 42
[39] CB 121
Section 129 forms part of the "exhaustive statement of the natural justice hearing rule" for the subdivision in which it appears.[40] The requirement in s.129(1)(b) that the notice give particulars of the ground and the information on which it was found to exist is an essential element of that rule.
[40] section 127A
It is said to be obvious that, for the purposes of natural justice, the particulars given to a person of the case against them must be sufficient to enable the person to test those grounds and put forward a case in reply.[41]
[41] see John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
Where it is alleged that a photo or photos said to be of one person "bear a striking resemblance" to a photo of another, it is patently impossible for the first person to answer the allegation without being shown the photos.
The applicant contends that, without at least providing the applicant with copies of the photos the purported notice of cancellation could not be a valid notice under s.129.
The existence of a valid notification under s.129(1) is a precondition for the Minister's satisfaction under either (a) or (b) of s.131(1). The applicant contends that, as the purported notice in this case was not valid, there was no power to make a decision under s.131 about whether or not to revoke the cancellation.
Minister’s submissions
Section 128 of the Migration Act empowers the Minister to cancel a non-citizen’s visa, without notice to him or her, if he or she is outside Australia and the Minister is satisfied that there is a ground for doing so under s.116 and that it is appropriate to do so.
If a decision is made under s.128, the Minister must give to the former visa holder notice of the decision in accordance with s.129, by doing the following:
a)stating the ground on which it was cancelled; and
b)giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and
c)inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) the ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
d)stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
e)stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
The Minister submits that the requirement to give “particulars … of the information … because of which the ground was considered to exist” under s.129(1)(b) is not to set out the delegate’s reasons for cancelling the visa; it is to give particulars of the information which led to the conclusion that the ground in s.116(1) had been made out.[42] Whether sufficient particulars have been given under s.129(1)(b) can be determined by reference to cases dealing with ss.359A and 424A of the Migration Act.[43]
[42] Hu v Minister for Immigration [2004] FCAFC 63 at [82] per Sackville J
[43] Noeung v Minister for Immigration (2002) 125 FCR 503 at 524-525 [73] per Allsop J
If the former visa holder wishes to seek revocation of a cancellation decision, he or she must show that the ground for cancellation does not exist or that there is a reason why his or her visa should not have been cancelled within the time prescribed by regulation 2.46 of the Migration Regulations 1994 (Cth) (Regulations).
Section 131(1) of the Migration Act provides that, if, after considering any response to a notice given under s.129, the Minister is not satisfied that there was a ground for the cancellation or is satisfied that there is another reason why the cancellation should be revoked, he must revoke the cancellation.
While a failure to give notice in accordance with s.129(1) does not affect the validity of the cancellation decision (see s.129(3)), it has the result that the power to revoke the decision will not be enlivened.[44]
[44] NAAV v Minister for Immigration (2002) 123 FCR 298 at 315-316 [37] per Black CJ, 392 [371]-[372] per Wilcox J, 463 [591] per French J; Noeung at 524 [71]; Osborne v Minister for Immigration (2002) 124 FCR 416 at 422 [16] per French J
Turning to the present case, the particulars to Ground 1 assert that the notice issued pursuant to s.129 “failed to provide sufficient particulars of the information because of which the ground for cancellation was considered to exist”. At [43] of his submissions, the applicant contends that discharge of the duty in s.129 required the provision of copies of photographs of the applicant held by the Minister’s Department and a photograph on a CNIC.
The Minister contends that the applicant’s contention cannot be maintained.
The Minister submits that a document is not information and s.129(1)(b) applies to particulars of information, not any document that is referable to those particulars.[45] In so far as the photograph on the CNIC and the photographs of the applicant held by the Minister’s Department were capable of conveying information,[46] particulars thereof were given to the applicant in discharge of the duty in s.129(1)(b). The applicant was told that:
a)the Minister’s Department held photographs of him;
b)the Minister’s Department had obtained information, the CNIC, which indicated that the applicant is a citizen of Pakistan;
c)the CNIC was in the applicant’s name and referred to him as the “son of [his father]” which the authorities in Pakistan confirmed was the “son of [his grandfather]”;
d)the authorities in Pakistan “confirmed the card holder is a citizen of Pakistan”;
e)the CNIC contained a photograph of the applicant; and
f)the photograph on the CNIC was found by the cancellation delegate to bear “strong resemblance”[47] to the photographs held by the Minister’s Department.
[45] Nader v Minister for Immigration (2000) 101 FCR 352 at 366 [59] per Hill J; SZLJC v Minister for Immigration [2008] FCA 1361 at [24] per Reeves J; SZOCE v Minister for Immigration [2011] FCA 133 at [21] per Gordon J
[46] SZLPO v Minister for Immigration (2009) 177 FCR 1 at 21 [111] per Lindgren, Stone and Bennett JJ
[47] CB 121
Resolution
If this ground is resolved in the applicant’s favour, then the delegate’s power to make the non revocation decision will not have been enlivened and it would be unnecessary to consider the remaining grounds.
