Cbi17 v Minister for Immigration

[2020] FCCA 554

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBI17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 554

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision to cancel Protection visa on the ground that applicant had provided incorrect information in connection with the application for a protection visa – whether Tribunal considered applicant’s evidence and circumstances – whether Tribunal biased – application dismissed.

Legislation:

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees
Migration Act 1958 (Cth), ss.101(b), 107, 109, 476

Applicant: CBI17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1468 of 2017

Judgment of: Judge Manousaridis

Hearing date: 11 March 2020

Date of Last Submission: 11 March 2020

Delivered at: Sydney

Delivered on: 13 March 2020

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Ms D Watson of Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1468 of 2017

CBI17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to cancel under s.109(1) of the Act a Protection visa (Class XA) Subclass 866 (Protection visa) that was granted to the applicant on 14 July 2010. The delegate cancelled the Protection visa because the applicant had given incorrect information.

Background

1. The applicant is a citizen of Iran. He first arrived in Australia as an illegal maritime arrival (IMA) in February 2000, but departed Australia on 21 November 2000 after his claims for a protection visa were refused.[1]

   [1] CB164

2. The applicant again arrived in Australia on 17 November 2009, this time as an unauthorised maritime arrival. He requested a refugee status assessment (RSA). On 7 January 2010 a delegate of the Minister found the applicant did not meet the definition of “refugee” contained in Art.1A of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.[2] On 6 April 2010 an independent merits review panel found the applicant did meet the definition of “refugee”.[3]

   [2] CB76-83

   [3] CB88-96

3. On the basis of that recommendation, the applicant completed and lodged an application for a Protection visa.[4] The application contained two parts, form 866B, and form 866C. The applicant responded to a number of questions in those forms as follows (Relevant Responses):[5]

   [4] CB97-126

   [5] CB215, [13]

   a)In answer to question 1 of form 866B, which asked for details of all persons included in the application, the applicant recorded a name that was different from the name he used when he arrived in Australia in 2000.

   b)In answer to question 2 of form 866B, which asked whether any person named in question 1 had previously applied for refugee status, or for a protection visa, the applicant responded “no”.

   c)In answer to question 5 of form 866B, which asked whether any person in question 1 had ever been in immigration detention or in any other form of custody, the applicant responded “Christmas Island, and VIDC”.

   d)In answer to question 6 of form 866B, which asked whether any person in question 1 ever left any country voluntarily to avoid being removed or deported, the applicant answered “No”.

   e)In answer to question 1 of form 866C, which asked “what is your full name”, the applicant recorded a name that was different from the name he used when he arrived in Australia in 2000.

   f)In answer to question 3 of form 866C, which asked what were other ways “to use or write your name”, and also directed the person completing the form to “write in your own script or characters (if applicable)”, the applicant wrote nothing.

   g)In answer to question 4 of form 866C, which asked “[w]hat other names have you been known by”, the applicant did not respond.

   h)In answer to question 33 of form 866C, which asked “[d]id you ever travel outside your home country or country of residence before your current journey to Australia”, the applicant, on a separate attachment, stated he had, noting the while in transit he travelled to the United Arab Emirates, and he was in Indonesia on a one month visitor visa.

   i)In answer to question 35 of form 866C, which requested “details of all addresses in Australia where you lived for any periods”, the applicant recorded an address at which he lived from November 2009 to April 2010, and another address at which he lived after April 2010.

4. As I have already noted, the applicant was granted a Protection visa on 14 July 2010.

5. On 22 October 2010 the applicant submitted to what is now known as the Department of Home Affairs (Department) an application to change the applicant’s date of birth, in support of which the applicant provided what purported to be an Iranian taxi driver licence. The Department’s forensic examiner found the licence was fraudulent. For that reason the Department refused the applicant’s request.

6. On 5 November 2014, in response to the Department’s request that the applicant submit overseas identity documents to assist with its processing of the applicant’s application for Australian citizenship, the applicant submitted what purported to be an original birth certificate, and an Iranian photo identification. A Department forensic examiner assessed the applicant’s birth certificate and Iranian identification document as genuine. On 11 September 2015, however, in the course of the Department assessing the applicant’s application for citizenship, it became apparent that the applicant’s birth certificate recorded that a name had been removed from it. Further Departmental investigations revealed that a person using the name that had been removed arrived in Australia in 2000 as an IMA, and that that person applied for, but was refused, a protection visa.

