CXX19 v Minister for Immigration
[2020] FCCA 813
•11 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXX19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 813 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise (SHEV) visa – whether the Authority fell into jurisdictional error by making findings for which there was no evidence – whether the Authority fell into jurisdictional error by making a finding that was legally unreasonable – no jurisdictional error made out – the application is dismissed. |
| Cases cited: ANF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 578 Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 Hossain v Minister for Immigration and Border Protection [2018] 264 CLR 123] Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Citizenship v SZMDS (2010) ALR 367 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | CXX19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1928 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 11 May 2020 |
| Date of Last Submission: | 30 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 11 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Oakes |
| Solicitors for the Applicant: | Lander & Rogers Lawyers |
| Counsel for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1928 of 2019
| CXX19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from transcript)
Introduction
The applicant claims to be a person of Pashtun ethnicity from Andar District, Ghazni Province, Afghanistan and a citizen of that country.
The applicant arrived in Australia as an Unauthorised Maritime Arrival in January 2012.
On 12 February 2017, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV). A delegate of the Minister for Immigration (“the delegate”) refused to grant that visa on 13 June 2019.
The applicant then sought merits review at the Immigration Assessment Authority (“the Authority”).
In a decision dated 12 July 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa. The applicant now seeks judicial review of the Authority’s decision.
The Immigration Assessment Authority’s Decision
Given the limited nature of the grounds of appeal before the Court, it is not necessary to summarise in full, the Authority’s decision. It is sufficient to say that the applicant claimed to be an Afghan national. When the applicant was five years’ old, he and his family left for Pakistan where they settled in a village in the Khyber Pakhtunkhwa Province (“KPP”).
The applicant claims that in 2011, his brother returned to Afghanistan to work for the International Forces as a kitchenhand. The applicant claims that his brother was killed by the Taliban, for supporting the International Forces. Around one or two weeks later, the applicant received a phone call from the Taliban. They threatened to kill the applicant because of his brother’s work.
In January 2012, the applicant claims that he departed Pakistan illegally, using a fraudulent Pakistani passport. Paragraph 7 onwards of the Authority’s decision, deals with the applicant’s identity and status in Afghanistan and Pakistan. Overall, the Authority considered that the applicant’s evidence regarding his family situation in Afghanistan was lacking credibility and any real substance. Critical to this appeal, was that the applicant provided what he claims was, his original Taskera or identity document from Afghanistan.
The Authority records at paragraph 9 of its decision, that:
During the SHEV interview, the applicant told the delegate that in order to obtain a Taskera he gave his photo to his cousin in Afghanistan who obtained the Taskera on his behalf and then his cousin gave it to him when he visited Pakistan in 2011.
The Authority had significant concerns about the veracity of the claim and the document itself. Firstly, the document was issued in 2006 some five years, purportedly, before the applicant’s cousin gave it to him.
Secondly, the applicant told the delegate that he had little contact with his family in Afghanistan following a land dispute between parts of the family. The Authority found it implausible in the circumstances, that the applicant would contact his cousin and ask him to obtain a Taskera on his behalf.
Thirdly, the applicant claimed that he only gave his cousin a photograph of himself and did not have to provide any other evidence of his Afghan nationality. This was in contradiction to country information which indicated that a person’s identity needs to be attested to, by a local community leader and that in order to obtain a Taskera, at least one of the applicant’s parents’ Taskera must be presented.
The Authority found it implausible that even if the applicant’s family were well-known in the family records held in Ghazni, that the cousin could have circumvented the requirement to provide a Taskera for the applicant’s immediate family members as part of the application process.
Fourthly, the Authority noted that Taskeras are printed on plain paper and do not have any particular security features. There are high rates of Taskera fraud in Afghanistan. Overall, the Authority considered the applicant’s evidence as to how he came to obtain his Taskera for the most part, inconsistent with the country information before the delegate.
The Authority found it difficult to accept that the applicant could have obtained a genuine Taskera in the manner claimed. Accordingly, it placed little weight on the document as genuine evidence of the applicant’s identity.
In the balance of its decision, the Authority made a number of adverse credibility findings against the applicant, in regards to his claims. They include the fact that the applicant claimed to have remained undocumented in Pakistan, notwithstanding country information that the Pakistani Government had taken steps to register undocumented Afghans and that the applicant and his family had made no effort to register themselves with the United Nations High Commission on Refugees or Pakistani Authorities under one of the schemes.
The Authority also did not accept that the applicant would be able to own and run a business without any sort of personal or business documentation.