I accept from the judgment of Allsop J (as his Honour then was) in Noeung, and the other authorities referred to by the Minister that the obligation in s.129 is analogous to the obligation in s.424A of the Migration Act. It follows that the general obligation in s.129 is to provide particulars of the information relied upon rather than to provide documents. That proposition, however, should not be taken too far. First, the words “documents” and “information” should be given a consistent meaning throughout the Migration Act. The High Court has made clear, in relation to the statutory code of procedure binding the Immigration Assessment Authority that the references in Part 7AA of the Migration Act to documents or information are to information which may be contained in documentary form.[48] In other words, an artificial distinction should not be drawn between a document and the information contained in it.
[48] Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 at [24]
Secondly, it is instructive to have regard to what Allsop J stated in Noeung at [73]:
The tripartite division of information in (a), (b) and (c) above will not always be easy to apply, such that what is involved in each integer can be seen to be separate. Sometimes, it will be straightforward to say: the ground is section X of the Act; particulars of the ground are as follows (being in all likelihood the elements of the section of the Act in question); and the information as to why the ground is considered to exist is as follows. If the underlying proposition is simple, there may be little to differentiate (b) and (c) – particulars of the ground and particulars of the information because of which the ground was considered to exist. Also, if the evidentiary material before the delegate is voluminous, it may not be necessary to exhaustively recount it all, identifying every detail of it. What is required are particulars of the information because of which the ground is considered to exist. As I said in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [104] and [116], in discussing not dissimilar words in s 424A of the Act, being words evincing a similar statutory purpose to those in par 129(1)(b):
[104]The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant
[116]The question as to whether information would be the reason or a part of the reason for affirmation is ultimately decided, in my view, by whether it can be characterised as sufficiently important to the reasoning process in the rejection of the appellant’s claims, for fairness to warrant that the applicant be told of it so that he or she can understand and be able to meet the integers or elements that make up the Tribunal’s reason or conclusion thusfar reached (hence “would”) for finding adversely to the applicant.
(emphasis added)
It follows that the obligation to provide particulars of information in s.129, like the obligation in s.424A is a procedural analogue for the common law of procedural fairness and the extent of particulars of any information required to be disclosed should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind.
His Honour found in Noeung at [90] that the notice in issue in that case was inadequate to meet the requirements of s.129. I reach the same conclusion here, albeit in rather different circumstances.
Relevantly, the applicant was told in the s.129 notice that the delegate considered that the photograph on the CNIC bore a “strong resemblance” to photographs of the applicant held by the Minister’s Department. In other words, the cancellation delegate took the view, in part because of the photographs, that the person named in the CNIC was the applicant. It followed that he was a Pakistani citizen and not from Afghanistan and had falsely claimed protection.
If a person says to another person that they have a photograph that they think is a photograph of the other person, how is that person to respond without seeing the photograph? In such a case the information conveyed about the document (the photograph) merge with each other. The person the subject of such an allegation, like the applicant here, could only usefully respond by looking at the photographs in issue and comparing them.
I find that the first ground has been established. As noted above, it is thus unnecessary to consider the remaining grounds, but I will deal with them to the extent that I have formed a view about them in case I am wrong in relation to Ground 1.
Ground 2 – did the delegate deny the applicant procedural fairness?
Applicant’s submissions
A denial of procedural fairness which deprives an applicant of the possibility of a successful outcome constitutes jurisdictional error.[49]
[49] Minister for Immigration v SZMTA (2019) 264 CLR 421 at [2]
(a) Refusal to provide copies of the photographs
The applicant contends that for the same reasons that the purported s.129 notice was invalid, the refusal of the revocation delegate to provide the applicant with copies of the photos was a denial of procedural fairness. If shown the photos the applicant could have pointed out differences and could have sought an independent expert opinion. In this case the denial of procedural fairness clearly deprived the applicant of the possibility of a successful outcome.
(b) Failure to make inquiries
A failure to make an obvious inquiry about a critical fact which is easily ascertained may constitute jurisdictional error.[50] In Wei v Minister for Immigration[51] Nettle J reviewed the authorities on this point at [49], and found at [50]-[51] that the delegate's knowledge that the visa holder did not have the opportunity to make inquiries about a critical fact which the delegate could have easily ascertained amounted to jurisdictional error in that case. In this case, the delegate had contact with the relevant Pakistani authorities concerning the CNIC and could easily have checked how it was applied for and, if applied for online, who was the Pakistani official who had attested it. The applicant, on the other hand, had no such contacts.
[50] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25]
[51] (2015) 257 CLR 22
(c) Failure to inform the applicant of the Forensic Facial Examiner's report
The delegate requested the report on 12 December 2018 and it was provided on 13 February 2019.[52] At no time before making her decision did she provide the applicant with a copy of the report or even inform him of its existence.
