Coulibaly v Minister for Immigration

[2018] FCCA 3110

FEDERAL CIRCUIT COURT OF AUSTRALIA

COULIBALY v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3110

Catchwords:
MIGRATION – Partner (Temporary) (Class UK) visa application – review of decision of Administrative Appeals Tribunal – whether Tribunal erred in failing to consider relevant considerations – whether Tribunal erred in misconstruing Public Interest Criterion 4020 – whether the Tribunal erred by failing to disclose a certificate under s.375A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Leave sought to amend application to include further ground that Tribunal fell into jurisdictional error by failing to disclose documents or particulars thereof to the applicant – leave granted to file amended application.

Legislation:

Migration Act 1958 (Cth), ss.5, 359A, 375A

Migration Regulations 1994 (Cth), cl.820.226 of sch.2, criteria 4020 and 4021 of sch.4

Cases cited:

Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190

Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169

Applicant: BABA COULIBALY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 174 of 2017

Judgment of: Judge Smith

Hearing date: 15 March 2018 & 4 July 2018

Date of Last Submission: 4 July 2018

Delivered at: Sydney

Delivered on: 16 November 2018

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Ms R Francois

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 174 of 2017

BABA COULIBALY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a national of Mali who entered Australia in July 2013 on a Prospective Marriage visa.  On 14 November 2014 the applicant applied for a Partner (Temporary) (Class UK) (subclass 820) visa based on his spousal relationship with an Australian citizen.  The applicant in his application form, provided information concerning his name, date of birth and indicated that he was a national of Mali.

Relevant Statutory Background

1. The criteria for the grant of the visa are contained in cl.820 of sch.2 to the Migration Regulations 1994 (Cth). Clause 820.226 relevantly states that an applicant must satisfy Public Interest Criteria (PIC) 4020 and 4021.

2. PIC 4020(1) states:

   (1)     There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)     the application for the visa; or

   (b)     a visa that the applicant held in the period of 12 months before the application was made.

   (Emphasis added)

3. PIC 4020(2A) requires that an applicant must satisfy the Minister as to their identity.  

Background

1. On 14 November 2014, the applicant applied for a partner visa and stated in his application that his name was “Baba Coulibaly”, he was not known by any other names, his date of birth was 28 July 1976 and that he was a national of Mali.

2. By letter dated 12 January 2015, a delegate of the Minister wrote to the applicant inviting him to comment on adverse information received by the Department.  In that letter, the delegate wrote:

   ...

   The department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.  The identity that you have presented to the Department (Baba COULIBALY, dob: 28 July 1976, Nationality: Mali) is inconsistent with Biometric evidence before me, which indicates that your identity is:

   NAME: Daniel

   Oluchukwu EZINWA
   DOB: 7 November 1980

   
   NATIONALITY

   : Nigeria

   ...

   (Emphasis in original)

3. By email dated 26 May 2015, the applicant responded to the delegate’s letter and stated “[m]y name is Baba Coulibaly with date of birth, 28/07/1976 and passport number B0407568” and “all my documents were withheld from me by my wife and so i have no knowledge of my case worker or my file number” and requested that the correspondence be sent to him by “mail or post”.

4. On 16 June 2015, the Department sent a letter to the applicant requesting the following further information:

   *   Provide your response to the Department’s request letter dated 12 January 2015, a copy is enclosed.

   *   Provide a completed Form 929 ( a form is enclosed) to confirm your current contact details

   (Emphasis in original, without alteration)

5. The applicant responded to this letter by email on 14 July 2015 and requested an extension of time to respond due to “severe depression and very torturing mental state due to the court case as attached below”.  Attached to this email were various documents which included a NSW Police Force indictable brief of evidence covering sheet, court attendance notice and facts sheet which all identified the applicant as “Baba Coulibaly”.

6. On 24 July 2015, a delegate of the Minister made a decision to refuse to grant the applicant a visa. The delegate found that the applicant had not met the requirements of cl.820.226 of the Regulations as he did not meet the criterion in PIC 4020(2A).

