CLA20 v Minister for Immigration - [2020] FCCA 1355

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLA20 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1355

Catchwords:
MIGRATION – Cancellation of Subclass 155 (Five Year Resident Return) Visa pursuant to s. 109(1) of Migration Act 1958 (Cth) – false identity documents provided at the time of visa application – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101(b), 109, 359A, 375A, 438.

Migration Regulations 1994 (Cth), r.2.41.

Cases cited:

CHZ19 v Minister for Home Affairs [2019] FCA 914.

Minister for Immigration and Border Protection v Singh & Anor (2016) 244

FCR 305.

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

Minister for Immigration and Citizenship v Khadgi & Anor (2010) 190 FCR 248

AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261

FCR 503.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210.

Applicant:

CLA20

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 787 of 2019

Judgment of:

Judge Egan

Hearing date:

2 April 2020

Date of Last Submission:

2 April 2020

Delivered at:

Brisbane

Delivered on:

6 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Clift

Solicitors for the Applicant:

Angus Francis Lawyers

Counsel for the Respondents:

Ms Hoiberg

Solicitors for the Respondents:

Minter Ellison Lawyers

ORDERS

The Amended Application for review filed on 15 January 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 787 of 2019

CLA20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant was granted a Protection (Class XA) Visa on 28 October 2009, and subsequently a (Class BB) Resident Return Visa (Subclass 155) on 7 November 2016, on the basis that he was a citizen of Afghanistan and a refugee.
On 1 June 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s. 109 of the Migration Act 1958 (Cth) (‘the Act’). [1]
[1] Court Book (CB) pp. 2 – 12 inclusive.
The NOICC recorded that a delegate of the Minister considered that the applicant had not complied with the provisions of s. 101(b) of the Act, which section relevantly provided:
“Section 101 – Visa applications to be correct
A non-citizen must fill in his or her application form in such a way that:
…
(b) no incorrect answers are given.”
At page four (4) of such NOICC, reference was made to a Departmental Identity Assessment Report as follows:
“Evidence – Departmental Identity Assessment Report
On 09 September 2010 you lodged an application to sponsor your wife and ten children on a Global Special Humanitarian visa. This application was refused and you subsequently lodged a Partner visa application in which you sponsored only five of those children. On 06 November 2014 you lodged an application for Conferral of Citizenship. Due to concerns raised in these applications regarding your claimed family composition and the lodgement of bogus Afghan identity documents known as taskeras, you were requested to attend an identity interview, which took place on 29 August 2016.
The departmental identity assessor has noted the following:
In regard to your name, you have consistently identified yourself to the Department as [Applicant’s name 1], including at question 1 of Form 866C. When asked in the identity interview if you were known by any other names, you stated that [Applicant’s name 1] was your name. At question 4 of the Form 866C you did not provide any other names which you are known by. However, when later questioned about the identity of your wife – [Wife’s name 1] – you admitted that you were also known in Pakistan as [Applicant’s name 2]. A Pakistan identity card for your wife obtained given by you during the identity assessment your wife confirms that her husband’s name is [Applicant’s name 2]. You claim to be married to [Wife’s name 1]. You claimed that both you and your wife held fake Pakistan identity cards, and your wife’s card states that her husband is [Applicant’s name 2]. Your wife’s card was referred to the Pakistan authorities the Pakistan authorities who verified it as genuine.
In regard to your travel history, you claimed that you fled Afghanistan in 2000 and travelled to Karachi with your wife and five children. You retracted this account after timeline anomalies were put to you and you later advised that you actually moved to Pakistan by yourself around 1989 and met your wife in Karachi.
In regard to your family composition, you claimed that you had ten children, but later retracted this claim after discrepancies in your account were put to you. You later admitted that you had only five children who were all born in Pakistan and that the other five were actually extended family members whom you were attempting to gain entry onto Australia for.
In regard to the documentation that you have provided to the department in your various applications, the identity assessor noted that in your entry interview, you stated that you were previously issued with an Afghan taskera but claimed it was destroyed during an attack in Kabul. You claimed that you never held an Afghan passport. When it was established that you actually moved to Pakistan in approximately 1989 (and not 2000 as originally claimed), you were asked what identity documents you held in Pakistan. You stated that you only had a fake refugee card in your name, [Applicant’s name 1]. You claimed that when it expired, you lived in Pakistan illegally. When challenged and asked why you would have a fake refugee card when you were entitled to a genuine one, you replied that it was too dangerous to travel to Peshawar to obtain a genuine card. You further claimed that it was easy to go about your daily business in Karachi because you looked like the locals, could speak the language and no one harassed or bothered you.
