CWX18 v Minister for Immigration
[2019] FCCA 2369
•26 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CWX18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2369 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Subclass 866 (Protection) visa – whether the Tribunal failed to give proper and genuine consideration to the applicant’s evidence – whether the Tribunal misunderstood country information – whether the Tribunal made a number of jurisdictional errors – leave requested by the applicant to rely on the amended application – request denied – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.101, 107, 109, 368 Migration Regulations 1994 (Cth), s.2.41 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 AXX16 & Minister for Immigration and Anor (2018) FCCA 2902 BYM16 v Minister for Immigration & Anor [2017] FCCA 2445 CGQ15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 DSY16 v Minister for Immigration and Border Protection (2018) 260 FCR 260 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Singh v Minister for Home Affairs [2019] FCAFC 3 WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 |
| Applicant: | CWX18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1563 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 26 August 2019 |
| Date of Last Submission: | 26 August 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 26 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Solicitors for the Applicant: | Stamford Law Firm |
| Counsel for the Respondents: | Ms Laing |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
Leave is refused to rely upon the amended application.
The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1563 of 2018
| CWX18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from transcript)
Introduction
The applicant came to Australia by boat in 2010. On 2 June 2011, the applicant was granted a Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (“the Act”). The visa was granted on the basis that the applicant was accepted as being a stateless Bidoon from Kuwait. On 25 June 2013, the applicant’s wife lodged a partner visa application, including four children. In so doing, she provided various Iraqi identity documents for herself and the four children.
A delegate cancelled the applicant’s visa on the basis that the applicant claimed in his visa application that he and his immediate family were stateless and not entitled to citizenship of any country. The delegate concluded that the applicant was in fact an Iraqi citizen. The applicant sought merits review with the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 11 May 2018, the Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal decision.
The Tribunal Decision
In paragraphs 8 and 9 of the Tribunal decision, the Tribunal set out the Minister’s power to cancel visas and attached relevant extracts of legislation to the decision. At paragraphs 10 to 14, there was discussion as to whether the notice of particulars of the alleged non-compliance, (by not providing correct information in the original Protection visa application) pursuant to s 107 of the Act, was valid. It was submitted that it was not reasonable for the delegate to consider that the applicant had an Iraqi citizenship based on the fact that his wife did.
At paragraphs 12 and 13, the Tribunal found the notice contained sufficient particulars to enable the applicant to identify and address the issues that were cause of concern. Paragraph 14 of the Tribunal’s decision sets out the asserted issues of non-compliance, being that the applicant in form 866B, claimed that his wife and children were stateless when they possessed Iraqi identity cards and birth certificates. In form 866C, the applicant asserted he was stateless although his children’s ID cards and birth certificates refer to the applicant as an Iraqi citizen rather than, as he claimed, a stateless Bidoon.
Paragraph 15 of the Tribunal’s decision sets out documents provided in response to the notice of intention to consider cancellation. At the time of this response, the applicant was legally represented. Paragraphs 16 to 19 deal with the basis upon which the applicant’s wife obtained Iraqi passports and documents to enable his wife and children to leave Iraq. In paragraph 29, the Tribunal notes that the applicant went to Iraq in 2012 and 2013 from Australia as he allegedly missed his wife and children. When the applicant travelled, he had in his possession a Titre de Voyage, a temporary travel document issued by Australia. The applicant denied entering and leaving Iraq using an Iraqi passport.
Paragraph 30 of the Tribunal’s decision notes that the applicant’s explanations of obtaining a visa to enter Iraq are inconsistent with country information that requires a visa prior to the commencement of travel on a Titre de Voyage. Paragraphs 32 to 42 of the Tribunal’s decision deal with the applicant’s evidence as to his involvement in the issuing of Iraqi documents to his wife and children. The Tribunal found the applicant’s evidence to be implausible and inconsistent. In paragraph 42, the Tribunal found the applicant’s evidence to be unreliable in that he was given many opportunities to explain why Iraqi documents had been provided but failed to provide a satisfactory explanation.
