CJR19 v Minister for Immigration and Anor (No.2)

[2020] FCCA 496

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJR19 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 496

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether there was a denial of procedural fairness to the applicant at the Tribunal hearing – whether the Tribunal’s failed to give proper weight or consideration to relevant principles – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101, 107, 109, 360, 434AA, 438, 476.

Migration Regulations 1994 (Cth) reg. 2.41.

Cases cited:

MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68

Applicant: CJR19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1483 of 2019

Judgment of: Judge Street

Hearing date: 6 March 2020

Date of Last Submission: 6 March 2020

Delivered at: Sydney

Delivered on: 6 March 2020

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 6 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1483 of 2019

CJR19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (“the Act”) in respect of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 10 May 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) to cancel the applicant’s subclass 866 Protection visa (“Protection visa”). 

2. The applicant is a citizen of Iraq. 

3. On 14 December 2012, the applicant was granted the Protection visa by the Delegate 

4. On 1 December 2017, the Delegate sent the applicant a notice of intention to cancel the Protection visa under s 109 of the Act. 

5. On 16 February 2018, the Delegate sent a further notice of intention to cancel the Protection visa, replacing the earlier notice.

6. The second notice asserted that the applicant had not complied with s 101 of the Act when he made his Protection visa application. Section 101 of the Act required the applicant to fill out his application in a way that all questions on it were answered and no incorrect answers were given or provided. The second notice identified various answers by the applicant that were said to be incorrect. In summary, it is sufficient to say that the applicant provided answers asserting an identity that the second notice explained was false.

7. On 16 April 2018, the Delegate found that the applicant’s Protection visa should be cancelled. 

8. On 19 April 2018, the applicant applied for a review of the Delegate's decision by the Tribunal. 

9. The applicant was invited to and attended a hearing on 21 February 2019 and 15 March 2019 to give evidence and to present arguments. The applicant was represented at the hearing by his migration agent. 

10. The Tribunal summarised what occurred at the hearing before the Tribunal including the discussion of the certificates issued by the Department pursuant so s 438 of the Act, the documents the subject of those certificates, and that the applicant is a Shia Muslim from a particular tribe and the branch of the tribe into which he was born. 

11. The Tribunal referred to the applicant’s evidence about why he changed his name.

12. The Tribunal referred to the applicant’s overseas travels including with his siblings taking him to Sweden.

13. The Tribunal summarised the applicant’s evidence in relation to where his parents and siblings now reside and the claim that his mother has remained in Iraq and she is visited from time to time by the applicant’s brothers and sister. 

14. The Tribunal noted the applicant’s explanation for why he left Sweden.

15. The Tribunal referred to the applicant’s claim that he has faced problems in Iraq because of his ex-girlfriend’s family and the militia.

16. The Tribunal noted that the Applicant candidly acknowledged he had provided incorrect information in his Protection visa application and that his view was that he had to lie or die. 

17. The applicant also accepted that he had given other false information about his mother being killed by his uncle in an honour killing. 

18. The applicant acknowledged that he had applied for the Protection visa in a false name and that he was also concerned as to what had occurred in Sweden being identified. 

19. The applicant identified having returned to Iraq in 2014 because his mother was not well and that he was able to travel under his Australian passport in his false name. 

20. The applicant referred to the difficult situation with the militia groups there when he was in Iraq in 2014.

21. The Tribunal explored with the applicant his claims in relation to why he travelled to Basra and raised country information with the applicant in relation to his claims

22. The Tribunal explored the reasons why the applicant claimed he fled to Baghdad and that he stayed there from 2009 until 2011. The Tribunal also raised with the applicant that he had initially claimed he had only ever lived in one place in Iraq, being in his home village. 

23. The Tribunal raised with the applicant the inconsistency of his returning to Iraq in relation to his claims. 

24. The Tribunal noted that the applicant claimed he now fears harm from a particular tribe and militia in Iraq. 

25. The Tribunal also referred to a written death-threat notice that was allegedly given to the applicant’s younger brother and the applicant’s explanation as to why it had not been raised by his brother with him. 

