Bze21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 723
Federal Circuit and Family Court of Australia
(DIVISION 2)
BZE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 723
File number(s): BRG 276 of 2021 Judgment of: JUDGE VASTA Date of judgment: 1 September 2022 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth): s 36(3), s 91W, s 91WA Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submission/s: 29 August 2022 Date of hearing: 29 August 2022 Place: Brisbane Solicitor for the Applicant: NB Lawyers Counsel for the First Respondent: Mr Byrnes Solicitor for the Respondents: Sparke Helmore ORDERS
BRG 276 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZE21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
1 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Application filed on 1 July 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,853.00
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
Introduction
On 2 June 2021, the Administrative Appeals Tribunal (“the AAT”) affirmed the decision not to grant the Applicant, BZE21, a protection Visa. On 1 July 2021, the Applicant asked this Court to review that decision.
This is a factually complex matter, however the true complaint made by the Applicant can be distilled to one particular issue.
Background
The Applicant claims to be a person known as HI and he claims that he is a citizen of Somalia. He applied for a protection Visa on 17 February 2014. He provided copies of his Somali birth certificate as well as a laminated card purporting to be an international drivers’ licence issued by the Somali ministry of transport.
The Applicant claimed that he left Somalia on 10 December 2013 and travelled by plane to Istanbul on a Somali passport. The Applicant claimed that he found a people smuggler in Istanbul who accompanied him by plane to Brisbane. The Applicant claimed that he arrived in Australia on 31 December 2013 as an impostor using a passport in the name of MN but he couldn’t recall the country that issued that passport.
Departmental investigations revealed that the Applicant in fact arrived in Australia on 3 December 2013 and was immigration cleared as the holder of a visitor visa. That visitor Visa was issued against a Kenyan passport in the name of YS. The Department further discovered that YS had previously visited Australia on a tourist Visa from 28 August 2012 to 17 September 2012. YS holds a South African permanent residence permit.
First interview with the delegate - 3 February 2015
During his first interview with the delegate, the Applicant claimed that he was a citizen of Somalia only and did not have permanent residency in another country. When it was put to the Applicant that the department had discovered his true method of arrival, as well as his previous visit to Australia and his South African permanent residency, the Applicant asked for a break. His agent then withdrew and the Applicant then conceded to the Department that he had arrived in Australia on a Kenyan passport in another identity.
He said that aspects of his protection claims regarding Somali were fabricated. He said that he had left Somalia in 2006 and that he had visited Australia previously. However, he maintained that his real identity was HI and that the Kenyan passport was issued to him fraudulently. He gave a tale as to how he was able to pay for a forger in Mogadishu to make him that passport. He said that he used that passport to migrate to South Africa and he acquired permanent residency there.
He said that his life was in danger in South Africa so he found another forger who assisted him to obtain visas to Australia. He said that he travelled to Australia with an intention of settling here but did not have any help. He was scared he would lose his return ticket and so he left. He said that since he had come to Australia, he had thrown away his Kenyan passport because he was scared of being removed to South Africa where he fears for his life.
Second interview with the delegate – 18 February 2015
At his second interview with the delegate, the Applicant was again asked about how he fraudulently acquired a Kenyan passport. He was then spoken to about a second Kenyan passport. The Applicant claimed that he obtained that from a different forger when he was in South Africa. He was asked how a digital photo of him came to be in the second passport and he claimed that he didn’t know but that the second broker had taken his photograph.
The Applicant was told that a preliminary analysis of his Somali birth certificate had indicated that it may be counterfeit as it was produced on an inkjet printer. The Applicant was also told that it appeared unlikely that the Kenyan passport used to travel to Australia had been photo substituted because it contained a digital photograph which was security laminated over it. He was told that this passport would be given to the Kenyan authorities.
Results of investigations
On 27 February 2015, the Department received a response from Kenyan authorities confirming that the Kenyan passport was genuinely issued to YS on 16 October 2007 and that the person who appears on the document copy provided to the Kenyan authorities matches the Kenyan records.
On 10 April 2015, a departmental forensic document examiner reported that the Somali birth certificate provided by the Applicant was a counterfeit document. That birth certificate had been compared against departmental reference systems which contain information about this model of birth certificate. It was also observed that there was no manufacture, issuing or security features present in the birth certificate and that certificate was damaged. The certificate had been printed using an inkjet process which is an uncommon and expensive method to create a mass produced government document.