7. The applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision and had engaged the services of a migration agent for the purposes of this review.

8. By email dated 1 July 2016, the applicant’s migration agent requested a copy of “MRT file and associated DIBP file BCC2014/3102311”. This request was denied because the documents were subject to a certificate made by the Department under s.375A of the Migration Act 1958 (Cth).

9. The applicant provided to the Tribunal further documents including a copy of his Mali passport, a medical report, references and statement by him admitting that he had been formerly known as Daniel Oluchukwu Ezinwa and why he had not disclosed this information in his application.  The applicant attended a hearing conducted by the Tribunal on 28 July 2016 and 20 December 2016.

10. On 22 December 2016, the Tribunal made a decision to affirm the delegate’s decision.

Tribunal’s decision

1. The Tribunal noted the issue arising in its review was whether or not the applicant met PIC 4020 as required by cl.820.226 and, broadly speaking, that those requirements were that the applicant had not given to the Minister bogus documents or false or misleading information that is a material particular to the application.

2. The Tribunal recorded[1] that the requirements in PIC 4020 could be waived for certain compelling or compassionate reasons, however the identity requirements in PIC 4020(2A) and (2B) could not be waived.  The Tribunal then turned to consider whether the applicant had given, or caused to be given, a bogus document or information that was false or misleading in a material particular.

   [1] At [5] of its decision.

3. At the Tribunal hearing, the applicant gave oral evidence that he had changed his name legally in Mali, provided a document purportedly from the Bemako Court of Mali in support of his claim, that he lacked legal understanding and had no professional or legal support in completing his application. The Tribunal did not accept the explanation, noting that the issues related to his name and date of birth and not to any complex legal definition. The Tribunal did not accept that the applicant had been “misguided” when completing his application form (question 14, Form 47SP) as there was nothing in that question relating to Australia.

4. The Tribunal raised its concerns with the applicant concerning the genuineness of the documents he provided in support of his claims.  First, the Tribunal accepted that a typographical error could be made in a year or a month but found it implausible that an entire date of birth could be recorded incorrectly. The applicant gave evidence that he became aware of the error when he received his passport in 2011 but had not corrected it as he did not intend to use the passport. The Tribunal did not accept this evidence as the applicant had, in fact, used this passport.

5. Secondly, the Tribunal did not accept that the applicant was misguided concerning the questions regarding his identity as the applicant gave evidence at the hearing his correct date of birth was November 1980 and not, as he had stated in his application, or previously claimed had been recorded incorrectly. It formed the view that the applicant had deliberately provided false information when completing his application for a visa.

6. The Tribunal told the applicant at the hearing that it would seek to have the documents he provided in support of his identity verified.  On 13 October 2016 the Tribunal received the following advice from the Department:

   ... the documents purportedly issued by the Bamako Court of Appeal are fraudulent. The Chief Clerk of the Court advised that

   a.  The signatures appearing on all three documents are not consistent with genuine samples of the authorised signatories

   b.  The stamps appearing on all three documents are not consistent with the genuine stamp used by the court

   c.       The documents have not been issued from the court

   (Without alteration)

7. On 14 October 2016, the Tribunal wrote to the applicant inviting his response to that information.  The applicant replied stating that the documents were processed by an agent and that he had no reason to suspect their authenticity but could not dispute the findings as he could not investigate the matter personally. He said that it had not been his intention to provide “non-genuine” documents or to “deceive or mislead”. 

8. The Tribunal considered the applicant’s response but formed the view that they did not overcome the Tribunal’s concerns arising from its enquiries.  It also noted that PIC 4020 applied whether or not the applicant knowingly or unwittingly provided false information or documents and based on the information before it, the Tribunal was not satisfied that the applicant met the criterion in PIC 4020(1).

9. The Tribunal then considered whether there were compelling or compassionate circumstances for the waiver of the requirements found in PIC 4020(1).  The first respondent accurately sets out at [17] of its submissions the Tribunal’s consideration in this regard which I set out below:

   ...

