CKZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 47
•3 February 2021
FEDERAL COURT OF AUSTRALIA
CKZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 47
Appeal from: CKZ19 v Minister for Immigration and Anor [2020] FCCA 284 File number: NSD 272 of 2020 Judgment of: NICHOLAS J Date of judgment: 3 February 2021 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court – whether the Administrative Appeals Tribunal failed to consider generalised risk of violence when cancelling appellant’s visa in addition to the statutory tests of serious harm and significant harm – Tribunal appropriately considered evidence before it – no jurisdictional error shown – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 101, 107, 108, 109
Migration Regulations 1994 (Cth) reg 2.41
Cases cited: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Date of hearing: 28 October 2020 Counsel for the Appellant: Mr O Jones Solicitor for the Appellant: Parish Patience Immigration Services Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent The second respondent submitted save as to costs ORDERS
NSD 272 of 2020 BETWEEN: CKZ19
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
3 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
Before me is an appeal from the decision of a Judge of the Federal Circuit Court of Australia dismissing an application for review of a decision of the second respondent (“the Tribunal”) made on 28 May 2019 affirming a decision of a Delegate of the first respondent (“the Minister”) to cancel the appellant’s subclass 866 Protection visa (“the protection visa”).
BACKGROUND
The appellant is a citizen of Iraq who was granted a protection visa on 29 October 2012. On 22 February 2017 he was given a notice of intention to consider cancellation of his protection visa (“the Notice”). The Notice indicated the appellant did not comply with s 101(b) of the Migration Act 1958 (Cth) (“the Act”) and that his visa may be cancelled as a result. The appellant made submissions in response to the Notice. However, on 5 January 2018 a Delegate of the Minister made a decision to cancel the appellant’s protection visa. The appellant applied to the Tribunal for review of the Delegate’s decision. On 28 May 2019 the Tribunal affirmed the decision to cancel the appellant’s protection visa.
THE TRIBUNAL’S DECISION
Section 101(b) of the Act provides that a non-citizen must complete the application form for a visa in such a way that “no incorrect answers are given or provided”. If the Minister considers that a person holding a visa has not complied with s 101(b) of the Act, s 107 allows the Minister to give the person notice of the particulars of the possible non-compliance and notice that the Minister will consider cancelling the visa. Section 108 of the Act requires the Minister to then decide whether there was non-compliance as described in the notice. If the Minister decides that there was non-compliance, s 109 of the Act enables the Minister to decide to cancel the visa. Section 109(1) provides:
(1) The Minister, after:
(a)deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)having regard to any prescribed circumstances;
may cancel the visa.
Prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”). Regulation 2.41 provides:
2.41Whether to cancel visa—incorrect information or bogus document (Act, s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j)any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note:Under s. 109 of the Act, the Minister may cancel a visa if there was non‑compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
THE REASONS OF THE TRIBUNAL
The Tribunal found that the appellant, by claiming to be a stateless Bidoon rather than an Iraqi citizen, had not complied with s 101(b) of the Act. The Tribunal was therefore required to consider whether the appellant’s visa should be cancelled under s 109(1) of the Act.
The Tribunal noted that it was required to have regard to reg 2.41. The Tribunal’s consideration of those matters is found in [137]-[167] of the Tribunal’s reasons. In addition to the matters referred to in reg 2.41, the Tribunal also had regard to government policy set out in the Department’s Procedural Advice Manual (PAM 3 “General Visa Cancellation Powers”). According to the Tribunal’s reasons at [168]:
[168]The Tribunal has had regard to the PAM 3 guidelines which require delegates to consider three additional factors over and above the prescribed circumstances being the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal’s consideration of the first of those matters (ie. the consequences of cancelling the visa) appear at [169]-[171] of the Tribunal’s reasons.
The Tribunal then proceeded to consider whether any international obligations would be breached as a result of the cancellation of the appellant’s protection visa. The Tribunal then considered, in that context, the fact that the appellant made various trips to Iraq after he was granted the protection visa. In light of those trips the Tribunal found that the appellant did not have a subjective fear of returning to Iraq.
Having considered those matters the Tribunal said at [177] that it was not satisfied that the appellant was at risk of serious harm or significant harm for any of the reasons claimed in his application for a protection visa if he were to return to Iraq now or in the foreseeable future.
The Tribunal referred to additional claims made by the appellant during the hearing that Iraq is an unstable and violent country. The Tribunal said at [178]:
[178]During the hearing, the applicant made new claims that Iraq is an unstable country and there is killing, destruction and explosions. He claimed stated [sic] that the government kills its own people when they demand the simplest of rights like water and electricity and the government persecutes people. These claims are generic and he did not claim that he feared harm for these reasons. He did not provide the Tribunal with any country information to support these claims. The Tribunal is unable to find any country information to support his claims that the Iraqi government kills its own people if they demand simple things like water and electricity. The Tribunal is not satisfied that there is a real chance or a real risk that he would be subject to serious harm or significant harm for these reasons if he returns to Iraq.
Pausing there, it seems to me that there are two claims that were made by the appellant during the hearing that are referred to in paragraph [178]. The first was that Iraq was an unstable and violent country. The second was that the government kills and persecutes its own people when they make demands for basic services. The Tribunal said that it was not satisfied that there was a real chance or a real risk that the appellant would suffer serious harm or significant harm by reason of those matters.
