DAO17 v Minister for Immigration and Border Protection
[2019] FCA 1899
•18 November 2019
FEDERAL COURT OF AUSTRALIA
DAO17 v Minister for Immigration and Border Protection [2019] FCA 1899
Appeal from: DAO17 v Minister for Immigration & Anor [2018] FCCA 3500 File number: NSD 2134 of 2018 Judge: CHARLESWORTH J Date of judgment: 18 November 2019 Catchwords: MIGRATION – cancellation of protection visa on the ground that incorrect information was provided in support of the visa application – visa applicant claiming protection on the basis of statelessness – Administrative Appeals Tribunal finding the visa applicant was a citizen of Iraq and had provided incorrect responses to question on visa application form – appeal from decision dismissing an application for judicial review of Tribunal’s decision – Tribunal committing no jurisdictional error of the kind alleged on judicial review – no appealable error Legislation: Migration Act 1958 (Cth) ss 101, 107, 108, 109, 474, 476 Cases cited: Craig v South Australia (1995) 184 CLR 163
DAO17 v Minister for Immigration & Anor [2018] FCCA 3500
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Date of hearing: 30 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr J Hutton Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 2134 of 2018 BETWEEN: DAO17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
18 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
Section 101(b) of the Migration Act 1958 (Cth) provides that a non-citizen who applies for a visa must complete his or her application form in such a way that no incorrect answers are given or provided.
In 2011, the appellant applied for a protection visa. On his application form he stated that he was an undocumented Bidoon who was born in and habitually resided in Kuwait. He claimed to fear persecution on the basis of his status as a stateless person. These claims were accepted and the appellant was granted a protection visa in July 2012.
In December 2012, the appellant lodged a sponsorship application in support of a partner visa application for his wife. On the forms lodged in support of that application, the appellant stated that he had been born in Iraq. He provided Iraq identity documents in support of the application.
A delegate of the Minister for Immigration and Border Protection decided that the appellant had not complied with s 101 of the Act when he applied for the protection visa, and cancelled the visa. The protection visa was cancelled in the exercise of powers conferred by ss 107, 108 and 109 of the Act, the terms of which are not in issue here.
The delegate’s decision was affirmed on review by the Administrative Appeals Tribunal. The Tribunal concluded that the appellant was born in Iraq and was not a stateless Bidoon from Kuwait as he had originally claimed.
The Federal Circuit Court of Australia dismissed an application for judicial review of the Tribunal’s decision: DAO17 v Minister for Immigration & Anor [2018] FCCA 3500. The appellant appeals from that judgment.
For the reasons that follow, the appeal should be dismissed.
THE TRIBUNAL’S DECISION
The Tribunal gave written reasons for its decision on 1 June 2017. The reasons describe the material before the Tribunal. Broadly described, that material included:
(1)documents provided by the appellant in support of his protection visa application, particularly documents supporting the claim that he was a stateless person and a former habitual resident of Kuwait;
(2)documents provided by the appellant in support of his partner visa application, including identity documents tending to show that the appellant and his family members were Iraqi citizens (Iraq identity documents);
(3)country information including information relating to recognition of persons as Iraqi citizens; and
(4)additional information provided by the appellant to the delegate and the Tribunal, including documents further supporting his claim to be a stateless person habitually residing in Kuwait (Kuwait identity documents).
The Iraq identity documents comprised:
(1)an Iraq personal identity card in the appellant’s name listing his place of birth as Basra in Iraq;
(2)Iraq citizenship certificates issued in the name of the appellant’s four children; and
(3)Iraq passports for the appellant’s wife and children.
The Tribunal referred to a notice issued to the appellant under s 107 of the Act. By that notice, the delegate had alleged that the appellant had not complied with s 101 of the Act in connection with his protection visa application. The information referred to in that notice was summarised by the Tribunal (at [14]) as follows:
a.The applicant’s Iraqi personal identity card (listing his place of birth as Basra, Iraq),
b.The applicant’s four children’s Iraqi personal identity cards (listing a place of birth as Basra, Iraq),
c.The applicant’s four children’s Iraqi citizenship certificates, and
d.Iraqi passports for the applicant’s wife (issued 26 October 2010 - folio 9 refers) and four children (all issued 10 December 2012).