The identity assessor found your explanation to be implausible. The UNHCR and the Government of Pakistan claims that some 1.5 million refugees are in possession of Proof of Residency (PoR) cards (issued since 2007) in Pakistan. It is compulsory for Afghan refugees to hold PoR cards. Without them, they cannot go about their daily life and access services such as formal employment, enrolment of children in school, travel and accessing telecommunications.
You were asked what identity documents your family held. You replied that your family travelled back to Afghanistan approximately two or three years ago and were issued with taskeras and passports. These documents were included with the Partner visa application. When asked why they were issued with taskeras at that time, you replied that they needed documents. You further clarified that your children’s taskeras, obtained approximately four years ago in support of the Global Special Humanitarian visa, were fraudulent. When asked why your family did not obtain genuine taskeras in the first place, you stated that at the time you did not know they were fraudulent. You claimed that you only found out they were non-genuine after contacting the Afghan consulate in Australia. Yet it has been noted that you also provided taskeras for your claimed children [Child 1] and [Child 2]. In the identity interview you admitted that [Child 1] and [Child 2] were your distant relatives and not your children, and as such, you would have had to have known that fake taskeras were being obtained for them. The identity assessor considers that your claim that you did not know that the taskeras for your own children were fake is implausible, because at the same time you would have been aware that fake taskeras for your other relatives had been obtained.
You were asked if your family members were issued with any identity documents in Pakistan. You replied that they do not have any documents with exception of your wife who carries a non-genuine card in case she is questioned. When asked what kind of a card it is, you said it was a taskera. You were further questioned on this point and asked why your wife uses a taskera in Pakistan. You replied that your wife uses it as an identification document when collecting supporting payments from the bank. After further questioning you clarified that the document she uses is a fake Pakistani Computerised National Identity Card (CNIC) issued in the name of [Wife’s name 2] which was obtained by bribing a corrupt official, and later provided a scan of the document.
A request was sent to Islamabad Post in Pakistan to determine if it was genuine. The National Database and Registration Authority check returned a genuine match for [Wife’s name 2], wife of [Applicant’s name 2]. This evidence demonstrates that your wife is considered a Pakistani national under the name of [Wife’s name 2]. Given that your wife holds a genuine identity card, it stands to reason that the fraudulent card which you claim to have held was also genuine and that you are a Pakistani citizen.
Even though all five of your children were born and raised in Pakistan, you denied that any of them had any identity documents issued to them in Pakistan, despite the fact that country information indicates that most Afghan refugees in Pakistan held Proof of Residence cards. You also stated that none of them were issued with birth certificates, despite the fact that in Pakistan a person’s immigration status would not be an impediment to being issued a birth certificate.
You initially denied that your children had access to schooling in Pakistan, but eventually provided school reports for them, which show that they all identify by the name “[Applicant’s name 2 surname]”.
The identity assessor considers that you moved from Afghanistan to Pakistan in the late 1980s and that you have resided there under the identity of [Applicant’s name 2]. Furthermore, the information before me suggests that your wife and children who identify as ‘[Applicant’s name 2 surname]’ are also citizens of Pakistan.”
The matters set out in the NOICC relating to identity issues of concern to the Department were clearly identified for the purpose of enabling the applicant, by his representative, to respond to it.
A letter dated 20 June 2017 [2] containing submissions in relation to the NOICC was sent by “Marg Le Sueur Migration Services” to the Department. At page three (3) of such response, it was provided as follows:
·    “Failure to Declare that he had been known by a different name, namely [Applicant’s name 2]
Mr [Applicant’s name 1] acknowledges that he should have advised the Department that he was known by the name [Applicant’s name 2] in Pakistan. He has explained the reason he did not mention this to the Department of Immigration in his attached statement. In his updated statement he apologises for not answering the questions regarding his identity fully and correctly in his various application forms.”
(emphasis added)
In the statutory declaration [3] which accompanied the letter from the applicant’s representative, the applicant admitted that in substantial respects, aspects of the information provided by him in his application for the visa were incorrect, and, on occasion, were deliberately untruthful. By way of example, paragraphs [22] – [35] of the statutory declaration clearly demonstrate that the applicant was prepared to tell untruths with a view to improving his protection visa prospects in the eyes of Australian immigration authorities. Those paragraphs were as follows:
[2]        CB pp. 15 – 31 inclusive.
[3]        CB pp. 32 – 36 inclusive.
“22. My wife and I both had Pakistani National Identity Cards (NIC).
