Cvi20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 51
•15 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)CVI20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 51
File number(s): BRG 337 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 15 September 2021 Catchwords: CITIZENSHIP AND MIGRATION – Migration –– Protection (Class XA) (Subclass 866) visa – notice of intention to cancel – response to notice of intention to cancel – whether Administrative Appeals Tribunal considered applicant’s response to notice – response not considered – jurisdictional error established. Legislation: Migration Act 1958 (Cth) ss 101, 101(b), 107, 107(1), 107(1)(b), 108, 108(a), 108(b), 109, 109(1), 109(1)(b), 109(1)(c) 438, 477(1), 477(2)
Migration Regulations 1994 (Cth) reg 2.41
Cases cited: Minister for Home Affairs v Omar (2019) 272 FCR 589 Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 12 March 2021 Date of hearing: 12 March 2021 Place: Brisbane Counsel for the Applicant: Mr Lawrence Solicitor for the Applicant: Hearn Legal Counsel for the Respondents: Mr Cummings Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
BRG 337 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVI20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
15 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s.130(1) of the Evidence Act 1995 (Cth) the following evidence is not to be adduced into evidence:
(a)the confidential annexure to the affidavit of Alexander Pok-Man Chan filed on 11 December, 2020; and
(b)the confidential annexure to the affidavit of Luke Edward Morrish filed on 22 January, 2021.
2.A writ of certiorari issue to bring in to this Court the decision under review, whereupon that decision is to be quashed;
3.A writ of mandamus issue, directed to the second respondent, to determine the matter according to law;
4.The first respondent to pay the applicant’s costs of and incidental to the application fixed in the sum of $7,467.00
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT:
The applicant seeks to judicially review a decision of the second respondent made on 12 February, 2020. That decision affirmed a decision of a delegate of the first respondent to cancel the applicant’s Protection (Class XA) (Subclass 866) visa pursuant to s.109(1) of the Migration Act 1958 (Cth).
Initially, the application for review was made outside of the time limited for that purpose by s.477(1) of the Act. On 18 December, 2020 the Court exercised the power in s.477(2) of the Act to extend the time within which the applicant could apply for review of the second respondent’s decision. The application was then adjourned to 12 March, 2021 for final hearing of the application for review.
BACKGROUND
The applicant is an Iranian national who arrived in Australia by boat on 19 January, 2012 as an unlawful maritime arrival for the purposes of the Migration Act. He applied for a protection visa.
Initially, the applicant’s visa application was rejected, but that rejection was overturned upon review. A refugee review tribunal considered that Australia did owe the applicant protection obligations by reason of his well-founded fear of persecution from the Iranian authorities for reasons of his religion and political opinion were he to return to Iran. He was granted a protection visa on 26 September, 2012 on the basis of his established fear of harm from the Iranian authorities including the Basij.
On 13 December, 2012 the applicant was issued with an Iranian passport by the Iranian Embassy in Canberra. He made two trips back to Iran between 1 February, 2013 and 8 April, 2013 and 17 May, 2015 and 4 August, 2015. He returned from Iran unharmed after both journeys.
On 1 December, 2016 the first respondent’s department sent the applicant a notice of intention to consider cancellation of his protection visa. The applicant was informed that the discretion to cancel his visa provided for in s.109 of the Act was enlivened because the applicant had failed to comply with s.101(b) of the Act by providing incorrect information in his visa application. Section 101(b) of the Act requires a visa applicant to “fill in or complete his or her application form in such a way that no incorrect answers are given or provided”. Section 109 of the Act permits the Minister to cancel a visa if the Minister considers that the applicant did not comply with s.101 of the Act. The fact that the applicant had obtained an Iranian passport from the Iranian Embassy shortly after the grant of the visa and then voluntarily spent a total of five months in Iran across two trips led the first respondent’s delegate to conclude that the applicant did not fear harm or mistreatment from the Iranian authorities and that it was incorrect for him to have asserted otherwise in his visa application. The applicant’s voluntary travel to Iran also led to doubts that the applicant held the adverse profile in Iran that he claimed he had in the visa application.
