CKD16 v Minister for Immigration

[2017] FCCA 1929

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1929

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – existence of two s.438 certificates – whether the information the subject of the certificates was credible, relevant and significant – whether the non-disclosure of the information the subject of the certificates gave rise to any practical injustice – the Tribunal did not have regard to or act upon the s.438 certificates – the applicant was not denied a real and meaningful hearing – the undisclosed information was not credible, relevant and significant – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101, 107, 109, 422B, 424A, 438, 476

Migration Regulations 1994, reg.2.41

Cases cited:

AVO15 v Minister for Immigration and Border Protection [2017] FCA 1081

MZAFZ v Minister for Immigration and Border Protection [2017] FCA 566

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

Applicant: CKD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2332 of 2016

Judgment of: Judge Street

Hearing date: 15 August 2017

Date of Last Submission: 29 August 2017

Delivered at: Sydney

Delivered on: 22 September 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.   

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2332 of 2016

CKD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 August 2016 affirming a decision to cancel the applicant’s Protection (Class XA) visa.

2. The applicant alleged he was a stateless Faili Kurd. The applicant applied for and was granted a protection visa on 5 May 2011. On 15 June 2014 the applicant left Australia and entered Iran on 16 June 2014 and left Iran on 22 August 2014 and returned to Australia on 23 August 2014.

3. The applicant used an Australian travel document issued to him on 31 March 2014 to leave and re-enter Australia. The Tribunal found the applicant used an Iranian passport issued to him by the Iranian Embassy in Canberra on 23 May to enter and leave Iran. The applicant alleged that the passport that he used to enter and leave Iran was a fraudulent passport.

4. The applicant was sent a letter of notice of intention to consider cancellation under s.107 of the Migration Act on 25 November 2014. That letter made reference to s.101(a) and (b) of the Migration Act which provides as follows:-

   A non-citizen must fill in or complete his or her application form in such a way that:

   (a)  all questions on it are answered; and

   (b)  no incorrect answers are given or provided.

5. The letter referred to the information provided by the applicant on 5 February 2011. The letter made reference to a number of questions, including question 20 of Form 866C and the applicant’s answer.  Relevantly, at question 20 of Form 866C, the Tribunal noted that the applicant did not state an answer to the question about the applicant’s current citizenship.

6. The letter identified the applicant’s travel back to Iran on 15 June 2014 and that on the applicant’s return at Sydney Airport, an Iranian passport with the applicant’s photo, name and date of birth was sighted. That passport was issued on 23 May 2014.

The delegate’s decision

1. The delegate found that the applicant had provided incorrect information in the protection visa application Form 866C. The delegate found that the applicant had not complied with s.101(b) of the Migration Act.

2. The delegate sent a further letter to the applicant on 27 July 2015 in relation to an International Treaties Obligations Assessment (“ITOA”). That assessment was made on 17 December 2015 and the assessment found the applicant was a national of Iran and the applicant was found to be an Iranian citizen. On 5 April 2016 the applicant was notified of the cancellation decision and the reasons of the delegate in that regard. 

The Tribunal’s decision

1. On 7 April 2016 the applicant lodged an application for review to the Tribunal. On 21 June 2016 the applicant was sent an invitation to attend a hearing on 22 July 2016.  The applicant appeared on that date to give evidence and present arguments and was represented by his migration agent. The migration agent provided submissions both prior to and subsequent to the hearing.

2. In the present case, two s.438 certificates were issued, one dated 15 April 2016 which the first respondent accepted was an invalid certificate, consistent with MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. The second certificate, albeit undated, identified other documents which the first respondent accepted that the certificate was invalid.

3. The Tribunal identified the applicant’s background. The Tribunal identified the notice that had been issued to the applicant.  The Tribunal identified the applicant’s evidence and his explanation that his mother was suffering from a brain tumour and his assertion that the passport on which he travelled was fraudulent. The applicant also produced a green card and white card of his parents in support of his assertion that he was a stateless Faili Kurd and not a citizen of Iran.

4. The Tribunal identified what occurred at the hearing and in particular, explained to the applicant the issue of whether there had been a non-compliance in the way described in the notice sent to the applicant. The Tribunal referred to the fact that the applicant had not answered question 20 on Part C of the application form relating to his current citizenship.

5. The Tribunal summarised the further submissions. The Tribunal found the applicant had given different accounts in regard to how he obtained the Iranian passport issued to him in Canberra in May 2014 and found that this cast doubt on whether the applicant was telling the truth about how he obtained the passport. 

6. The Tribunal referred to a submission by the applicant’s representatives in relation to the applicant’s parents’ white cards and asserted that the white cards proved the applicant was stateless beyond doubt. The Tribunal found that this was not an obvious inquiry to be made about a critical fact, the existence of which could be easily ascertained. 