At paragraph 44, the Tribunal accepted documentation provided by the applicant showing that his wife’s connection with Kuwait are genuine. The Tribunal found that the Iraqi documents were also genuine and that the wife is a citizen of Iraq. The applicant’s wife may have been stateless in 1982 but is now a citizen of Iraq. At paragraph 45, the Tribunal found the passports issued to the wife and children were genuine. The Tribunal accepts, however, that the passports may be issued on the basis of false documentation but did not accept that this was the case in the current situation.
At paragraph 46, the Tribunal found that the applicant is a citizen of Iraq and was when he applied for the Protection visa. At paragraph 48, the Tribunal took into account the applicant was issued with a Review Card stating that he was a Bidoon residing in Kuwait. The Tribunal found, however, it was not satisfied that a returning Bidoon to Kuwait would be at any real risk of persecution on that basis alone. At paragraph 52, the Tribunal concluded there was a non-compliance with s 101(a) and 101(b) of the Act in the answers that the applicant gave in his application for a Protection visa and this was described accurately in the s 107 notice.
Paragraphs 53 onwards of the Tribunal’s decision deal with the question of whether the visa should be cancelled pursuant to s 109(1) of the Act as there are no mandatory cancellation circumstances described under section 109(2) of the Act. There are, however, prescribed circumstances under regulation 2.41 of the Migration Regulations 1994 (“the Regulations”). The Tribunal then set these out and also had regard to relevant policy contained in the Department’s Procedural Advice Manual (“PAM3 document”), in relation to general cancellation powers.
The Tribunal reviewed the applicant’s circumstances, noting his wife and his children had been in Iraq since 2001. The Tribunal found that the applicant has no problems or fears living in Iraq. The applicant has visited twice. Accordingly, the Tribunal affirmed the decision to cancel the visa.
Grounds of Appeal
Initial grounds of appeal were filed in an application to the Court. An amended application was filed on 5 August 2019, which contained four new grounds and abandoned the previously relied upon grounds. No affidavit to explain the delay in the filing of the amended grounds was provided until Friday, 23 August 2019, being the Friday before the hearing today on 26 August 2019. In that affidavit by Ali Alkafaji of Stamford Law of Fairfield, various matters are set out. At paragraph 7, however, the following admission is made:
Between June 2018 and early July 2019, I did not progress the matter. While I had competing commitments for this period, there is no excuse for not progressing CWX18.
The first respondent opposed leave being granted, given Smith J made orders that any amended grounds of appeal must be filed by 22 August 2018, which is approximately 12 months ago. The first respondent asserts that as the proposed grounds lack merit, leave should be refused with reliance placed on AXX16 v Minister for Immigration and Anor [2018] FCCA 2902 (“AXX16“) at paragraph [46]. Given that any leave exercise requires the Court to determine if the new grounds have merit, I have heard submissions from both parties. Either way, I am required to make a determination as to the merits of the grounds. I note that whilst AXX16 is not binding upon me as a decision of this Court, for the purpose of comity, I should take account of it. I therefore propose to consider the amended grounds, as required, and after that, decide whether or not leave to rely upon the amended grounds should be granted.
Mr Zipser, of counsel, on behalf of the applicant, filed written submissions dated 9 August 2019. The Court notes there is reference in the written submissions to an affidavit that was proposed to be filed of the new grounds of appeal along with a copy of the transcript of the Tribunal hearing. These were not filed by the time the first respondent’s submissions were filed and the first respondent rightly complained about being prejudiced. The documents were not filed until as follows:
· The affidavit of Ali Alkafaji was filed on 23 August 2019.
· A copy of the Tribunal hearing transcript was filed on 22 August 2019.