On 22 December, 2016 the applicant provided submissions and evidence in response to the cancellation notice. The applicant said that there were “compelling and compassionate circumstances that were beyond his control and, in light of which, [he] acted reasonably” by returning to Iran. He argued that he was obliged to travel to Iran to care for his ill mother. He said that he remained in his house most of the time he was in Iran and that he wore sunglasses and discrete clothing to avoid attracting any adverse attention from the authorities.
The applicant’s incoming passenger movement card for his return to Australia on 4 August, 2015 erroneously stated that the “country where [the applicant] spent most time abroad” was “Hong Kong”. His explanation for that incorrect answer was that his poor grasp of English led him to believe that the relevant question asked him to state the country in which he spent the most time in transit.
On 24 January, 2017 a delegate of the first respondent cancelled the applicant’s visa pursuant to s.109 of the Act after concluding that the applicant had contravened s.101(b) by providing incorrect information in response to questions in the Form 866C component of the visa application directed to the visa applicant’s fears of harm in their home country.
On 15 June, 2017 the applicant applied to the second respondent for review of the delegate’s decision. On 15 June, 2017 and 2 July, 2017 the applicant provided submissions and evidence.
On 28 September, 2017 a delegate of the first respondent issued a certificate under s.438 of the Act in respect of folios 5 through 14 of the department’s file in respect of the applicant’s visa cancellation. Disclosure of the information covered by that certificate was said to be contrary to the public interest because folios 5 through 12 contain “documents or information that would disclose departmental procedures and practices that could hamper the department’s lawful information gathering or protection of the community” and folios 13 and 14 contain “a document that would disclose lawful methods of departmental procedures to obtain information, which could hamper future lawful information gathering.” The second respondent’s engagement with the certificate is in issue in these proceedings.
On 17 January, 2020 the applicant attended a hearing with the second respondent with the assistance of his agent and an interpreter. On 31 January, 2020 the applicant provided further submissions.
On 12 February, 2020 the second respondent affirmed the delegate’s decision. In its reasons for decision the second respondent identified the relevant statutory provisions that bore on its task. It recognised that cancellation of the applicant’s visa pursuant to s.109 of the Act is a three-step enquiry. First, it involves the issue of a valid notice of intention to consider cancellation pursuant to s.107(1) of the Act. The second step involves determining whether there was non-compliance by the visa holder in the way described in the notice of intention to consider cancellation as required by s.108 of the Act. The third step in the process is the exercise of the discretion to cancel the visa holder’s visa pursuant to s.109(1) of the Act.
The second respondent considered each of these steps in turn. The second respondent determined that a valid notice pursuant to s.107(1) of the Act had been issued to the applicant. That determination is not the subject of any challenge in this application.
As to the second step, after summarising the applicant’s claims to fear harm in Iran, the second respondent found that:
(a)the applicant’s claims were inconsistent, lacked credibility and were not truthful;
(b)he voluntarily obtained two Iranian passports, one whilst still in Iran and the other whilst in Australia, despite claiming to be of such adverse interest to the Iranian authorities that he would be subject to persecution upon his return to Iran. Both passports were issued immediately and without question;
(c)the applicant was able to depart Iran on three occasions with a passport in his own name and return to the country on two occasions without coming to the attention or adverse interest of the authorities. It did not accept his claim that he had bribed Iranian officials in order to leave the country;
(d)the applicant had provided incorrect answers in his visa application in numerous respects; and
(e)therefore there was non-compliance with s.101(b) in the manner described in the notice of intention to cancel his visa.
The second respondent did not make any findings about the reasons given by the applicant for his return to Iran. That is to say that it made no finding that his mother was unwell, had no other person to look after her and the applicant felt compelled to return to Iran, run the risks he perceived involved in doing so and care for his mother.