The departmental forensic document examiner also examined the international drivers licence provided by the Applicant and returned an inconclusive result. The examiner noted that there were no manufacture, issuing or security features present in the document. It was also printed using an inkjet process which is an uncommon and expensive method to create mass produced government documents.
The Department seized the Applicant’s birth certificate and international drivers licence as they were suspected of being bogus documents.
Explanations of the applicant
The Applicant was given an opportunity to comment upon these issues. The Applicant claimed that the Kenyan passport he used to travel to Australia was not a legitimate passport and that he is a citizen of Somalia only. He also wrote that his father obtained the first Kenyan passport for him in Mogadishu and that his father gave the forger the name “Y” and the forger made up the rest of the name “S”.
The Applicant wrote that this forger made him a birth certificate, identification card and a death certificate for his mother which were used to obtain Kenyan identification. The Applicant submitted copies of other documents in support of his claimed Somali identity.
The delegate wrote to the Applicant and explained that he may form a reasonable suspicion regarding the Somali birth certificate and drivers licence and explained that the provisions of s 91WA of the Migration Act 1958 (Cth) (“the Act”) would prevent his ability to obtain a Visa unless there were a reasonable satisfaction.
The Applicant replied that he was aware the documents issued by Somali authorities are not considered verifiable or legitimate by other governments. The Applicant said that he had done everything in his power to obtain proof of his identity and nationality. He said that his mother obtained his birth certificate for him in 2010 and he had no reason to believe it was a bogus document. He said that he flew to Melbourne to meet the Somali Consul General on 12 September 2017 and he claimed that the Consul General was satisfied that he is a Somali and so issued him with a birth certificate as well as the previously provided certificate of citizenship.
The Applicant claimed that he obtained his intermediate school certificate in 2000 and he had no reason to believe that this was a bogus document. He claimed that when he obtained his international drivers licence in 2005, there was no functioning government so he obtained it “the same way that everyone obtains this document in Somalia at that time”. The Applicant claimed that he tried to obtain further identity documents to assist the Department and he referred to the documents that he had provided previously.
The delegate refused to grant the applicant a protection visa. The Applicant asked the Tribunal to reconsider the matter.
The claims of the applicant before the Tribunal
The Tribunal noted the history of the matter and then went on to consider the claims that the Applicant was making about why he could not return to Somalia. The Tribunal also considered the claims that the Applicant made about South Africa.
The Tribunal very thoroughly considered these claims but given the nature of this application, there is no need for me to further detail these claims. I do note that the Tribunal told the Applicant (and his representative) that they would consider the issues pursuant to s 91WA and also the issues regarding s 36(3). Those latter issues involve consideration of whether the Applicant had a right to live in a third (or even fourth) country - being Kenya or South Africa.
The Tribunal told the Applicant and the representative that if neither s 91WA nor s 36(3) were found by the Tribunal to apply to the case of the Applicant, the Tribunal would reconvene the hearing to consider the substantive claims of the Applicant.
What the Applicant said to the Tribunal about the documents
The Applicant told the Tribunal that he did not have knowledge of the government and therefore couldn’t really know whether the documents were genuine. He told the Tribunal that he believes that the birth certificate was genuine. He said that he had asked his mother to obtain it for him, which she did in 2010.
He was asked about his international drivers licence. He said that he presented this document because the Department had asked him whether he had any other identification with a photograph on it. He said he realised he had a drivers licence with a photograph on it and he asked his family to send it to him which they did, he thought, sometime in 2014.
The Tribunal asked him why he didn’t have his driver’s licence with him given that it was an international driver’s licence whilst he had his birth certificate with him. He said that he didn’t need his Somali driver’s licence as he had a Kenyan driver’s licence.
The Applicant continued to claim that the Kenyan passport that he had was a fake passport. He said that he obtained that passport in 2007 because he decided to go to South Africa and he needed a passport to do that. He said that he asked an “agent” to get a passport and that the agent used the Applicant’s nickname of “Y” and then made up the rest of the name.
The Applicant told the Tribunal that he became a permanent resident in South Africa in 2009. He said he decided to move to Australia in 2013. The Applicant said that he was married in Somalia and had two children there. He said that his wife and two children moved to Kenya with him and that they had two more children in South Africa. He said that after he obtained permanent residency in South Africa, he applied for his wife to come to South Africa. The Applicant said that they divorced in 2016.
