Ciw21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 2
Federal Circuit and Family Court of Australia
(DIVISION 2)
CIW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 2
File number(s): MLG 1597 of 2022 Judgment of: JUDGE LAING Date of judgment: 10 January 2023 Catchwords: MIGRATION – application for judicial review of a decision to cancel the applicant’s Resident Return (Class BB) (Subclass 155) visa – whether the delegate relevantly erred in deciding to utilise the procedure under s 128 of the Act – whether the delegate failed to have regard to evidence of the applicant’s identity – whether the delegate unreasonably failed to obtain such evidence – whether the delegate misconstrued the applicable policy or asked the wrong question – application succeeds. Legislation: Migration Act 1958 (Cth) ss 46A, 48B, 101, 116, 128, 129, 131, Subdivision F of Division 3, Part 2
Migration Regulations 1994 (Cth) Schedule 4, r 4013
Cases cited: AYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1961; (2021) 362 FLR 249
Baston v Minister for Immigration and Border Protection [2018] FCA 73
Cheaib v Minister for Immigration and Multicultural Affairs [1997] FCA 562; (1997) 75 FCR 308
COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; (2015) 236 FCR 148
Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 271 CLR 550
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 1 December 2022 Counsel for the Applicant: Mr A McBeth appeared via video-link Solicitor for the Applicant: Beena Rezaee Legal & Migration Counsel for the Respondent: Ms R Amamoo appeared via video-link Solicitor for the Respondent: Sparke Helmore ORDERS
MLG 1597 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIW22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
10 January 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue, quashing the decision of the respondent dated 24 December 2019 to cancel the applicant’s visa.
2.A writ of certiorari issue, quashing the decision of the respondent dated 2 June 2022 declining to revoke cancellation of the applicant’s visa.
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 LAING
introduction
Before the Court is an application filed on 7 July 2022 seeking judicial review of a decision (Cancellation Decision) of a delegate (Delegate) of the first respondent (Minister) made on 24 December 2019 to cancel the applicant’s Resident Return (Class BB) (Subclass 155) visa (Resident Return visa).
The applicant also seeks review of a subsequent decision by another delegate of the Minister, made on 2 June 2022, declining to revoke the cancellation (Non-Revocation Decision). However, the parties have sought for the Court to adjudicate the application in respect of the Cancellation Decision before considering the separate grounds raised in respect of the Non-Revocation Decision. This is because the parties agree that if the Cancellation Decision falls, then the Non-Revocation Decision must similarly be quashed.
For the following reasons, I have determined that the Cancellation Decision was affected by jurisdictional error.
background
The applicant first arrived in Australia in 2011 as an unauthorised maritime arrival. He claimed to be an Afghan citizen who had lived in Pakistan which he then fled with a false passport that was taken by a smuggler.
The applicant applied for a Protection (Class XA) (Subclass 866) visa (protection visa), which was granted on 18 August 2011.
On 26 October 2011, the applicant’s wife and children applied offshore for Global Special Humanitarian (Subclass 202) visas (humanitarian visas), proposed by the applicant. That application was refused in 2013.
On 30 December 2013, the applicant’s wife applied offshore for a Partner (Subclass 309/100) visa (partner visa) together with her children, which was sponsored by the applicant.
On 25 August 2015, the applicant applied for Australian citizenship (citizenship application).
The applicant was granted a Resident Return visa on 1 November 2016.
The applicant has departed Australia on a number of occasions, spending time in Pakistan for various periods. The applicant last departed Australia on 3 December 2019.
On 24 December 2019, the Cancellation Decision was made by reference to s 128 of the Migration Act 1958 (Cth) (Act). The decision was made while the applicant was in Pakistan. It was made on the basis that the applicant had provided incorrect information in his protection visa application (including regarding his claimed identity as an Afghan citizen) and had thereby not complied with s 101(b) of the Act, enlivening grounds for cancellation under s 116(1)(d) of the Act. As the Delegate was satisfied that there was a ground for cancelling the visa under s 116 of the Act, and that it was appropriate to cancel the visa in accordance with Subdivision F of Part 2, Division 3, the Delegate proceeded to cancel the applicant’s visa under s 128 of the Act.
Notice of the Cancellation Decision was sent to the applicant’s address in Victoria by registered post. However, as the applicant was outside Australia, he says that he was unable to access his mail in Victoria. The applicant is said to have only found out that his visa had been cancelled when he checked his visa status online.