   (a)     it did not accept the applicant’s claim to be the victim of domestic violence (at [24]). The AAT also considered that in any event, even if the applicant had established this claim, this was not something that affected the interests of Australia and so did not amount to a compelling reason (at [25]). Nor did the Tribunal accept the applicant’s claim regarding his treatment by police following an allegation of family violence made against him, or that even if was established, that this claim would amount to a compelling reason (at [26]);

   (b)     it accepted that the applicant could contribute to Australia through his education and employment as a nurse but considered that this was a matter that affected the applicant’s, and not Australia’s, interests (at [27]). Nor was the Tribunal satisfied that the shortage of nurses in Australia was of such severity that that applicant’s inability to engage in employment, if the waiver was not applied, amounted to a compelling reason. The Tribunal also did not consider that the applicant’s past employment in Australia amounted to a compelling reason (at [28]); and

   (c) the AAT did not accept the applicant’s claims, made in a post-hearing submission, about his relationship with his new spouse, who was pregnant, and his commitment to her and her children from a previous relationship. The AAT was concerned that the applicant did not mention this at the first hearing (at [29]) and noted that it was unable to question the spouse who did not attend to give evidence (at [30]). The AAT then considered that even if it were to accept that the applicant was in a genuine relationship, this did not amount to a compelling reason (at [31]). Nor did the AAT accept as a compelling reason the applicant’s claim that his spouse was emotionally and financially dependent upon him, and that her children relied on him (at [32]-[34]).

   (Without alteration)

10. The Tribunal did not accept that the applicant had changed his identity, nor that it had been properly recorded, or that the change of identity was lawful and therefore was not satisfied that the applicant met the criterion in PIC 4020(2A).

Consideration

1. The applicant raises 4 grounds in his original application and another 2 in his amended application. It is convenient to deal with the original ground 4 first and then to deal with grounds 1 to 3 together and also to deal with the grounds in the amended application together.

Ground 4: misconstruction of PIC 4020(1)

1. Although it is not entirely clear, the applicant appears to contend in this ground that, because he had no knowledge that the court documents were not genuine, there was no fraud or deception involved in his providing them for the purposes of his visa application.

2. PIC 4020(1) relevantly requires that there be no evidence that the applicant has given, or caused to be given, to the Minister, an officer or the Tribunal a “bogus document or information that is false or misleading in a material particular”. A document is a bogus document if it “was obtained because of a false or misleading statement, whether or not made knowingly”: s.5(1) of the Act.

3. An element of fraud or deception by some person is necessary to attract the operation of this provision: Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169. The applicant seeks to engage this aspect of the provision; however, he mistakenly assumes that the fraud or deception must have been by him. That is not correct: all that is required is fraud or deception by some person: see Trivedi at [49] (Buchanan J). The Tribunal understood that ([8]) and applied that understanding to its consideration of whether PIC 4020(1) was met: [15].

4. The Tribunal did not misconstrue or misapply PIC 4020(1). Ground 4 is rejected.

Grounds 1 to 3: failure to consider relevant considerations

1. In each of these 3 grounds the applicant contends that the Tribunal failed to consider a relevant consideration.

2. In the first ground, the applicant argues that the Tribunal failed to take into account the fact that he had obtained a Prospective Marriage visa (Subclass 300) and that, in granting that visa, the Minister was satisfied of the applicant’s identity.

3. PIC 4020(2A) required the applicant to satisfy the Tribunal of his identity. Given that the Tribunal’s task was to determine, for itself, whether the applicant satisfied the criteria for the grant of the partner visa, the satisfaction of an earlier decision about one of those criteria was not a mandatory consideration for the Tribunal to take into account. As a bare fact it is neither persuasive nor conclusive of what the Tribunal must decide.