7. On 10 November 2016 a delegate issued a “Notification of Intention to Consider Cancellation under Section 109 of the Migration Act 1958” (Notice).[6] The delegate issued the notice under s.107 of the Act. The Notice identified the Relevant Responses and stated that the delegate considered the Relevant Responses constituted non-compliance with s.101(b) of the Act. That paragraph provides that a “non-citizen must fill or complete his or her application form in such a way that . . . no incorrect answers are given or provided”. The Notice also referred to the applicant having submitted a fraudulent taxi driver licence.

   [6] CB132

8. The Notice set out the matters on which the delegate considered the Relevant Responses did not comply with s.101(b) of the Act. After stating that if the applicant did not comply with s.101(b) of the Act, his Protection visa may be cancelled, the Notice invited the applicant to comment on the possible non-compliance and to give a written response why his Protection visa should not be cancelled, and the applicant should provide his response within 14 days.

9. The applicant did not provide a response to the Notice. On 15 December 2016 the delegate issued to the applicant a document titled “Notification of Cancellation Under Section 109 of the Migration Act 1958” by which the delegate cancelled the applicant’s Protection visa.

Before the Tribunal

1. The applicant appeared before the Tribunal to give evidence and present arguments. Before the hearing, the applicant’s representative provided a written submission to the Tribunal.[7] The representative submitted the applicant was not in a stable condition when he completed his forms of application because he was “lost on the ocean for six days”, and then transferred to an Australian ship; the applicant was scared after the traumatic experience in Iran and his being “on the sea”; and there “was no deliberate incorrect information regarding his family name”. The representative relied on two matters for the third of these submissions; first, the applicant’s family name was changed legally because his previous family name meant a particular fruit, and that was a reason for people humiliating, disrespecting, and downgrading the applicant; and, second, the second word in the surname of Iranian people is not a family name.

   [7] CB192-206

Tribunal’s reasons

1. The Tribunal found the applicant did not comply with s.101(b) of the Act because the applicant was known by a name other than the name he recorded in the forms of application for a Protection visa; the applicant had already been to Australia; he had travelled to Australia before his last journey; and the applicant had previously applied for a protection visa which was refused.

2. The Tribunal next considered whether the Protection visa should be cancelled. The Tribunal noted that the power under s.109 of the Act to cancel a visa is discretionary, and the power is to be exercised having regard to any response the visa holder made to the notice issued under s.107 of the Act, and to any prescribed circumstances. The Tribunal also noted that circumstances have been prescribed by reg.2.41 of the Migration Regulations 1994 (Cth) (Regulations). That regulation provides:

   For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

   (a) the correct information;

   (b)the content of the genuine document (if any);

   (c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

   (d) the circumstances in which the non‑compliance occurred;

   (e)the present circumstances of the visa holder;

   (f)  the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

   (g)  any other instances of non‑compliance by the visa holder known to the Minister;

   (h)  the time that has elapsed since the non‑compliance;

   (j)  any breaches of the law since the non‑compliance and the seriousness of those breaches;

   (k)  any contribution made by the holder to the community.

3. The Tribunal made the following findings in relation to each of these circumstances:

   a)The correct information. The Tribunal found the applicant’s explanations for the incorrect information to be unconvincing and unpersuasive.[8] The Tribunal was satisfied the applicant deliberately and intentionally provided incorrect information; it found it difficult to accept that the applicant did not disclose relevant information other than to achieve a positive migration outcome. The Tribunal considered the applicant’s conduct to be serious as undermining the integrity of the migration program. The Tribunal, therefore, gave significant weight to the applicant’s having provided incorrect information when he lodged his application for a Protection visa.

   [8] CB219, [25]

   b)The contents of the genuine document, if any. The Tribunal was prepared to give the applicant the benefit of the doubt and accept as plausible that the taxi driver licence the applicant submitted had not been fraudulently altered. The Tribunal was not satisfied the birth certificate was not genuine, even though a name had been removed from it. The Tribunal found, however, that this did not negate the applicant’s having intentionally misled Australian authorities about his former identity, and that he had previously been in Australia. The Tribunal, therefore, was not satisfied that its conclusions should mean the Protection visa should not be cancelled.

   c)Whether decision to grant visa based on incorrect information or bogus document. The Tribunal found that the applicant’s deliberate withholding of what it found to be significant information resulted in a favourable outcome for the applicant which would otherwise not have occurred. The Tribunal considered it was important to note that the applicant had previously been found not to have been owed protection. The Tribunal was satisfied that the decision to grant the applicant a Protection visa was based, wholly or partly, on the incorrect information the applicant had provided; and the Tribunal gave significant weight to these circumstances in deciding the Protection visa should be cancelled.