[52] CB 187-190
Had the applicant been provided with a copy of the report he could have pointed out that the examiner found substantial dissimilarities between his photos and the photo of the police officer, so that regardless of the quality of the photos it would have been unreasonable to insist that there was a striking resemblance between them.
Minister’s submissions
(a) Failure to provide copies of photographs
The applicant contends, at [46] of his submissions, that procedural fairness required the delegate to provide copies of the photographs to him.
The applicant’s submissions do not grapple with the provisions in Subdivision F of Division 3 of Part 2 of the Migration Act. It commences with s.127A(1), which provides that the subdivision is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.
The “matter” with which s.129(1)(b) deals for the purposes of s.127A(1) is the provision of information, “more generally relevant and adverse”,[53] to enable the former visa holder not only to understand the ground on which his or her visa was cancelled but also to persuade the Minister that the ground does not exist or that there is a reason why the visa should not have been cancelled. Like its analogues,[54] s.129(1)(b) is exhaustive of the requirements of the natural justice hearing rule relating to a former visa holder’s right to comment on relevant and adverse material which was known to, and relied upon by, the Minister in cancelling his or her visa under s.128.[55] There is no other provision in the subdivision that would require the Minister to provide material that is relevant and adverse to a former visa holder’s interests.
[53] Saeed v Minister for Immigration (2010) 241 CLR 252 at 267 [42] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ
[54] such as ss.57, 359A and 424A
[55] cfWAID v Minister for Immigration [2003] FCA 220 at [57] per French J; Khan v Minister for Immigration (2011) 192 FCR 173 at 185 [40] per Buchanan J
(b) Failure to make enquiries
The applicant contends that the delegate “failed to make obvious enquiries about critical facts which could have established whether [he] and the Pakistani citizen were the same person”, being “whether the Pakistani citizen’s identification card was applied for online or in person” and “if applied for online, the identity of the Pakistani government official who had attested it”.
The Minister states that this complaint suffers from the following difficulties.
First, s.131(1) requires the Minister to “conside[r] any response to a notice under [s] 129 of the cancellation of a visa” and then to reach the state of satisfaction described in subparagraphs (a) or (b). Nothing in s.131 imposes a general duty on the Minister to make enquiries, and none can be implied in that section in the face of s.127A(1). The case upon which the applicant relies, SZIAI,[56] concerned the possible duty on the part of the Administrative Appeals Tribunal to make “an obvious inquiry about a critical fact, the existence of which is easily ascertained” if it “could … supply a sufficient link to the outcome” as a concomitant of its core function of review under s.414(1). Section 131 does not call for any “review” to be conducted by the Minister. This is said to be a complete answer to the applicant’s contention.
[56] at 1129 [25]
Secondly, the Minister submits that, even if some analogy could be drawn with the Tribunal’s function of review, it is far from self-evident that the enquiries which the applicant says the delegate was obliged to make are “obvious”, or “about a critical fact” or that the answers to those enquiries “could … supply a sufficient link to the outcome” of the revocation process.
None of the enquiries was obvious because the CNIC was found to be relevant by the delegate based on the photograph on it bearing strong resemblance to the other photographs and the confirmation by the authorities in Pakistan that the holder of the CNIC was a citizen of Pakistan and his father and grandfather each had the same name as the applicant’s father and grandfather.
In his e-mail to the Minister’s Department dated 2 April 2019, the applicant’s representative referred to country information which stated that an application for a CNIC could only be made by the lodgement of paperwork in person at a “NADRA registration centre in their place of origin” but that the applicant could not have done so because he was in Australia when the CNIC was issued.[57] Presumably, this information was relied upon as the foundation for the enquiries which the applicant now says the Minister had to make. A difficulty with this submission, however, is said to be that the country information was silent as to where an applicant for a CNIC was required to be located at the time of issue (as opposed to the time of application) and the processing times of applications.
[57] CB 205
The Minister submits that none of the enquiries which the applicant says had to be conducted was about a critical fact, in the sense of being “decisive of, or crucially important to, an anterior issue which provides ‘a sufficient link’ to the outcome”.[58] An answer to the question whether a person could make an application for a CNIC online without being present in Pakistan on 1 September 2017 (the date of publication of the report relied upon by the applicant) could not have had any bearing on the question whether the CNIC, issued in April 2017, belonged to him. Nor could an answer to any enquiry as to the identity of the Pakistani government official who it is said had attested it. Moreover, the latter enquiry is not such that the answer could be easily ascertained.
