Cew18 v Minister for Immigration
[2020] FCCA 3121
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEW18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3121 |
| Catchwords: MIGRATION – Visas – Bogus documents – whether the seizing of an Afghan national identity card (Tazkira) by the Minister amounted to jurisdictional error – whether the Minister has erred in failing to give relevant consideration to further evidence – whether the Minister has fallen into jurisdictional error in the formation of suspicion in regards to a bogus document as defined in s 5(1) of the Migration Act 1958 (Cth) – whether jurisdictional error is made out – no jurisdictional error arises – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 65, 476, 477, 487ZI 487ZJ, 487ZK, 487ZL. Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.6, 16. |
| Cases cited: CEW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 10. DTP17 v Minister for Immigration and Border Protection (2019) 343 FLR 131. DVY17 v Minister for Immigration and Border Protection (2018) 340 FLR 403. Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. |
| Applicant: | CEW18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | CAG 19 of 2020 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 6 November 2020 |
| Date of Last Submission: | 6 November 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Kikkert |
| Counsel for the Respondents: | Mr Kaplan, HWL Ebsworth Lawyers |
ORDERS
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 19 of 2020
| CEW18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| COMMONWEALTH OF AUSTRALIA |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant claims to be an Afghan National. The applicant is currently within Australia pursuant to a bridging visa. On 6 February 2018, a letter was issued to the applicant in the name of “MH”, advising him that an Afghan national identity card (Tazkira) Number XXXXX X (redacted by him) had been seized pursuant to s 487ZJ(1) of the Migration Act 1958 (Cth) (“the Act”) because it was reasonably suspected the document was a “bogus document” as defined in s 5(1) of the Act, being a document that was counterfeit. A bogus document provided in contravention of
s 487ZI(1) of the Act is forfeited to the Commonwealth .
The applicant now seeks the following orders and directions as listed below.
It is to be noted that a challenge to a decision of the first respondent to refuse to grant the applicant a protection visa pursuant to s 65 of the Act was dismissed by Judge Driver of this Court on 20 March 2020: (see CEW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 10).
Interim and Final Orders Sought
The applicant seeks the following interim orders:
1.That the Minister must keep Afghan National identity card (Tazkira) number XXXXX X (note actual number redacted to preserve the anonymity of the applicant) safe until determination of this matter by this Honourable Court.
The applicant seeks the following final orders:
1.A declaration that Afghan National ID card (Tazkira) number XXXXX X is no longer forfeited.
2.A declaration that Afghan National ID card (Tazkira) number XXXXX X is no longer condemned.
3.A declaration that the applicant’s name is MH not SA.
4.An order that Afghan National ID card (Tazkira) XXXXX X must be returned to the applicant.
5.Alternatively to order 4, an order that the Minister provide for the safekeeping of Afghan National ID card (Tazkira) number XXXXX X.
6.Alternatively to declaration 1 and/or 2, that even if this Honourable Court finds that Afghan National ID card (Tazkira) number XXXXX X remains forfeited and/or condemned, that the document be dealt with or disposed of by being given to the applicant pursuant to s 487ZL(1) of the Act.
7.Any other orders that this Honourable Court sees fit.
Grounds of Judicial Review
The grounds of judicial review are now as follows:
Ground One:
The forfeiture of Afghan National ID Card (Taskira) number XXXXX X has become invalid and of no effect as the document no longer meets the definition of a bogus document under the Migration Act 1958.
Particulars:
a. under the Migration Act, a bogus document means a document that the Minister reasonably suspects is a document that (a) purports to have been, but was not, issued in respect of the person; or (b) is counterfeit or has been altered by a person who does not have the authority to do so; or (c) was obtained because of a false or misleading statement, whether all not made knowingly.
b. In this matter, the Minister can no longer hold any of these suspicions, as the Minister now has information before it that Afghan National ID Card (taskira) number XXXXX X is a verified and genuinely issued document.
Ground Two:
The seizure of Afghan National ID Card (Taskira) number XXXXX X under s. 487ZJ has become invalid and has no effect.
