CKZ19 v Minister for Immigration
[2020] FCCA 284
•13 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKZ19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 284 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to properly assess the applicant’s risk of harm – whether the Tribunal failed to take into account a relevant consideration – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.101, 107, 109, 476 |
| Applicant: | CKZ19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1514 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 13 February 2020 |
| Date of Last Submission: | 13 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Oliver Richard Jones |
| Solicitors for the Applicant: | Parish Patience Immigration Services |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | MinterEllison |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.
DATE OF ORDER: 13 February 2020
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1514 of 2019
| CKZ19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 May 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) to cancel the applicant’s Subclass 866 Protection visa (“Protection visa”).
The applicant arrived in Australia on 15 November 2011 as an unauthorised maritime arrival. The applicant lodged the application for the Protection visa on 11 October 2012, together with a statement dated 15 January 2012. By letter dated 20 October 2012, the Department notified the applicant of its decision to grant him a Protection visa.
At the time of the applicant’s application for the Protection visa, the applicant was the subject of an obligation under s.101(b) of the Act to complete the application form in such a way that no incorrect answers were given or provided. In his application, the applicant provided a number of incorrect answers, which were given or provided, without descending into each question. These answers were the subject of the notice of intention to cancel dated 22 February 2017 sent from the Department to the applicant.
It is sufficient to identify that the applicant alleged in his Protection visa application that he was stateless and feared persecution in Iraq. There was further information that the notice dated 22 February 2017 identified that was provided in relation to a sponsorship partner application. The notice dated 22 February 2017 identified that the applicant is in fact a citizen of Iraq and that his assertion of being a stateless Kuwaiti Bidoon was incorrect.
The notice dated 22 February 2017 also noted that the applicant had travelled to Iraq on two occasions since the grant of his Protection visa and identified the dates of those departures.
On 5 January 2018, the Delegate found that the applicant had been given a notice of an incorrect application in accordance with the requirements of s.107 of the Act and that the non-compliance as alleged in the notice was laid out. The Delegate found that the applicant’s visa should be cancelled as a matter of discretion under s.109 of the Act.
The applicant applied for review on 9 January 2018. By letter dated 5 October 2018, the applicant was invited to attend a hearing before the Tribunal on 20 November 2018.The applicant appeared on that date to give evidence and present arguments.
In its reasons, the Tribunal identified the background to the application for review. The Tribunal correctly identified the relevant questions. The Tribunal identified the notice dated 22 February 2017 and non-compliance in the way described in the s 107 matters and found that there was such non-compliance by the applicant.
The Tribunal, after taking into account the applicant’s evidence and submissions, found that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the notice sent under s.107 of the Act.
The Tribunal correctly identified that it was necessary to consider whether the Protection visa should be cancelled pursuant to s.109(1) of the Act. The Tribunal noted that there were no mandatory circumstances prescribed for the cancellation of the Protection visa under s.109(2) of the Act and therefore the decision to cancel the visa is discretionary.
Relevantly, in relation to the present case, the Tribunal in its reasons referred to accepting that there was generalised violence in Iraq. The Tribunal noted that this applies to the whole population of Iraq, not specifically to the applicant. The Tribunal, after taking into account country information, which the Tribunal accepted, was not satisfied that there is a real chance of real risk that the applicant will suffer serious harm or significant harm for any of the reasons claimed if he returns to Iraq now or in the reasonably foreseeable future.
The Tribunal also took into account that the applicant has children living in Iraq. The Tribunal in its reasons said Australia has no obligations to the applicant’s children under the Convention on the Rights of the Child (“the Convention”). The Tribunal continued: “Therefore, the tribunal finds that no international obligations will be breached as a result of the cancellation of the applicant’s protection visa.”
The Tribunal in its reasons accepted that there would be a financial impact on the children if the applicant was to be returned to Iraq because he would not be able to provide the financial support he had been providing from Australia.
After considering all the relevant matters, the Tribunal found that the factors in favour of cancellation of the Protection visa outweighed the factors against it and concluded that the protection visa should be cancelled.