Had an application been made to adjourn the matter by Ms Laing, of counsel, on behalf of the first respondent, I would have been minded to grant it and to award costs against the applicant. I would have also been minded to consider awarding that those costs be paid personally by Mr Alkafaji, given his admissions at paragraph 7 of his affidavit of 23 August 2019 that I have read. In considering that course of action, I have regard to the following comments by Smith J in BYM16 v Minister for Immigration & Anor [2017] FCCA 2445 in paragraphs [6] to [7]:
[6] There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
[7] The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings.
No doubt the merits of any ground sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given but eschewed and there has been no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive. I am grateful to Ms Laing, that she indicated that in the circumstances an adjournment was not necessary.
It was put on that basis that the transcript of the hearing would not prejudice the first respondent if it were tendered. I granted leave for it to be conditionally tendered and I now allow it to be tendered as evidence.
I now turn to the actual grounds of appeal. These are as follows:
(1)The applicant stated on a number of occasions, as part of his protection visa application, that in the lead up to the national election in Kuwait in 2010, he engaged in political activism in relation to the rights of Bidoons in Kuwait and as a result he was arrested and detained for five months and tortured (the Kuwait Activism Claim). The Administrative Appeals Tribunal, in its decision dated 11 May 2019, did not consider
a) the truthfulness or otherwise of the Kuwait activism claim or
b) the fact that in 2010 the department, after interviewing the applicant, accepted the Kuwait activism claim was true.
If the Kuwait activism claim was true, this would affect the assessment of whether the applicant was an Iraqi citizen at the time. In the circumstances, the Tribunal’s failure to consider the truthfulness or otherwise of the Kuwait activism claim is a jurisdictional error. Alternatively, if the Federal Circuit Court construes a sentence in the Tribunal’s decision as a finding rejecting the Kuwait activism claim. Then, the Tribunal made this finding:
(a) without having regard to the evidence before it concerning the Kuwait Activism Claim; or
(b) without giving proper and genuine consideration to this evidence.
In either case, this is a jurisdictional error.
(2) The statutory declaration of…
(and I will refer to this person by an acronym of Ms R)
… dated 21 December 2016 was before the Tribunal. Ms R gave evidence at paragraphs [18] and [19] (CB 225-226) of a conversation she had with the applicant in about 2013. The Tribunal fell into jurisdictional error in the manner in which it dealt with that evidence.
(3) The Tribunal made critical findings at paragraph [44] that the applicant’s wife “was an Iraqi citizen when the applicant applied for the visa” and at [46], that “the applicant… was a [citizen of Iraq] when he applied for the visa”. These critical findings were based on the intermediate findings at paragraphs [37] to [42]. In relation to the intermediate findings:
a) The Tribunal at [37] “found the applicant’s evidence about his lack of involvement in his wife’s application for a partner visa to be implausible and inconsistent”. The applicant’s evidence was not “inconsistent”. The Tribunal erred in making a finding of inconsistency.
b) The Tribunal, at paragraph [39], found the applicant’s “evidence about his going to Al Samawa to be inaccurate and deliberately vague”. The applicant’s evidence was not inaccurate or vague. The Tribunal erred in making this finding.
c) The Tribunal, at paragraph [42], “found the applicant’s evidence to be unreliable [because] he had many opportunities to explain why Iraqi documents had been provided but failed to give a satisfactory explanation”. The applicant gave an explanation as to how and why the Iraqi documents were provided. The fact the Tribunal did not accept the application does not mean the applicant’s evidence is unreliable. The Tribunal erred in making this finding.
The combination of errors in the findings at [37] to [42] results in the conclusion that the critical findings at [44] and [46] are affected by jurisdictional error.
4) The application provided to the Tribunal country information (in particular, a Landinfo report at CB 241 to 273) which explains how Iraqi identification documents such as personal ID cards, citizenship certificates and passports may be genuine, although obtained by bribes and corruption, with the effect that the documents, although genuinely issued by Iraqi authorities, contain false personal data. The Tribunal misunderstood or failed to give proper and genuine consideration to the country information, at paragraph [44] that the applicant’s wife,
“Was an Iraqi citizen when the applicant applied for the visa” and at [46] that “the applicant… was (a citizen of Iraq) when he applied for the visa”. This was jurisdictional error.