[58] Minister for Immigration v SZRTF [2013] FCA 1377 at [40] per Katzmann J
The Minister submits, furthermore, that there is nothing in the material before the Court to indicate that any further enquiry by the delegate could have yielded a useful result. It is not clear what information might have been elicited had the enquiries been made.[59] The applicant cannot, therefore, establish that any of the enquiries which he says had to be made had a sufficient link to the outcome of the revocation process.[60]
[59] SZIAI at 1129 [26]
[60] Hinton v Minister for Immigration (2015) 146 ALD 184 at [73]-[74] per McKerracher J
Thirdly, the delegate considered the applicant’s request that enquiries be made.[61] She formed the view, however, that a decision could be made without having to embark upon those enquiries. Having considered the applicant’s request, the country information upon which he relied, the correspondence between the applicant’s representative and NADRA, and information published by NADRA on its website, the delegate found as follows:
a)the holder of the CNIC was the applicant;
b)the applicant was in Australia at the time that the CNIC was issued;
c)the application for the CNIC “must have been made online, via the ‘renewal’ or ‘modify’ categories”;
d)the applicant “must have identified a Pakistani government official who could attest to personal knowledge of him”;
e)it was “plausible” that the applicant, in 2003, “could have obtained a ‘fresh’ CNIC in Pakistan, which he then could have made an application online, while in Australia, to ‘renew’ or ‘modify’” the CNIC;
f)it was “plausible, and not impossible, especially given his employment with the District Police Quetta … he could have identified a Pakistani government official who could have supported his application”;
g)it was “not implausible or impossible for the former visa holder to have obtained the CNIC issued 24 April 2017 while residing in Australia”. As discussed above, there is said to be no tension between this finding and the country information upon which the applicant relied, which went to a different point.
[61] CB 268
The Minister submits that, put another way, the delegate formed the view that she could reach one of the states of satisfaction described in s.131(1) of the Migration Act without having to make the enquiries urged upon her by the applicant. There is said to be no procedural unfairness in adopting that course. It is no response to say that the enquiries may have been reasonable (as to which no concession is made).[62]
[62] Kaur v Minister for Immigration (2017) 256 FCR 235 at 245 [33] per Dowsett, Pagone and Burley JJ
I granted the Minister leave to rely upon supplementary submissions concerning the use or non use made of the forensic facial examiner report. The Minister relevantly submits as follows.
For the purposes of resolving this issue, the Court can proceed on the assumption that, in exercising power under s.131(1), the Minister is required to disclose to an applicant for revocation the “gravamen”[63] of “adverse information that is credible, relevant and significant to the decision to be made”[64] and not known to, or relied upon, by the Minister in cancelling his or her visa under s.128.
[63] Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 [70] per Merkel J
[64] Kioa v West (1985) 159 CLR 550 at 629 per Brennan J. See also Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88 at 95 [15] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. See also Minister for Immigration v SZQHH (2012) 200 FCR 223 at 233 [27]-[28], 234 [30] per Rares and Jagot JJ, 242 [66] per Flick J; Minister for Immigration v Maman (2012) 200 FCR 30 at 39-40 [32], 42 [37] per Flick and Foster JJ
For the reasons that follow, however, the Minister submits that the Facial Report did not meet that description.
First, there was no obligation on the non-revocation delegate to provide the substance of the Facial Report to the applicant, as it contained information which “the repository ha[d] chosen not to take into account at all”[65] in making the non-revocation decision. The delegate did not base her finding[66] as to the photograph on the CNIC bearing resemblance to the other photographs of the applicant held by the Minister’s Department on any aspect of the Facial Report.
[65] Minister for Immigration v SZSSJ (2016) 259 CLR 180 at 207 [83] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ
[66] at CB 267
Secondly, the Facial Report was not adverse to the applicant. The report merely provided that it was “not possible to form an opinion as to whether [one of the photographs of the applicant held on the Minister’s Department’s file and the photograph appearing in the CNIC] [we]re the same person or not” and that “[t]he result of the facial image analysis [wa]s inconclusive”.[67] While the examiner had observed that there were similarities between the photograph appearing in the CNIC and one of the photographs of the applicant held by the Minister’s Department, that information was not adverse to the applicant as the facial examiner had ultimately concluded that the result of his analysis was inconclusive.[68]
[67] CB 189
[68] cfBLX16 v Minister for Immigration [2016] FCAFC 176 at [48] per Moshinsky, Steward and Wheelahan JJ
Thirdly, the observations made by the facial examiner were not significant (i.e. they could be dismissed from further consideration before any decision was made)[69] on account of his inconclusive opinion.
[69] VEAL at 96 [17].
Fourthly, the applicant did not suffer any practical injustice (being a necessary element of procedural unfairness).[70] As stated above, the Facial Report did not feature in the delegate’s finding at CB 267. It is said to be difficult to see what more the applicant could have said had he been furnished with the gravamen of the Facial Report other than that he did not hold a CNIC and that the photograph in it was of another person.[71]
[70] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at 14 [37] per Gleeson CJ; Minister for Immigration v WZARH (2015) 256 CLR 326 at 342 [57] per Gageler and Gordon JJ
[71] cf BLX16 at [49].