The grounds
The grounds in the application are as follows:
1. The Tribunal made a jurisdictional error by failing properly to assess the Applicant's prospect of harm in the event that the visa was cancelled.
a. The Tribunal found at paragraph 182 of its decision that there was generalised violence in Iraq;
b. However, the Tribunal found that the generalised violence in Iraq applied to the whole of the population of Iraq and not to the Applicant specifically; and
c. The Tribunal, therefore, wrongly applied a test of whether the risk of violence arose for a Convention reason instead of also asking whether there was a risk of violence regardless of whether the violence would warrant a protection visa: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [52]-[54].
2. The Tribunal made a jurisdictional error by failing to take into account a mandatory relevant consideration or by making a legally unreasonable finding of law or of fact.
a. The Tribunal found at paragraph 183 of its decision that, as the Applicant's children live in Iraq, Australia has no obligations to the children under the Convention on the Rights of the Child;
b. The Tribunal found at paragraph 183 of its decision that, as the Convention did not apply, there would be no breach of international obligations in the event that the Applicant's visa was cancelled;
c. The Tribunal misconstrued the Convention as, by Art 2(1 ), the Convention extends to the conduct of States Parties with respect to any children "within their own jurisdiction";
d. A child may be within the jurisdiction of a State Party even though the child is not physically present within the territory of the State Party but is instead merely affected by conduct of the State Party within its own territorial borders: see, for example, Loizidou v Turkey (Preliminary Objections), European Court of Human Rights, 23 March 1995, para 62;
e. The children of the Applicant were affected by the decision of the Tribunal in the present case as the Applicant provided financial support to the children from Australia (see at paragraph 189 of the decision of the Tribunal);
f. The Tribunal could not make a finding of law or fact for which there was no evident and intelligible justification (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] per Kiefel CJ and at [82] per Nettle and Gordon JJ);
g. Whether the Tribunal's finding as to the reach of the Convention was treated as one of law or fact (Australian Competition and Consumer Commission v P T Garuda Indonesia (No 9) [2013] FCA 323 at [48]), there was no evident and intelligible justification for it under international law and the finding was material to the Tribunal's decision;
h. To the extent that the Convention was a mandatory relevant consideration, the Tribunal's misconstruction of the Convention meant that it had not properly taken into account that consideration.
Ground 1
In relation to ground 1, Mr Jones of counsel on behalf of the applicant submitted that the Tribunal had erred by applying only a Protection visa analysis in respect of the harm to which the applicant may be subject if returned to Iraq. Mr Jones submitted that the Tribunal had failed to take into account the generalised violence in Iraq that did not meet the Protection visa criteria in considering the exercise of the discretion under s.109 of the Act.
The Court does not accept the proposition that the Tribunal failed to take into account generalised violence in Iraq. The Tribunal’s reasons ought not to be read with a keen eye for error. The reference to accepting that there is generalised violence in Iraq was clearly the taking into account a broader consideration than the Protection visa criteria alone. The Court does not accept that the Tribunal had to make further reference in respect of the generalised violence in Iraq in identifying the taking of the same into account in the determination of the discretion under s.109 of the Act. No such error in these circumstances arises, as alleged in relation to ground 1.
Further, to construe the Tribunal’s reference to generalised violence in Iraq as if the Tribunal were therefore not taking it into account simply because the Tribunal has proceeded to identify that taking into account country information, it was not satisfied under the Protection visa criteria, is not a proper basis to find that the Tribunal has not taken the same into account.
Further, the Protection visa criteria which the Tribunal referred to in the context of that country information was a relevant matter to take into account. The taking into account of the Protection visa criteria did not mean that the Tribunal had not taken into account also, as identified in the opening sentence to paragraph 182 of its reasons, the generalised violence. No error of the kind alleged in ground 1 is made out.
Further, this is not a case where the applicant advanced a specific claim concerning a fear of violence over and above the Protection visa criteria that required any further express deliberation or finding.
Further, the Court does not accept that, even if it could be said that there was a failure to take into account harm beyond that of the Protection visa application, that this would give rise to a jurisdictional error in the circumstances of the present case. The possibility of harm beyond the scope of the Protection visa application was not a mandatory consideration that had to be taken into account by the Tribunal.