Particulars:
a. A Notice of Seizure of Bogus Documents under subsection 487ZJ(2) of the Migration Act 1958 was issued on 6 February 2018 by the Department of Immigration and Border Protection.
b. However, this seizure has now become invalid and of no effect as the Department can no longer reasonably suspect that Afghan National ID Card (Taskira) number XXXXX X is forfeited under subsection 487ZI(2) as the Department has information before it that this was an authentic and verifiable document.
Ground Three:
The Minister’s decision that Afghan National ID card (Taskira) number XXXXX X was forfeit and/or the decision to seize Afghan National ID card (Taskira) number XXXXX X has become tainted by jurisdictional error, as the Minister has failed to take into account a relevant consideration/relevant piece of information when he became aware of it.
Particulars:
a. The Minister failed to take into account a relevant consideration/relevant piece of information, namely the letter dated 16 April 2018 from the Embassy of the Islamic Republic of Afghanistan stating that Afghan National ID Card (Taskira) number XXXXX X is a verified and genuinely issued document.
b. The Minister also previously received information from two brothers of the Applicant which would dispense with any suspicion that the document meets the definition of a bogus document.
Ground Four:
Pursuant to s 6(1)(b) of the ADJR Act, the procedures that are required by law to be observed in respect of the conduct have not been, and are not being, or are likely not to be, observed, warranting the relief sought by the applicant.
Particulars:
a. By law, the Minister is required to reasonably suspect that a document (a) purports to have been, but was not, issued in respect of the person or (b) is counterfeit or has been altered by a person who does not have authority to do so: or (c) was obtained because of a false or misleading statement, whether or not made knowingly before finding that a document is a bogus document or deciding that the document is forfeited or seizing the document;
b. In this matter, the Minister can no longer hold a reasonable suspicion of any of these as there is information before the Minister that this is a verified document.
c. Likewise, now that the department is aware of the letter dated 16 April 2018 from the Embassy of the Islamic Republic of Afghanistan, Canberra, stating that Afghan National ID Card (Taskira) Number XXXXX X is a verified and genuinely issued document, it is required by law to deal with the Applicant in accordance with his actual name. Mrs Marion Le AM, the Applicant’s current migration agent provided a 956 Form, dated 17 April 2020, to the Department for the Applicant. Included within this 956 Form was the Applicant’s driver’s license in the name of “MH”. However, the Department granted a Bridging E (Class WE) Bridging E (General) (Subclass 050) visa dated 21 April 2020 and a Bridging Visa Grant Notice both in the name of “SA”.
d. Now that the Minister has verifiable information regarding the Applicant’s correct name, it is required to do with the Applicant in accordance with his actual name. As such, the applicant seeks a declaration from this Honourable Court that his name is “MH” rather than “SA”.
The Applicant’s Submissions
In relation to ground one, it was submitted that there is now information before the Minister that the Tazkira is a genuine and validly issued document. Therefore, the Minister can no longer hold any of the suspicions that it is a bogus document. It was asserted by the applicant that the forfeiture has become invalid and has no effect as it no longer meets the definition of a bogus document under the Act.
In relation to ground two, it was similarly submitted by the applicant that the seizure of the document is invalid as there can be no doubt that the document is a genuine and validly issued Tazkira.
Ground three submits that the Minister has failed to take into account a relevant consideration or piece of information when he became aware of it, being the letter verifying the Tazkira as a genuinely issued document. It is submitted that, by failing to take into account this information, the Minister has failed to perform his statutory task. It was submitted that in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, it was held that a failure to consider the most recent country information and a claim of any increased risk about persecution, if the applicant was returned to Zimbabwe, constituted a failure to form a “state of satisfaction” required to reach a decision pursuant to s 36(2)(a) of the Act. By analogy, a failure to take into account the most recent information, being that the Tazkira is a genuinely issued document, would also constitute jurisdictional error.