23. I obtained my NIC card in approximately 2000-2002 I obtained the card because I wanted to live in Pakistan and wanted my children to have the opportunity to go to school. For this I needed to be accepted as Pakistani national.
24. To get my card I approached an agent in Karachi. I told him that I wanted an NIC card, but my parents were not from Pakistan and I had no documents. He told me he could get me an NIC card which will be in the Pakistani record system. This will enable my children to go to school.
25. He said the card would be real. He said he needed money and a photograph.
26. The agent had a link with the NADARA office in Karachi. I know this because I attended a government office with him to collect the card. Although I can't say for sure that it was the NADARA office, because I can't read Urdu, I am certain it was a government office, and assume it was the NADARA office.
27. The agent stayed with me the whole time I was in the office. He appeared to know the people in the office. He was sitting with them and drinking chai. One of the officers Showed me a computer screen and told me “This is the day you were born; this is your name." He printed out my document. I signed the paper had printed out.
28. He said I had to wait for a few days and it would be sent to me. The document was sent by post from Islamabad to my address. The name on my new card was [Applicant’s name 2].
29. My wife used my NIC card to get her NIC card. This was not hard for her, as many women in Pakistan get their documentation through their husband or father.
30. I used that document to enrol my children in school. As a result my children were able to study up until year 10. Unfortunately by the time my oldest daughter reached year 11, the system in Pakistan had tightened up. Students entering years 11 and 12 are now required to provide further evidence of their nationality and eligibility to attend government schools, such as their birth certificates and/or their Local Certificate or "B" form. We do not have any of those documents, so as a result none of my children have been able to go past year 10 in their education.
31. Many of my friends, in fact the majority of the Hazara community had false NIC cards, obtained in the same way.
32. The reason I did not mention my false NIC card is that while it was a card obtained from the NADARA office, and so is a "genuine” card, the person on the card, [Applicant’s name 2], is not me. Also, as I have mentioned above, I was afraid that if it was considered that I was Pakistani, I would not be accepted as a refugee.
33. I sincerely apologise for my decision to not tell the truth about my history and identity.
34. Since I have been living in Australia, I have come to realise the need for, and the benefit of, being more honest and straight forward about my identity. I have worked in the same job for the past 2.5 and have always tried to be honest and open with the government about my work, my financial situation. I have paid my taxes and never sought to evade any responsibility.
35. I miss my family a lot. Their situation in Pakistan is not good. Hazaras and Shia Muslims are now being persecuted in Pakistan as well as Afghanistan. Karachi is not a safe place for Hazaras. For this reason I worry about them a lot.”
On 24 October 2017, a delegate of the Minister cancelled the applicant’s visa. The delegate found that though the applicant claimed that he could not return to Afghanistan due to the dangers he faced there as an ethnic Hazara – the applicant asserted that he could not count on the protection of the Afghan State in Afghanistan – he was actually a person known as Khan Mohammad who was a citizen of Pakistan. [4]
[4] CB p. 81.
The applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate. On 8 November 2017, the Secretary of the Department issued a Certificate [5] pursuant to the provisions of s. 375A of the Act. That Certificate provided as follows:
“CERTIFICATE AND NOTIFICATION REGARDING DISCLOSURE OF CERTAIN INFORMATION TO ADMINISTRATIVE APPEALS TRIBUNAL UNDER s375A OF MIGRATION ACT 1958
I certify that in accordance with s375A of the Migration Act 1958, the disclosure, otherwise than to the Administrative Appeals Tribunal of the information contained in folios 24-29 of file number BCC2016/3882053, would be contrary to the public interest because:
(a) Folios 24-29 contain an Identity Assessment Report. This document is a deliberative process (internal working) document.
This is contrary to the public interest because the document contains information that would reveal confidential departmental investigative methods used to detect breaches of the law. In addition, in this particular case, allowing the visa applicant to view details of other people without the knowledge of the individuals may result in the public losing confidence in the Department’s ability to keep information on them secure.
As s375A applies to the document(s)/information identified above, the AAT must do all that is necessary to ensure the document or information is not disclosed to any person other than to a member of the AAT, pursuant to s375A(2)(b) of the Migration Act 1958.”
[5] CB p. 90.
Section 375A of the Act provided as follows:
“Section 375A – Certain information only to be disclosed to Tribunal
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.”
On 6 September 2018, the applicant’s representative made submissions to the Tribunal.
After having attended a hearing before the Tribunal on 11 October 2018, the applicant provided further submissions to the Tribunal on 30 October 2018 in response to matters raised during the course of the hearing.
On 13 June 2019, the Tribunal, pursuant to its obligations under s. 359A of the Act, wrote to the applicant’s representative. Section 359A of the Act provided as follows:
“Section 359A – Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”