The second respondent then considered whether it should exercise the discretion in s.109(1) to cancel the visa. It recorded that it was required to consider the applicant’s response to the notice of intention to cancel his visa and the prescribed circumstances as set out in reg 2.41 of the Migration Regulations 1994 (Cth).
The second respondent decided that the visa should be cancelled.
GROUNDS OF REVIEW
The applicant presses one ground of review as follows:
Ground 1: Error of Law - The Tribunal erred, amounting to jurisdictional error, by denying the applicant procedural fairness, failing to undertake the statutory task required by section 109(1)(b) of the Migration Act 1958 (Cth) and constructively failing to exercise jurisdiction, by failing to consider as required the response made by the applicant pursuant to section 107 of the same Act.
Particulars
· The applicant was served with a notice issued under section 107 of the Migration Act 1958 (Cth) contending that he had provided incorrect answers when applying for a protection visa that he had been granted. In substance the allegation was that he had lied about being fearful of persecution and not wanting to return to Iran.
· The catalyst for the sending of the notice was that the Minister became aware that the applicant had returned to Iran twice after receiving his protection visa.
· The applicant responded to the notice and stated that he had returned to Iran because his mother was ill and he needed to care for her and that, “despite his fear and the risks involved he had to visit his mother in case she passed away” (paragraph [13]).
· The Tribunal was required to “consider” this statement under section 109 of the Migration Act 1958 (Cth). This required the Tribunal to engage in a, “real process of consideration of information submitted – an “active intellectual process directed at the information” (see NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 (24 August 2005) citing Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 389; (2001) 109 FCR 152 at [50] and the cases there referred to).
· The Tribunal noted the statement had been made (paragraphs [13] and [35]) but failed to determine whether it accepted or rejected the statement or to otherwise meaningfully engage with it.
· The Tribunal then used as a matter adverse to the applicant’s claim to be in need of protection that he twice returned to Iran (paragraph [37]) without weighing or determining the explanation he had given.
· Given the centrality of the explanation given to the task of jurisdiction this was a failure to properly undertake the statutory task of the same type identified in Coker v Minister for Immigration and Border Protection [2017] FCA 929 (15 August 2017) at [57]. Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (21 September 2018) at [83].
As the second respondent identified, the task before it had three steps or parts to it. Its approach and determinations in respect of the first part – its findings about a valid notice of intention to consider cancellation are not in issue. Its approach to the second and third steps are in issue.
The sections of the Act relevant to the second and third steps of the enquiry are as follows:
108 Decision about non-compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non-compliance by the visa holder in the way described in the notice.
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;
The applicant’s ground of review focuses upon the third stage of the process in which the second respondent was engaged – the exercise of the discretion to cancel the visa. However, the submissions for the applicant focus upon the second stage of the process – that prescribed in s.108 of the Act and the determination about whether the non-compliance asserted in the notice of intention to consider cancelation was made out.
The applicant argues that s.108 required that the second respondent consider the response given by the applicant to the notice of intention to consider cancellation. He argues, however, that having regard to the content of the obligation to consider something in a statutory context such as the present, it should be quickly concluded that the second respondent failed to consider the applicant’s response.
The applicant directs my attention to Minister for Home Affairs v Omar (2019) 272 FCR 589 where a Full Court of the Federal Court, consisting of five judges, considered and explained the content of an obligation to consider something in a statutory context such as the present. Any attempt by me to summarise what the Court said about that would fall miserably short and so I set the relevant aspects of the discussion out in full:
35. There is a helpful discussion of what is meant by the obligation of a decision-maker to “consider” a matter in a judicial review context in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, which involved two judicial review cases which were heard together. Those cases involved claims that the Minister had failed to give proper, genuine and realistic consideration to the merits of the two cases where the Minister cancelled the two appellants’ visas under s 501(3) of the Act. The Minister is empowered under that provision to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the cancellation is in “the national interest”. The relevant discussion is at [29] to [62] per Griffiths, White and Bromwich JJ.
