Contreras v Minister for Immigration
[2019] FCCA 2999
•22 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONTRERAS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2999 |
| Catchwords: MIGRATION – Cancellation of visa – incorrect answers to questions on visa application forms – whether alleged lack of knowledge of criminal charge exculpatory – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.107, 107A, 109 |
| Cases cited: KN v SD & Anor (2003) 176 FLR 73 Kaur & Ors v Minister for Immigration and Border Protection & Anor (2017) 256 FCR 235 Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429 |
| Applicant: | DORA OLIMPIA CONTRERAS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 776 of 2016 |
| Judgment of: | Judge Egan |
| Hearing date: | 12 September 2019 |
| Date of Last Submission: | 26 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 22 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Albert |
| Solicitors for the Applicant: | JK Legal |
| Counsel for the Respondents: | Mr G. Hill |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The further amended application for review filed on 18 September 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 776 of 2016
| DORA OLIMPIA CONTRERAS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Mexican citizen who applied for a student visa on 28 December 2011. She answered in the negative to the first two questions posed in Question 58 of the relevant visa application form which were as follows:[1]
[1] Court Book (CB) page 27.
Have you, or any member of your family unit included in this application, ever:
Been convicted of a crime or offence in any country (including any conviction which is now removed from official records)? No Yes
Been charged with any offence that is currently awaiting legal action? No Yes
Question 76 constituted a certification by the applicant that the information supplied by the applicant on the application for the student visa form was correct. [2]
[2] CB page 33.
The student visa was granted on 17 January 2012.
The applicant applied for a partner visa on 2 February 2013. The same type of questions were asked in the application for partner visa form, and answers to the same effect were given by the applicant when filling out such form. The partner visa was granted on 17 July 2014.
On 27 July 2015, orders affecting the applicant, the applicant’s former spouse, and the applicant’s child, were made by a Federal Circuit Court judge exercising jurisdiction under the Family Law Act 1975 (Cth) (the FLA). Those orders provided that the child was to live with the mother, and in part made provision for the father to spend time with the child each alternate weekend, for substantial periods of time during school holidays and on other significant days (father’s day, Christmas day, etc.), as well as on such other occasions as was agreed to between the mother and father. It was noted in the order that the parties did not agree to the discharge of an Airport Watch List Order which prohibited the child from leaving the Commonwealth of Australia. [3]
[3] CB pages 328-332.
On 27 August 2015, the Department sent to the applicant, by email, a Notice issued under s. 107 of the Migration Act 1958 (Cth) (the Act) of an Intention to Consider Cancellation of the applicant’s partner visa pursuant to the provisions of s. 109 of the Act. [4] Relevantly, the provisions of ss. 107, 107A and 109 of the Act are as follows:
[4] CB pages 213-217.
107 Notice of Incorrect Applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non‑compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non‑compliance:
(A) give reasons for the non‑compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii) if the holder gives the Minister a written response within that period—when the response is given; or
(iii) otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
107A Possible non‑compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non‑compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non‑compliances that occurred at any time, including non‑compliances in respect of any previous visa held by the person.
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances; may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
The s. 107 Notice in part provided as follows:
By operation of s107A of the Act, if you do not comply with section 101 when you applied for your Student subclass 572 visa granted to you on 17 January 2012, then the class BS, subclass 801 visa that you currently hold, may be cancelled.
Particulars of the possible non-compliance:
On the material presently before me, I consider that there has been non-compliance with the following section(s) of the Migration Act 1958:
Section 101(b)
This provision relevantly provides that a ‘non-citizen must fill in his or her application form in such a way that…no incorrect answers are given or provided.’
By operation of section 99 of the Act, not only must there be no incorrect answers on the application form itself, there must also be no incorrect answers in any information that a non-citizen gives, causes to be given or that is given on his or her behalf (whether in writing or orally) to the Minister, an officer or a person or tribunal reviewing a decision under the Act in relation to the non-citizen’s application for a visa.
You did not comply with s 101(b) of the Act because, in your “Application for a student visa” lodged on 3 January 2012, you provided a number of incorrect answers:
Question 58 which asks: “Have you, or any member of your family unit include in this application, ever:
·Been convicted of a crime or offence in any country (including any conviction which is now removed from the official records)?
·Been charged with any offence that is currently awaiting legal action?
You answered: “No” to these questions.
You also signed the declaration at question 76 which states:
“I certify the information supplied on or with this form is correct.”