On 4 February 2020, the applicant, through his legal representative, contacted the Department annexing copies of various identification documents which were said to support the applicant’s claims of Afghan citizenship. These included copies of what were said to be the applicant’s Taskera, his marriage certificate, his father’s Taskera, his father’s military document, his wife and children’s Taskeras and his wife and children’s Afghan passports. Translated versions of the documents were provided by email the following day, together with submissions seeking revocation of the Cancellation Decision. The submissions observed that most of the documents relied upon had previously been provided to the Department with the partner visa application.
Further submissions were provided to the Department on 29 December 2020. An email was sent to the Department by the applicant’s legal representative on 9 October 2021 requesting an update on the status of the request for revocation.
On 2 June 2022, the Non-Revocation Decision was made by reference to s 131 of the Act.
the CANCELLATION DECISION
The Delegate expressed that they were satisfied that there were grounds for cancellation under s 128 of the Act, relying upon the grounds at s 116(1)(d). In this regard, the Delegate found that the applicant had “provided incorrect information regarding his identity and status in his Form 866 Application for a Protection visa made on 8 August 2011”.
The Delegate considered that the applicant had provided incorrect information regarding his father’s name as well as his own name, date of birth, place of birth (in Afghanistan) and nationality (as a citizen of Afghanistan). The Delegate considered that the applicant had also provided incorrect information regarding the following and other related claims that were made in his protection visa application (errors in original):
•He is a citizen of Afghanistan and does not have a right to citizenship or a right to reside in any other country.
•He was born [on a date] in Afghanistan.
•He and his family fled Afghanistan in [the 1980s] after local factions came to his father’s ship demanding money…
•Since his family moved to Karachi… his store was often robbed by armed men targeted refugees, knowing they couldn’t complain to the authorities. He did complain to the police each time he was robbed but they did nothing to stop this problem.
•Many Hazaras have been targeted by factions such as the Wahabes and the Taliban. He also fears the Muttahida Qawmi Movement, who are a political responsible for much of the violence against Afghan refugees in Karachi. They target those with small businesses and have been doing so for the past three years.
•He decided to sell his shop because he was fearful they would return (he did not specify who) and kill him…
•He believes if he returns to Afghanistan he would face a real chance of being killed by factions such as Sepah, Nasr or the Wahdat. He believes the villagers on his return will report him to the commanders that extorted money from his father, for reasons of his ethnicity and religion as a Shia Muslim.
•He also fears returning to Pakistan where Hazara people have been persecuted for their religion and ethnicity.
The Delegate found that these claims were incorrect on the following basis:
•The visa holder was born in Quetta, Pakistan, and there is no evidence before me to indicate he is an Afghan citizen or ever lived in Afghanistan. Therefore I do not accept his claims to have lived in Afghanistan and faced the issues he claimed to have up to [the claimed date].
•He has been confirmed by the Pakistani authorities as being a Pakistani citizen. His Pakistani passport was issued… over 18 months prior to lodging his Protection visa application. I find at the time he lodged his Protection visa application, he was a Pakistani citizen, held a Pakistani passport, and as such was able to live in Pakistan – therefore I do not find the visa holder genuinely feared returning to Afghanistan because it was open to him to live in Pakistan.
•The visa holder claims to have left Pakistan due to being targeted as an Afghan refugee, which made him unable to “complain to the police”. As he was a Pakistani citizen and was born in Pakistan, I consider he had the right to avail himself of the protection of the police as would any other Pakistani citizen. As a Pakistani citizen I do not consider he was an Afghan refugee.
In making these findings, the Delegate relied upon information that had been received from the Pakistani Federal Investigation Agency (FIA) to the following effect:
•The Pakistani Federal Investigation Agency (‘FIA’)… intercepted the visa holder who was attempting to enter using Australian Travel Document number [redacted] in the name [redacted], stating he is an Afghan national.
•During immigration clearance, the immigration staff identified the visa holder’s actual nationality is Pakistani.
•On questioning, the visa holder disclosed:
He had travelled to Malaysia from Jinnah International Airport, Karachi in the year 2011 using Pakistani Passport number [redacted].
From Malaysia he illegally entered in Indonesia from where he went to Australia on boat.
After reaching at Australia, he incorrectly declared his particulars such as name, date of birth, place of birth and nationality.
He declared himself an Afghan national and claimed asylum on the pretext that his country Afghanistan is a war ravaged country and not liveable.