36. The key points to emerge from Carrascalao which are also relevant to the decision- making function under s 501CA(4) are as follows:
(a) The Court acknowledged the danger of using an expression such as “proper, genuine and realistic consideration” because, if taken out of context, it may encourage the Court to slide into an impermissible merits review (see the observations in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ);
(b) As is the case under s 501CA(4), there was no explicit statutory duty on the Minister to “consider” the merits of the two appellants’ cases in Carrascalao. The Full Court proceeded on the basis, however, that there was an implicit statutory duty to consider the merits of the two cases, which included a volume of material provided by the judicial review applicants concerning their individual circumstances.
(c) Notwithstanding the absence of any explicit statutory duty to “consider” the merits of the cases, the Full Court in Carrascalao found that helpful guidance was obtained from cases which had considered the meaning of the word “consider”, when used explicitly in a statutory context. One such case is Tickner v Chapman [1995] FCA 1726; 57 FCR 451. In that case there was an explicit statutory duty on the Minister under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to “consider” a report and any representations attached to it in determining whether or not to make a declaration which would have the effect of protecting a site which the Minister was satisfied had special significance for Aboriginals. Justice Burchett said the following at 476-477 concerning the Minister’s explicit statutory duty to consider a report and any representations attached to it (emphasis in original):
What is it to “consider” material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to “consider” a report, Laskin J, speaking for the Supreme Court of Canada, said: “Certainly, the board must have the report before it”: Walters v Essex (County) Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 30-31, conceded that the Minister, in the circumstances of that case, was not obliged “to read for himself all the relevant papers”, and that it “would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department”, he also made it plain that the summary must “bring to his attention” all material facts “which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial”. That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority.
The following observations of Kiefel J (as her Honour then was) in Tickner at 495 are particularly apposite (emphasis added):
To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say...
(d) For the reasons given above, even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court’s approach in Tickner (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]- [89] per Middleton, Moshinsky and Anderson JJ).
(e) Each case necessarily turns on its own particular facts and circumstances as established by the evidence. The evidence in Carrascalao revealed that the Minister only had a short period of time to consider the detailed Departmental briefs placed before him and an inference was drawn that this limited time was insufficient for the Minister to discharge his obligation to consider, in the relevant legal sense, the merits of the two cases.
(f) The inference drawn in Carrascalao was one which was arrived at notwithstanding that the Minister’s statements of reasons in the two cases there stated that he had “given full consideration to all of the information before me” and that the reasons contained numerous statements by the Minister that he had “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.
(g) As the Full Court emphasised in Carrascalao at [132], the successful ground of judicial review in those cases did not involve any assessment by the Court as to the merits of the Minister’s decisions, rather it related exclusively to the process surrounding those decisions. The same is the case here.
37. The Minister’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request is also consistent with the following observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed):
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
(Emphasis added).
38. In short, as the respondent’s counsel on the appeal (Mr Wood) put it, the Assistant Minister has to take responsibility for what he is doing. This responsibility has both a political and a legal dimension.
39. Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law (see Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139 at [32]- [36] per Perram J).
…
41. The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised by the representations actually made and the acceptance of which could, in the present statutory context, constitute “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and give rise to jurisdictional error (see Viane at [28]-[30] per Rangiah J and at [67] per Colvin J and Ezegbe at [37] per Perram J).