You did not comply with s 101(b) of the Act because in your Form 47SP “Application for migration to Australia by a partner” lodged on 25 March 2013, you provided a number of incorrect answers:
Question 71 which asks: “Have you, or any member of your family unit include in this application, ever:
·Been convicted of a crime or offence in any country (including any conviction which is now removed from the official records)?
·Been charged with any offence that is currently awaiting legal action?
You answered: “No” to these questions.
You also signed the declaration at question 86 which states:
“I declare the information I have supplied in this application is complete, correct and up-to-date in every detail.”
The Department has received non disclosable information as defined in s5(1) of the Act, that you are wanted in the United States of America for marijuana trafficking.
The applicant engaged the services of COE MIGRATION & BUSINESS SERVICES (COE) to respond to the s. 107 Notice. By its undated submission, it is apparent that the alleged provision of incorrect answers in the student visa application form related to criminal activity involving marijuana trafficking in the USA in approximately 2000. Relevant admissions, made in that regard by the applicant’s agent, were as follows:
a)At Court Book (CB) 236 where it was said:
“Dora had explained her past history, which involved an alleged criminal matter with her ex-husband. Hamish had invited Dora to Australia but she told him that she would have difficulty travelling and he told her that to leave it up to him as he will sort it all out.”
b)At CB 237 where it was said:
“Dora admits to not knowing about the incorrect answers in both her visa applications and she feels that her only offence is that she fully trusted her partner when she completed both forms for the student visa and partner visa.”
c)At CB 237 where it was said:
“She was then arrested in Texas with alleged marijuana trafficking and attended a court hearing and was advised to return to the court at a later date. … There are definitely mitigating factors in this alleged offence as there were threats of violence against her. She also had a one year old child and threat were also made against her son by her ex-husband and his friends.”
d)At CB 240 where it was said:
“There is no denying that Dora had provided incorrect answers to questions on her visa applications, but is only that she completely trusted her partner in a way that any other normal person would completely trust the person that they love…”
In her signed statement attached to that submission, [5] the applicant, at the second paragraph on CB page 243, said as follows:
“The charge against me was 15 years ago which I’m not avoiding and my actual quality of life as per now and the way I came to Australia arranged by Hamish McColl and spoke with my parents and them let him know about the facts. Details on the application forms were not explain with any thoroughness because of my lack of English and understanding. This way I’m not excusing myself as for my actions of the past of the way I came to Australia as per lies by Hamish everything was ok for me to travel to Australia which he had confirmed it as coming as a tourist was a show of he said was fine, which he organized travel, expenses and application and the love I felt for him and believed in him no looking consequences.”
[5] CB pages 242-244.
On 21 October 2015, a delegate to the Minister decided to cancel the applicant’s visa pursuant to the provisions of s. 109 of the Act.
On 22 October 2015, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
On 9 February 2016, the applicant’s new migration representative, JK Legal, provided a statement by the applicant which asserted that the previous agent’s submissions were not accurate. Paragraphs 15 – 23 inclusive of that statement are as follows: [6]
“15. On 21st October 2015, I received a decision to cancel my spouse visa (sub class 801 visa).
16. The decision alleged that I was wanted in the USA for marijuana trafficking.
17. The decision to cancel my spouse visa, alleges the following:
i) That I was charged with marijuana trafficking in 2000, 16 years ago when I was just 25yrs of age.
ii) That I did not disclose this information on my student and partner visa applications.
iii) That I therefore, did not comply with s.101 of the Migration Act 1958.
[6] CB pages 323-326.
18. The previous agent who assisted me in responding to the notice of intention to cancel my spouse visa submitted various documents and made various submissions to the department which were not accurate. The impression one gets from his submissions to the department is that I was aware that I had been charged and that I had deliberately departed the USA after being charged and that when I filled out my student visa and spouse visa applications forms, I was aware that I had been charged with offences in the USA and that I did not disclose this information.
19. This is incorrect. I have not until recently see copies of the submissions that my previous agent has submitted to immigration. Those statements are not accurate.