26. The Tribunal also raised with the applicant that he was in his home village for almost a year after being deported from Sweden and that nothing happened to him in that time and that the applicant in fact had a mother and brother still living in his home village.

27. The Tribunal also mentioned an alleged incident that occurred in Australia in a building the applicant used to live at, and the applicant’s claims that people would be sent to get him. 

28. The Tribunal also put to the applicant, under s 424AA of the Act, the applicant’s Facebook pages from him in Iraq in 2014 and another photo of him in September 2015, and raised with the applicant the inconsistency in relation to his alleged attack in Australia but fearing to return to Iraq. 

29. The Tribunal raised with the applicant the obtaining of the false Iraqi passport which he used with his Protection visa application.

30. The Tribunal referred to the applicant’s claims concerning his new life with his fiancé here in Australia who has a daughter in her teens.

31. The Tribunal summarised the submissions and evidence that had been provided by the applicant, including summarising the post-hearing submissions dated 1 April 2019. 

32. The Tribunal found that there was a valid notice issued under s 107 of the Act and that it complied with the statutory requirements.

33. The Tribunal found that there was non-compliance by the applicant with s 101 of the Act in the way described in the s 107 notice.

34. The Tribunal identified that it was necessary to consider whether the Protection visa, in those circumstances, should be cancelled under s 109(1) of the Act. The Tribunal then expressly referred to the requirements of reg 2.41 of the Migration Regulations1994 (Cth) (“the Regulations”) and referred to the provision of the incorrect information as weighing in favour of the discretion to cancel the Protection visa.

35. The Tribunal referred to the incorrect information and found that the applicant was granted the Protection visa based wholly or partly on the incorrect information. The Tribunal found that this factor weighed in favour of cancellation of the Protection visa. 

36. The Tribunal considered the circumstances of the non‑compliance and found the breach to be very serious and to weigh in favour of cancellation.

37. The Tribunal referred to the applicant’s present circumstances, including his relationship with his fiancé and her daughter and that prior to being placed in detention he had been working in Australia. The Tribunal identified giving these factors some weight in favour of not cancelling the Protection visa. 

38. The Tribunal also found that the applicant’s behaviour subsequent to the cancellation of the Protection visa, including candidly acknowledging the incorrect information and his cooperation at the two hearings, to weigh in the applicant’s favour against cancellation of the Protection visa.

39. The Tribunal also took into account the time that has elapsed since the applicant’s non‑compliance, which occurred in 2011, as weighing in the applicant’s favour against cancellation of the Protection visa.

40. The Tribunal also took into account favourably that the applicant had not engaged in any serious breaches of Australian law since the non-compliance.

41. The Tribunal was also prepared to accept that the applicant had made a contribution to the Australian community and gave that weight in favour of the applicant.

42. The Tribunal took into account other considerations, including the mandatory legal consequences of cancellation, and whether Australia had any non‑refoulement obligations to the applicant. 

43. The Tribunal referred to the applicant’s claim that he would be killed by a particular militia in Iraq. The Tribunal found the applicant’s claims to be implausible and contradictory. The Tribunal summarised in detail the applicant’s claims in that regard and it provided logical and rational reasons in support of the adverse findings.

44. The Tribunal also identified reasons why it found a particular document provided by the applicant not to be a genuine document.

45. The Tribunal also identified reasons why it regarded the video submitted by the applicant as fabricated.

46. The Tribunal did not accept the applicant’s claim that a clan or a militia or anyone else wants to kill the applicant or otherwise seriously harm him in Iraq. 

47. The Tribunal was not satisfied there is a real chance the applicant will face serious harm or significant harm in Iraq. 