The Authority did not find it credible that the applicant had family in Pakistan who do not work because they are undocumented Afghan refugees or that they are solely reliant upon him for financial support.
The Authority considered it implausible that the applicant was able to travel to Karachi and then to depart Pakistan and travel to Malaysia using a fraudulent passport, that he would have forgotten the full name contained therein.
The Authority found the applicant’s claims regarding his brother’s death and the subsequent attention of the Afghan Taliban to be farfetched and lacking in credibility.
Grounds of Appeal
The applicant relies on two grounds of appeal as follows:
Ground one:
The second respondent, the Immigration Assessment Authority fell into jurisdictional error by making findings for which there was no evidence.
Particulars
In making a finding that the applicant was not an Afghan national but rather a Pakistani national, the Immigration Assessment Authority made adverse credibility findings on the basis that during his Safe Haven Enterprise visa interview at 9:
The applicant told the delegate that in order to obtain a Taskera he gave his photograph to his cousin in Afghanistan who obtained this Taskera on his behalf and his cousin gave it to him when he visited Pakistan in 2011.
However, the applicant made no such statement.
Ground 2
The second respondent fell into jurisdictional error by making a finding that was legally unreasonable.
Particulars
The applicant repeats the particulars referred to in paragraph 1 above.
The Applicant’s Submissions
The Court notes that Counsel for the applicant conceded that both grounds were intertwined and were intellectually similar. At paragraph 9 of its decision, the Authority said, with emphasis added:
The applicant has provided what he claims in his original ‘Taskera’, or identity document from Afghanistan with an English translation. During the SHEV interview, the applicant told the delegate that in order to obtain a Taskera, he gave his photo to his cousin in Afghanistan who obtained the Taskera on his behalf and then his cousin gave it to him when he visited Pakistan in 2011.
The Court has significant concerns about the veracity of this claim in the document itself, first, it was issued in 2006 some five years before the applicant’s cousin purportedly gave it to him. The recording of the applicant’s SHEV interview dealing with the Taskera reveals that the applicant did not make any statement, concerning the Taskera as such. The relevant portions reveal that the applicant did say:
a) After leaving Afghanistan for Pakistan, he did not return to Afghanistan.
b) His last contact with his cousin was in 2011 when he met the cousin, as the cousin came to Pakistan.
c) His last contact with someone in Afghanistan was when he spoke to the relevant cousin in 2011 regarding his Taskera.
It was submitted by Counsel for the applicant, that at no point of time did the applicant ever tell the interviewer when he obtained the Taskera. Further, at no point did the applicant tell the interviewer that he had received the Taskera from the cousin in 2011. Indeed, the interview proceeded upon the basis that the applicant got the Taskera in 2006. Relevant portions of the interview were quoted to the Court in this regard.
It was submitted by Counsel for the applicant that this finding was central to and dispositive of the Authority’s credibility and findings which were, in turn, central to its decision to affirm the delegate’s decision. The Authority’s finding was the primary reason for which it rejected the applicant’s Taskera which was otherwise on its face, was an authentic document that proved that the applicant was an Afghan national. Where a finding that is material to a decision is based on no evidence, this will result in jurisdictional error (see Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423] at [45] – [46]).
In relation to ground two, the Authority’s finding that the applicant never told the interviewer that he received the Taskera from his cousin in 2011, was legally unreasonable, for that reason, it caused it to be affected by jurisdictional error.
As previously mentioned, Counsel for the applicant very properly conceded that both grounds were intellectually indistinct and either succeeded as a whole or do not. It was submitted by Counsel for the applicant, that the Authority’s finding that the applicant came into possession of his Taskera when it was provided by the applicant’s cousin in 2011 was on an incorrect basis because the applicant never said as such in his SHEV interview. Therefore, the finding was illogical and manifestly unreasonable. That finding was on the way to the adverse credibility findings which ultimately resulted in the adverse decision for the applicant (see Minister for Immigration and Citizenship v SZMDS (2010) ALR 367).
The First Respondent’s Submissions
Counsel for the first respondent notes that the transcript of the SHEV interview reveals that the applicant said the Taskera was issued in 2006 to his cousin. When the applicant was asked where his cousin lived, he said, “in Afghanistan” and the last contact he had with the cousin was in 2011, when the applicant met his cousin in Pakistan. Later on in the interview, the interviewer confirmed the applicant’s evidence that the Taskera was obtained in 2006, by the cousin.
The interviewer then put to the applicant for comment information which indicated that, generally speaking, a person would have to be present themselves in order to obtain a Taskera. The applicant said the interviewer “might be right” but in his case, it was different and that “it was possible to obtain a document without being present”.