20. The facts are as follows:
i) Whilst marries to a Mexican citizen who was my ex-husband, 16 years ago, I was asked by my then husband to transport a small quantity of marijuana from Mexico to the USA and I was apprehended in Texas by the USA police.
ii) I was spoken to by the police and I disclosed to them the identity of my then husband and the fact that I had been told to transport the marijuana and that I felt that I had no choice in doing so as I feared for my personal safety at the time.
iii) I was not charged by the police nor arrested. I was released after they spoke to me.
iv) In fact, I crossed the Mexican/USA border many times after this incident and I was never arrested not spoken to about this incident.
v) Naturally, I had informed my husband Hamish of this incident 15 years ago and he was aware of the incident.
vi) I always worried about the incident and what may result from the incident if anything, and when I met my husband I disclosed all relevant information to him.
vii) I have never been served with any charges in the USA nor have I ever attended any Court hearings. I was not aware until after my visa was cancelled that a bench warrant had been issues against me in the USA.
viii) After receiving the notice of intention to cancel my spouse visa, I consulted a lawyer in the USA (El Paso Texas) to assist me with enquiries regarding the allegations made by the case officer who issues the cancellation decision.
ix) My lawyer in Texas has confirmed the following:
·That a Bench Warrant was issues against me in October 2000 but the warrant was never served on me – See Attachment 2
·Electronic access to the attorney’s portal was not available at the time and only became available to the public about 6yrs ago – See Attachment 3
·There was no way I could find out if a Warrant had been issues against me unless I had been arrested in the USA or questioned by the police in relation to some other offence like a traffic violation for example.
·I have attached to my statement an email dated 5th February 2015 from my USA lawyer which confirms this.
·I have also attached another email from my USA lawyer dated 8th February 2016, confirming that I was never bailed to appear at any subsequent court hearing and that I was never aware of any charges, bench warrant or court proceedings – See Attachment 4.
21. Consequently, when I answered the relevant questions in filling out my student visa application form and my Spouse visa application form, I was providing truthful and accurate answers as I had never been convicted of any criminal offences and nor was I aware of any charges that had been served on me for any offences that were awaiting legal action.
22. I always worried about what may have transpired from this incident that occurred 16yrs ago, but as I have indicated, I have crossed the Mexican/USA border many times after this incident to visit family in the USA and I have never been arrested or spoken to about this incident.
23. At the time I lodged my student visa and partner visa applications, I was not aware that any bench warrant had been issues against me and my answers to the relevant questions were correct.”
The applicant’s statement attached to the new migration agent’s submission denying that she had ever been charged or arrested in relation to marijuana trafficking is irreconcilable with the applicant’s first signed statement in which she conceded that charges had been laid against her. The applicant in the second statement relied upon documents which had been sent from a lawyer in Texas. The applicant, at [23] of her second statement, recorded that she was not aware that any bench warrant had been issued against her, maintaining that the answers given by her to the relevant questions were correct.
The hearing before the Tribunal took place on 10 February 2016.
On 8 March 2016, the applicant’s representative sent a further submission to the Tribunal, Attachment 2 to which included a letter from a Texan lawyer as well as a copy court docket relating to the trafficking offence. [7] Relevantly, such submission provided as follows:
“The conclusions that can be drawn from the attached documents are as follows:
i) the offence was committed on 12 October 2000.
ii) …
iii) the docket sheet shows that the case was open, indictment filed and the case was assigned on 25 October 2000, some 13 days after the initial offence (the date she was initially found to have committed the offence)
[7] CB 360 - 365 inclusive
iv)… [8]
[8] CB 349
On 24 March 2016, the Tribunal affirmed the decision of the delegate to cancel the applicant’s visa.
On 15 April 2016, the applicant filed an Originating Application for Review of the decision of the Tribunal. On 18 September 2019, the applicant filed a Further Amended Application for Review, the Grounds of which are as follows:
“1. The Tribunal erred in law in concluding that there was a breach of s 101b of the Migration Act 1958 (Cth) (the Act) by taking into account irrelevant considerations and failing to take into account a relevant consideration.
Particulars
Section 101b of the Act requires that no incorrect answers are given or provided in a visa application.
The applicant’s applications for a student visa (subclass 572) granted on 17 January 2012 and a combined partner visa (subclass 820/801) both asked the following questions (the questions):
Have you, or any member of your family unit included in this application, ever:
·Been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?
·Been charged with any offence that is currently awaiting legal action?
The applicant’s answers to the questions was No.
Conviction for an offence
The applicant has never been convicted of a crime or an offence in any country and that question was answered correctly. Despite this, the Tribunal concluded without any evidence before it
at [41] that the applicant had committed a felony in the United States
Charged with an offence
The applicant has never been “charged” with any offence currently awaiting legal action.
The evidence before the Tribunal was that the applicant had been arrested by authorities in Texas on 12 October 2000 [28] but never charged, despite the existence of a warrant for the applicant’s arrest, issued 25 October 2000 (Bench Warrant) [30].
There was no evidence before the Tribunal to the contrary that the applicant had been charged. The Tribunal’s conclusion that the applicant had been charged, released on bail and then failed to appear at court, is based solely on the existence of the Bench Warrant. A warrant and a charge are not the same. The relevant (allegedly incorrect) answer was concerned only with extant charges, not warrants.