Applicant’s written submissions
Ground 1
This ground complains that the Tribunal failed to adequately deal with the applicant’s claims of political activism in Kuwait, detention and torture. It is noted that the Tribunal accepted that the applicant was a documented Bidoon residing in Kuwait in 2007/2008, but then found that he was an Iraqi citizen when he applied for the visa in 2011.
It was first submitted that the Tribunal did not consider the truthfulness of the applicant’s claims of political activism, detention or torture in Kuwait in 2009 or the fact that the department or officer in 2010 had found his claims in relation to Kuwait to be true.
It was submitted second that it was not relevant to consider the manner of non-compliance set out in the notice of consideration to cancel. It was submitted it was unclear if the Tribunal found that some or all of the applicant’s claims were not true. One possibility is that the Tribunal rejected the entirety of the applicant’s claims. Reliance was placed on s 368(1) of the Act, which requires the Tribunal to make a written statement which,
a) Sets out the decision of the Tribunal on review and,
b) Sets out the reasons for the decision and,
c) Sets out the findings of any material questions of fact and,
d) Refers to the evidence or any other material on which the findings of facts were based.
Reliance is placed on the decision of the Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at paragraph [69], and Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at paragraphs [43] to [72] per Kenny J and [80] to [97] per Rares J.
It was submitted that the Court should find that the Tribunal made a finding of fact at paragraph 51 without regard to the significance of the evidence before it, which was a jurisdictional error, see WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at paragraph [21].
In the alternative, it was submitted that the Tribunal did not give proper and genuine consideration to the evidence, see Singh v Minister for Home Affairs [2019] FCAFC 3 at paragraph [30].
It was submitted there was ambiguity and a “cursory manner” in the manner in which the Tribunal dismissed the claims. It was then submitted that the second possibility is that the Tribunal merely found that the claim that the applicant was stateless was incorrect, as he was an Iraqi citizen at the time, but on this construction the Tribunal did not deal with his Kuwait claims. This may be because it is not necessary to decide whether all of the applicant’s answers were correct due to the significance of an answer that is incorrect to a single question.
It was submitted that the error here lies where the decision made has,
(1)Overlooked probative evidence.
(2)Fails to give proper and genuine consideration to the probative evidence.
(3)The decision is illogical or rational, or,
(4)Fails to carry out the task required to be carried out on review.
Ground 2
This concerns a purported error in dealing with the statutory declaration of Ms R dated 21 December 2016. That material is as follows.
Applicant:
I want to bring my wife and children to Australia.
Ms R:
Your wife and children cannot obtain Kuwaiti because they are Bidoons.
Applicant:
But they were smuggled to Iraq a couple of years ago because they were struggling financially.
Ms R:
When are you going to do their papers to come to Australia?
Applicant:
I’m told there was a lawyer in Iraq with good connections. He is helping them get Iraqi identifications.
Then the applicant told me he was concerned about his family because they were considered the lowest class citizen in Kuwait and in a foreign country.
It is submitted that this conversation, if it was accepted, would corroborate the applicant’s account. The Tribunal gave the statement little weight at paragraph 43 of its decision, where it said,
It has taken into account the statement from his childhood friend but gives it little weight. She states the Bidoons from Kuwait is a stateless group of people without citizenship. The country information does not support that. Each case differs. She quotes the applicant as saying, “I am told there is a lawyer in Iraq with good connections. He is helping them to get Iraqi identification”. The inference is that he knew the documents were not genuine. That is inconsistent with his claim during the hearing not to know whether or not the documents his wife obtained in Iraq are genuine.