The second respondent referred to the reasons for the applicant’s return to Iran in two paragraphs of its reasons. Those references amount to no more than an acknowledgment or noting of the explanations. The first such reference appears at [13] of the second respondent’s reasons in the context of the second respondent setting out the applicant’s responses to the delegates inquiries of him (my emphasis):
13. In response to these matters that the delegate put to him, the applicant stated the following:
…
b. His mother was extremely ill and his sister, who lives in Iran, was not able to look after her. He has a strong bond with his mother;
c. Despite his fear and the risks involved he had to visit his mother in case she passed away;
…
e. The second time he returned was because his mother had an accident and his sister and her husband faced bankruptcy and could not attend to their mother. Again he lived discreetly and rarely went out of the house; and
…
14. The applicant provided a number of documents and photographs to support his claims of his mother’s illnesses and hospitalisation; …
The second respondent summarised what occurred at the hearing before between [21] and [33] of its reasons. The second respondent sets out the various matters that it put to the applicant and his responses to those matters. He was not questioned about, nor was anything put to him about his explanations for returning to Iran. There was no suggestion for example that the second respondent did not accept that the applicant’s motivations for returning to Iran so soon after he had left were not genuine or honestly held by him.
The second step of the process is for the second respondent to decide if there was non-compliance by the applicant in the way described in the notice of intention to consider cancellation: s.108(b) of he Act. The second respondent set about doing that task between [34] and [38] of its reasons for decision. The second reference to the applicant’s reasons for returning to Iran appear at [35] of the second respondent’s reasons. The explanations are noted but no findings are made about them.
Relevantly, the task set by s.108(b) was to assess non-compliance by the applicant in the way described in the notice of intention to consider cancellation. The non-compliance was described in the notice as follows:
In view of your subsequent actions post your Protection visa grant, I consider that you did not hold the adverse profile as claimed at the point of your Protection visa application. I consider that you have not complied with section 101(b) of the Migration Act 1958. Therefore your Protection visa is liable for cancellation under section 109 of the Migration Act 1958. It does not matter whether you deliberately or inadvertently did not comply.
Section 108(a) requires the second respondent to consider any response given by the visa holder in the way required by s.107(1)(b) of the Act before it decides whether there was non-compliance by the visa holder in the way described in the notice.
The response given by the applicant pursuant to s.107(1)(b) set out an explanation for his travel to Iran in both his statement and the accompanying submissions which formed part of his response. It was not a cursory explanation or a throwaway line or two. In the written submissions accompanying the response, the explanation appears between [17] and [33]. On this aspect of the matter the submissions concluded:
33. In conclusion we submit that [the applicant’s] travel was due to the compelling circumstance of his mother’s deterioration in health. [The applicant] feared that his mother may pass away, and due to the strength of the connection between them he felt he had no other option but to return to Iran and see her. Considering that [the applicant] would have likely been granted permission to return to Iran under these circumstances, we respectfully request that the severity of this contravention of the visa condition attract no adverse inference.
Thus, there was a clear explanation for the applicant’s travel to Iran so soon after he was granted a protection visa. Moreover, the applicant’s statement dated 20 December, 2016 which formed part of his response was entirely devoted to explaining the applicant’s mother’s health condition, its progress and why he felt compelled to return to Iran. It is almost two full pages and consists of 17 paragraphs.
I accept the applicant’s submission that the second respondent has not given his explanations and reasons for returning to Iran the consideration that was required to be given to those matters. There is no engagement with the applicant’s explanations at all. They are referred to in a cursory way and are noted, but nothing more. No findings are made about them or the matters underlying the applicant’s claims that he felt compelled to return to Iran.
Further, I accept the applicant’s submissions that the focus of the second respondent’s inquiry as revealed in its reasons, was upon a reconsideration of the applicant’s initial claims to a protection visa. Given the non-compliance described in the notice of intention to consider cancellation, that focus was appropriate, but it could not occur in a vacuum. The second respondent was obliged to consider the applicant’s response to the notice, a response which was focussed upon the reasons for his return to Iran and why he felt compelled to do so. It did not consider his response.