The Applicant had given the Tribunal another marriage certificate which was dated in 2020. The Applicant confirmed that he had remarried. However this marriage certificate stated that the Applicant had “never validly married”. The Tribunal suggested that this certificate could not be accurate given that the Applicant had said that he had been married and divorced. The Applicant replied that the celebrant told him that a marriage and divorce overseas were not relevant and that his first marriage was a Somali and traditional Muslim marriage and divorce.
Decision of the Tribunal
The Tribunal noted that the tale of the Applicant was that he did give the Department bogus documents; however, the document that he claims was bogus has been found to be genuine.
On the state of the evidence before the Tribunal, the Tribunal concluded that the Somali birth certificate and Somali drivers licence were both bogus documents. The Tribunal concluded that the Kenyan passport was a genuine document and noted the inconsistent explanations that the Applicant had made regarding how it was that he obtained the Kenyan passport.
The Applicant had submitted documents which were a series of statements and certificates by elders and consulate officials. Those documents attest to the Applicant being born in Somalia but they do not comment on the validity of the identity documents provided by him to the Department nor do they attest to the citizenship of the Applicant.
I note that, during the hearing before me, the legal representative of the Applicant said that her client had just given her a document from the Somali Consulate which seemed to confirm that the Applicant is a Somali. The legal representative said that she could not see this document in the “green book” and that the document needed to have been considered by the Tribunal. The legal representative did not give a copy of the document to the Court nor to the representative of the Minister.
I asked whether the legal representative was making an application for an adjournment. The representative sought a 10 minute adjournment. Upon resumption, the legal representative said that they would not be making an application for adjournment. I suspect that is because these documents were before the Tribunal and were matters to which the Tribunal considered in paragraph 218 of their reasons.
Having come to the conclusion that these documents were bogus documents, the Tribunal asked itself whether there was a reasonable explanation for providing the bogus documents. The Tribunal noted that the Applicant provided a number of explanations as to which identity he used when, and for what purposes. The Applicant maintained that the name HI is his true identity.
The Tribunal also noted that the Applicant’s claim, that this is his true identity, had been consistent. The Tribunal noted that the Applicant had called a witness who had spoken to the Applicant’s Somalian identity. The Tribunal noted a witness statement from a second witness attesting to the Applicant’s Somali ethnicity.
However, the Tribunal noted that the documents provided as proof of this Somali identity were bogus documents. The Applicant’s explanation is simply that he believed that these documents were genuine.
The Tribunal noted that there was a lack of credibility about many of the claims that were made by the Applicant and that the Applicant had himself admitted to the delegate that his protection claims made in his protection Visa application were fabricated.
In the end the Tribunal was satisfied that the Applicant had no reasonable explanation as to why he provided bogus documents.
Having come to this conclusion, the Tribunal was satisfied that the grant of the protection visa was precluded by s 91WA of the Act. For this reason, the Tribunal affirmed the decision not to grant the Applicant a protection Visa.
The present application
While there were a number of grounds to this application, many of them had no materiality. This was conceded by the legal representative of the Applicant. There were only three issues that were truly alive in the proceedings before me. They were:-
·Was it open for the Tribunal to conclude that the Somali birth certificate and the Somali drivers licence were bogus documents?
·Was it procedurally fair for the Tribunal to come to that conclusion?
·Was it open for the Tribunal to conclude that there was no reasonable explanation for providing the bogus documents?
Given the ultimate decision of the Tribunal, unless these questions were answered in favour of the Applicant, none of the other complaints made by the Applicant could have altered the decision made by the Tribunal. Even though these matters were argued before me, it was eventually conceded that there was no utility in the Court considering them further.
While it was not specifically conceded by the Applicant, there were no real arguments that it was not open for the Tribunal to conclude that the documents were bogus. It was also not argued that it was not open for the Tribunal to conclude that there was no reasonable explanation for providing the bogus documents.
I regard these conclusions to be well and truly open on the evidence and that the course taken by the Applicant, during this hearing, was a proper one.
Procedural fairness
This aspect is based upon a consideration of s 91W in its former iteration but also in its current iteration.
The request for documents
Whilst it is that the Applicant provided copies of his birth certificate and Somali drivers licence when he first made his application for protection, it was not until a formal request was made that the original documents were provided to the Department.