   d)Circumstances in which non-compliance occurred. The Tribunal noted that although the applicant did not specifically concede he provided incorrect information, he told the Tribunal he was known by another name, and that he had previously been to Australia; and the applicant did not acknowledge any wrongdoing. The Tribunal found the applicant voluntarily and knowingly provided the incorrect information; and it gave significant weight to this circumstance to support the finding that the applicant’s visa should be cancelled.

   e)Present circumstances of applicant. The Tribunal referred to the applicant’s not having seen a psychiatrist for 2 to 3 years, to the applicant’s continuing to receive medication for back pain and depression, and to the absence of evidence that if he were to return to Iran the applicant would not be able to access medication. The Tribunal was satisfied that the applicant’s physical and mental health did not mean the Protection visa should not be cancelled. The Tribunal also considered the applicant’s personal circumstances, and in particular his being in a relationship, but was not satisfied that circumstance means the Protection visa should not be cancelled.

   f)Subsequent behaviour concerning obligations under Subdivision C of Division 3 of Part 2 of the Act. The Tribunal accepted the applicant’s explanation for not having responded to the Notice.

   g)Other instances of non-compliance. The Tribunal found there was no evidence of other non-compliance. It gave this some weight, but it was not satisfied this circumstance meant the Protection visa should not be cancelled.

   h)The time that has elapsed since non-compliance. The Tribunal did not consider the seven years that had passed since the applicant failed to comply with s.101(b) of the Act was of such significance as would mean the Protection visa should not be cancelled.

   i)Any breaches of the law and seriousness of those breaches. The applicant had pleaded guilty to a common assault and was placed on a 12 month good behaviour bond. The Tribunal found that a conviction for a common assault is not a minor conviction, and it gave this circumstance some weight in deciding the Protection visa should be cancelled.

   j)Contribution to community. The Tribunal was satisfied the applicant has not made any contribution to the Australian community that needs to be taken into account in deciding whether the visa should be cancelled.

   k)Other factors. The Tribunal records the applicant claiming he feared returning to Iran because he was a supporter of the Musavi, and his opposition to the Iranian President. The Tribunal did not accept the applicant was a supporter of the Musavi, or that he held political views in opposition of the President. The Tribunal relied on the applicant’s having provided incorrect information.

4. Having considered these matters, the Tribunal concluded the Protection visa should be cancelled.

Grounds of application

1. The applicant, who is not legally represented, relies on the following grounds of application (errors in original):

   1.That the cancellation of the visa under section 109 of the Migration Act 1958 is invalid as the Tribunal failed to take into account the applicant’s evidence and circumstances and thereby incurred a jurisdictional error.

   2.The decision of the Tribunal is ultra vires, as the Tribunal was bias or there was apprehended bias towards the applicant.

2. The applicant appeared at the hearing, but he said he did not wish to make any submissions.

3. The first ground does not identify the evidence, or circumstances of the applicant, it is claimed the Tribunal failed to take into account. From my summary of the Tribunal’s reasons, it is apparent the Tribunal did consider the applicant’s evidence and circumstances. Ground 1, therefore, discloses no jurisdictional error by the Tribunal.

4. Ground 2 alleges actual and apprehend bias. It does not assert any facts on the basis of which these claims are made. There is nothing in the Tribunal’s reasons, or in the material that is before me, that could raise any arguable case of actual or apprehended bias. It is apparent from the Tribunal’s reasons the Tribunal identified the tasks it was required to undertake when reviewing the delegate’s cancellation of the Protection visa, it asked the applicant questions that were relevant to each of the matters the Tribunal was required to consider, and the Tribunal considered the significance and weight it should give to each of the circumstances the Tribunal identified. Ground 2, therefore, also does not disclose any jurisdictional error.

5. It follows that the application must be dismissed.

Costs

1. I informed the applicant that the usual order in relation to costs is that the successful party is entitled to an order for costs against an unsuccessful party. Ms Watson, who appeared for the Minister, said that if the Minister were to succeed, the Minister would seek an order for costs and that those costs be set in the amount of $6,000. The applicant made no submission against my ordering costs against him if the Minister were to succeed.

2. I am satisfied it is appropriate that I order the applicant pay the Minister’s costs, and that those costs be set in the amount of $6,000.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  13 March 2020