Counsel for the first respondent submitted that it was open, by way of inference, that the applicant obtained his Taskera in 2011, when his cousin visited Pakistan. Counsel for the first respondent relies upon Maxwell v Minister for Immigration and Border Protection (2016) 249 FCR 275 (“Maxwell”), where Perry J says at [54] verbatim:
Nonetheless, I do not consider that the jurisdictional error alleged by ground 5 is established. It is not the case that the “no-evidence” ground is established by a mere insufficiency of evidence to support a finding, even if the evidence is slight: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] (Gray, Moore and Weinberg JJ). There must be no evidence at all on which the finding could have been based: VAS at [18]-[19] (Gray, Moore and WeinbergJJ). As I explain below, there was some evidence to support the finding here. Secondly and in any event, a jurisdictional fact must be involved before a jurisdictional error based on the “no-evidence” ground can be established: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [39] (Gummow and Hayne JJ, with whose reasons Gleeson CJ agreed at [1]). As Madgwick J held in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 (SZAPC) at [57] in summarising the effect of the High Court authorities:
“[a] ‘no evidence’ attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact” (quoting Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [36]).
Yet nothing in the Act makes the question of whether there is access to health and welfare services a precondition to the exercise of jurisdiction by the Minister to cancel a visa. Nonetheless, where a crucial finding to a decision has been made without any evidence, the question will arise as to whether, to that extent, the decision is irrational or illogical: SZAPC at [57]-[59] and [64].
However, in this case, it cannot be said that the finding was either crucial to the Minister's decision or lacked any evidence. As to the former, it was but one of a number of factors which the Minister considered before concluding that there was an unacceptable risk of harm which outweighed the other factors in the applicant's favour.
It was submitted by Counsel for the first respondent that in ascertaining whether there was no evidence capable of supporting a finding, a decision-maker was entitled to rely on both the direct evidence and to draw inferences of fact (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39] – [41]).
It was submitted by Counsel for the first respondent that the applicant had not demonstrated that the Authority had “no evidence” for its finding at paragraph 9 of its decision. It was open to the Authority to conclude as it did, on the basis of the evidence above and on the statement by the applicant in his visa application, that the applicant had given evidence as the Authority records in paragraph 9 of its decision.
The Authority came to the conclusion that it did by reference to the totality of the answers that were given by the applicant. It was also submitted by Counsel for the first respondent, that the finding in paragraph 9 of the Authority’s decision, was not one of jurisdictional fact. Further, in the alternative, even if there was no evidence for the impugned statement at paragraph 9 of the Authority’s decision, it is apparent that it was simply one of a number of basis upon which the Authority arrived at in its conclusion, concerning the applicant’s nationality.
It was the cumulative weight of its various concerns that lead to the Authority’s ultimate finding and not one particular concern being dispositive or determinative. In these circumstances, the finding at paragraph 9 did not represent a critical step in the Authority’s ultimate state of satisfaction and/or the applicant had not discharged his onus of proving the Authority’s error was material and therefore, jurisdictional.
In relation to ground two, this alleges legal unreasonableness. The applicant’s written submissions address this ground on the basis that the complaint is, in fact, illogicality or irrationality said, to be sufficiently material to the Authority’s ultimate state of satisfaction to demonstrate jurisdictional error. However, the complaint is as characterised, because the factual premise underlying it has not demonstrated that it cannot succeed.
Consideration
It is well settled that the Authority is not required to accept uncritically, any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Court have jurisdiction to decide afresh on the evidence whether the applicant satisfies a criteria for the grant of a protection visa. The Court is restricted to considering jurisdictional error (see ANF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 578] per Burley J at [15]). A mistake of fact by the Authority, unless dispositive of the applicant’s claims, does not give rise to jurisdictional error (see Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 513(“SZNPG”)).
Ground One
Ground one asserts that there was no evidence for the Authority to make the finding that the applicant only received his identity document or Taskera in 2011, from his cousin. Counsel for the applicant points out that there was no claim made by the applicant that this was the case. There was no evidence as to when the applicant received the document. The only evidence in relation to the cousin was that the applicant last saw him in 2011, not that he received the document from him then.
The Court accepts that the finding does not reflect the evidence. The question then becomes whether or not the finding was critical to the outcome of the matter, or to put it another way, dispositive. It is to be noted that the Authority had a number of concerns about the authenticity of the document and then, its impact on whether or not the applicant was indeed an Afghan or Pakistani national.