7. The Tribunal found the applicant’s passport on which he entered and left Iran was a genuine passport and not a fake, as alleged by the applicant. The Tribunal had regard to the inconsistencies in the applicant’s evidence with regard to how he obtained the passport and did not accept the applicant was telling the truth about this and did not accept that the passport was fraudulently issued at the instance of a guy in Iran who makes or fakes passports as the applicant claimed.

8. The Tribunal found the fact that the applicant was issued with an Iranian passport by the Iranian Embassy in Canberra on 23 May 2014 and that he used that passport to enter Iran in June 2014 and to leave again in August 2014, supported the conclusion that the applicant is an Iranian citizen. The Tribunal rejected the submissions that the use of the passport did not mean the applicant was an Iranian citizen at the time he applied for protection. The Tribunal found the applicant left Iran legally in 2010 and travelled on a genuine passport in his true identity.

9. The Tribunal found that the applicant did not answer question 2 on Part C of the application for a protection visa in relation to his current citizenship, because he would have been required to answer if his current citizenship at the time that he made the application had been different to the citizenship at birth, which he had described as stateless. 

10. Having regard to the findings by the Tribunal, the Tribunal found the applicant was an Iranian citizen at that time. The Tribunal found the applicant gave an incorrect answer to question 19 on Part C of the application form by saying that his citizenship at birth was stateless when in reality he would have been an Iranian citizen by birth. 

11. The Tribunal found that there was non-compliance with s.101(a) or s.101(b) of the Migration Act by the applicant in the way described in the notice of intention to consider cancellation sent to the applicant under s.107 of the Migration Act.

Consideration of cancelling the visa

1. The Tribunal then turned to the issue of whether to exercise the discretion to cancel the visa under s.109 of the Migration Act. The Tribunal took into account the applicant’s response. The Tribunal took into account the prescribed matters identified in regulation 2.41 of the Migration Regulations 1994 (“the Regulations”). The Tribunal concluded that the applicant’s visa should be cancelled.

Before this Court

1. On 24 November 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. The grounds in the application are as follows:-

   1. The Tribunal erred through a constructive failure to exercise its review jurisdiction by its failure to pursue an obvious inquiry about a critical fact- the validity of the Iraqi refugee status of the parents of the applicant in Iran, which could have been readily ascertained by an enquiry to the Australian Embassy in Tehran about the parents' White Cards tendered to the Tribunal - as per the High Court guidelines in Minister For Immigration & Citizenship v SZIAI & Anor [2009] HCA 39 at [25] or to request the parents to produce a confirmation from the relevant department of the Iranian Ministry of Interior before making its decision.

   2. The Tribunal further erred by its failure to acknowledge the central question in this case: the current status of his parents in Iran and to give proper weight to the evidence of their Iraqi Refugee cards produced with official translations to the Tribunal.

   3. The Tribunal failed to interpret correctly the representative's reference to another AA T drawing attention to the other Tribunal's statement that it had to be “positively satisfied” that the answers in the original application were incorrect. The Tribunal declared it “does not agree.” The other AAT case was AAT 1511806 (Refugee) [2016] AATA 3390 (3 March 2016)

   4. This rendered the Tribunal's decision manifestly unreasonable and subject to jurisdictional error.

   Paragraphs from the applicant’s affidavit

   3. I am also aggrieved that the Tribunal in my case failed to give proper weight to the central question of how a reasonable person could hold any belief that I might hold or be entitled to Iranian citizenship when I presented documented evidence that my Iraqi-born parents are still only white card holding Iraqi refugees living in Iran and who are therefore not entitled to citizenship nor are any of their children, of whom I am one.

   4. Nor did the Tribunal give proper if any consideration as to how I or the Department could obtain a passport if I am held to be an Iranian citizen, thereby leaving me to be detained indefinitely while this issue is resolved.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

4. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for a further hearing by the Tribunal. The Court explained that if not satisfied that the review by the Tribunal was unlawful or unfair, the application would be dismissed.

5. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel of the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

The Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that the white cards of his parents and his green cards were genuine and that he was a stateless Faili Kurd and that the passport was fraudulent. The submissions by the applicant, in substance are an invitation for this Court to engage in an impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1, the Tribunal clearly took into account the documents advanced by the applicant, being the parents’ white cards. The Tribunal considered whether or not it should make inquiry of the embassy. The Tribunal’s conclusion that there was not identified an obvious inquiry to be made about a critical fact, the existence of which could be easily ascertained, was correct. The documents provided were copies of white cards and there was no obvious inquiry that would have identified whether the white cards were genuine or fake. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the central issue was not the current status of the applicant’s parents and the Tribunal took into account the applicant’s claims and evidence and made adverse credibility findings that were open to the Tribunal. It was a matter for the Tribunal to determine what weight to give to the documents produced by the applicant.  The adverse credibility findings by the Tribunal were open. No jurisdictional error as alleged in ground 2 is made out.