Ground four submits that, pursuant to s 6(1)(b) of the Administrative Decisions (Judicial Review ) Act 1977 (Cth) ( the ADJR Act) the procedures required to be observed by law in respect of the conduct have not been, are not being or are likely not to be observed, warranting relief sought by the applicant. It is submitted that the Minister can no longer reasonably hold the suspicion that the document is bogus or counterfeit. Furthermore, the Minister is required, by law, to deal with the applicant in accordance with his actual name. This has been verified through a form 956 which was submitted to the Department on 17 April 2020. Accordingly, the applicant seeks a declaration that the name of the applicant is “MH” rather than “SA”, which is the name on Pakistani documentation presented to the Department by the applicant’s brother.
It is further submitted that, notwithstanding the fact that the Court may not have jurisdiction to make a finding that the Tazkira is no longer forfeited, the Court has the power to order that it not be destroyed and returned to the applicant. It was submitted that pursuant to s 16 of the ADJR Act, the Court has the power to refer the matter back to the Minister for further consideration pursuant to s 16(1)(b) of the ADJR Act and to make an order directing the parties to do, or refrain from doing, any act or thing or doing or refraining from doing of an act which the Court considers necessary to do justice to the parties: (see s 16(2)(b) of the ADJR Act).
Irrespective of whether or not the Court has jurisdiction to order the return of the card to the applicant, it is submitted that the Court still has jurisdiction to declare that the applicant’s true name is “MH” and not “SA”. It is the applicant’s position that such a declaration would be appropriate in the circumstances and the applicant seeks for this Court to make such a declaration.
The First Respondent’s Submissions
The first respondent’s initial position is relatively confined. While the decision of the delegate to seize the document under s 487ZJ(1) of the Act is amenable to the Court’s jurisdiction pursuant to s 476(1) of the Act, the proceedings to recover the document or for a declaration that is not forfeited by the applicant can only be instituted before the end of the period specified in the seizure notice: (see s 487ZK(2)(b) of the Act). This period must start on the date of the notice and end 90 days after that date: (see Subsection 487ZJ(4)). In this case, the seizure notices are dated 6 February 2018 and stated the applicant had 90 days from the date of the notice to institute proceedings. There is no discretion to extend that date. Accordingly, the Court does not have jurisdiction to review the delegate’s decision. The first respondent formally objects to the competency of the application and submits that the proceeding should be dismissed accordingly.
Further, pursuant to s 477 of the Act, an application for judicial review was required to be filed within 35 days of the migration decision. This 35 day period ended on 13 March 2018. Accordingly, the application filed on 4 May 2020 is 783 days out of time and requires an extension of time. No extension of time has been sought pursuant to s 477 of the Act. It is submitted by the first respondent, however, that this question does not arise if the Court agrees that the proceedings are incompetent on the basis that they were not bought within the period specified within the seizure notice.
The first respondent also submits that the applicant is Anshun estopped: (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at [598]). The issue raised in the present proceedings, whether the delegate’s decision to seize the identity card is affected by jurisdictional error, properly belonged to the earlier proceedings before Judge Driver such that it was unreasonable not to have raised it at that time. Both the delegate’s decision to refuse the grant of a protection visa under s 65 of the Act and her decision to seize the identity card under s 487ZJ(1) of the Act were based on a reasonable suspicion having been formed that the identity card was a bogus document. Having regard to the subject matter of the earlier proceedings, it would be expected that the applicant would have raised the lawfulness of the seizure notice at that time. For the applicant to do so now for the first time is an abuse of process.
In relation to the actual grounds of appeal lodged by the applicant, it is submitted by the first respondent that the grounds are misconceived. Grounds one to three appear to make the same point in that on 16 April 2019, the Embassy of the Islamic Republic of Afghanistan in Canberra purported to have issued a letter stating that the identity card was “a verified and genuinely issued document”. It was submitted on behalf of the applicant that the identity card was not lawfully forfeited to the Commonwealth and the decision to seize the document was affected by jurisdictional error. It was submitted that the Embassy letter post-dated the decision to seize the identity card by 14 months. The contents were not known to the delegate, nor were they reasonably capable of being known. In these circumstances, it cannot be said that the suspicion described in s 487ZJ(1) of the Act was not lawfully formed by the delegate.
