CLA20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1682
•20 November 2020
FEDERAL COURT OF AUSTRALIA
CLA20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1682
Appeal from: CLA20 v Minister For Immigration & Anor [2020] FCCA 1355 File number: QUD 169 of 2020 Judgment of: YATES J Date of judgment: 20 November 2020 Catchwords: MIGRATION – cancellation of visa pursuant to s 109(1) of Migration Act 1958 (Cth) – where appellant provided incorrect information in his visa application concerning his identity – whether the Administrative Appeals Tribunal misunderstood the combined effect of s 198 and s 197C of the Migration Act when read together and consequently exercised its discretion erroneously Legislation: Migration Act 1958 (Cth) ss 109, 107(1)(b), 140, 189(1)
197C, 198(5), 375A
Migration Regulations 1994 (Cth) reg 2.41
Cases cited: CLA20 v Minister For Immigration & Anor [2020] FCCA 1355
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 34 Date of hearing: 11 November 2020 Counsel for the Appellant: Mr M Guo Solicitor for the Appellant: Fisher Dore Counsel for the First Respondent: Ms E Hoiberg Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice. ORDERS
QUD 169 of 2020 BETWEEN: CLA20
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
20 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs fixed in the amount of $5,465.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
On 24 October 2017, a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), cancelled the appellant’s visa under s 109 of the Migration Act 1958 (Cth) (the Act) on the basis that he had provided incorrect information in his visa application concerning his identity.
The appellant applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), to review that decision. On 5 August 2019, the Tribunal affirmed the decision under review.
The appellant then commenced proceedings in the Federal Circuit Court of Australia (the Federal Circuit Court) seeking judicial review of the Tribunal’s decision. On 6 May 2020, the Federal Circuit Court dismissed the application for judicial review, with costs: CLA20 v Minister For Immigration & Anor [2020] FCCA 1355. The appellant appeals from that judgment.
It is not necessary for me to descend to the appellant’s particular circumstances in order to determine this appeal. The appellant does not dispute that, in his case, s 109 of the Act was enlivened, with the consequence that the Minister and, on review, the Tribunal was empowered to cancel his visa. The decision to do so was discretionary. The appellant advanced a number of reasons why the discretion should not be exercised adversely to him. One of these was his claimed fear of harm if he were to be returned to his country of origin, Pakistan.
Overall, and weighing a number of considerations, the Tribunal decided that the appellant’s visa should be cancelled. In reaching that decision, the Tribunal reflected on the operation of various provisions of the Act, including ss 189 and 198.
This appeal is concerned with the appellant’s contention that the Tribunal did not correctly understand the combined effect of s 198 read with s 197C of the Act and, as a consequence, exercised its discretion erroneously in affirming the cancellation of his visa. The appellant contends that the primary judge erred in failing to find that the Tribunal’s decision was affected by jurisdictional error in this respect.
To put the appellant’s appeal in context, it is necessary to say something more about the Tribunal’s decision.
Section 109(2) of the Act envisages that there may be circumstances declared by regulations to be circumstances in which a visa must be cancelled. As it happens, there are no mandatory circumstances that are applicable. However, s 109(1) required the Tribunal to consider any response made by the appellant to the notice about non-compliance that was given to him pursuant to s 107(1)(b) of the Act, and to have regard to any prescribed circumstances.
The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth):
Whether 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.
There is no complaint that the Tribunal did not have regard to the prescribed circumstances.
The Tribunal also had regard to Procedural Advice Manual 3 “General visa cancellation powers” (PAM3) which states that it is policy for delegates to consider the following matters in deciding whether to cancel a visa under s 109, even if these matters are not specifically raised by the visa holder:
(a)Whether there are persons in Australia whose visas would, or may, be cancelled under s 140;
(b)Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example, whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations;
(c)Whether there are mandatory legal consequences to a cancellation decision, for example, whether indefinite detention is a likely consequence of the cancellation decision, or whether, upon cancellation, the person would become an unlawful non-citizen and is liable to be detained under s 189, and liable for removal under s 198;
(d)Any other relevant matters (such as the degree of hardship that may be caused to the visa holder and any family members).
In the course of considering these matters, the Tribunal said:
88.The Tribunal notes, in relation to Australia’s non-refoulement obligations, that before the applicant was removed to his country of origin, the Department would complete an International Treaties Obligations Assessment (ITOA). Therefore, the Tribunal considers that a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin in breach of Australia’s non-refoulement obligations under the Refugees Convention.
