CMN17 v Minister for Immigration

[2018] FCCA 975

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMN17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 975

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s a decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.109, 117,

Migration Regulations 1994 (Cth), reg.2.41

Applicant: CMN17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 536 of 2017

Judgment of: Judge Vasta

Hearing date: 16 April 2018

Date of Last Submission: 16 April 2018

Delivered at: Brisbane

Delivered on: 16 April 2018

REPRESENTATION

Counsel for the Applicant: Mr W.J. Markwell

Counsel for the First  Respondent: Mr B. McGlade

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The Application filed on 8 June 2017 as amended on 2 December 2017 and further amended on 16 April 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 536 of 2017

CMN17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent
First

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 11 May 2017, the Administrative Appeals Tribunal (“the Tribunal”) affirmed a decision of the delegate of the Minister to cancel the subclass 866 protection visa of the Applicant. 

2. The background of this is that the Applicant arrived in Australia in 2009 as an unauthorised maritime arrival.  He spun a tale to the authorities that he was a citizen of Afghanistan and was fleeing persecution in that country. 

3. He said that he had made his way from Afghanistan into Quetta in Pakistan and from Quetta was able to get on a boat that finally made its way to this country.  He was given a protection visa. 

4. Some years later it was found that all of the information that the Applicant had given to the Minister, that founded the decision to give the protection visa, was in fact false.

5. The Applicant was a citizen of Pakistan and he was able to legally leave and return to Pakistan. That information having been given to the Minister, the Minister issued a notice under s.117 of the Migration Act 1958 (Cth) (“the Act”).

6. The Applicant admitted that he had, in effect, given incorrect information as to his name; date of birth; citizenship; claims that he left Afghanistan illegally; claims that his passport had been destroyed by a people smuggler; and, fears as to the Taliban seeking reprisals, etcetera.

7. Once the Minister, and as well the Tribunal, had come to a finding that the Applicant had given information that was incorrect, s.109 of the Act took effect.

8. That section relevantly says that the Minister, after considering any response to the notice about the noncompliance, and having regard to any prescribed circumstances, may cancel the visa.

9. The prescribed circumstances are set out in reg.2.41. That section relevantly says that:

   “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.”

1. In the end, the delegate decided to cancel the visa. 

2. The Applicant went to the Administrative Appeals Tribunal for that Tribunal to review the decision. The Tribunal, in a very thorough set of reasons, came to the conclusion that the visa ought be cancelled. The Tribunal went through each of the factors in reg.2.41 and gave a summary of those factors.

3. What the Tribunal did, in effect, find was that there was a real danger to the Applicant as a Shiah Hazara Muslim if he were to return to Quetta in Pakistan.  Having come to that conclusion, the Tribunal was then obliged to look at whether or not there were other parts of Pakistan to which the Applicant could return and whether such relocation was practical. 

4. The Tribunal looked at quite a deal of country information and came to the conclusion that the Applicant could relocate to one of the major urban centres in Pakistan. The Tribunal found that such relocation would mean that there was no longer a real risk of serious harm to the Applicant because of his membership of the Shiah Hazara minority of a Muslim population. 

5. On 8 June 2017, the Applicant came to this Court asking it to judicially review the decision of the AAT. 

6. From a further amended application that was filed before me today by leave, there is only one ground.  That is “that the second respondent has not taken a relevant consideration into account”. 

7. The particular is “the second respondent has not considered the relevant PAM3 Refugee and Humanitarian Protection Assessment Guidance Notes”.  The particular continues:  “Those notes were compiled by the First Respondent and are specifically relevant to the Applicant’s situation.  The Protection Assessment Guidance Notes are annexed to an affidavit of the Applicant’s lawyer. The second respondent has not considered the highly relevant information available in the document, particularly in relation to relocation to urban areas such as Karachi, Rawalpindi, Islamabad and Lahore”. 

8. In his submissions, Mr Markwell, who appears for the Applicant, has assumed, firstly, that the PAM3 was before the Tribunal, or if not before the Tribunal, it should be constructively found by this Court to have been before the Tribunal; and secondly, that such a document was not considered. 