The 13 June 2019 letter relevantly provided as follows: [6]
“INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR [APPLICANT’S NAME 1].
[6]        CB p. 185.
I am writing in relation to the application for review made by you in respect of a decision to cancel your Subclass (155) (Five Year Resident Return) visa.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·    The Tribunal has conducted an identity check of the Taskeras provided. The Tribunal to date has received a response that one of the Taskeras is genuine; however is yet to receive a result for the second Taskera. This may lead to the Tribunal to accept that you are an Afghani national.
·    The evidence before the Tribunal indicates that you are also entitled to, and have lawfully resided in Pakistan, under the identity of [Applicant’s name 2].
The Tribunal considers that this information is potentially adverse and relevant to the decision before the Tribunal, in relation to whether the Applicant gave incorrect answers to Questions 3 and 23 in Part C of Form 866 Visa Application for the reason that the applicant did not disclose they had been known as [Applicant’s name 2] to the Department when lodging their XA-866 Visa Application.
If the Tribunal relies on this information, the Tribunal may find that a ground for cancellation exists.
You are invited to give comments on or respond to the above information in writing.”
The applicant’s representative responded to the 13 June 2019 letter by a letter dated 3 July 2019. The representative did so in a detailed manner under headings which indicated that the matters raised by the Tribunal concerning the applicant’s identity were well appreciated and understood by such representative. [7] It was admitted that the applicant had provided false information to the Department and that he had failed to comply with the provisions of s. 101 of the Act.
[7] CB pp. 203 – 209 inclusive.
On 19 July 2019, the Tribunal wrote to the applicant under s. 359A of the Act informing him that a s. 375A Certificate had been issued by the Secretary to the Department. The letter in part provided as follows: [8]
“INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR [APPLICANT’S NAME 2]
[8] CB pp. 212 – 213.
I am writing in relation to the application for review made by you in respect of a decision to cancel your Subclass (155) (Five Year Resident Return) visa.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·The Tribunal is required to disclose that there is an s.375A Migration Act 1958 certificate on the file. The Presiding Member holds a preliminary view that the Certificate is valid, for the reason that disclosing the information that is subject to the certificate would be contrary to the public interest as it would reveal confidential departmental investigative methods used to detect breaches of the law.
oIn addition, the Tribunal considers that the personal details of others contained in the file should be kept secure, as those individuals have not consented to public disclosure of the information.
·The Tribunal considers it appropriate to advise the applicant of the general nature of the information that is contained in the certificate. This information relates to the Identity Assessment Report that was prepared by the Department following the applicant’s application for citizenship by conferral.
·The Member holds a preliminary view that the Certificate is valid. The Tribunal invites you to provide comment on the validity of the Certificate.
The Tribunal considers that the information contained in the identity assessment report is relevant because it was used by the Departmental Delegate in considering that a ground for cancellation existed.
The information contained in the identity assessment report, if relied on by the Tribunal, may form part of the reason for the Tribunal's affirming the decision of the Department.”
On 26 July 2019, the representative provided a response which relevantly asserted as follows: [9]
[9] CB pp. 215 – 216.
“Dear Member,
Re: Case number: [Omitted] – Application for review of a Cancellation decision – [Applicant’s name 1]
We refer to your letter dated 19 July, 2019, inviting Mr [Applicant’s name 1] to comment on the validity of a Certificate issued under Section 375A of the Migration Act.
Comments regarding the Tribunal’s obligations pursuant to Section 359A of the Migration Act.
We respectfully submit that the letter from the Tribunal, dated 19 July, 2019, gives us little confidence that the Tribunal has given sufficient consideration as to its obligations in this matter. We submit that section 359A of the Migration Act requires that the Tribunal give clear particulars of the information upon which the Tribunal intends to rely.