89.The ITOA assessment would, amongst other matters, consider whether the applicant would be at risk of harm in his country of origin. The applicant has made blanket allegations of fear, should he return to Pakistan. In his response to the Department NOICC, the applicant claims that Hazaras and Shia Muslims are being persecuted in both Afghanistan and Pakistan. However, despite having had multiple opportunities to particularise these allegations before the Tribunal, either at hearing, or in response to the Tribunal’s invitations to comment, the applicant has not provided any meaningful particulars. The Tribunal places minimal weight on his assertions, as the applicant has not provided any supporting detail, specific to his own personal circumstances. In relation to these considerations under Australia’s international obligations, the Tribunal gives minimal weight in the applicant’s favour.
90.The applicant also contends that he is unable to return to Pakistan, as he claims that he is not a Pakistani citizen. The Tribunal places no weight on the applicant’s assertions in this respect, as for reasons traversed earlier, the Tribunal prefers the information provided by the Department that the applicant has lawfully resided in Pakistan.
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.
94.Overall and weighing all the considerations, the Tribunal considers that the applicant's visa should be cancelled. The applicant has conceded that the grounds for cancellation have been made out.
In the Federal Circuit Court, the appellant raised three grounds of judicial review. The first ground contended that the appellant had been denied procedural fairness on the basis that he had not been provided with a copy of, or sufficient particulars of, a document in respect of which a certificate had been issued under s 375A of the Act. The second ground was that the Tribunal had erred by failing to properly consider whether Australia’s non-refoulement obligations had been engaged in respect of the appellant. The third ground was that the Tribunal had erred by failing to properly consider whether the cancellation of the appellant’s visa could lead to the appellant’s removal from Australia or indefinite detention should he receive a positive International Treaties Obligation Assessment (ITOA) in relation to Pakistan.
The Federal Circuit Court rejected each ground. At [30] – [32], when dealing with the second ground of judicial review, the primary judge said:
[30]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.
[31]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.
[32]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.
The appellant’s appeal focuses on [88] of the Tribunal’s Decision Record (quoted at [12] above) and [32] of the primary judge’s reasons (quoted immediately above]. Those submissions can be put succinctly.
Any person known to be, or reasonably suspected of being, an unlawful non-citizen is required to be detained: s 189(1) of the Act. That person then becomes a “detainee”, and a detaining officer is then under a duty to remove the person “as soon as reasonably practicable”: s 198(5) of the Act. The removal duty is not suspended because of, or made subordinate to, the existence of any non-refoulement obligations. In this regard, s 197C of the Act provides:
Australia's non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.
Therefore, once the Tribunal affirmed the decision to cancel the appellant’s visa, the appellant became an unlawful non-citizen who was liable to detention, and who was bound to be removed “as soon as reasonably practicable”. That removal duty existed and was to be performed regardless of whether any ITOA process would occur.
The appellant submits that the result required by the Act, when ss 198 and 197C are read together, cannot be reconciled with [88] of the Tribunal’s Decision Record which, the appellant submits, suggest that cancellation of the appellant’s visa would not cause his removal because an ITOA would occur. The appellant submits, therefore, that the Tribunal did not correctly understand the law and that its reasoning was affected by jurisdictional error.
The question thus posed in the appeal is whether the Tribunal’s reasons, as reflected in its Decision Record, show that it did not appreciate that the legal consequence of its decision was that the appellant may be detained and removed from Australia. I am satisfied that the Tribunal did have a correct understanding of the consequences of its decision.
The appellant’s submissions proceed on a misreading of [88], and a misapprehension of the Tribunal’s reasoning of [88] – [94], of the Tribunal’s Decision Record. The appellant focuses on the Tribunal’s statement in [88] that “a decision to cancel the [appellant’s] visa would not necessarily cause him to be returned to his country of origin”. The gravamen of the appellant’s submission is that, here, the Tribunal was stating that cancellation of the visa would not cause, or at least might not cause, the appellant to be returned pending a possibly favourable ITOA. But this was not what the Tribunal was saying.
In this part of its reasons the Tribunal was considering “other relevant matters” which would inform its decision as to whether, as a matter of discretion, it should exercise the power to cancel the appellant’s visa. Earlier in its reasons, the Tribunal had considered the prescribed circumstances under reg 2.41. As [83] makes clear, the “other relevant matters” were those referred to in PAM3, namely whether the visa would have been granted if the correct information was provided; Australia’s international obligations in relation to non-refoulement; whether the cancellation of the visa would lead to the consequential cancellation of other visa holders under s 140 of the Act; and whether the cancellation would lead to the appellant’s indefinite detention.
In [88] and [89], the Tribunal was directing its attention to the second of those matters—Australia’s international obligations in relation to non-refoulement. It is to be borne in mind that the appellant had claimed that he would be at risk of harm if returned to his country of origin.
The appellant’s analysis of [88] of the Tribunal’s Decision Record does not pay sufficient heed to the focus of the Tribunal’s attention in this paragraph. It also effectively ignores an important part of the last sentence in that paragraph, which reads:
Therefore, the Tribunal considers that a decision to cancel the [appellant’s] visa would not necessarily cause him to be returned to his country of origin in breach of Australia’s non-refoulement obligations under the Refugees Convention.