The Delegate referred to an Australian Travel Document that had been issued to the applicant and corresponded to that which had been referred to by the FIA. The Delegate observed that the Department had also received a translated news report supporting this information. An image of a passport was aired during the news report, indicating different identity information for the applicant than that which had been provided with the applicant’s protection visa application.
This evidence, together with the Delegate’s consideration that there was “no evidence” before them “to indicate [the applicant was] an Afghan citizen or ever lived in Afghanistan”, formed the basis of the Delegate’s conclusion that there were grounds for cancellation of the visa under s 128 of the Act.
The Delegate considered that it was appropriate to cancel the visa without notice whilst the applicant was outside of Australia, under s 128 of the Act, for the following reason:
•If the visa holder was notified of the intention to consider cancellation there is a risk he may attempt to travel to Australia in the belief it would be more difficult for the visa to be cancelled and for him to be removed from Australia.
Having considered that the appropriate cancellation mechanism was under s 128 of the Act, the Delegate proceeded to consider whether the visa should be cancelled. In this regard, the Delegate considered:
(a)The purpose of the applicant’s travel to and stay in Australia. The Delegate observed that the applicant had been granted a Resident Return visa to enable him to return to Australia, on the basis that he held a permanent residence visa (the protection visa) and wished to travel overseas and subsequently return to Australia. The Delegate acknowledged that the applicant’s travel to and stay in Australia was in line with the purpose of this visa, which was given “a little weight against cancelling the visa”.
(b)The extent of the applicant’s compliance with visa conditions. The Delegate observed that the Resident Return visa did not have any conditions. This factor was not given weight for or against cancellation.
(c)Hardship to the applicant and any family members. The Delegate had regard to the applicant’s immigration history and to information that had been provided regarding his family in the protection visa, partner visa and humanitarian visa applications. The Delegate also referred to information provided with and in support of the applicant’s citizenship application regarding his employment history in Australia. The Delegate acknowledged that the applicant had lived in Australia for over 8 years and may have established a degree of ties to Australia. However, the Delegate also observed that the applicant’s family appeared to live in Pakistan. The Delegate therefore only gave the consideration of hardship “a little weight” against cancellation.
(d)The circumstances in which the ground for cancellation arose. The Delegate considered that this occurred by the applicant’s provision of incorrect answers in support of his protection visa application. This, it was found, resulted in the applicant gaining an immigration benefit to which he may not have been entitled. The Delegate considered that there was no information indicating that this had occurred due to circumstances beyond the applicant’s control. The Delegate gave “this consideration significant weight in favour of cancelling the visa”.
(e)The applicant’s behaviour towards the Department. The Delegate gave “significant weight” to the applicant’s provision of incorrect identity information through his protection visa application, which was found to have been perpetuated through the applicant’s subsequent Resident Return visa and citizenship applications.
(f)Any consequential cancellations. The Delegate found that this consideration did not apply and therefore did not give it weight for or against cancellation.
(g)Legal consequences of cancellation. The Delegate acknowledged that the applicant would cease to hold a valid visa for travel to and entry into Australia, and would be unable to meet Public Interest Criterion 4013 for any further temporary visa applications he may lodge within 3 years from the date of cancellation. The Delegate stated that the applicant would be unable to apply for other visas in Australia unless the Minister used his non-compellable powers under ss 46A(2) and 48B(1). These considerations were given “a little weight” against cancellation.
(h)Australia’s international obligations. The Delegate considered that Australia’s international obligations under the Refugees Convention, the Refugees Protocol, the Convention Against Torture and the International Covenant on Civil and Political Rights did not apply as the applicant was not within Australia’s territory or jurisdiction. As there was no evidence of any children in Australia whose interests would be adversely affected by cancellation, the Delegate found that cancellation would not breach the Convention on the Rights of the Child or the International Covenant on Civil and Political Rights. These matters were given some weight in favour of cancellation.
The Delegate concluded that “[a]fter considering all the available information” they were satisfied that the grounds for cancellation outweighed the reasons for not doing so. The Delegate therefore decided to cancel the applicant’s visa.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings before this Court by application filed on 7 July 2022. The applicant ultimately relied upon the following grounds in respect of the Cancellation Decision, which were contained within an amended application filed on 4 November 2022:
1.The Cancellation Decision was affected by jurisdictional error in that the delegate failed to give proper consideration to whether it was appropriate to cancel the applicant’s visa pursuant to s 128 of the Migration Act 1958 (‘the Act’) without notice to the applicant, or alternatively, misconstrued the statute or asked himself the wrong question in reaching the satisfaction that it was appropriate to cancel under s 128 rather than s 116 of the Act, or in the further alternative, was based on a finding that was irrational or for which there was no basis in the evidence.