It is submitted the above is problematic, that, first, the fact that Ms R believes a matter about Kuwait and Bidoons, which may not be correct, is not a rational reason to give little weight to the recollection that the conversation occurred. Second, it was put that if there was an inconsistency between A and B as to a recollection, it is not, without a more rational reason, sufficient to reject both A and B version of events and their evidence. It was submitted there was no proper basis to draw the inference that the Tribunal did. It was submitted that the Tribunal failed to give proper and genuine consideration to the conversation and, second, to give it little weight was legally unreasonable.
Ground 3
The Tribunal made critical findings that the Iraqi documents provided by the wife were genuine and that the applicant was a citizen of Iraq when he applied for his Protection visa. These findings are set out in paragraphs 37 to 45 of the Tribunal’s decision.
It was submitted that the applicant’s involvement with the wife’s application for a partner visa was not inconsistent with the material at paragraphs 37 to 38 of the Tribunal decision and this cloaked failure to resolve a material question of fact. Reliance was placed on W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at paragraph [37].
The Tribunal found, at paragraph 39 of its decision, that the applicant’s evidence was vague. It was submitted that the applicant is unable to understand this and reliance was made upon the transcript of the hearing filed on 22 August 2019. An attack is made on the implausible finding at paragraph 40 of the Tribunal’s decision, which founded that the applicant’s claim that his wife had been the subject of ill-treatment from authorities due to his activities. It is suggested the finding that the applicant’s evidence is “unreliable” as he had failed to explain why the Iraqi documents had been provided could not be sustained. The basis for this finding was unclear. Reference was made to the applicant’s claim. It was submitted it was not unsatisfactory.
Ground 4
This asserts the Tribunal failed to appreciate the distinction between Iraqi documents that are genuine and those that may be based on forced information or bribes or obtained by fraudulent means and/or forgeries. It was submitted that the failure to appreciate this particular difference amounts to jurisdictional error.
The First Respondent’s Written Submissions
In opening, counsel on behalf of the first respondent submitted that leave to rely upon the amended grounds should be refused in circumstances where the grounds lack merit and there had been no adequate explanation for the delay. Again, there was reliance on AXX16.
In relation to the particular grounds, Ground 1 asserts a varied species of error, including a failure to give proper and genuine consideration, illogicality, irrationality and other matters. Although a lack of consideration may be inferred from the decision-maker not expressly dealing with an issue, such an inference should not be too readily drawn where the reasons are otherwise comprehensive. Reliance was placed on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Even if this particular issue was not considered, in order for there to be jurisdictional error, the matter must be cogent, central and substantial to affect jurisdiction. It was submitted that the Tribunal expressly referred to the claims of activism in paragraph 14. The applicant now claims this is not clear what answer was stated as incorrect in the notice of intention to consider cancellation.
It is submitted that the Tribunal included the claims of statelessness and political activism. The statelessness was central to what the applicants sought to persuade both the Tribunal and the delegate. It was submitted that the applicant was simply caught out. The applicant made claims he was stateless and engaged in political activities in Kuwait to enhance his protection claim. The Tribunal found the wife’s documents that identify her as being an Iraqi citizen contradicted his own claims. This includes his political activism.
The first respondent’s submissions suggest the claims of activism were not overlooked. This was simply not the case. The claims did not meet the high level threshold required and, if anything, the applicants simply engage in merits review.
Ground 2
This ground contends error in the consideration of the statutory declaration of Ms R. It is suggested that it was irrational to give Ms R’s evidence limited weight due to its inconsistency with the applicant’s account. Yet, the last statement “you can get any document you want in Iraq with money and connection” was, in fact, consistent. There was no basis to suggest that the Tribunal failed to appreciate the significance of what was stated. Again, this ground seeks merits review.
Ground 3
This ground relied, in part, on the transcript filed on 22 August, which has been placed into evidence. It also relied on NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at paragraph [21].
In any event, the finding that the applicant had nothing to do with his wife’s application was implausible or inconsistent, was in difficulty as,
(1)On his own evidence, at paragraph 37, he was involved with submitting the documents.