The Invitation letter states that “The Tribunal considers it appropriate to advise the applicant of the general nature of the information that is contained in the certificate.” With respect, we submit that the Tribunal’s letter does not do that. It simply states that the information relates to the Identity Assessment Report and then sets out in the same terms, the words used in the Certificate itself. This gives us no more information than that contained on the face of the Certificate.
Furthermore, the letter fails to set any meaningful information as to why the information contained in the Identity Assessment Report is relevant to this matter.
The particulars as given are insufficient to enable us to provide any meaningful response. Accordingly we request that better and clearer particulars be provided.
Comments on the validity of the Certificate issued by the Minister
The Certificate indicates that folios 24-29, i.e. an Identity Assessment Report are being withheld. Without knowing what is in that report, we are limited in our ability to comment on the validity of the document. However, we do have serious concerns regarding both the validity of the report and the accuracy of some of the assumptions which we suspect underlie that report.
We note that the Certificate refers to “details of other people without the knowledge of the individuals” Given that we have not seen the report, we are unable to comment upon this issue, however, we ask the Tribunal to take the following issues into account
…
Conclusion
While we respect that there may be confidential aspects to parts of the report, we ask the Tribunal to consider whether it would be possible to consider releasing the report with appropriate redactions to ensure third party confidentiality. Alternatively, there may be parts of the report containing information not covered by the Certificate. We ask that these portions be released. Without the release of further particulars, we submit that we simply do not have sufficient information to be able to comment as to the validity of the section 375A certificate.”
(emphasis added)
On 5 August 2019, the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa. The Tribunal found that there had been non-compliance by the applicant with the provisions of s. 101(b) of the Act.
The applicant filed an Originating Application for review of the decision of the Tribunal on 9 September 2019. At the hearing before this Court, the applicant relied upon an Amended Application for review filed on 15 January 2020, the grounds of which were as follows:
“Grounds of Application
1. The second respondent denied the applicant procedural fairness.
(a) On 8 November 2017, the first respondent issued a certificate and notification regarding disclosure of certain information, being an ‘Identity Assessment Report’, to the second respondent under s 375A of the Migration Act 1958 (Cth) (CB90) (the Act).
(b) The second respondent failed to provide the applicant with a copy of, or sufficient particulars of, the document the subject of the certificate issued under s 375A of the Act ~~the Migration Act 1958 (Cth) (the Act)~~ (see particularly the invitation to comment or respond to information issued by the second respondent to the applicant, dated 19 July 2019) (CB212-213).
(c) The second respondent failed to disclose to the applicant the existence of the certificate issued under s 375A of the Act, dated 8 November 2017, until 19 July 2019 (that is, until after the second respondent’s hearing held on 11 October 2018) (CB210-213).
2. The second respondent erred by failing to properly consider whether Australia’s non-refoulement obligations are engaged in respect of the applicant.
(a) By letter dated 1 June 2017, the first respondent issued the applicant with a Notice of intention to consider cancellation under s 109 of the Act (NOIC) (CB 1-13).
(b) By letter dated 20 June 2017, the applicant responded to the NOIC in terms which included a submission, at pages 9-17, headed ‘consequences of refoulement to Pakistan’ that addressed in detail the applicant’s fear of harm in Pakistan due to his being of Shia Muslim religion (CB23-31).
(c) The second respondent does not engage intellectually with the applicant’s fear of harm upon return to Pakistan due to his being of Shia Muslim religion (see particularly, paragraph [89] of the second respondent’s decision).
3. The second respondent erred by failing to properly consider whether the cancellation of the applicant’s visa could lead to the applicant’s removal from Australia, or indefinite detention, in the event the applicant received a positive International Treaties Obligation Assessment in relation to Pakistan ~~his alleged country of origin.~~”