The Authority noted that the circumstances in which the document was allegedly obtained, did not accord with country information it had before it, as to the circumstances under which a Taskera could be issued. This included the local elder vouching for the identity of the applicant and that the Taskera of one of the applicant’s parents would need to be produced. The applicant claimed that his cousin was able to obtain the Taskera using only a photograph of the applicant because his family was well known in the area.
The Authority also noted that document fraud in Afghanistan or Pakistan was widespread. The Authority also had concerns about the claims by the applicant that he and his family had been undocumented Afghans living in Pakistan for a long period.
The Authority also had issues that the applicant was able to leave Pakistan on a fraudulent passport and travel through Karachi, Dubai and Kuala Lumpur airports, using that document and that he would have forgotten the full name of the person named therein.
Counsel for the first respondent notes that in Maxwell, Perry J summarised the no evidence rule at [54], critically:
It is not the case that the “no-evidence” ground is established by a mere insufficiency of evidence to support a finding, even if the evidence is slight: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] (Gray, Moore and WeinbergJJ). There must be no evidence at all on which the finding could have been based: VAS at [18]-[19] (Gray, Moore and WeinbergJJ).
The critical issue here, is whether or not the applicant was an Afghan or a Pakistani national. The applicant relied upon his Afghan Taskera as proof of his identity. As indicated above, there were a number of reasons that the Authority relied upon in coming to the conclusion that it did, that the applicant was a Pakistani national.
Whilst there may have been a mistake of fact, as to precisely when the applicant obtained the Taskera, the Court is not satisfied that the mistake of fact would have been dispositive, had the mistake of fact not been made. There was a plethora of other evidence on which the Authority relied on, in coming to the conclusion that it did.
In these circumstances, the Court is not satisfied that there was no evidence. There was other evidence that it relied upon and it was an accumulation of that evidence and the inferences that were available to the Authority that led to the conclusion it did.
In these circumstances, the Court is not satisfied that ground one reveals any jurisdictional error.
Ground two
Whilst the Court notes the concession by Counsel for the applicant in relation of ground two, the Court proposes to deal with it in some detail. It alleges that the outcome of a finding that the applicant was a Pakistani national, was legally unreasonable. Unreasonableness is where decision-makers come to a conclusion so unreasonable, that no reasonable decision-maker could have come to it, see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 ] (“Li”) at [76], where it was said:
Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The test for unreasonableness is stringent, and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with a consideration of matters or the evaluative judgements made by a decision-maker (see Li at [30] and [113]).
Furthermore, as indicated above, even if the Authority made a mistake of fact as to when the applicant obtained the Taskera from his cousin, unless it was dispositive, no jurisdictional error arises (see SNGP).
Put another way, had the Authority not been mistaken, was there a reasonable likelihood it would have come to a different decision (see Hossain v Minister for Immigration and Border Protection [2018] 264 CLR 123] at [30] and [31]).
As outlined above, there was a multiplicity of facts that lead the Authority to come to the conclusion that the applicant was a Pakistani national and not an Afghan national, as claimed. These included that, the applicant told the delegate he had, “little contact with his family in Afghanistan following a land dispute between them.”
The Authority found, that it was implausible that the applicant would then be able to contact his cousin, and ask him to obtain a Taskera. The claim that the document was obtained without the applicant providing any other evidence to prove his Afghan nationality, also weighed against the applicant. This was in contradiction to country information and again, the Authority noted that Taskeras are printed on plain paper, with no security features and there are high rates of document fraud in Afghanistan.
The Authority also made a number of findings including the fact that the applicant claimed to be undocumented in Pakistan, notwithstanding the fact he was able to own and run a business, without any sort of business or personal documentation. The Authority did not accept it as credible that the applicant had family in Pakistan, who did not work because they were undocumented and that they solely relied upon him for financial support.
The Court is satisfied it was the cumulative weight of the Authority’s findings, as to the credibility of the claims made by the applicant, that were dispositive of the matter. Even if the Court accepts the submission that the applicant only received his Taskera in 2011, which it is submitted was not correct, the Court does not think that this would have been dispositive of the claims.
The Court is satisfied that even if the finding by the Authority was incorrect, it did not ultimately make a difference to the applicant’s claims. It did not make a difference to the overall outcome.
The Authority made numerous findings of fact that were against the applicant, the finding of fact in relation to the Taskera did not result in a poisoning of the well and it was not a situation whereby it was critical in terms of being a turn on the road, for the ultimate outcome.
Credibility, of course, which the applicant made numerous findings for, are a matter for the Authority which is best placed to judge, not this Court.
The Court is not satisfied that ground two reveals any jurisdictional error.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 12 June 2020
0
13
0