The Tribunal erred in law in determining that the question to be answered in assessing whether the applicant had breached s 101b of the Act
The correct question to be answered was whether the applicant had ever been convicted of a crime or any offence in any country, and whether the applicant had ever been charged with any offence that is currently awaiting legal action.
3. The Tribunal erred or acted beyond power by making a decision which had the effect of:
a. frustrating, or was otherwise contrary to, a pre-existing order of a Court, namely the final parenting order of the Federal Circuit Court of Australia; and/or
b. ignoring a finding, or making an inconsistent finding, as to what was in the applicant’s young son’s best interests of the Federal Circuit Court of Australia.
4. The Tribunal erred by making an illogical decision or failing to evaluate evidence of significance, having regard to the terms of the Federal Circuit Court’s order, especially the record of an ‘Airport Watch List Order prohibiting [her son] from leaving the Commonwealth of Australia’.
At [16] of its reasons, it was recorded that the Department had received information that the applicant was wanted by the authorities in El Paso, Texas, United States of America (USA) for marijuana trafficking.
Grounds of Review
Grounds 1 and 2 of the Further Amended Application for Review are based upon assertions that the applicant had never been charged, or alternatively convicted, of a criminal offence. Ground 1 recited that the applicant had never been charged with any offence currently awaiting legal action. Of difficulty for the applicant, however, are the remarks of the lawyer from Texas who:
a)By his email to John Kotsifas of JK Legal dated 8 February 2016 said:
“Dora WAS NOT initially arrested and charged before the warrant was issued. She WAS charged later with importation of marijuana.”
b)By his email to John Kotsifas of JK Legal dated 10 February 2016 said:
“She was never served with a warrant nor was she ever arrested she was detained at the El Paso port of entry at which time she was transported to a hospital and then released. The warrant when active several months afterwards but was never served nor was it put on any system. It is still not on any system this you can’t look it up. however it is active.”
The evidence from the lawyer from Texas is consistent with the applicant’s first statement – namely the applicant’s admission that she had been charged in relation to the trafficking of marijuana some 15 years previously. It was therefore open to the Tribunal to place reliance upon the Texan lawyer’s emails and documents as constituting admissions, together with the applicant’s own admissions, that the applicant had been criminally charged.
The evidence from the Texan lawyer was that the bench warrant was active as at the date of the Tribunal hearing, it having been issued, with an indictment, on 25 October 2000. [9] That being so, the applicant had provided incorrect answers to the question relating to whether she was “currently awaiting legal action”, after having been charged with the trafficking offence, at the times she filled out the student visa application form in 2011 and the partner visa application form in 2013. Whether or not the applicant did or didn’t know that she had been so charged was irrelevant to the issue before the Tribunal.
[9] CB pages 360 – para 5 of letter from Louis Elias Lopez Jr to John Kotsifas dated 24 February
It was open for the Tribunal to find, as it did at [48] of its reasons, that there was non-compliance by the applicant with the provisions of s. 101 of the Act in the way described in the s. 107 Notice.
At [52] of its reasons, the Tribunal specifically found as follows:
“[52] Based on the information before it the Tribunal considers that the correct information is that the visa holder has a criminal history in the United States and has been charged with offences that are yet to be resolved and that she fled the USA to avoid appearing in court to face these charges, and intentionally did not disclose this relevant information to the Department in her application for a student visa subclass 572 and her Combines Partner visa subclass 820/801.
The content of the genuine document (if any)(reg.2.41(b))”
The Tribunal carefully considered matters relevant to the question as to whether the applicant’s visa should or should not be cancelled at [49] – [76] of its reasons. The Tribunal examined the applicant’s past conduct, the manner in which her evidence had changed over time, as well as matters relating to her young son who was born in December 2012. Regard was also had to testimonials provided to the Tribunal as to the applicant’s character. It was open to the Tribunal to find that despite all of the information provided to it, the applicant’s visa ought to be cancelled.
As to Grounds 3 and 4 of the Further Amended Application for Review, these Grounds assert that the Tribunal’s decision had the effect of frustrating an existing final parenting order of the Federal Circuit Court, and further that it was illogical for the Tribunal to ignore the fact that an Airport Watch List Order prohibiting the applicant’s son from leaving the Commonwealth was in force.