Fifthly, given that the delegate did not rely upon the Facial Report to make her finding, any denial of procedural fairness was immaterial to the decision, in the sense that the disclosure of the substance of the Facial Report or of its existence could not realistically have resulted in a different decision[72] for the reasons given in the preceding paragraph.
[72] SZMTA at 445-446 [45], [49] per Bell, Gageler and Keane JJ
Resolution
By this ground, the applicant argues that the delegate who made the non-revocation decision denied him procedural fairness. The particulars to this ground raise three separate allegations of procedural unfairness.
In my view, this ground has also been established. First, the failure to provide copies of the photographs relied upon by the cancellation delegate was procedurally unfair (which I have already found invalidated the s.129 notice). The applicant could not usefully respond to the Notice without seeing the photographs and offering a comparison of them, either on the basis of his own observations or even better, on the basis of an expert opinion.
On the other hand, I accept the Minister’s submissions that there was no failure to make enquiries which sounds in jurisdictional error. Having regard to my own observation of the photographs in issue, I would have thought it necessary or desirable to make enquiries of the Pakistani authorities whether the CNIC was a genuine document. I was, however, told by counsel in oral argument that that had been done. Putting the photographs to one side for the moment, the information that could have been gleaned concerning the manner of applying for a renewal of a CNIC and the procedural requirements surrounding that process, was not conclusive. The applicant and the holder of the CNIC had similar male line genealogies which spoke for themselves.
I agree with the applicant’s submissions concerning the failure to inform the applicant of the forensic facial examiner’s report. This, in my view, was a critical document. The Minister asserts that the report did not figure in the decision of the delegate because it was inconclusive. As will appear from my reasons below, however, the report established that it could not be concluded that the person whose photograph appeared in the CNIC was the applicant. That information would have substantially assisted the applicant in responding to the s.129 notice and making submissions to the delegate. It should have been disclosed to the applicant.
Ground 3 – was the delegate’s decision unreasonable?
Applicant’s submissions
Unreasonableness
(a) Failing to engage in an active intellectual process in relation to the evidence
(i) disregarding the opinion of the Forensic Facial Examiner in favour of her own lay opinion
The delegate did not claim to have any training or professional expertise in forensic facial examination, and the Court may infer that she had none. On the other hand, it may be assumed that a person employed by the Minister’s Department as a "Forensic Facial Examiner" would have appropriate training and expertise.
The expert found that there were similarities and dissimilarities between the photos of the applicant and the single photo of the police officer, but due to the quality of the images he was unable to form an opinion as to whether they were the same person or not.[73] Despite this, the delegate asserted[74] that the applicant's photos "strongly resembled" the single photo of the police officer.
[73] CB 189
[74] CB 267
This is said to be not a case of different minds reaching different conclusions as in SZMDS,[75] since in this case the minds were far from equal in terms of their qualifications to judge the evidence. This is said to be a case, as in Fuduche v Minister for Immigration,[76] where the lay person, without obvious justification, simply brushes aside an expert opinion in a manner that is simply not rational.
(ii) Ignoring or failing to consider evidence of the applicant's employment
[75] ee Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130]-[131] per Crennan and Bell JJ
[76] (1993) 45 FCR 515, at [21]
At the time of his original application for a protection visa in July 2012, the applicant claimed to have been employed from January 2008 to November 2011 as a designer with a named firm in Quetta.[77] In support of this claim, which contradicted the allegation that he had been working full-time as a police officer during that period, the applicant provided the delegate with a link to YouTube video.[78] The video was uploaded on 19 August 2011.
[77] CB 31
[78] CB 157
Annexed to the affidavit of Ms D'Silva affirmed on 23 July 2020 are three screen shots taken from that video. The first shows the applicant performing what appears to be some sort of design work. The second gives the address of the firm in Quetta, and the third shows the applicant again below words naming the owners of the firm.
Despite being contemporaneous evidence that contradicts the allegation that the applicant was working as a full-time police officer at that time, the delegate makes no mention of it whatsoever in her decision.
The applicant contends that the failure of the delegate to refer to the evidence, given its significance, gives rise to an inference that she did not consider it.
(b) Circular fact finding
In answer to the evidence that the applicant could not have applied for a CNIC while he was in Australia unless it had been attested by a Pakistani government officer above grade 16, which would be difficult for a Pakistani living abroad,[79] and seemingly to justify her refusal to inquire as to who the relevant officer was in the applicant's case, the revocation delegate reasoned as follows:[80]
a)the applicant was employed as a police officer;
b)therefore it was "plausible, and not impossible" that he could have identified a Pakistani government official who could have supported his application.
c)the fact that he could obtain the CNIC in that way supported the finding that he was a police officer.
[79] CB 251
[80] CB 268
The delegate's reasoning is said to be entirely circular here. Its conclusion feeds back into its premise, like the logical equivalent of a perpetual motion machine.