Grounds of Amended Application

Ground 1.

This ground is of three parts. As to Ground 1(a) and 1(b) it was claimed that when the Secretary issued the Certificate pursuant to s. 375A of the Act, the Tribunal failed to provide the applicant with a copy of the Identity Assessment Report, or sufficient particulars of such report so as to enable a meaningful response to be given to the issues raised by the Certificate.
On its face, the Certificate recorded that because the Identity Assessment Report contained information that would reveal confidential Departmental investigative methods used in detecting breaches of the law, it was contrary to the public interest that the document be disclosed. Additionally, it was provided in the Certificate that “in this particular case” it was again contrary to the public interest to allow the applicant to view details of other people referred to in the report, because it would result in the public losing confidence in the Department’s ability to keep information about them secure.
In CHZ19 v Minister for Home Affairs [2019] FCA 914 at [48] – [49] Justice Colvin considered the effect of the issue of a s. 375A Certificate and said as follows:
“[48] The appellant relied upon the decision in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [37] to support the claim that the certificate was 'ex facie invalid'. MZAFZ concerned a certificate issued under s 438. Although s 438 has some similarities to the certificate process under s 375A, there are important differences. Section 438 provides that it applies if the Minister has certified non-disclosure 'for any reason specified in the certificate … that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed'. The reference to a claim in judicial proceedings was an important part of the basis for a conclusion by Beach J that the language required a claim to be made in terms that would support a proper claim to public interest immunity. In MZAFZ the reason specified was 'contains internal working documents'.
[49] However, s 375A refers to disclosure being 'contrary to the public interest for any reason specified in the certificate'. No argument was advanced as to why the description referring to investigative methods and prejudice to future investigations was not a sufficiently specific reason as to why disclosure was contrary to the public interest. Even assuming that MZAFZ applied, the present case is not analogous. Disclosure of investigative methods is a proper basis to claim public interest immunity. As that was the only contention advanced to support the ground as being arguable, the proposed appeal ground lacks merit insofar as it alleges that the s 375A certificate was invalid.”
(emphasis added)
In this matter, the Court notes that the validity of the Certificate has not been questioned by the applicant. The complaint made on behalf of the applicant was that insufficient particulars were provided so as to enable the applicant to provide a meaningful response to the issues raised by such Certificate. The complaints made on behalf of the applicant are unmeritorious. The applicant’s representative well knew, and had clearly acknowledged, that the applicant had provided incorrect information to the Department at the time he made application for a visa. The representative had full knowledge of the claims made against the applicant by the Department, and those claims were addressed in a fulsome and open manner. It cannot be said that the applicant did not know of the substance of the matters which would have been included in the Identity Assessment Report prepared in relation to the provision by him of false identity information.
Further, unlike the provisions of s. 438 of the Act, the Tribunal had no discretionary power to provide the applicant with a copy of the report. Section 375A(2)(b) of the Act makes it clear that neither the document, nor information the subject of the Certificate, is to be disclosed to any person other than a member of the Tribunal. To the extent that any operative tension arises between the provisions of s. 375A and s. 359A of the Act, s. 375A is the leading provision and has primacy. So much was held in Minister for Immigration and Border Protection v Singh & Anor (2016) 244 FCR 305 at [24] and [53] – [56] per Kenny, Perram and Mortimer JJ where it was said as follows:
“[24] As the primary judge accepted, there are significant textual differences between s 375A and s 438. In particular, s 438(3)(b) permits what s 375A does not, viz., disclosure to an applicant of the material subject to the certificate. Despite that difference, his Honour was attracted to the conclusion reached by Beach J that procedural fairness required a certificate under s 438 to be disclosed to an applicant for review before the Tribunal. In the course of reaching that conclusion, Beach J declined to follow what had been said about disclosure of a certificate under s 375A in Davis because MZAFZ was concerned with s 438 and not s 375A.
…