In his evidence before the Tribunal, the appellant stated that he had been provided with the Iraq national identity card which, he said, was not genuine. He claimed that he had only used the card to buy food and to cross the border. The appellant acknowledged that the identity card had been regularly checked at checkpoints during his travels. He further claimed that he had been visited by his brother-in-law in 2004. The appellant said that his brother-in-law had Iraqi citizenship, but he had never asked how he had obtained it. He claimed that in 2009 he and his wife had obtained Iraq identity documents by providing photographs and other information to the brother-in-law. When asked why he had not used the Iraq identity documents to relocate to Iraq, the appellant claimed that he did not like Iraq and that it was “scary with soldiers”. The appellant claimed that he had not mentioned the Iraq identity documents at the time that he made his application for the protection visa because he believed the documents had been forged.
The Tribunal asked the appellant to explain discrepancies in his father’s name, as it appeared in the Kuwait identity documents. The appellant said the name was the same, although expressed differently for tribal reasons.
The Tribunal said that the evidence that the appellant was an Iraqi was “overwhelming”. The Tribunal continued (at [50]):
…He was born in Iraq, possesses an Iraqi National Identity card, as does his family in Iraq. The family in Iraq also have Iraqi passports – the children’s issued in 2012 and the wife’s in 2010 (folio 9) and Basra in Iraq is listed as their place of birth.
The Tribunal said that the evidence of the appellant being a Bidoon lacked credibility. It said that there was no country information supporting the appellant’s claim that the names appearing on his father’s identity documents were interchangeable. Among other things, the Tribunal said that the appellant’s claim to be ignorant regarding how his brother-in-law had been able to acquire Iraqi citizenship was implausible. The Tribunal did not accept the appellant’s claim that he had not mentioned the Iraq identity documents because they were fake. The Tribunal found that the appellant had not mentioned the documents because he believed them to be valid and was trying to pass himself off as a stateless person. The Tribunal said that the appellant had travelled twice to Iraq since the grant of his protection visa and had made an untruthful statement on his passenger card on the second occasion, by stating that he spent most of his time in Kuwait, when in fact he had been in Iraq.
The Tribunal said that it had taken into account the documentary evidence the appellant had provided (including documents contained in “folios 82 – 100”) but had given them little weight. It also gave little weight to a letter from a trauma counselling service, because the history of trauma referred to in the letter was based in whole or in part on the appellant’s alleged torture and detention in Kuwait, an account that the Tribunal had found to be fabricated. The Tribunal said that it had afforded “more weight on the implausibility of the applicant’s claims and the nature of the information that indicates his Iraqi nationality”. The Tribunal concluded:
Conclusion on non-compliance
56.I am satisfied that the visa holder fabricated his claim regarding his statelessness and the impact of that, including the fact that he was detained and tortured by Kuwaiti authorities for taking part in a rally for stateless people in Kuwait. Given that I have found the visa holder to be an Iraqi citizen, and that he knew himself to be one at the time he made a protection visa application, I am satisfied that the applicant has provided false information in his claim and that he gave incorrect answers to questions 20, 22, 23 and 43.
57.In particular, he claimed to be a stateless Bidoon from Kuwait and at Question 20 he answered that he was stateless at birth when he was an Iraqi citizen at birth. At Question 22 he answered that he did not hold the citizenship of any other country when at the time he was an Iraqi citizen. At Question 23 he claimed that he did not have the right to enter or reside in any country other than his country of citizenship or country of habitual former residence when he was an Iraqi citizen who could enter and reside there. At Question 43 he claimed that he left Kuwait because he took part in a rally with other stateless Bidoon people, when he was an Iraqi citizen and therefore not a stateless Bidoon. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant as described in the s.107 notice.
The Tribunal then turned to consider discretionary considerations affecting its power to cancel the protection visa. It is not necessary to consider that aspect of the Tribunal’s reasons for the disposition of this appeal.
GROUNDS OF APPEAL
To succeed on the application for judicial review it was necessary for the appellant to show that the Tribunal’s decision was affected by jurisdictional error: ss 474, 476 of the Act; Craigv South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ).