Particulars
(a)Section 128(a)(ii) of the Act requires the delegate to be satisfied that it is appropriate to cancel the visa under subdivision F of Part 2, Division 3 of the Act, without notice to the applicant, rather than under the standard cancellation procedure in subdivision D and E, before the cancellation power is enlivened.
(b)The reasons given by the delegate for satisfaction it was appropriate to cancel under s 128 of the Act reveal no consideration of why providing notice to the applicant or permitting the applicant to re-enter Australia would be inappropriate, and are inconsistent with the Departmental instructions relating to s 128(a)(ii).
(c)In the alternative, the delegate’s finding that there was a risk that the applicant might travel to Australia in the belief it would be more difficult for the visa to be cancelled was a finding that could not rationally be supported by any probative evidence before the delegate.
2.The delegate failed to have regard to relevant information that was in the Minister’s possession, or alternatively, unreasonably failed to obtain relevant information in circumstances where the delegate knew that the applicant did not have an opportunity to provide any information and knew or ought to have known that the information was in the possession of the Department.
Particulars
(a)The delegate found that “there is no evidence before me to indicate that [the applicant] is an Afghan citizen or ever lived in Afghanistan.”
(b)The applicant had already provided extensive evidence of his Afghan citizenship and his residence in Afghanistan, including a Taskera for himself and his father, wife and children and the Afghan marriage certificate of the applicant and his wife.
(c)The Minister’s delegate knew or ought to have known that that information was in the Minister’s possession.
(d)Having chosen to consider exercising the power in s 128 of the Act to cancel the applicant’s visa with no notice to the applicant, the delegate was aware that the applicant would have no opportunity to be heard or to provide any information to persuade the delegate of his Afghan citizenship or that his visa should not be cancelled.
(e)In the premises, it was unreasonable of the delegate not to consider or obtain critical information that was already within the possession of the Minister or the Minister’s Department.
3.The delegate misconstrued the applicable policy or asked himself the wrong question in the exercise of his discretion to cancel the applicant’s visa.
Particulars
(a)In purporting to consider “the purpose of the visa holder’s travel to and stay in Australia”, the delegate failed to consider the fact that the applicant had travelled to Australia to obtain protection from persecution and had been granted a protection visa for that purpose.
(b)In purporting to consider “the extent of the visa holder’s compliance with visa conditions”, the delegate failed to consider the fact that the applicant had always complied with the conditions on his protection visa, and in turn, failed to give any weight to that fact in exercising the discretion to cancel the applicant’s visa.
Ground 2
As I have found that ground 2 ought to succeed, it is convenient to deal with that ground first.
Ground 2 contended that the Delegate failed to have regard to information or evidence of the applicant’s identity that was within their possession. Alternatively, the ground contended that the Delegate unreasonably failed to obtain this evidence or information that was within the possession of the Department.
The ground of legal unreasonableness has a high threshold. Unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 at [68] and [76] per Hayne, Kiefel and Bell JJ. However, such a finding is not to be lightly made, lest the Court stray into merits review.