[53] In Davis, Dowsett J observed that in some circumstances the disclosure of the certificate might seriously undermine the confidentiality which s 375A was designed to protect. This is, with respect, a legitimate concern. In this case, however, it is apparent from the face of the certificate that this is not a problem, for its contents do not disclose the information in question. However, as is always the case, the requirements of procedural fairness vary with the circumstances: Russell v Duke of Norfolk [1949] 1 All E.R. 109 at 118 per Tucker LJ. In that regard, it is well established that confidentiality concerns, especially those relating to matters of public interest immunity, may have the effect of limiting the scope of the hearing rule: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 100 [29].
[54] It is not necessary for the purposes of this appeal to decide how such a narrowing of the hearing rule might be accommodated. But it is likely that even if the circumstances did warrant non-disclosure of the certificate itself, this would not mean that the existence of the certificate would not need to be disclosed. It is not, however, necessary to explore this further.
[55] The above observations concern the interaction between s 375A and the general principles of procedural fairness. Davis is authority, however, for the proposition that s 375A has the effect of overriding the obligation of the Tribunal under s 359A to give an applicant particulars of information which the Tribunal might use adversely to the applicant. There is, as we have already noted, a tension between the two provisions, but they are not inevitably completely at loggerheads. As Wilcox J explained in Burton, in many cases it may be possible to serve the procedural fairness aims of s 359A without compromising the secrecy requirements of s 375A. Carefully drafted particulars may have the effect of providing a fair hearing without disclosing the confidential information. That said, this will not always be possible. In such cases, it is necessary to identify which of the two provisions is the leading provision and to give it primacy: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [70]ff.
[56] It is plain that s 375A is the leading provision. In cases of true conflict it is s 375A, therefore, which will prevail. Davis likewise reflects an assumption that s 375A is the leading provision. To the extent, however, that Davis stands for the proposition that s 375A has the effect that s 359A never gives rise to an obligation to provide particulars about the document or information certified, we do not agree. Whilst direct conflict between ss 359A and 375A will result in the latter prevailing, it is by no means inevitable that the aims of both provisions cannot usually be served without conflict.”
In the circumstances of this matter, the Court is not persuaded that disclosure of either the whole, or part of, the documentation and information the subject of the s. 375A Certificate ought to yield to the provisions of s. 359A of the Act. No persuasive reason has been advanced as to why the Tribunal ought to have done so. The public policy grounds for non-disclosure as claimed in the body of the Certificate are sufficient to support non-disclosure.
In any event, even if the failure on the part of the Tribunal to provide particulars to the applicant’s representative as requested constituted procedural unfairness, any such breach was immaterial because it could not realistically have resulted in the Tribunal arriving at a different decision. As referred to above, the applicant and his representative were well aware of all of the issues surrounding the applicant’s failure to provide correct information as to his identity at the time of the making of his visa application. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [2], it was said by Bell, Gageler and Keane JJ:
“[2] … The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of a possibility of a successful outcome.”
Because the applicant well knew of the claims by the Department relating to his having provided false information relating to his identity, the applicant was not deprived of the opportunity to give evidence or make arguments on that issue.
Further, in SZMTA at [45] – [50], their Honours Bell, Gageler and Keane JJ, when considering the question of what constituted materiality, said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
[47] The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act. Although it is open to the Tribunal to form and act on its own view as to whether a precondition to the application of s 438 is met, the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.
[48] In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal's decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result.
[49] Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal's decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome", the task is not impossible and can be done in these appeals.
[50] In order to inform curial determination both of how the Tribunal in fact acted in relation to the notified document or notified information and of whether its decision could realistically have been different if the relevant breach had not occurred, evidence of the content of the document or information is relevant and admissible.”
(footnotes omitted)