The request of the Department is contained in a letter which is reproduced at CB 175 - 177 where, specifically at CB 176, the Department asked the Applicant to “please provide originals of any documentary evidence of your identity, nationality or citizenship… This may include but is not limited to… your birth certificate and your driver’s licence” (my underlining). This request was made on 5 February 2015. It would seem that this request was complied with very soon afterwards.
The Legislation
The letter specifically notes that the request is made pursuant to s 91W of the Act. At that time the section read as follows:-
(1)The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant's identity, nationality or citizenship.
(2) If:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request; and
(c) the applicant does not have a reasonable explanation for refusing or failing to comply with the request; and
(d) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant's identity, nationality or citizenship in the event that the applicant refuses or fails to comply with the request;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant's identity, nationality or citizenship.
On 18 April 2015, s 91W was amended and s 91WA was proclaimed. These sections now read as follows:-
Section 91W Evidence of identity and bogus document
(1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant's identity, nationality or citizenship.
(2) The Minister must refuse to grant the protection visa to the applicant if:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and
(c) the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and
(d) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:
(i) refuses or fails to comply with the request; or
(ii) produces a bogus document in response to the request.
(3) Subsection (2) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and
(b) either:
(i) produces documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to produce such evidence.
(4) For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.
Section 91WA 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.
It should be noted that when s 91W was amended and s 91WA came into force, the legislature provided that these sections applied to all applications for protection visas that had been made prior to the enactment of these provisions but had yet to be finalised.
Contentions of the Applicant
The Applicant contends that under the regime that was in place when the request was made, the request had to be accompanied by the warning is contained in s 91W(2)(d). This was clear from the legislation itself. But, it is argued, the Minister could only draw an unfavourable inference about that material if all of the pre-requisites in subsection (2) had been complied with.
The Applicant argues that if the material had been given to the Department but subsection (2) (d) had not been complied with, then the Minister was not allowed to draw an unfavourable inference about the material.
The Applicant argues that the amended s 91W still carries with it the necessity for a warning to be given when the request was made.
The Applicant acknowledges that there were warnings given after the documents have been forensically examined but the legislation required that the warnings accompanied the request.
Because the originals of the documents had been provided to the Department without the necessary warning, the Department was precluded from making adverse inferences about the document.
The Applicant concedes that, even if the warning had been given, the Applicant would still have provided the documents but submits that such is not a relevant consideration. The submission is that a warning was required and was not given. The Applicant submits that there must be consequences for a blatant failure to comply with the legislation.
The Applicant submits that for the Department to have relied upon documents provided to it that were given without statutory compliance, would be procedurally unfair. For the Tribunal then to look at these documents, which were procured by procedural unfairness, constitutes a jurisdictional error.
Discussion
I have given this matter a great deal of thought. However, the Tribunal proceeded on the provisions of s 91WA and there is no doubt that this was proper. The Tribunal had to look at whether the Applicant provided a bogus document as evidence of the Applicant’s identity, nationality or citizenship. There is no caveat to this aspect in the section.
Notwithstanding that this section follows directly from s 91W, it is not reliant upon that section. When s 91WA talks of the “provision” of bogus documents, such provision is not “provision” that is reliant upon, or referable to, s 91W. As far as s 91WA is concerned, how the provision of documents comes about is not relevant; it is the actual provision that is the focus of the section.
For that reason, it was proper for the Tribunal to simply enquire as to whether the Applicant had provided the birth certificate and the drivers licence. It was irrelevant as to why such documents were provided and certainly it did not matter whether the provision was as part of the original application or in answer to a request pursuant to s 91W.
Having come to that conclusion, it cannot be said that the reliance upon these documents by the Tribunal was procedurally unfair. For that reason, there has been no jurisdictional error.
Conclusion
I find that it was open for the Tribunal to find that the birth certificate and drivers licence were bogus documents. I find that the reliance upon those documents was not procedurally unfair to the Applicant. I find that it was open for the Tribunal to find that there was no reasonable explanation as to why the Applicant had provided those bogus documents.
I conclude that there was no jurisdictional error in the Tribunal finding that s 91WA precluded it from granting the Applicant a protection Visa.
As previously noted, none of the other grounds (or complaints about how the Tribunal dealt with the matter) could illustrate a jurisdictional error, because, even if an error were illustrated, it could not be material (and therefore jurisdictional) given the reasoning of the Tribunal in relation to s 91WA.
Order
I order that the name of the Minister be amended and that application be dismissed with costs in the scale amount of $7.853.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 1 September 2022
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