(Emphasis added.)
What the Tribunal was saying was that the appellant’s return to his country of origin (if his visa was cancelled) would not necessarily be a breach of Australia’s non-refoulement obligations. It was not saying that cancellation of the appellant’s visa would not or might not lead to his return to his country of origin.
In [89] of its Decision Record, the Tribunal went on to explain why it was not necessarily the case that Australia’s non-refoulement obligations would be breached if the appellant were to be returned to his country of origin. The Tribunal noted that the appellant had made a blanket claim to fear harm. It also noted that, having been given multiple opportunities to do so before it, the appellant had not particularised his claims in any meaningful way. This led the Tribunal to say in the last two sentences of [89]:
The Tribunal places minimal weight on his assertions, as the [appellant] has not provided any supporting detail, specific to his own personal circumstances. In relation to these considerations under Australia’s international obligations, the Tribunal gives minimal weight in the [appellant’s] favour.
As I have noted, the appellant’s second ground of review in the proceeding below was that the Tribunal had erred by failing to properly consider Australia’s non-refoulement obligations. This ground was rejected. As the primary judge noted at [32] of his reasons, the Tribunal could not make dispositive findings as to Australia’s non-refoulement obligations in respect of the appellant. The Tribunal correctly recognised this. It did not purport to make a dispositive finding. However, in putting this consideration into the balance when considering the discretionary decision it was being called upon to make, the Tribunal gave minimal weight in the appellant’s favour to this particular matter, as it was entitled to do.
In [92] – [93] of its Decision Record, the Tribunal was turning its attention to the immediate legal consequences of cancelling the appellant’s visa. It had moved on from considering Australia’s non-refoulement obligations. It recognised that the cancellation would result in the appellant becoming an unlawful non-citizen who was liable to detention under s 189 of the Act and removal under s 198. In [93] of its Decision Record it described these consequences as the “standard mandatory legal consequences following visa cancellation”. It is clear that the Tribunal was not under any misapprehension as to the legal consequences of a cancellation decision. It did not misunderstand the role or significance of s 197C as it relates to the requirement of s 198(5) to remove a non-citizen as soon as reasonably practicable.
The clear findings in [92] – [93] should not be confounded by recourse to [88], which was dealing with the separate subject of the possible breach of Australia’s non-refoulement obligations should the appellant be returned to his country of origin in the event his visa was cancelled. Therefore, contrary to the appellant’s submission, there is no need to reconcile [88] of the Decision Record with [92] – [93] thereof. There is no inconsistency. The appeal cannot succeed.
The parties addressed the question of “materiality” on the premise that error was revealed in the Tribunal’s decision. On the present state of authority, the materiality of a demonstrated error is essential to its characterisation as a jurisdictional error. Whether a demonstrated error is material to the decision under review is a question of fact on which, here, the appellant bears the onus of proof: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] per Bell, Gageler and Keane JJ.
Given the firm conclusion to which I have come, I do not propose to address this question in detail. Strictly, it does not arise for consideration. It is sufficient for me to record that, had the asserted error been demonstrated, I would not have been satisfied that it was material to the outcome of the Tribunal’s review in the sense that the error deprived the appellant of a realistic possibility of a different outcome. I would not have been satisfied, therefore, that the error was jurisdictional.
In dealing with the question of materiality, the assumption is that [88] should be read as if the Tribunal reasoned that it was possible that the appellant would not be removed from Australia because he might receive a favourable ITOA. This reading does not exclude the alternative possibility that the appellant might not receive a favourable ITOA and would be removed from Australia.
The Tribunal’s analysis in [89] of its Decision Record shows that it considered the real and likely possibility to be that the appellant would not receive a favourable ITOA. This is why it gave minimal weight in the appellant’s favour to the prospect that the appellant’s return to his country of origin would result in a breach of Australia’s non-refoulement obligations. This, then, points persuasively to the conclusion that, had the posited error (involving the significance and effect of s 197C) been pointed out to the Tribunal, it would not have been deflected in its decision to cancel the appellant’s visa. This is because a consideration in favour of not cancelling the appellant’s visa—albeit one attracting minimal weight—would have been removed from the Tribunal’s assessment. It is inconceivable that this would then have caused the Tribunal to recalibrate the other factors it took into account in reaching its decision.
For these reasons, the appeal should be dismissed, with costs.
The Minister seeks an order that the appellant pay his costs on a lump sum basis in the amount of $5,465.00. The appellant does not oppose costs being awarded on a lump sum basis or contest the amount sought, which has been substantiated by an affidavit filed by the solicitor who has had the primary carriage of this appeal on the Minister’s behalf.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. Associate:
Dated: 20 November 2020
0