48. The Tribunal was not satisfied that the applicant had a well‑founded fear of persecution. 

49. The Tribunal found the applicant is not the subject of a real risk that he would be subject to significant harm on return to Iraq.

50. The Tribunal was not satisfied that Australia had any non‑refoulement obligations to the applicant that would be breached if the applicant was returned to Iraq.

51. The Tribunal expressly referred to the family unity principles and the applicant’s relatively recent relationship with his fiancé and his attachment to his fiancé’s daughter, and their desire for him to be released from detention. 

52. The Tribunal accepted that there would be hardship caused to the applicant’s fiancé and her daughter and gave that some weight in favour of not cancelling the Protection visa. 

53. The Tribunal expressly referred to the best interests of the child and identified the age of the applicant’s fiancé’s daughter and the family of the mother. The Tribunal noted that the daughter lives with one of her two brothers.

54. The Tribunal also identified the approximately 2-year duration of the applicant’s relationship with the daughter. 

55. The Tribunal accepted that the child’s best interests would be to be part of a stable family unit and that the applicant may bring more stability if released from detention in Australia. 

56. The Tribunal accepted that minimising the distress to the child was in her best interests and gave that factor some weight in favour of not cancelling the Protection visa.

57. The Tribunal also took into account that the applicant’s non-compliance was very serious. 

58. After referring to the circumstances, the Tribunal found that the seriousness of the applicant’s breach and the lack of substantive mitigating or compelling circumstances for the non‑compliance significantly outweighed the favourable factors in respect of cancellation of the Protection visa. 

59. Accordingly, the Tribunal found that the Protection visa should be cancelled and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 14 June 2019. 

2. On 2 July 2019, the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence, and submissions. Those orders expressly included an affidavit in respect of a transcript of the hearing. No such documents have been filed by the applicant.

3. At the commencement of the hearing today, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court. 

The s 438 Certificates

1. Two certificates were issued by the Department under s 438 of the Act, the information of which has been admitted into evidence before this Court, subject to redactions. The Court was satisfied that the redacted material met the requirements of the claim of public interest immunity.

2. The information the subject of the two certificates concerned the applicant’s identity, the internal techniques to identify the false information that are confidential and essential to the working of the Act and information concerning informants. 

3. The Tribunal identified raising with the applicant the existence of the two certificates in paras 14 and 15 of its reasons. The Tribunal identified that it did not consider the first certificate to be valid. The Tribunal discussed the information the subject of the first certificate with the applicant and identified that it is information regarding the applicant’s identity and past that he has admitted to.

4. It was apparent that the Tribunal discussed with the applicant the information covered by the second certificate, and that it concerned the applicant’s admissions in relation to his identity. 

5. The first respondent has identified that the second certificate, contrary to the Tribunal’s reasons, was invalid. 

6. The Court has taken into account the principles identified in MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 relevantly at para 46, at para 47 and paras 52 to 68. This is a case in which it is apparent that the Tribunal raised the existence of the two certificates with the applicant, who was represented at the hearing.

7. Given the incorrect identification of the second invalid certificate, the applicant carries the onus of establishing the information to have been material in relation to the statutory review. The Court must consider whether the incorrect identification operates to deprive the applicant of the possibility of a successful outcome and that issue of materiality is a question of fact on which the applicant bears the onus of proof. 

8. It is apparent in the circumstance of the present case that the Tribunal acted in relation to the two certificates so as to inform the applicant of the existence of the same and discussed the information concerning the applicant’s identity. The applicant candidly admitted to the Tribunal that he had used a false identity and that the answers in his Protection visa application were incorrect as identified in the s 109 notice.

9. In these circumstances, the erroneous decision as to the second certificate being invalid was of no materiality in relation to the conduct of the statutory review required under the Act. That is because the information concerned the applicant’s identity and the provision of a false identity at the time of his application for the Protection visa and the applicant has admitted to the Tribunal the provision of that false information. The applicant suffered no practical injustice in these circumstances in the conduct of the review.