The applicant relied upon Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 271 CLR 550 (DUA16). In that case, in circumstances where the Immigration Assessment Authority was aware that an applicant (CHK16) had intended to provide it with submissions but their agent had inadvertently provided submissions regarding another person, it was held to have been legally unreasonable for the Immigration Assessment Authority not to have made further inquiry (at [28]-[32]). The “extreme” circumstances in that case were found to have reflected the following observations in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [20]:
The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
The applicant also relied upon AYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1961; (2021) 362 FLR 249 (AYY21). In that case, like the present, Judge Manousaridis was considering whether the power under s 128 of the Act was exercised reasonably. His Honour found that the power was not exercised reasonably in circumstances where (inter alia) the decision maker had not considered the immediate circumstances that led to the applicant’s departure from Australia and entry into another country without written approval. Those circumstances were illuminated by correspondence held within the Department’s records, the substance of which was not referred to in the relevant decision. The decision maker’s failure to have regard to this and other relevant information that was reasonably available to the Department was found to have resulted in relevant error. In coming to this conclusion, his Honour considered (at [55]-[56]):
55.There is another aspect of the power conferred by s 128 of the Act. The Minister alone can initiate its exercise; and it is a power the Minister is entitled and expected to exercise without notice to the visa holder. This suggests that the reasonable exercise of the power conferred by s 128 of the Act requires the Minister, once he or she becomes aware of circumstances that might lead to the Minister considering whether to exercise the power, to do that which is reasonably necessary to obtain all information within his Department’s control that is or may be relevant to deciding whether to cancel the visa, and to consider that information. In other words, the usual incident of a discretionary power that it must be exercised reasonably requires, in the case of s 128 of the Act, the Minister to obtain information reasonably available to him or her that is relevant to whether to cancel the visa, and to consider that information. The information that would be relevant would at the very least include the circumstances in which the ground for cancelling the visa arose, and the consequences to the visa holder and members of the visa holder’s family unit, if the visa is cancelled…
56.Once the delegate became aware of information that suggested the applicant had breached condition 8570 and, for that reason, the delegate became aware that he or she might have to consider whether to cancel the applicant’s TPV by using the F Procedure, the reasonable exercise of the power conferred by s 128 of the Act required the delegate to obtain information readily available within the Department’s records that was relevant to determining whether to cancel the TPV; and then consider that information to determine whether to cancel the TPV and, if so, whether it was appropriate that this be done by the F Procedure…
In the present case, the applicant relied upon an affidavit dated 14 November 2022 evidencing that copies of his wife and children’s Taskeras and Afghan passports, and the couple’s Afghan marriage certificate, had been provided to the Department annexed to the partner visa application that had been sponsored by the applicant and made in 2013. The affidavit also evidenced that Taskeras and translations had been provided in respect of the applicant and his family in support of the applicant’s citizenship application.
The Minister submitted that AYY21 was “plainly wrong” and ought not to be followed. In this regard, the Minister submitted that the statutory scheme under Subdivision F of Division 3, Part 2 of the Act was inconsistent with an obligation being placed upon the Minister to conduct “a roving inquiry into all range of Departmental files – searching for material relevant to the cancellation decision”. Reliance was placed upon what was stated by Lockhart J in Cheaib v Minister for Immigration and Multicultural Affairs [1997] FCA 562; (1997) 75 FCR 308 at 313, namely that the “evident intent of Subdivision F is to empower the Minister to cancel visas of non-citizens without prior notice where the person is outside Australia and the Minister is satisfied that cancellation of it without notice is appropriate in all the circumstances”.
I do not understand AYY21 to go so far as to require the kind of “roving inquiry” contemplated by the Minister. In any event, legal unreasonableness is inevitably factually dependent. In AYY21, Judge Manousaridis found that such a ground had been made out based upon the particular factual circumstances that were before his Honour. The task for the Court in these proceedings is to determine whether the ground has been made out in the particular circumstances of this case. That task is informed by well-established principles, that have been considered in cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 and DUA16.
I also do not accept the Minister’s submission that the type of inquiry or consideration envisaged under ground 2 is necessarily “antithetical” to the statutory scheme under Subdivision F. It may be accepted that the statutory scheme contemplates the power under s 128 of the Act being exercised without prior inquiry being made of the visa holder. It may also be accepted that the scheme then contemplates an opportunity to provide evidence or submissions subsequently being afforded, following notification under s 129. However, it does not follow that the scheme is necessarily inconsistent with any obligation upon the Minister to consider material that is readily available in the Department’s files and is of obvious, critical relevance to the exercise of power under s 128, regardless of the circumstances. Nor does it follow that a decision to cancel a visa under s 128 of the Act is of no consequence, simply because it is able to be revoked under s 131 of the Act after the giving of notice under s 129. The cancellation of a person’s visa can have serious consequences for the individual in question, not all of which will necessarily be capable of remedy through s 131.
In the present case, it is not entirely clear from the Delegate’s decision precisely what material was and was not before the Delegate. The Delegate appears to have had before them, at least to some extent, the Department’s files regarding the protection visa application, the partner visa application and the citizenship application. Those applications, and at least some supporting material, were discussed in some detail in the Delegate’s decision.