The first respondent argues that I should not conclude that the second respondent did not intellectually engage with “the relevant aspect of his response to the NOICC” because the second respondent summarised the entirety of the response “and then made findings that foreclosed the possibility of it accepting the relevant aspect of that response”. The first respondent argues that I should conclude that it was not necessary for the second respondent to consider the applicant’s explanations for his return to Iran, or if it was, that it did not do so because the second respondent found:
(a)the applicant’s assertions as to the events that occurred in Iran prior to his first arrival in Australia that formed the basis of the protection claims he made in his visa application were intentional falsehoods provided with the sole intention of gaining a protection visa;
(b)it therefore did not accept that he had any adverse profile in Iran upon his initial departure from the country in 2011; and
(c)it also did not accept that the applicant did come to the adverse attention of the Iranian authorities in either of his two trips to that country after the visa was granted to him. His claim that it was necessary for him to bribe officials to be able to leave the country was rejected.
The first respondent argues that in light of those findings, there would have been no purpose served by the second respondent making a finding as to the applicant’s “representation that forms the basis of the proposed ground, namely, that the Tribunal should not conclude that he no longer feared (or had never feared) harm in Iran by reason of the fact that he had twice returned to the country since the visa was granted because he had been compelled to return by reason of his mother’s ill-health”.
But I cannot accept these submissions. The applicant’s response was that he returned to Iran despite his fear and that he felt compelled to do so by reason of his bond and connection with his mother and the failing state of her health. Had the second respondent considered that explanation and made findings about it that were favourable to the applicant – that he was closely bonded with his mother as he claimed, that she was in poor and failing health as he claimed; that it was necessary for him to see and care for her as he claimed, then it may have been that the second respondent concluded that there was no non-compliance by the applicant as alleged. That the applicant felt compelled to return to Iran to care for his mother is not necessarily inconsistent with a genuinely held fear of harm should he return. He may simply have decided to run the perceived risks for the sake of his mother’s well-being. If the applicant had considered and accepted his explanations, it is by no means clear that the discretion to cancel his visa would nonetheless be engaged.
The clearly articulated approach by the second respondent was to treat the applicant’s return to Iran as inconsistent with any genuine fear of persecution that he might hold without first considering and making findings about those explanations. Whilst the second respondent focussed upon what it considered to be inconsistencies and implausibilites in relation to the matter upon which his claims to protection were based, those inconsistencies and implausibilites may have taken on a different complexion if the applicant’s explanations for his return to Iran had been found to be credible.
The applicant argues that the second respondent’s reasoning at [37] demonstrates that the mere fact that the applicant returned to Iran on the two occasions after the visa was granted was “used as a matter adverse to [him]”. In my view, that is an entirely fair characterisation of that paragraph and demonstrates that the second respondent gave no consideration to the reasons why the applicant says that he returned.
Further, the applicant submits that much of the second respondent’s reasoning process was concerned with a reconsideration of the basis for initially issuing the protection visa. There is much merit in this submission. For the reasons explained, despite outward appearances the second respondent did not, in fact, undertake the task set for it by s.108 of the Act, namely to consider the applicant’s response to the s.107 notice. The two cursory references to his explanations at [13] (extracted above) and [35] do not reveal any proper consideration of the matters relied upon by the applicant.
Whilst the applicant’s submissions are directed to s.108(a), the ground of review is directed to the third stage of the enquiry, namely the exercise of the discretion to cancel the applicant’s visa. The second respondent expressly identified this third step of the process. After the heading “Should the visa be cancelled?” and between [39] – [56] of its reasons, the second respondent considered the matters it thought relevant to a determination about whether the applicant’s visa ought to be cancelled. At [40] the second respondent recorded:
40. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c).
This is, with respect, a correct statement of the obligations imposed upon the second respondent by s.109(1) of the Act. However, the difficulty is that despite that express acknowledgment, the second respondent did not then discharge, at least part of those obligations because it did not consider the matter required by s.109(1)(b) of the Act.
The second respondent identified that there were circumstances prescribed for the purposes of s.109(1)(c) of the Act. It set out each of those prescribed matters and dealt with them to the extent that they were relevant to the matter before it. In respect of that which was not considered relevant, the second respondent included a subheading for that prescribed consideration and then a notation that it was “Not applicable”. That exercise appears between [41] and [54] of the second respondent’s reasons for decision.