The Tribunal then discussed some country information before noting that it tended to indicate that the area the appellant and his family were from is safer than other areas in Iraq.
Both parties agreed the next paragraph in the Tribunal’s reasons is of particular importance. The Tribunal said at [182]:
[182]The Tribunal accepts that there is generalised violence in Iraq. This applies to the whole of the population of Iraq and not specifically to the applicant. However, in view of the above country information, which the Tribunal accepts, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant would suffer serious harm or significant harm for any of the reasons claimed if he returns to Iraq now or in the reasonably foreseeable future.
It is useful at this point to draw attention to the terminology used in [182]. Having accepted that there was “generalised violence in Iraq” but finding that this applied to the whole of the population and not specifically to the appellant, the Tribunal said again that it was not satisfied that there is a real chance or real risk that the appellant would 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 summarised at [191] a number of matters relevant to the discretion to cancel the appellant’s protection visa. It stated that there were no obligations under relevant international agreements which would be breached if the appellant’s protection visa was cancelled.
The Tribunal concluded at [193] that there was non-compliance by the appellant in the way described in the Notice given under s 107 of the Act and that, having regard to all the relevant circumstances, the Tribunal considered that the appellant’s protection visa should be cancelled.
THE PRIMARY JUDGE’S REASONS
The primary judge set out the grounds of the appellant’s application for judicial review. Ground 1 asserted that the Tribunal made a jurisdictional error by failing to properly assess the appellant’s prospect of harm in the event that his protection visa was cancelled. According to Ground 1:
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].
The primary judge dealt with Ground 1 as follows at [16]-[22]:
[16]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.
[17]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.
[18]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.
[19]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.
His Honour also considered the Tribunal’s reference to generalised violence in the context of the specific claims made by the appellant. His Honour said at [20]-[21]:
[20]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.
[21]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.
The appellant’s notice of appeal raises two grounds although Ground 2 is no longer pressed. Ground 1 in effect asserts that the primary judge erred in failing to find that the Tribunal committed the jurisdictional error referred to in Ground 1 of the appellant’s application for judicial review.
THE PARTIES’ SUBMISSIONS
The appellant submitted that the Tribunal committed a jurisdictional error by failing to take into account the risk of the appellant suffering harm that arose other than for a Convention reason. According to this submission, the Tribunal, having accepted the existence of generalised violence in Iraq, was not satisfied that there was a real chance or real risk that the appellant would suffer serious harm or significant harm for any of the reasons claimed. The appellant submitted that this draws on language used in s 36(2)(a) of the Act when read with s 5H and s 5J (“serious harm”) and s 36(2) when read with s 36(2B) (“significant harm”) to describe criteria which an applicant for a protection visa must satisfy. According to the appellant’s submission, the Tribunal referred to but did not further consider harm falling outside the definition of “serious harm” and “significant harm” as defined by the Act and that it failed to take such harm into account when deciding whether or not to cancel the protection visa.
The Minister submitted that on a fair reading of the Tribunal’s reasons, it gave consideration to the harm that the appellant may suffer if his protection visa was cancelled. According to the Minister, the consideration given in [177]-[182] of the Tribunal’s reasons in relation to the appellant’s new claims and the Tribunal’s acceptance that there is “generalised violence” in Iraq reflected a consideration not only of statutorily defined “serious harm” and “significant harm” but also more general harm that may be suffered by the appellant due to “generalised violence” if the appellant’s protection visa was cancelled and if he was returned to Iraq.
CONSIDERATION
The Tribunal raised the matter of “generalised violence” in Iraq in the course of considering the appellant’s claims. The Tribunal’s reasons at [182] show that “generalised violence” was a matter that the Tribunal took into account. The question is whether the Tribunal’s consideration of generalised violence failed to take into account the risk that this posed to the appellant or whether, if it did, it applied an incorrect legal test.
The Tribunal’s reasons should not be read with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) their Honours quoting the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.
It cannot be inferred that the Tribunal by referring to the statutory language of “serious harm” and “significant harm” did not consider the risk of “generalised violence” the appellant would face if he was returned to Iraq.
I am not persuaded the Tribunal committed a jurisdictional error by applying the wrong legal test. In particular, I consider that, notwithstanding the language in which [182] is expressed, the Tribunal’s reasons show that it took into account what it found to be “generalised violence” in Iraq when determining how to exercise the discretion under s 109(1) of the Act.
The Tribunal said at [192] of its reasons that, having carefully considered all relevant matters, it was of the view that the factors in favour of cancellation of the appellant’s protection visa outweighed the factors against it.
It is apparent that the Tribunal was at this point engaged in a consideration of matters that would weigh on the exercise of the discretion. Having previously referred to the matter of “generalised violence” it may be inferred that the risk posed to the appellant due to generalised violence in Iraq was a matter that was taken into account by the Tribunal in deciding how to exercise the discretion under s 109(1) of the Act.
In the circumstances I agree with the primary judge that the appellant has failed to demonstrate that the Tribunal’s decision was affected by jurisdictional error.
DISPOSITION
The appeal must be dismissed. The appellant will be ordered to pay the Minister’s costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 3 February 2021
1
4
2