The appellant was self-represented on this appeal, although he did have legal representation in the proceedings before the primary judge.
The grounds of appeal are expressed as follows:
1.The appellant contended in the Federal Circuit Court that the Administrative Appeals Tribunal erred in Kuwaiti Identity documents.
2-The appellant contended in the Federal Circuit Court that the Administrative Appeals Tribunal erred in in not accepting original document from applicant
3-The appellant contended in the Federal Circuit Court that the Tribunal in its Finding of fact at [50] that applicant born in Iraq
These grounds do not expressly assert an appealable error on the part of the primary judge, nor do they identify jurisdictional error on the part of the Tribunal. Oral argument proceeded on the basis that the grounds were intended to assert that the primary judge erred in rejecting the three grounds for judicial review upon which the appellant had relied.
In the circumstances, it is appropriate to dispose of the appeal by considering each of the grounds for judicial review rejected by the primary judge, being those set out in an amended application filed on 27 August 2018.
THE FIRST GROUND
The first ground for judicial review was expressed as follows:
1.The applicant provided to the Department and to the Administrative Appeals Tribunal (‘the Tribunal’) documents from Kuwait concerning the identity of the applicant and his parents (‘the Kuwait Identity Documents’) - such as at CB 65-68 and 201-219. The Tribunal fell into jurisdictional error in assessing the Kuwait Identity Documents for reasons including the following:
a)The Tribunal expressed concern (at [37] and [51]) about the difference between the family name of the applicant’s father in his protection visa application (… at CB 52) and in one or two of the documents (…). The Tribunal implicitly found that the Kuwait Identity Documents were not genuine. However, the fact that the family name of the applicant’s father appears differently in one or two documents does not mean that none of the Kuwait Identity Documents were genuine. This process of reasoning was illogical or irrational.
b)The Tribunal failed to give proper and genuine consideration to all of the Kuwait Identity Documents.
…
The primary judge summarised this ground as involving the following arguments (at [17]):
… First, the Tribunal rejected the Kuwaiti Identification Documents because of the discrepancy in the names between those documents; secondly, some, but not all of the documents had the naming discrepancy; and thirdly, it was either unreasonable or irrational for the Tribunal to reject those documents on the basis of this fact and the rejection of them revealed a failure to give the documents proper, genuine and realistic consideration.
Arguments to the same effect are advanced on this appeal.
The primary judge said that the critical question before the Tribunal was a binary one: “was the applicant Iraqi or was he a Bidoon”. The evidence, the primary judge said, went two ways (at [19]):
… There was, in fact, no middle ground between the two. Thus a conclusion about the credibility of one of those sets of documents, although necessarily not to be made in the absence of consideration of the other, was going to have an impact upon the consideration of the other and whether or not the Tribunal was going to accept them.
The primary judge said that the Tribunal’s consideration of the discrepancy in the expression of the name of the appellant’s father in the Kuwait identity documents was not to be considered in isolation from the whole of its consideration of the opposing sets of documents. His Honour found that the Tribunal had made an express reference to documents contained in folios 82 to 100 which included the Kuwait identity documents and so rejected the submission that the Tribunal had failed to take those documents into account. The fact that the Tribunal had not made express findings about some of the documents that did not have the same naming anomaly could not, the primary judge said, support an inference that the Tribunal had not had proper regard to them. His Honour said (at [24]):
I add to that the fact that the documents themselves were not particularly complex and it would not have been a difficult thing for the Tribunal simply to have a look at them briefly to understand what they said and to understand, as it is obvious on any reading, that they are entirely inconsistent with the documents that support the conclusion that the applicant was an Iraqi citizen. For those reasons, the first ground is rejected.
I detect no appealable error in the disposition of this ground for judicial review. The primary judge was correct to find that the Tribunal had approached its task by considering the two sets of opposing evidentiary material. It was open to the Tribunal to reject the appellant’s claims that the Iraq identity documents were not genuine. That rejection was made in light of all of the evidence before the Tribunal including the appellant’s evidence about the use to which he had put (or not put) the Iraq identity documents in his possession, and the credibility issues that arose from the appellant’s travel in and out of Iraq both before and after the grant of his protection visa. Moreover, it was open to the Tribunal to place little weight on the evidence provided by the trauma counselling service, particularly in light of the fact that the appellant had not sought out any counselling services in the six years since his protection visa was granted, but had done so only when potential grounds for the cancellation of his protection visa had been raised.