Thereafter, the second respondent considered another matter under the heading “Additional Considerations”. The two paragraphs appearing under that heading are as follows:
55. The Tribunal is mindful that a decision to cancel the applicant’s visa may result in his indefinite detention. The Iranian government, for example, has refused to accept involuntary returnees and that as a result the applicant, if he were unwilling to return, would face indefinite detention.
56. The question before the Tribunal is whether affirming the delegate’s decision would lead to indefinite detention. In this case it does not. The applicant is an Iranian citizen and having found earlier that he does not face a real chance of serious harm or a real risk of significant harm whether the applicant faces indefinite detention in Australia is dependent upon a choice he makes rather than the outcome of this decision.
In [57] the second respondent expresses its conclusion that there was non-compliance by the applicant in the way described in the notice given under s.107(1) of the Act and that having regard to all the “relevant circumstances” the applicant’s visa should be cancelled.
However, nowhere in the third step of the process, i.e. the consideration of whether the applicant’s visa ought to be cancelled, did the second respondent consider the applicant’s response to the s.107(1) notice. It did not consider the reasons why he said that he returned to Iran or any of the other matters set out in his response to that notice. In my view, the second respondent was obliged to do so.
A consideration of the applicant’s response to the s.107(1) notice was relevant to both the s.108 enquiry and the s.109 enquiry. It was relevant to determining whether there was in fact non-compliance for the purposes of s.108 as the applicant contends. It was again relevant to determining whether the applicant’s visa ought to be cancelled. His response to the s.107(1) notice was a mandated consideration for the enquiry required by each separate section. The second respondent referred to those reasons, but made no express findings about them for the purposes of s.108. But it did not consider his explanations at all for the purposes of s.109 of the Act.
It makes perfect sense that the applicant’s response to the s.107(1) notice should be considered in the course of each separate enquiry mandated by ss.108 and 109. His response would clearly be relevant to determining whether there has been non-compliance in the first place. His response might make it plain that there was no non-compliance and so the discretion provided for in s.109(1) would not be enlivened. Alternatively, the response might be insufficient to dissuade the first respondent from determining that there was non-compliance but it might nevertheless provide a basis for a determination that, as a matter of discretion, the visa ought to be cancelled.
Here, the second respondent did not consider the applicant’s response to the s.107(1) notice in the context of the discretionary exercise required by s.109(1) at all. There is no indication, express or implied, that it did so. It is tolerably clear that the second respondent did not consider those explanations important because, apart from the cursory references that it made to them, it gave them no proper consideration, nor made any findings about them or the matters relied upon by the applicant to underpin them. I do not infer that the second respondent considered the applicant’s explanations.
The emphasis in the reasons for decision on the fact of the applicant’s two return trips to Iran, coupled with its focus upon his ease of travel and that no harm befell him on those trips demonstrates that the second respondent was not interested in his explanations for his trips to Iran. On that point, that no harm befell him upon either of his returns says nothing about the existence of the risk of harm or whether the applicant had a well-founded fear of persecution should he return to Iran, either now or when he first applied for his visa. All it says is that the identified risks did not come to pass on either of those trips.
CONCLUSION
The applicant’s ground of review does not attack the way in which the second respondent found that the non-compliance alleged in the notice of intention to cancel his visa existed. The ground of review agitated in this application does not cavil with the conclusion that there was non-compliance by the applicant in the way described in the s.107(1) notice. The ground of review is directed to s.109(1)(b) and the discretionary exercise that can only be embarked upon once findings of non-compliance have been made pursuant to s.108. The applicant’s submissions that the second respondent made no findings about the veracity of the reasons advanced by the applicant for returning to Iran, however, are made in the context of the task required by s.108.