9. Mr Markwell drew upon his considerable experience as a migration lawyer and informed me that this guidance note had been referred to by him on a number of occasions when he is appearing either before the delegate or before the AAT, and invariably upon consideration of those matters in the guidance note, the Tribunal has ended up coming to a conclusion favourable to a protection visa Applicant. 

10. Because the Tribunal, according to Mr Markwell, had not looked at such a document, it was, in effect, inevitable that if they had this document before them, that the decision would have been a different one. Mr Markwell contends that by not considering such a document, the Tribunal has made a jurisdictional error. 

11. As has been pointed out by the Minister, there are some problems with such a submission and assertion. 

12. First of all, the Tribunal must have an obligation to take something into account before one can say that a failure to take it into account has amounted to a jurisdictional error.  In this matter, because we are dealing with a cancellation of a visa and not the consideration of a protection visa, direction 56 does not apply.  Even if direction 56 did apply, it does seem to me that such a direction does not mandate the taking into account of the guidance notes, in any event. 

13. Therefore it seems to me that the Tribunal was under no obligation to take this matter into account. 

14. The second problem is this; that even if the Tribunal were to take it into account, it can only take the matter into account if the PAM3 was actually before it.  There has been an assumption that it was before the Tribunal, however, there is nothing in the documentation to say that the document was actually before the Tribunal. 

15. At best, it may have been a document that was accessible by the Tribunal.  But just because it is accessible, does not mean that it was actually before the Tribunal. 

16. Whilst Mr Markwell points out to me that such a document is available to the delegates of the Minister and is available to practitioners and others who appear before the Minister and appear before the Tribunal, there is nothing before me that shows that the Tribunal, which is an independent assessment authority quite divorced from the department, has such material, of the department, accessible to it. 

17. But even if that material was accessible, it still has to be put before the Tribunal. 

18. There has been no explanation in any of the material as to why, if this document was so important, that the representatives for the Applicant did not put it before the Tribunal. 

19. But the third point really is the point that, in my view, is the answer to the complaint of the Applicant.  One must consider that a guidance note is simply that; it is a “guidance note”.  It is before me both as annexure from the affidavit of Mr Markwell himself, and also an annexure from the affidavit from Mr Pindar. 

20. It is clear when one looks at the guidance note that it really is a summary of quite a number of country information reports, whether they be from DFAT or other international organisations, or they be from reports covered on the internet or other such source material. 

21. It is a guide for persons so that there is not as much of a necessity to go through the original source material because a summary can assist as to whether that original source material is going to be of assistance or not. 

22. In many ways, the guidance note is quite analogous to a head note that is compiled by a competent lawyer that precedes a judgment of the Court that is then published in the authorised, or even sometimes unauthorised, reports.  The guidance note itself has no particular magic to it; it is simply a summary of one person’s opinion that is based upon a reading of the source material; that is, the country information. 

23. When one looks at what the Tribunal has looked at in the footnotes that the Tribunal has appended to its reasons, those footnotes illustrate that the source material that was relied upon by the compiler of the guidance note has been looked at by the Tribunal. 

24. If one also then looks at the submissions given to the Tribunal, the written submissions given to the Tribunal by the Applicant’s agent, which are reproduced in the court book, includes quite an extensive reliance upon country information; all of which the Tribunal says that they have taken into consideration and a great deal of that is in the “guidance note” as well. 

25. Therefore, it seems to me that, even if this document were before the Tribunal, and, as I say, there is nothing that can say to me conclusively whether the guidance notes were before the Tribunal or were not before the Tribunal, there is no evidence that if it were before the Tribunal, that the Tribunal has overlooked it. This is so because when one looks at the country information upon which the Tribunal has come to its conclusion, it encompasses quite a number of the sources that are used in the guidance note. 

26. It seems to me, then, that to come to a conclusion that if the Tribunal had looked at the guidance note, then it would have come to a totally different conclusion, is a submission that cannot be sustained upon the evidence before me. 

27. Therefore I find that on the sole ground that is before me, there is a failure to establish a jurisdictional error. 

28. Given that I find that there is no jurisdictional error, the application is dismissed with costs in the sum of $7,328.00. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:18 May 2018