However, it is clear from the Delegate’s decision that the identity evidence associated with those files was not considered by the Delegate. This is apparent from the Delegate’s express reliance upon an understanding that there was “no evidence” before them “to indicate [the applicant was] an Afghan citizen or ever lived in Afghanistan”. It was this absence of evidence, together with the evidence that the Department had obtained from Pakistan challenging the applicant’s claimed identity, that the Delegate relied upon in finding that the grounds for cancelling the visa under s 116 of the Act (and therefore the basis for the cancellation under s 128 of the Act) were enlivened.
To the extent that the identity evidence contained in those applications was before the Delegate, then this material was, clearly enough, overlooked by the Delegate. Given the central relevance of that evidence to the Delegate’s decision, this would have resulted in jurisdictional error.
However, it is not clear on the evidence that this material was relevantly before the Delegate. I am not prepared to infer on the evidence before me that it was. Nonetheless, to the extent that it was not, I accept the applicant’s contention that this is one of those rare and exceptional cases in which a failure to access material was legally unreasonable. This was in circumstances where:
(a)The Delegate had accessed other material in the Department’s files associated with the protection visa, partner visa and citizenship applications including at least some supporting documentation. This was for the purpose of obtaining details such as the applicant’s employment history.
(b)It would have been obvious that identity documents concerning the applicant and his family were potentially available in the files being considered by the Delegate, given the central role of identity in protection visa, partner visa and citizenship applications. The evidence before me establishes that identity evidence had (unsurprisingly) been provided in support of at least the partner visa and citizenship applications, including through annexure to the partner visa application. I infer that this evidence would have been readily ascertainable by the Delegate.
(c)Evidence regarding the applicant’s identity and that of his family was of critical significance to the contemplated basis of the cancellation.
(d)The Delegate expressed at Part E of their decision that they contemplated their decision having been made “[a]fter considering all the available information”.
(e)Despite this, the Delegate found that there was “no evidence” before them “to indicate [the applicant was] an Afghan citizen or ever lived in Afghanistan”. This was in circumstances where, as in AYY21, the Delegate was contemplating cancellation under a procedure that afforded the applicant no advance opportunity to provide evidence. It was notwithstanding the apparent availability of such evidence in the files associated with the various applications that they were otherwise considering in some detail. That material would have provided the very evidence they had lamented not having.
It is not apparent what reasonable or intelligible justification there could have been, in these circumstances, for not considering the identity evidence that was within the Department’s possession and that had been provided in support of the applications that the Delegate was otherwise considering, in deciding to cancel the applicant’s visa without notice on the basis of contrary findings regarding his identity. Such evidence, I have found, was readily ascertainable and was of critical significance to the decision being contemplated. Had this evidence been considered, the possibility that the result could have been different is tolerably clear. The Delegate may have pursued the alternative cancellation procedures under Subdivision E, or declined to pursue cancellation at all.
Ground 2 therefore must succeed.
Grounds 1 and 3
As I have found that ground 2 ought to succeed, it is unnecessary to determine grounds 1 or 3.
I do not consider it desirable to do so in relation to ground 1, in circumstances where that ground appears to be the subject of conflicting decisions of this Court and its determination is incapable of affecting the outcome in this matter.
However, for completeness, I note that I would not have been inclined to uphold ground 3 of the application. By that ground, the applicant contended that the Delegate misapplied or asked the wrong questions regarding two considerations raised under the PAM3 policy. That policy was a non-binding guideline that did not prescribe mandatory considerations: COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; (2015) 236 FCR 148 at [31]. The applicant contended that as the Delegate purported to apply the policy, they did not do so rationally as they did not consider the particulars that were relied upon under this ground. However, he did not establish that the Delegate was required to apply a non-binding policy in a particular way in order to proceed rationally, simply because aspects of that policy were considered.
Regardless, I would not have been inclined to accept that the Delegate misapplied the policy. The Delegate referred to the applicant’s protection visa in the context of the “purpose of the [applicant’s] travel to and stay in Australia”, but afforded this little weight in circumstances where they had found that the visa had been granted on the basis of incorrect information. I therefore do not accept that the Delegate failed to consider the purpose of the applicant’s protection visa within this context. Whilst the Delegate did not refer to the applicant’s compliance with the conditions of his protection visa, it is not clear what evidence was before the Delegate in this regard and I accept that the Delegate may not have regarded this consideration as material. Even if the Delegate did not consider this matter, I am not persuaded that this would have resulted in jurisdictional error: see Baston v Minister for Immigration and Border Protection [2018] FCA 73 at [68].
conclusion
As jurisdictional error has been demonstrated in the Cancellation Decision, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 10 January 2023
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