(c) Findings of fact without probative evidence
(i) The respective genealogies of the applicant and the police officer
Both the cancellation delegate and the revocation delegate took the view that there was a three-generational correspondence between the genealogy of the applicant and that of the police officer. While this in itself would not constitute solid evidence that they were the same person, in fact the evidence does not support the existence of any such correspondence.
The applicant's name and those of his father and grandfather are set out on the Tazkara.[81]
[81] CB 42
The supposed evidence of the police officer's genealogy, however, consists of two separate documents.[82] The first document is evidence that the father of the police officer was a named man, and the second is evidence that the father of a man with the same name was a named man. What is missing entirely is any evidence that the first named man of the first document is the same as that of the second document.
[82] CB 75-76
The applicant submits that the supposed three-generational correspondence is not only weak, it is in fact “completely unsupported by any probative evidence”.
(ii) The method by which the police officer's CNIC was obtained
The delegate's reasoning about the CNIC as referred to under Ground 3(b) is dependent on a finding that, not only was the applicant a police officer before he came to Australia in early 2012, but was still a police officer when he obtained the CNIC in April 2017.
The allegation to the Australian Federal Police, the reliability and credibility of which could not be judged, claimed that the applicant returned to Pakistan for three months each year to resume his duties as a police officer.[83] However this claim is said to be flatly contradicted by the advice from the office of the Deputy Inspector General of Police in Quetta,[84] obtained by the Minister’s Department and dated 28/09/2018, that the police officer was dismissed from service on 24/04/2012.
[83] CB 73
[84] CB 78
The delegate's finding about how the CNIC was obtained is not only unsupported by any probative evidence, it is contradicted by the solid evidence before her.
Minister’s submissions
By this ground, the applicant asserts that the delegate acted unreasonably in various ways. The Minister submits that each of his assertions is misconceived.
(a) Failing to engage in an active intellectual process in relation to the evidence
(i) disregarding the opinion of the Forensic Facial Examiner in favour of her own lay opinion
The Minister’s short response to this contention is that the Facial Report was not determinative of the questions whether the CNIC was held by, or the photograph depicted, the applicant. The Minister was under no duty to accept the findings and conclusions in the report, much less one that did not offer a conclusive opinion as to whether or not the photographs depicted the same person.[85] Nor, for the same reasons, was it unreasonable for the delegate to decline to embrace the inconclusive opinion expressed in the Facial Report.
[85] Subramaniam v Minister for Immigration [2001] FCA 891 at [28] per Ryan J; SZHHF v Minister for Immigration [2008] FCA 1818 at [10] per Middleton J
It is said not to matter that the delegate was not trained in forensic facial examination. As Burchett J observed in Fuduche at 522, “it may sometimes be open to a lay decision-maker to rely on ordinary human experience” in order to answer the question which the expert cannot answer. Fuduche otherwise is said to be inapt, as, unlike the facial examiner, the expert in that case gave uncontradicted evidence in a field of specialisation requiring medical skill. In the present case, the delegate relied upon her own observations of the photographs (which inquiry was “within [her] ordinary fact-finding skills”).[86] Confronted with an inconclusive opinion formed by the facial examiner, it was not unreasonable for the delegate to form her own view as to the similarities between the photographs.
[86] Leonid Zakinov v John Gibson [1996] FCA 696 (North J)
The delegate did not disregard the Facial Report (in the sense of not even turning her mind to it to form a view about what weight, if any, to place upon it). In Part C of her reasons for decision, the delegate made reference to her referral of the photographs to the facial examiner and the findings and conclusions in the Facial Report.[87] She found that, despite the inconclusive finding in the Facial Report, the photograph of the applicant on the CNIC bore “strong resemblance” to the other photographs. Notwithstanding that the delegate who had cancelled the applicant’s visa had reached the same conclusion,[88] it was one in respect of which reasonable minds could differ. Indeed, even the facial examiner had opined that there were similarities between the photographs.
(a) Failing to engage in an active intellectual process in relation to the evidence
[87] CB 267
[88] CB 121
(ii) Ignoring or failing to consider evidence of the applicant’s employment
The Minister submits that there are three responses to this contention.
First, the applicant is unable to prove that the delegate overlooked it. On two occasions, the delegate referred to the representative’s correspondence dated 11 December 2018.[89] Earlier,[90] the delegate referred to the applicant’s claim that he had worked as a designer from 2008 to 2011. The fact that the YouTube link was not referred to by the delegate does not itself establish that it was overlooked.[91] That is especially so where, as here, the delegate was not under a duty to give reasons. As the High Court held in Plaintiff M64/2015 v Minister for Immigration[92] at 185 [25] (citations omitted, emphasis in original):
It must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate.