10. Accordingly, the applicant has not established, as a matter of fact, that the information the subject of the second certificate that was invalid and the non-disclosure of the information the subject of the second certificate deprived the applicant of the possibility of a successful outcome because it was not material to the application for review.

11. The Court also finds, in relation to the first certificate that was disclosed to the applicant and the information the subject of that certificate, that it was not, as a matter of fact, material to the application for a review in the present case, and that the applicant was not deprived of the possibility of a successful outcome in the conduct of the statutory review because of the existence of the first certificate and the information the subject of it. This is because the Tribunal raised the existence of that certificate with the applicant, discussed the information concerning the applicant’s identity on the first certificate with the applicant and gave the applicant the opportunity to put on submissions, and the applicant did not take issue with the fact that he had provided false information which was the substance of the information the subject of the first certificate. 

12. Accordingly, no jurisdictional error arises in relation to the conduct of the review by the Tribunal in the circumstance of the present case by reasons of the existence of the certificates or the information the subject of the first certificate or the second certificate or the erroneous conclusion that the second certificate was valid.

The grounds

1. The grounds in the application are as follows:

   1.On the 21 February 2019 and 15 March 2019, I attended a hearing before the Administrative Appeals Tribunal ("the Tribunal"). During the second hearing on the 15 March 2019 I had an Arabic speaking interpreter organised by the Tribunal. The interpreter was from Egypt not Iraq and spoke a different Arabic. I told the Member that I was having difficulty in understanding her questions and she was interpreting incorrectly, as I have a basic knowledge of the English language. However, the hearing continued.

   The Tribunal did not provide me with a sufficient opportunity to give evidence at the hearing as it was lost in translation. This is a breach of s 360 of the Migration Act 1958 (Cth) or a denial of procedural fairness.

   2.In the Tribunals decision dated 10 May 2019 stated at [88] that the seriousness of my breach and lack of substantive mitigating or compelling circumstances significantly outweigh factors favourable to my case that my visa cancellation should be revoked. In making this conclusion the tribunal failed to give proper weigh and consideration to the best interests of the child at [78-84] and family unity principals at [70-77]. In the circumstances, the Tribunal fell into jurisdictional error for one or more of the following reasons:

   a)     The Tribunal's reasoning process was illogical or irrational.

   b)     The Tribunal's finding that the was based on speculation and not probative evidence.

   c)   The Tribunal misunderstood the evidence and made finding of fact in respect to the best interests of the child that was not consistent with the evidence.

Ground 1

1. From the bar table, the applicant raised his concerns in respect of a difficulty with the interpreter at his Tribunal hearing. The Court raised with the applicant that he put on no evidence in support of those assertions, and when the Court asked the applicant, “What was the nature of the errors?” the applicant referred to difficulty understanding communications between his solicitor and the Tribunal member. The applicant claimed that there was nothing else that he did not understand. 

2. No evidence has been put on to establish any material error by an interpreter in the conduct of the review. There is no suggestion in the Tribunal’s reasons of any problem with the applicant or in the course of the hearing. The applicant was represented at the hearing and the post-hearing submissions make no reference to any issue with the interpreter. 

1. In circumstances where there is no evidence to support ground 1, no jurisdictional error can be made out.

2. Further, on the face of the Tribunal’s reasons, it is apparent that the Tribunal raised with the applicant the issues of concern in the context of the hearing. 

3. On the face of the evidence before the Court, the applicant had a real and meaningful hearing before the Tribunal.

4. There is no basis to find that the Tribunal was in breach of any obligation under s 360 of the Act. 

5. On the face of the evidence before the court, the Tribunal complied with its statutory obligations in the conduct of the review.

6. For the reasons already given, the existence of the certificates and the documents the subject of the certificates does not give rise to any denial of procedural fairness or any jurisdictional error. 