The questions raised in Grounds 3 and 4 have been the subject of judicial consideration and determination. In KN v SD & Anor (2003) 176 FLR 73 at [75] – [78] it was said by Ellis J as follows:
“[75] It must be said however, that the reality of this proposition is dependent upon where the mother may eventually live. For example, it would be extremely difficult for her to enforce such rights if she returns to Russia, but she may well be able to do so from a country like New Zealand. In the case of the latter country, apart from its geographical proximity, there is a legal system similar to that in Australia, an established legal aid system, access to trained family lawyers and video-link facilities. In the case of Russia and many other countries, much of this would be problematical. The reality is that the Migration Act operates in such a way as to negate fundamental rights conferred by Acts such as the Family Law Act and international instruments such as UNCROC. However, it is the role of the Parliament and not the courts to determine these issues in circumstances where the intention of Parliament is clear, as we think that it is in this case.
[76] We think it clear that this part of the Migration Act is expressed in terms that override Australia’s international obligations (UNCROC) as incorporated in Australian municipal law and also the Act. If this is so then it is apparent that the effect is to override the rights of an Australian child to know and have contact with one of his parents who entered Australia on a false passport. It is nowhere suggested that the mother is anything but a good and loving mother and like the trial judge we feel great sympathy for the mother and the child.
[77] However, in our view, rights conferred by s 60B and UNCROC cannot be interpreted as interfering with the reasonable practicability of removing the mother pursuant to s 198(6) of the Migration Act.
[78] We therefore agree with the conclusion of the trial judge that, as a matter of ordinary language, the proposition advanced on behalf of the mother is not a plausible interpretation of the words “reasonably practicable” in s 198(6) of the Migration Act.”
Further, in CHZ19 v Minister for Home Affairs [2019] FCA 914, Colvin J at [141] said as follows:
“[141] First, the Tribunal’s task was to be undertaken for the purposes of the Migration Act and it would not be bound by any findings made in proceedings between the appellant and his former wife in the Family Court.”
The Tribunal evaluated the effect of the Airport Watch List Order at [73] of its reasons in the context of other matters referred to in the family orders made by a judge of the Federal Circuit Court. It did so having considered its obligations under Article 3 of the Convention on the Rights of the Child. The Tribunal was focussed upon performing its administrative obligations whilst recognising the interests of the child at the same time. In any event, there is authority for the proposition that because the provisions of the United Nations Convention on the Rights of the Child have not been incorporated into the provisions of the Migration Act, no regard is required to be had to such Convention by a court sitting in matters such as the present. In Kaur & Ors v Minister for Immigration and Border Protection & Anor (2017) 256 FCR 235 at [20] – [23] inclusive, it was said:
“[20] The appellants contend that the purpose of subpara (4) is to protect against the potentially capricious operation of (1) and that by the Executive ratifying the Convention, Australia has given a solemn undertaking to the world at large that it will “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies” make “the best interests of the child a primary consideration”, citing Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 301 (Toohey J) and at 285, 287 (Mason CJ and Deane J). They further contend that the Tribunal correctly satisfied itself that compliance with the Convention constituted compelling circumstances that affect the interests of Australia within PIC4020(4)(a). As a consequence, the appellants contend that the Tribunal was obliged to take into account the best interests of Jazzveer in accordance with the Convention, and in particular by considering what is best for his health, social, linguistic and educational development, his identity, culture and citizenship prospects, and weigh these factors in the balance against other factors. In failing to take these steps, the appellants contend that the Tribunal fell into jurisdictional error.
[21] We reject these submissions for the following reasons.
[22] First, the incorrect premise underlying the appellants’ arguments is that the Tribunal was under an obligation to apply the Convention. In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error; Snedden v Minister for Justice (2014) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; AB v Minister for Immigration and Citizenship (2007) 96 ALD 53 at [22]. There is no such express provision in PIC4020(4) or in the Act.
[23] In the present context, the observations of French J (as he then was) in Le at [59] are particularly apposite:
There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder’s children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration “in all cases concerning children”. However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions — Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304 (Gummow J). Such considerations do not thereby become mandatory. In the joint judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 527 [101], McHugh and Gummow JJ referred to the “… established doctrine” that obligations under international treaties “… are not mandatory relevant considerations attracting judicial review for jurisdictional error”. The best interests of the children do not, by virtue of Australia’s commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law — Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363; Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77, and 80-81; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs and Trade v Magno at 304 and the cases there discussed. But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.”
There is no force to the assertions advanced under Grounds 3 and 4.
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ in Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
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.
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[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.
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[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.”
No jurisdictional error has been established on the part of the Tribunal.
The Further Amended Application for Review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 22 October 2019
2016.
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