The second respondent’s failure to consider the applicant’s explanations for his return to Iran for the purposes of s.109(1)(b) of the Act was a failure by the second respondent to consider a mandatory relevant consideration specified by that subsection. It meant that the second respondent did not undertake the task it was required to undertake in the review application with which it was seized. It is no answer to say that the second respondent rejected the applicant’s explanations for his return to Iran, either expressly or by implication because there is no express finding to that effect. In the reasons I have given above I declined to infer that the Tribunal considered and then rejected those explanations. It cannot follow that the second respondent was not obliged to consider the applicant’s explanations when it considered the discretion to cancel his visa on the basis that it had rejected them for the purposes of the section s.108 part of the exercise because it did not do that, either expressly or by implication. It cannot be said, in my view, that given the findings that the second respondent did make when dealing with the s. 108 part of the process, it was unnecessary for the second respondent to consider the applicant’s explanations because those findings were flawed. They were flawed because the second respondent made them without considering the applicant’s explanations for his return to Iran as the law required..
The obligations cast upon the second respondent to consider the matter mandated by ss.108(a) and 109(1)(b) were not discharged by it. A mandatory relevant consideration was not considered by the second respondent in both instances. By failing to consider that relevant consideration, the second respondent failed to properly undertake the statutory task required of it and thereby deprived itself of jurisdiction.
The applicant establishes that the second respondent’s decision is affected by jurisdictional error. He is entitled to the relief that he seeks and his costs of this application.
POST SCRIPT
As I have set out above, on 28 September, 2017 a delegate of the first respondent issued a certificate under s.438 of the Act in respect of folios 5 through 14 of the department’s file in respect of the applicant’s visa cancellation. Disclosure of the information covered by that certificate was said to be contrary to the public interest because folios 5 through 12 contain “documents or information that would disclose departmental procedures and practices that could hamper the department’s lawful information gathering or protection of the community” and folios 13 and 14 contain “a document that would disclose lawful methods of departmental procedures to obtain information, which could hamper future lawful information gathering.”
In the event that his review application did not succeed, the applicant sought access to the documents that were covered by the certificate. That access is opposed by the first respondent on the basis that the documents are protected by public interest immunity. There are no grounds of the review application before me that make the documents that were covered by the certificate, or the fact that such at certificate had been granted, or the way in which that matter was dealt with by the second respondent, relevant. However, the applicant submits that the matter of the certificate is relevant to the current proceedings as, if it is found that the public interest immunity is not applicable, then the second respondent will have erred in its use of the Certificate and non-disclosure of the documents.
The parties agree on the proposition that whether a claim of public interest immunity ought to be upheld requires the court to consider two conflicting aspects of the public interest:
(a)whether harm would be done by the disclosure of matters of state; and
(b)whether the proper administration of justice would be frustrated or impaired if the documents were withheld.
The first respondent filed affidavit evidence that bears on this issue. In particular, the first respondent relies upon an affidavit sworn by Luke Edward Morrish and filed on 22 January, 2021. The applicant accepts that Mr Morrish deposes to matters that relate to matters of state for the purposes of the principle to which I have just referred.
Further, I am satisfied that the proper administration of justice would not be frustrated or impaired if the documents now sought to be protected from inspection were withheld because they are not relevant to the application before the Court. I am satisfied that the documents do not contain any material relevant to the issue that I have had to decide. The documents had no impact at all upon the conclusions the second respondent reached in this case. The applicant was told that at the hearing. He was told that the second respondent did not intend to use any of the information in those documents. There is no reason to doubt that.
I am satisfied that the documents covered by the certificate are protected from production and the first respondent is entitled to the orders that he seeks in that respect.
The first respondent seeks his costs of the application relating to what is described as the public interest immunity dispute but it would be surprising if there is anything other than little by way of costs incurred in that dispute. It is a matter which arose during the course of the application and which was dealt with at the final hearing of the application before me in a convenient way by each of the parties. It was a matter of little moment.
I make the order set out at the commencement of these reasons.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 15 September, 2021. Associate:
Dated: 15 September 2021
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