7. There is no evidence to support the assertion that the applicant was having difficulty understanding the Tribunal member’s questions and the applicant’s submissions to this Court were to the contrary. Nor is there any evidence to support the applicant raising a difficulty with the interpreter at the hearing. Accordingly, the applicant’s oral reference to a difficulty with the interpreter does not identify any jurisdictional error by the Tribunal in the conduct of the review. Ground 1 does not identify any jurisdictional error for the reasons given above.

8. In the course of the applicant’s submissions from the bar table the applicant also sought to raise the existence of a document from Iraq comprising four pages which was marked MFI1. 

9. The applicant confirmed that the document went to his claims of fear of harm if returned to Iraq. The acceptance of the document into evidence was opposed by the first respondent. The document was clearly irrelevant as this Court is not in a position to make fresh findings of fact in relation to the merits. 

10. The Court finds the document to be irrelevant and it is for this reason the document was rejected and marked MFI1. 

11. The Court again explained to the applicant the nature of the hearing and the limited powers of this Court in relation to whether the Tribunal exceeded its statutory power.

12. From the bar table, the applicant also referred to the evidence about his fiancé’s daughter. It is apparent from the Tribunal’s reasons, as summarised above, that the Tribunal expressly took into account the best interests of the child. It was a matter for the Tribunal to weigh that factor with the other factors. It is apparent that the Tribunal did so. For the reasons as summarised above, the reasons of the Tribunal cannot be said to be illogical or irrational. There is no finding in that regard that has been identified to be speculative. The Tribunal’s findings were open to it for the reasons given by the Tribunal and were based on the evidence identified by the Tribunal.

13. The Tribunal was not required to accept the applicant’s submissions that the applicant had to be allowed to remain in Australia. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law in relation to the notice of cancellation. The Tribunal was correct in finding that the notice under s 107 of the Act was valid and was correct in finding that there had been non‑compliance in the way specified in the notice. The Tribunal also correctly turned to considering the factors under the Regulations in relation to whether the Protection visa should be cancelled. 

14. The applicant’s disagreement with what is in the best interests of the child and whether his Protection visa should be cancelled does not identify any jurisdictional error by the Tribunal.

15. The applicant also referred to it being dangerous for him to return to Iraq and disagreed with the Tribunal’s reasons concerning that danger. It is apparent that the Tribunal considered the applicant’s claims to fear harm on the grounds of non-refoulement. On the face of the Tribunal’s reasons, the Tribunal made adverse findings in relation to both the Convention Relating to the Status of Refugee and complementary protection that were open for the reasons given by the Tribunal as summarised above. The applicant’s disagreement with those adverse findings does not identify any relevant error. 

16. Nothing said by the applicant from the bar table identifies any jurisdictional error in the conduct of the review or the reasons of the Tribunal.

Ground 2

1. In relation to ground 2, it is apparent that the Tribunal did take into account the best interests of the child and the principle of family unity. The reference to the limited period of the relationship, as well as other family members of the fiancé, reflect a real and meaningful engagement by the Tribunal with the applicant’s submission in relation to the best interests of the child. The Tribunal accepted that this was a factor weighing in favour of the applicant in not having the Protection visa cancelled. 

2. There is no illogicality or irrationality in the Tribunal’s reasons. There is no finding in relation to the best interests of the child that were speculative and not based on probative evidence. 

3. There has been no identified misunderstanding of the evidence in relation to the findings concerning the applicant’s claims in respect of the best interests of the child. 

4. The adverse finding in relation to all the factors was open to the Tribunal for the reasons given by the Tribunal. 

5. No jurisdictional error as alleged in ground 2 is made out.

6. As the application fails to make out any jurisdictional error, and nothing said by the applicant identifies any jurisdictional error, the application is dismissed.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the transcript of the published oral reasons for judgement of Judge Street delivered in open Court on 6 March 2020 and the parties were provided sealed copies of the Court’s orders.

Associate: 

Date: 1 May 2020