Ground four is similarly misconceived. It was submitted that the formation by an officer of a reasonable suspicion that a document meets the description of a bogus document is not a privative clause decision. It is not therefore amenable to judicial review under s 476(1) of the Act. The lawfulness of the formation by the delegate of a suspicion that the identity card is a bogus document and it’s forfeiture can be subject to judicial review under s 487ZJ(1) of the Act.
The applicant seeks to argue that the delegate’s suspicion of the identity card as a bogus document or its forfeiture by operation of s 487ZI(2) of the Act is conduct that is amenable to judicial review under s 6 of the ADJR Act.
It is submitted by the first respondent that whether or not the formation of the suspicion or the forfeiture of the identity card is “conduct”, it is not necessary to determine as the reasonableness of the formation of the delegate’s suspicion cannot be called into question by the fact that the Embassy letter was created some 14 months after the decision was made to seize the identity card.
Consideration
These proceedings are somewhat novel and appear to be collateral proceedings designed to undermine the outcome reached by Judge Driver in the substantive protection visa application. Be that as it may, these proceedings must receive careful consideration by this Court.
The fact is, the matter is not contested. On 26 May 2017 and 6 June 2017, the applicant provided to the Department first a copy of and then the original of his identity card or Tazkira. The delegate found that she reasonably suspected the document was a ‘bogus document’. The delegate referred to the fact that the applicant had not obtained the Tazkira personally, the applicant was not residing in Afghanistan when it was issued as well as evidence that the applicant was a citizen of Pakistan. The applicant was given a chance to respond. The applicant did so.
On 6 February 2018, the delegate sent to the applicant a document entitled ‘Notice of Seizure of Bogus Documents’. The document was seized pursuant to s 487ZJ(1) of the Act as it had been forfeited to the Commonwealth pursuant to s 487ZI(2) of the Act, being a bogus document given to the Minister.
The Notice went on to state that the applicant had 90 days from the date of the Notice to institute proceedings to recover the document or seek a declaration that it not be forfeited. The applicant was advised that if he did not institute proceedings by the end of the 90 day period the card would be “immediately condemned as forfeited to the Commonwealth under s 487ZK(3) of the Act”.
As the delegate found the document to be bogus, under s 91W of the Act, it followed that the applicant was an ‘excluded fast track review applicant’ and could not be referred to the Immigration Assessment Authority for a pt 7AA review of the delegate’s decision to refuse the applicant a protection visa. This may in fact explain the current proceedings.
Relevant Legislation
Section 487ZJ of the Act relevantly provides:
“487ZJ Seizure of bogus documents
(1) If an officer reasonably suspects that a document is forfeited under subsection 487ZI(2), then the officer may seize the document.
(2) As soon as practicable after seizing the document, the officer must give written notice of the seizure to the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1).
(3) The notice must:
(a) identify the document; and
(b) state that the document has been seized; and
(c) specify the reason for the seizure; and
(d) state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice:
(i) to recover the document; or
(ii) for a declaration that the document is not forfeited.
(4) For the purposes of paragraph (3)(d), the period must:
(a) start on the date of the notice; and
(b) end 90 days after that date.”
Section 487ZI of the Act relevantly provides:
“487ZI Prohibition on, and forfeiture of, bogus documents
(1) A person (whether a citizen or non-citizen) must not give, present, produce or provide a bogus document to an officer, an authorised system, the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official), or cause such a document to be so given, presented, produced or provided.
(2) A bogus document given, presented, produced or provided in contravention of subsection (1) is forfeited to the Commonwealth.”
Section 5(1) of the Act defines “bogus documents” as follows:
“’bogus document’, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.”
Section 487ZK of the Act is in the following terms.
“487ZK Document condemned as forfeited
(1) If a document is seized under subsection 487ZJ(1), then:
(a) the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1); and
(b) if that person is not the owner of the document--the owner;
may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction:
(c) to recover the document; or
(d) for a declaration that the document is not forfeited.
(2) The proceedings:
(a) may be instituted even if the seizure notice required to be given under subsection 487ZJ(2) in relation to the document has not yet been given; and
(b) may only be instituted before the end of the period specified in the seizure notice.
(3) If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period.
(4) If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:
(a) an order for the person or owner to recover the document; or
(b) a declaration that the document is not forfeited.