There is no merit to Grounds 1(a) and 1(b) of the Amended Application for review.
As to Ground 1(c) of the Amended Application, the applicant was advised of the existence of the s. 375A Certificate, and was invited to make submissions concerning such Certificate, some two (2) months before the Tribunal handed down its decision. The applicant had ample opportunity to make submissions about a report, the contents of which it well appreciated, relevant to the provision of incorrect information by the applicant. The time of disclosure of the fact of the issue of the Certificate did not deprive the applicant of a fair hearing. An applicant cannot complain about not making submissions on an issue about which they well knew when they were given the opportunity to do so. There is no merit to Ground 1(c) of the Amended Application for review.

Ground 2.

This ground asserts that the Tribunal fell into error by failing to properly consider Australia’s non-refoulement obligations. It was claimed that the Tribunal had not engaged intellectually with the applicant’s fear of harm if returned to Pakistan in the light of his being a Shia Muslim.
It is clear from a reading of [89] of the reasons of the Tribunal that the Tribunal did have regard to the applicant’s submissions about non-refoulement. The Tribunal rightly claimed that the applicant had only made the most general of claims about the prospect of him being persecuted should he return to either Pakistan or Afghanistan. The applicant had not provided any meaningful particulars in that regard. A submission that an applicant would face a real risk of persecution as a Shia Muslim should he be forced to return to Pakistan, without more, did not advance the applicant’s non-refoulement claims. The Tribunal was entitled to place little weight upon the applicant’s claims for protection in that regard.
In the event that a visa was cancelled, the Tribunal properly recognised that it was then the Department’s function to review the then state of security in the receiving country that being an International Treaties Obligations Assessment (ITOA) conducted prior to the applicant leaving Australia. In doing so, the Tribunal recognised the applicant’s claims, even though it was otherwise unable to be more dispositive on the non-refoulement question due to the absence of particularity. The Tribunal did not err in doing so.
At [18] of the reasons of the Tribunal, the Tribunal recorded that it must have regard to the prescribed circumstances as set out in r. 2.41 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The Tribunal was alive as to its obligations in that regard. Notwithstanding that reality, the applicant had the onus of advancing a case to meet his claim. As was said in Minister for Immigration and Citizenship v Khadgi & Anor (2010) 190 FCR 248 at [83] per Stone, Foster and Nicholas JJ:
“[83] In our view, it is incumbent on the visa holder who is engaged in the visa cancellation process envisaged by s 109 to articulate facts, matters and circumstances to which he or she suggests the Minister should have regard as required by reg 2.41. The reg 2.41 criteria direct the Minister’s attention to particular factors at a general level but it is for the visa holder to shape and mould the Minister’s consideration of those criteria by reference to his or her individual circumstances. Whilst the Minister must, of course, have regard to material, information and documentation in his possession which properly fall within the purview of the reg 2.41 criteria, irrespective of their source, it will largely fall to the visa holder to flesh out that material in order to enable the Minister’s discretion to be properly exercised. For example, consider the criteria in reg 2.41(a), (e), (f) and (k). If the visa holder does not address those criteria with evidentiary material and submissions, it is not likely that there will be much material (if any) before the Minister for him or her to consider and evaluate. In that event, it is not likely that there will be much for him or her to say about those criteria.”
(emphasis added)
Further, the Tribunal was only required to consider such claims where they were either the subject of clearly articulated argument, or where they clearly emerged from the material before the Tribunal. Because the applicant’s claims concerning non-refoulement were lacking in particularity, the Tribunal was unable to consider such claims. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:
“[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
·The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”
There is no merit to Ground 2 of the Amended Application for review.

Ground 3.

This ground asserted that the Tribunal failed to properly consider whether any cancellation of the applicant’s visa could lead to the applicant’s removal from Australia, or to indefinite detention.
The Tribunal did deal with those very issues, namely at [91] – [93] inclusive where the Tribunal said:
“[91] The Tribunal acknowledges that the applicant will, following cancellation, be subject to s.46(1) of the Act, which bars him from making an application for a further visa. Further, as the applicant arrived to Australia as an irregular maritime arrival, the applicant will become an unlawful non-citizen, subject to s.46A(1) of the Act and barred from making a valid application for a further visa, including bridging visas, and may be detained.
[92] Following cancellation, the applicant will become an unlawful non-citizen, and may be liable for detention under s.189 of the Act, and may be removed from Australia under s.198 of the Act.
[93] However, these factors can be mitigated by voluntary departure by the applicant. The Tribunal considers these to be standard mandatory legal consequences following visa cancellation, and therefore gives these considerations minimal weight in the applicant’s favour.”
Accordingly, the Tribunal did have regard to the mandatory legal consequences of cancellation of the applicant’s visa. Voluntary departure was specifically referred to by the Tribunal in that regard. It cannot be said that the Tribunal did not engage intellectually on that very issue as it was obliged to do. There is no merit to this ground.
Further it cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were said to be either irrational or illogical, Wigney J, at [52] and [55], said:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”
The applicant did not demonstrate jurisdictional error on the part of the Tribunal.
The Amended Application for review is without merit and is dismissed.
The Court will hear the parties as to costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 6 May 2020

Correction: 29 May 2020

This judgment was sanitised such that identifying features relating to the applicant and the applicant’s family were removed.