Grounds 3 and 4

1. Grounds 3 and 4 Grounds 4 in the application in substance assert that the Tribunal had to determine conclusively the status of the white cards of the parents. This was not accepted by the Tribunal. The Tribunal was correct in that regard. The Tribunal had to be positively satisfied that the answers required in the application were correct.  The Tribunal made reference to there being no onus upon the parties in the administrative decision and cited the relevant law. The Tribunal made adverse findings that were open to it and no error as alleged in grounds 3 and 4 is made out.  Further, the adverse findings by the Tribunal cannot be said to be unreasonable or illogical or irrational. No jurisdictional error as alleged in the application is made out.

Paragraphs 3 and 4 of the applicant’s affidavit

1. In the affidavit, the applicant alleged that the Tribunal had failed to give proper weight to what the applicant alleged was the central question, being his parents’ white cards. For the reasons given, that was not the central question and paragraph 3 of the applicant’s affidavit does not identify any jurisdictional error.

2. Paragraph 4 of the applicant’s affidavit alleged that the Tribunal failed to give proper consideration to how the applicant obtained the passport.  Paragraph 4 of the applicant’s affidavit is in substance an invitation to this Court to engage in an impermissible merits review. No jurisdictional error is made out by paragraphs 3 or 4 of the applicant’s affidavit.

Section 438 certificates

1. The first respondent, consistent with its duties as a model litigant, raised with the Court the issue of the two s.438 certificates. The first respondent, upon questioning by the Court about the documents the subject of the certificates, properly retracted the assertion in the submissions, that the content of the information the subject of the certificate could properly be characterised as being neutral or positive to the applicant’s interests.

2. Counsel for the first respondent accepted that there was information in relation to a police report about how to obtain an Iranian passport that was potentially adverse to the applicant and that there was information provided in another document concerning the prevalence of fraud in Iran in relation to the obtaining of identity documents. The information in both these documents, the subject of the certificate was capable of being said to be relevant to the adverse determination. The issue however, in respect of the requirements of procedural fairness is whether the information was credible, relevant and significant. This is to be assessed at the time of the hearing as procedural fairness is concerned with the process not the outcome.

3. I accept the first respondent’s submissions that the Tribunal’s reasons do not identify the Tribunal having regard to the documents the subject of the two certificates under s.438 of the Migration Act. The documents the subject of the certificates, were adverse to the applicant in relation to the prevalence of fraud of identity cards in Iran and this was relevant to the issues as to whether the applicant was an Iranian citizen and the applicant’s contention that he was a stateless Faili Kurd. However, this was excluded country information under s.424A(3)(g) of the Migration Act. In these circumstances, at the time of the hearing, a reasonable Tribunal would not regard the undisclosed information as credible, relevant and significant.

4. The first respondent accepted that the certificates were invalid. The Court accepts the first respondent’s submission that on the face of the Tribunal’s reasons, the Tribunal had no regard to the documents the subject of the respective certificates and did not act upon those documents.

5. For the purpose of determining whether there has been a denial of procedural fairness, the test that appears to have been applied in MZAFZ v Minister for Immigration and Anor [2016] FCA 1081 as well as by Barker J in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 is one of whether there has been any practical injustice. This requires close consideration of the process and whether the applicant in the conduct of the review under Part 7 was as a matter of process denied disclosure of information that is credible, relevant and significant as explained above.

6. In the circumstances of the present case, the Court has the material the subject of the certificates. The Court must determine whether the Tribunal acted on the certificates and whether assessed at the time of hearing, the non-disclosure of the information gave rise to a practical injustice by reason of being credible, relevant and significant. The decisions in MZAFZ v Minister for Immigration and Anor [2016] FCA 1081 and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 are distinguishable as the documents the subject of the certificates are in evidence.

7. The Court finds that the Tribunal did not have regard to or act upon the documents the subject of certificates. The non-disclosure of documents in the present case cannot be said to give rise to any obligation of disclosure under s.424A of the Migration Act. This is because the documents contained information only relevant to credit or excluded country information.

8. The first respondent was provided with an opportunity to put on further submissions which were filed on 29 August 2017. The applicant was also provided with an opportunity to put on submissions in reply however, no submissions were filed. The first respondent’s further submissions outline that in the present case, it is not to the point that the documents might have been relevant to the review, or even prejudicial to the applicant if the Court finds that the Tribunal has not had regard to and has not acted upon the documents the subject of the certificates. I have found that the Tribunal did not have regard to or act upon the documents the subject of the certificates.

1. I find that the applicant was not denied a real and meaningful review under Part 7. The adverse credit findings by the Tribunal were findings independent of the information the subject of the certificates. Further, at the time of the hearing, the Court finds that the information the subject of the certificates was not credible, relevant and significant. This means the applicant in this case suffered no practical injustice by reason of the non-disclosure of the documents. Accordingly no jurisdictional error is made out.

2. Further, if jurisdictional error occurred, the Court in this case would decline the applicant relief in the exercise of its discretion because disclosure of the documents could not possibility have made any difference to the outcome of the review. The outcome was based on independent findings dispositive of the applicant’s claims.

Conclusion

1. As no jurisdictional error is made out, the application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  22 September 2017