(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:
(a) if no appeal against the judgment is lodged within the period for lodging such an appeal--at the end of that period; or
(b) if an appeal against the judgment is lodged within that period--when the appeal lapses or is finally determined.”
Section 477 of the Act is in the following terms:
“477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
‘date of the migration decision’ means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or
(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority--the date of the written statement under subsection 473EA(1); or
(d) in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
The Court is firstly satisfied that the Federal Circuit Court is a Court of competent jurisdiction for the purpose of the application, nor does the respondent suggest otherwise: (see DTP17 v Minister for Immigration and Border Protection (2019) 343 FLR 131 at [55]) per Judge Driver.
What is clear is that the current application is well outside the 90 day time limit set out in the seizure notice which was issued on 6 February 2018. The Court is satisfied that time limit cannot be extended: (see DVY17 v Minister for Immigration and Border Protection (2018) 340 FLR 403, [49]-[50], and at [108] per Judge Nicholls, where the following was said:
(49) Therefore, given that the 90 day period for the time within which to institute proceedings, as stipulated in s.487ZJ(4) of the Act, ended on 11 July 2017, the proceedings in the current case were not instituted within that time, and are therefore not competent.
(50) Nor, given the words “may only be instituted”, as they appear at s.487ZK(2)(b) of the Act, could that be extended….
(108) As set out above, s.487ZK(2)(b) of the Act makes clear, and in the absence of anything to the contrary in the Act, that the 90 day period cannot be extended either by the Minister, or by the Court. In all, even on the applicant’s own scenario as to relevant events, the application is not competent for the reasons set out above.
As DVY17 is a judgement of this Court, the Court is not bound by it as a matter of precedent, but should follow it as a matter of comity unless the Court is satisfied that it is plainly wrong. The Court is not satisfied that it is plainly wrong and the Court adopts the reasoning of Judge Nicholls in DVY17. The Court therefore finds that, insofar as the proceedings seek to ask the Court to make the declarations and orders sought in relation to the seizure and forfeiture of the Tazkira, the application is not competent for the reasons set out above. Grounds one, two and three must fail.
Ground four seeks to invoke the jurisdiction of s 6(1)(b) the ADJR Act. The Court accept the submission of the first respondent that the formation by an officer of a reasonable suspicion that a document meets the description of being a bogus document is not a privative clause decision. It is therefore not amenable to judicial review under s 476(1) of the Act.
The Court not satisfied that the formation of a suspicion of the identity card as a bogus document or that it should be forfeited is ‘conduct’ that is amenable to judicial review under s 6 of the ADJR Act. The Court accepts the submission of the first respondent that it is not necessary for me to determine whether or not the formation of a suspicion or the forfeiture of the identity card is “conduct”, as the reasonableness of the formation of the delegate’s suspicion cannot be called into question as the Embassy letter, stating that the identity card was a valid document, was created some 14 months after a decision was made to seize the card. Accordingly, ground four fails.
The final matter deals with the true name of the applicant. The applicant asserts that there is jurisdiction for the Court to make a declaration that the applicant’s true name is “MH” and not “SA”. The applicant also submits that the Court has jurisdiction to make such other orders, including orders for the safe retention of the Tazkira and its return to the applicant. On behalf of the first respondent, it was submitted that there is no proper basis under s 476 of the Act to make such a declaration.
Firstly, based on the evidence before the Court, the Court is not in a proper position to make a positive finding as to the true name of the applicant. Further, this issue has been dealt with and should have been dealt with in the proceedings before Judge Driver. It would be a curious result if an applicant was able to ventilate matters that had been the subject of previous finalised proceedings via claims under the ADJR Act. Even if the Court had jurisdiction to hear the matter, which the Court does not think it has, the Court considers the issue to be Anshun estopped.
It is a matter for the first respondent to consider what should be done with the Tazkira, whether it should be destroyed or returned to the applicant. The applicant is free to make relevant submissions to the first respondent in this regard.
Conclusion
The application is dismissed. As the application has been dismissed, costs must flow with the outcome.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 19 November 2020
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