[89] CB 263, 264
[90] at CB 258
[91] Minister for Immigration v SZGUR (2011) 241 CLR 594 at 606 [31] per French CJ and Kiefel J; Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at 604 [46] per French, Sackville and Hely JJ
[92] (2015) 258 CLR 173
Secondly, the YouTube link was not information of the kind that the delegate had to consider. “Whether or not the [Minister] is obliged to consider a document or documents depends upon the circumstances of the case and the nature of the document.”[93] The circumstances of the case were such that the Minister’s Department had received information that the applicant was employed as a police officer from 2007 to 2012. The nature of the document was such that it shed no light on when the YouTube video was recorded (as opposed to when it was uploaded) and did not establish that the applicant had worked as a designer in the same period.
[93] ATP15 v Minister for Immigration (2016) 241 FCR 92 at 102 [29] per Tracey and Griffiths JJ. See also ARG15 v Minister for Immigration (2016) 250 FCR 109 at 126 [62] per Griffiths, Perry and Bromwich JJ
Thirdly, even if the document had been overlooked, the result is not jurisdictional error.[94] For the same reasons given in the preceding paragraph, the information was not cogent and it did not hold an important place in the assessment of the applicant’s claims.[95]
[94] Minister for Immigration v SZRKT (2013) 212 FCR 99 at 132 [122] per Robertson J
[95] SZRKT at 131 [112]
(b) Circular fact-finding
The Minister submits that the submissions made in support of this contention rise no higher than mere assertion. They also are said to misstate the delegate’s findings. The delegate made no finding that “[t]he fact that he could obtain the CNIC in that way supported the finding that he was a police officer”. The finding that the applicant was a police officer, made at CB 269,[96] was based on the information which it had received at CB 78. That information, the delegate found at CB 269, confirmed that a person with the applicant’s name and CNIC number was employed by the District Police Quetta.
(c) Findings of fact without probative evidence
[96] see also CB 262
(i) The respective genealogies of the applicant and the police officer
The Minister submits that the applicant’s complaint is an appeal to the merits.
A no evidence challenge, which is the pith of this ground, will fail unless it can be established that there was not even a skerrick of evidence (or a basis “slight in the extreme”)[97] to support the factual finding.
[97] VAS v Minister for Immigration [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ
The factual finding under challenge is that the person depicted in the CNIC was the applicant. That finding was supported by evidence and material other than the fact that there was a correlation between, on the one hand, the names of the applicant’s father and grandfather recorded on his taskera and, on the other, the name of his father appearing in the CNIC[98] and the information received from the authorities in Pakistan that confirmed that the applicant’s father was the son of a person with the same name as his grandfather.[99] The other evidence included the CNIC itself and the photographs of the applicant.
[98] CB 75
[99] CB 261, 267
The delegate, not being bound by the rules of evidence, was entitled to place whatever weight upon the information in relation to the names of the applicant’s father and grandfather as she saw fit. It was not as though the conclusion, recorded at CB 269, that the applicant was the same person as the person referred to in the CNIC was based solely on the names of his relatives. The delegate said that she had regard to “all of the information before [her]”.
In any event, the Minister contends that the finding under challenge was not one in respect of a jurisdictional fact, and is not, therefore, one in relation to which a “no evidence” challenge can be maintained.[100]
[100] See, for example, Plaintiff S156/2013 v Minister for Immigration (2014) 254 CLR 28 at 48 [46] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ (and cases there cited)
(c) Findings of fact without probative evidence
(ii) The method by which the police officer’s CNIC was obtained
The Minister submits that this ground proceeds from a false premise. The delegate’s findings at CB 268 were not “dependent on a finding that, not only was the Applicant a police officer before he came to Australia in early 2012, but was still a police officer when he obtained the CNIC in April 2017” (emphasis in original). What the delegate relevantly found at CB 268 was that “it [wa]s plausible, and not impossible, especially given his employment with the District Police Quetta … he could have identified a Pakistani government official who could have supported his application.” That is to say, given that the applicant had worked as a police officer for five years,[101] it is plausible that he could have exploited that experience to procure the support of a government official in relation to his application to renew or modify his CNIC.
[101] CB 262, 269
Resolution
I accept the applicant’s submission that the delegate acted unreasonably in substituting her own lay opinion for that of the forensic facial examiner.
The photographs in issue are reproduced at CB 188. They are numbered P1, Q1 and Q2. Photographs P1 and Q1 are photographs of the same person, namely the applicant. Photograph Q1 is the image obtained from the CNIC, which both the cancellation delegate and the delegate found to be strikingly similar to photographs of the applicant. It is a mystery to me how that view could have been arrived at. To my untrained eye, the image in photograph Q2 is of a different person to the images P1 and Q1. The shape of the face, the width of the nose and the shape of the mouth are all completely different in photograph Q1 to the other two photographs. Critically, in my view, the distance between the eyes of the person in photograph Q2 is substantially greater than the distance between the eyes in the other two photographs, which are in that regard identical. If I had been asked for my opinion, I would have said that the person in photograph Q2 could only be the applicant if the image had in some way been manipulated to substantially broaden the face, which would then raise more questions concerning whether the CNIC is a bogus document.