(2)The assessment of inaccurate and deliberately vague evidence was open to the Tribunal, which it did at paragraph 39.
(3)The assessment at paragraph 40 of implausibility of the wife’s remaining in Kuwait despite constant harassment was open to the Tribunal.
(4)The finding at paragraph 42 that the applicant’s evidence was unreliable was again open to it. The Tribunal was not obliged to accept the claims and the evidence proffered by the applicant, see CGQ15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at paragraph [65].
(5)The non-acceptance that the passports were false or falsely obtained was also open to the Tribunal.
Ground 4
The Tribunal found the passports were genuine. It acknowledged the passports may be obtained through false documents. There was no misunderstanding of the country information.
Consideration
Earlier I made certain comments about the unsatisfactory way in which this matter has been prepared and come on for hearing. Ultimately, in order to consider whether or not leave should be granted to rely upon the amended grounds, I am required to consider their merit. Leave has been granted to rely upon the transcript of the evidence contained in the affidavit of Bianca Aboaal, dated 22 August 19, which annexed a transcript of the hearing before the Tribunal. I again indicate that the Court is rightly concerned at the practice of legal representatives in the migration jurisdiction ignoring Court orders for the filing of grounds of appeal, evidence and submissions in a timely faction. This must stop.
The Court cannot and should not be held to ransom, given the nature of the proceedings and the effect on the applicant of refusing leave, to allow such conduct to go without any negative impact. Both the Court and the respondent have been significantly disadvantaged and inconvenienced. Allowing adjournments with costs consequences in circumstances where there may be no real capacity for the applicant to pay those costs will have little effect on the tardiness of legal practitioners. One solution is to make costs payable by the legal practitioners, as is available under the rules of this Court. This is a course of action I will consider where circumstances are appropriate to make such orders.
I now turn to the matter itself. The applicant was granted the Protection visa based on information provided by him that he and his family were stateless. He claimed to have been the subject of detention and torture in Kuwait as a result of his political activities. The applicant says he left his family in Kuwait and fled to Australia in 2010. He was granted a Protection Visa in 2011. In 2012 and 2013 the applicant went to Iraq. The applicant did so on a temporary travel document, yet claimed to have been given a visa to enter Iraq at the border. Country information indicates that a visa would need to be granted prior to travel being undertaken to Iraq, where the applicant only had temporary travel documents.
The clear inference was that he entered Iraq on an Iraqi passport. This finding, in fact, was not challenged. During his visit in 2013 the applicant’s wife and children obtained Iraqi passports, ID cards and citizenship certificates. At the time that he was granted his Protection visa, the applicant stated that his wife and children were stateless. The applicant denied that he was a citizen of Iraq. The Tribunal found that the applicant avoided responsibility for and/or association with documents that were inconsistent with the information that he provided in his visa application and was specified in the notice of intention to consider cancellation.
Ground 1
This ground asserts jurisdictional error by failing to deal or properly deal with the applicant’s claims concerning the events in Kuwait. The applicant’s counsel asserts a wide range of errors in what could be described as a scattergun approach. It should be noted that the Tribunal’s reasons must not be read with too fine an eye for error. Allegations of irrationality or illogicality in the reasoning must be extreme before jurisdictional error will be established. In circumstances where the outcome is based on a number of findings and the impugned finding is but one that may have led to the ultimate conclusion, jurisdictional error will not be made out; see DSY16 v Minister for Immigration and Border Protection (2018) 260 FCR 260 at paragraph [19].
I am reasonably satisfied the Tribunal did consider and deal with the claims made concerning Kuwait. The Tribunal did so by finding the applicant was an Iraqi citizen and not a stateless Bidoon. I agree with the first respondent’s submission that a fair reading of the Tribunal’s reasons indicates it rejected the applicant’s evidence as unreliable and that the applicant did not comply with s 101(b) of the Act. The Tribunal found that the applicant was not stateless. The claims of activism were, to my mind, of little moment and could not have impacted on the ultimate outcome.