Accordingly, no jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, Mr Jones, with his usual ingenuity, identified the importance of the Convention on the Rights of the Child and its significance in respect of the exercise of administrative powers. Mr Jones submitted that the Tribunal had wrongly concluded that the Convention has no application in Australia because children are in another country.
The Tribunal’s reasons were much more specific. It is obviously the case that the Convention on the Rights of the Child can have significance in relation to families that are sadly split up and in different countries. The obligation on the state parties to the Convention is one that refers to ensuring respect for the rights set forth in the Convention to each child within their jurisdiction.
There is no issue arising under article 2 of the Convention, per se, before the Court where a family that is within the jurisdiction are the subject in Australia of an action concerning children. Clearly, there is a need to take into account the Convention where there is an action concerning children in Australia. That the children are in another country would not of itself be a basis to conclude the Convention has no application. The Tribunal, in the present case, identified that the applicant’s children live in Iraq.
The administrative proceedings the subject of the Tribunal’s review, was one concerning whether the applicant should have his Protection visa cancelled by reason of the provision of incorrect information as to being stateless. It was provided in support of and was clearly the basis upon which the applicant obtained a Protection visa and whether that visa should be cancelled.
The proceedings are not one that could properly be described as actions concerning children. To the extent relevant, it is apparent that the Tribunal has taken into account, as referred to in paragraph 189 of its reasons, that returning the applicant, as father of the children, to Iraq, where the children are, may have some financial impact because he cannot continue to provide financial support from Australia. The Court does not accept that that financial impact or the impact on the applicant’s children, in the context of these proceedings is an action concerning children in respect of which the Tribunal was required to take into account article 3, paragraph 1 of the Convention.
The reference by the Tribunal to Australia having no obligations to the children of the applicant, in the circumstances of the present case, under the Convention, was correct in circumstances where the administrative proceedings, in the present case, cannot properly be characterised as actions concerning children.
The reference to “all” is of importance and “concerning” is a broad meaning. The Court has taken into account the principles in the Vienna Convention. The article does not, however, support a construction that the term “concerning” should be construed as “affecting.” The administrative review, the subject of the Tribunal’s process, was not an action concerning children within article 3, paragraph 1 of the Convention.
There was no error by the Tribunal in finding that there was no international obligation under the Convention to be considered in the circumstances of the review concerning the applicant. There was no mandatory obligation, in the circumstances of the present case, for the Tribunal to take into account the Convention.
The Tribunal did use the phrase “therefore” in referring to there being no breach of the obligations as a result of the cancellation of the applicant’s protection visa.
In circumstances where the father, being the applicant, is being returned to the country where the children are, being Iraq, there could not possibly be an argument advanced that there was a breach, by reason of returning the father to the children, being contrary to the best interests of the children. There is no suggestion of the applicant being unable to perform the ordinary duties of a parent in relation to advancing the best interests of the child in their immediate physical presence. Different considerations might arise where the father had some particular past history that meant that his physical presence would not be in the best interests of the child.
Mr Jones advanced that because the children may get financial benefit from the father being in Australia there would be a weighing exercise, required in respect of the best interests of the child in the circumstances of the present case and that the Court would be descending into the merits to contend that there could be no issue of breach of article 3, paragraph 1, by returning the father to the children. The Court does not accept that submission.
It could not possibly be advanced, in the circumstances of the present case, that merely because there was some financial benefit that may have been provided in the past or might continue if the applicant remained in Australia, that the returning of the father to the children in Iraq, where the Tribunal has accepted generalised violence in Iraq, could possibly be a breach of the best interests of the child as a primary consideration.
The Tribunal’s reasons should not be read with a keen eye for error. The Tribunal was correct in holding that there was no breach of article 3, rule 1 of the Convention. Further, even if the reasoning of the Tribunal, in respect of that breach, was said to be flawed, on the basis of the first sentence of paragraph 183 of the Tribunal’s reasons, this is a case where it could not possibly be said that returning the applicant to the children could give rise to a breach of article 3, paragraph 1 of the Convention and, accordingly, the alleged error has no materiality.
No jurisdictional error as alleged in ground 2 is made out.
As no jurisdictional error is made out by the application, the application is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 13 February 2020 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 24 March 2020
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