In these circumstances, it is hardly surprising that the delegate called for a report from a forensic facial examiner.
The conclusion of the forensic facial examiner at CB 189 is that it was not possible to form an opinion whether the person in photograph Q2 was the same person as the person in photographs P1 and Q1.
At CB 188 the forensic facial examiner noted similarities between the images in P1 and Q2, namely the overall shape of the ear lobes, the angle of the “helix” and a lip fissure but also noted the following dissimilarities:
a)the angle of the left eye;
b)nostril size;
c)the length of the “filtrum”, ie the vertical indentation of the area of the upper lip;
d)the shape of the face; and
e)the shape of the jawline.
It is to me striking that the facial forensic examiner did not comment on the marked difference of the distance between the eyes of the person depicted in Q2 as compared to the applicant depicted in P1 and Q1. He did comment on the distance between the eyes relative to the nose and mouth of the two images of the applicant in P1 and Q1. That distance is identical.
The Minister contends that the delegate was entitled to put the forensic facial examiner’s report to one side and not rely upon it because it was inconclusive and because she did not rely upon it, it did not need to be disclosed to the applicant. I disagree. While it is true that the forensic facial examiner stated that the result of the facial image analysis is inconclusive, he also stated that “it is not possible to form an opinion as to whether they [that is, the image of the person in photograph Q2 and the images of the applicant in photograph P1 and Q1] are the same person or not”. If it is not possible for an expert to form an opinion as to whether two pictures are of the same person, then it is not possible for a lay person to substitute her own opinion. It was unreasonable for the delegate to do so.
Ground 4 – was the delegate’s decision affected by apprehended bias?
Applicant’s contentions
The test of apprehended bias in administrative proceedings is whether a fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided,[102] or that there is no evidence that the witness could give which would could change the decision-maker's view.[103]
[102] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[28]
[103] Ibid., at [31]
The applicant submits that, when considered as a whole, the delegate's reasoning gives rise to such inferences.
Specifically:
a)the delegate relied on the allegations that the applicant was still a police officer in 2017 in finding that he could have been able to renew the CNIC online[104] despite the "bio-data" evidence of the Quetta Police, dated September 2018, that the police officer had been dismissed in April 2014;[105]
b)elsewhere in her reasons, the delegate[106] preferred the bio-data document to another document from the same source[107] which identified the applicant under the name and date of birth given when he entered Australia.
[104] CB 268
[105] CB 78
[106] CB 269
[107] CB 164
The following aspects of the delegate's reasoning referred to above under other grounds also are said to give rise to an apprehension of bias:
a)ignoring evidence that corroborated his claim, made on arrival in Australia in 2012, that he had been working as a designer in a private business rather than a police officer, and disregarding other evidence that his presence in Pakistan was as a temporary foreign visitor;
b)disregarding the evidence of the Forensic Facial Examiner;
c)making findings about the renewal of the CNIC based on circular reasoning and a fanciful standard of what was "plausible, and not impossible" rather than what was credible.
Resolution
I prefer and adopt the Minister’s submissions concerning this ground.
By this ground, the applicant contends that “[t]he delegate’s decision was affected by apprehended bias, in that a fair-minded lay person might reasonably apprehend that she did not bring an impartial mind the [sic] request for revocation.”
This ground of review makes an unparticularised allegation of bias against the delegate. Allegations of bias need to be distinctly made and clearly proved.[108] The applicant’s ground of review does not do the former and his evidence and submissions do not do the latter.
[108] Minister for Immigration v Jia (2001) 205 CLR 507 at 531 [69] per Gleeson CJ and Gummow J, 546 [127] per Kirby J
Even if it were accepted that the delegate made wrong factual findings or ignored or disregarded evidence, that does not evince bias. Contrary to the applicant’s approach, reasons given by a decision-maker cannot normally be used to confirm, enhance or diminish the existence of an apprehension of bias; the focus should be on the antecedent process and circumstances.[109]
[109] Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 at 446-447 [67]-[68] per Gummow ACJ, Hayne, Crennan and Bell JJ; CNY17 v Minister for Immigration (2019) 94 ALJR 140 at [68]-[69] per Nettle and Gordon JJ. Nothing said by Kiefel CJ and Gageler J at 147 [20] or by Edelman J at 165 [135] suggests otherwise
In any event, for the reasons given above, the delegate did not find that the applicant was still a police officer in 2017, ignore evidence going to the applicant’s claim that he worked as a designer in Pakistan (which, ultimately, was impliedly rejected), disregard the Facial Report or make circular findings.
Conclusion
The applicant has established that the decision of the delegate is affected by jurisdictional error. The applicant should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 7 September 2020
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