There is no jurisdictional error. There was nothing unreasonable, irrational or illogical in the reasoning process of the Tribunal, given the totality of the evidence before it. I am not satisfied that any evidence was overlooked or that the claim were not given proper and genuine consideration.
Ground 2
Ground 2 takes issue with the finding at paragraph 43 of the statement of the reasons of the Tribunal, which said:
It has taken into account the statement of childhood friend, but gives it little weight. She states Bidoons from Kuwait is a stateless group of people without citizenship. The country information does not support that. Each case differs. She quotes the applicant saying, “I’m told there was a lawyer in Iraq with good connections. He is helping get Iraqi identifications”, the inference is that he knew the documents were not genuine. That is inconsistent with his claim during the hearing not to know whether or not the documents his wife obtained in Iraq are genuine.
The applicant complains that limited weight was given to Ms R's statutory declaration. The issue in this matter is whether the applicant’s account that he did not know if the documents his wife obtained, being the ID, birth certificate and passports, were genuine. The statutory declaration stated the applicant said to Ms R:
You can get any document in Iraq with money and connection.
I agree with the first respondent that it was open to Tribunal to give the account limited weight. I accept it is consistent with the applicant’s accounts and this was a matter that diminished the extent to which it will be given weight. There are no bases to find that the Tribunal failed to appreciate the significance or that the reasoning was irrational, unreasonable or illogical, particularly given the very high bar to make such a finding. There is nothing extreme in my view in the reasoning process the Tribunal followed. No jurisdictional error is apparent.
Ground 3
This ground appears to be a scattergun complaint about the Tribunal’s factual findings. The complaint was made without the benefit of the transcript and the transcript was only put into evidence very late. I am satisfied that the finding by the Tribunal at paragraph 37 about the applicant’s lack of involvement with his wife’s applications was, indeed, implausible and inconsistent. In so doing, I do not find that the word “implausible”, in this case, or at any other time during the findings of the Tribunal was, in fact, a cloak for not dealing with the matter.
It was a finding that was open to the Tribunal. The applicant was in Iraq in 2012 when his children’s identification and other documents were issued. The applicant registered his marriage certificate in 2013 when he was there. An Iraqi lawyer arranged passport and ID cards to be sent to the applicant’s own lawyer in Australia, yet, he claimed he has no idea whether they were genuine or not. I am satisfied the assessment at paragraph 39 that the applicant was inaccurate and vague is a finding that was open to the Tribunal.
The finding that the applicant’s wife and children stayed for nine months after he fled from Kuwait was implausible and in my view, was also open to the Tribunal, who took account of it. The Tribunal did not cloak a failure to make a finding. The assessment at paragraph 42 that the applicant’s evidence was unreliable was also open to it. There is nothing that was irrational or illogical to the extreme level required to find jurisdictional error in the Tribunal findings. I find no jurisdictional error in Ground 3.
Ground 4
Ground 4 alleges that the Tribunal misunderstood or failed to give proper consideration to the country information regarding the obtaining of genuine documents on false information. The Tribunal accepted that the documents were genuine and found they were, in fact, founded on genuine information, that is, that the applicant’s wife and children were, indeed, Iraqi citizens. I am satisfied that the conclusion was open to the Tribunal. It is not irrational or illogical. It was based on the material before the Tribunal and the issues it found with the applicant’s evidence. The Tribunal found that the applicant’s evidence was unreliable and inconsistent. It is clear that the Tribunal was not satisfied that the applicant was telling the truth. There is no jurisdictional error in Ground 4.
Conclusion
As I have found no merit in the proposed amended grounds and given that counsel for the first respondent objected to the filing of the amended grounds, I propose to refuse leave to the filing of the amended grounds of appeal.
The application is dismissed.
In relation to the issue of costs, it was agreed between the parties that in the event I should find in the first respondent’s favour, that I should make an order that the sum of $6000.00 be paid as the costs of the first respondent.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 19 September 2019
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