4. On the other hand, the facts and evidence which led to the earlier satisfaction may assist the Tribunal in its task, but that is not the point made by the applicant. Further, and in any event, the applicant did not make submissions to the Tribunal that it should take into account, and follow, the earlier satisfaction in respect of his identity. In light of those two matters, there was no error in the Tribunal’s failure to have regard to that issue. The first ground is rejected.

5. The second ground is that the Tribunal did not give sufficient weight to, or otherwise consider, the fact that the false name and birth details in his visa application were as recorded in his Malian passport. This ground is misconceived. The fact that false information is copied from another document, regardless of the nature of that document, does not make the information true. In any event, the weight to be given to this was entirely a matter for the Tribunal. The second ground is rejected.

6. The third ground is that the Tribunal failed to consider certain aspects of the applicant’s educational qualifications in determining whether to waive the PIC 4020. The ground is rejected because the Tribunal expressly considered those qualifications: [27] – [28].

Amended grounds: the certificate given under s.357A

1. Amongst the documents given to the Tribunal for the purposes of the review was a certificate said to have been issued under s.375A of the Act. That section provides:

   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.

   (Emphasis in original)

2. The certificate, as it appeared in evidence, relevantly stated:

   I certify that, in accordance with s 375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in folio/s (insert folio number/s) of file number (insert file number) would be contrary to the public interest because:

   (a)     folio … contains [insert reasons] p26 – allegations from sponsor*

   (b)     folio … refers [insert reasons] p84 – COI sensitive info provided by another agency*

   (c) etc. pp.87(b), 90-91 – sensitivity re. sponsorship withdrawal*

   As s 375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s 375A(2)(b) of the Migration Act 1958.

   (Without alteration,  * denotes the writing in italics is handwritten)

3. The documents referred to in the certificate were also given to the Tribunal.

4. The applicant was given leave to add a ground to his application concerning the certificate and the documents to which they relate. In that ground, the applicant alleges that the Tribunal fell into jurisdictional error by failing to disclose to the applicant either the certificate or particulars of the documents referred to in it.

5. The failure to disclose a certificate under s.375A may amount to a denial of procedural fairness because the existence of the certificate has an immediate and adverse impact on an applicant’s entitlement to participate in a hearing: Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305. However, in this case, the applicant was given a copy of the certificate. Although parts of it were redacted, he had the opportunity to make submissions about its validity and so was not denied procedural fairness.

6. Absent the certificate, it may be accepted that the Tribunal had an obligation to provide the applicant with particulars of any information referred to in the certificate which the Tribunal considered would be the reason or part of the reason for the decision under review: s.359A. The question is whether s.375A operated to override any such obligation. There are two questions here: first, whether the certificate was valid; and secondly, if so, whether the operation of s.375A was inconsistent with the obligation under s.359A. If it was inconsistent, then s.375A prevailed and the applicant’s argument must fail: Singh at 318 [56].

1. The evidence establishes that the claim supporting the certificate was based on the fact that the information related to allegations made to the Department concerning the enforcement or administration of laws of the Commonwealth and, in particular, that its disclosure could identify the source of that information and put the safety of that source at risk and, in addition, would undermine and diminish the candour with which people might provide such information in the future. Those concerns were sufficient to support the certification in the certificate that disclosure of the information referred to would be contrary to the public interest. For those reasons, the certificate was valid.

2. The folios contained certain information which was not covered by the claim outlined in [42] above. The applicant could have been given particulars of that information without any apparent breach of s.375A. That information was set out in a redacted form of the folios[2]. However, none of that information was adverse to the applicant in the sense required by s.359A: see SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [17]. The remainder of the information, however, could not, in my view, have been disclosed by means of particulars without disclosing its source and thus destroying the purpose of the certificate and the protection given by s.375A. In respect of that information there was a clear conflict between ss.375A and 359A. As I have observed, s.375A prevails in those circumstances.

   [2] Exhibit AL-2 to the affidavit of Alanna Lucchese affirmed 4 May 2018.

3. For those reasons, the Tribunal did not fall into jurisdictional error by failing to disclose to the applicant either the certificate or the documents to which it related.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     16 November 2018