THE SECOND GROUND
The second ground for judicial review alleges that the Tribunal committed jurisdictional error by failing to receive into evidence an original of a Kuwait birth certificate that had been proffered. In the course of argument before the primary judge, this ground came to include an assertion that the Tribunal had also failed to give any consideration to a photocopy of the birth certificate in the Tribunal’s possession.
There was evidence before the primary judge to the effect that at the hearing before the Tribunal, the appellant had indeed asked the Tribunal to receive the original of the birth certificate and that the Tribunal had not accepted it because it had a photocopy of the birth certificate among the materials before it. The submission before the primary judge was that it was legally unreasonable to decline to accept the original and that consideration of the original might have made a difference to the Tribunal’s conclusions as to the authenticity of the document.
The primary judge found that neither the appellant nor the appellant’s representative had suggested to the Tribunal that consideration of the original document might make a difference to the outcome by, for example, affecting the weight the Tribunal might have given to the Kuwait identity document before it. There is no challenge to that finding on this appeal and no proper basis to disturb it.
The primary judge continued:
31.The certificate itself was not something which, in the context of all of the other evidence, was in and of itself of such critical input, that is, the original of such critical input that the Tribunal could not properly have proceeded to a decision without it. As I have noted, it already had a copy.
32.In all of those circumstances, I cannot see that the Tribunal’s failure to accept the original at the hearing was a decision or a failure to exercise a power that no reasonable decision-maker could have made. In other words, that it was outside the scope of the power given to it by the Act and the Regulations so as to be described as unreasonable and to vitiate its decision. For that reason, I would reject ground 2.
In my view, the primary judge was correct to reject this ground of review. I would add the following to his Honour’s observations.
The appellant was legally represented in the proceedings before the primary judge. There was no submissions made by reference to the original birth certificate such as to support a finding that there was any feature of that document relevant to an assessment of its authenticity that could not otherwise be discerned from the photocopy of the same document. Moreover, the Tribunal’s conclusion that the Iraq identity documents were genuine did not depend upon the examination of the physical features of the Kuwait identity documents. The Tribunal assessed the documents in light of all of the evidence before it as it was entitled, indeed required, to do. In all of the circumstances, the Tribunal’s failure to receive and consider the original birth certificate did not result in a decision affected by legal unreasonableness in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The Tribunal was aware that the appellant had the original of the document in his possession and it may be inferred that it reasoned to its factual conclusions on that basis. The conclusions of the Tribunal were open to it notwithstanding the appellant’s possession of the original of the document he claimed was genuine.
THE THIRD GROUND
The final ground for judicial review complained that the Tribunal had fallen into jurisdictional error in concluding that the appellant had been born in Iraq. The nature of the error was not particularised.
The primary judge concluded that this ground for judicial review was no more than an attack on the merits of a finding of fact that was clearly supported by the material to which the Tribunal referred, “namely; the [appellant] possessed an Iraqi national identification card. His family also possessed Iraqi national identity cards; they were in Iraq; they have Iraqi passports and Basra in Iraq was listed as their place of birth” (at [33]). To that list I would add that in his application to act as a sponsor for his wife’s partner visa, the appellant had specified his place of birth as Iraq. There is no appealable error affecting his Honour’s characterisation and rejection of the appellant’s argument.
The primary judge went on to refer to additional arguments raised in written and oral submissions to the effect that the Court ought to infer that the Tribunal had overlooked the photocopy of the Kuwait birth certificate altogether when concluding that the appellant had been born in Iraq. The primary judge referred to that part of the Tribunal’s reasons in which it had made express reference to having considered the materials contained in its file which included the birth certificate. The primary judge inferred from that passage that the birth certificate had been taken into account. That was an inference of fact that was open to the primary judge to make on the material before him. It was a proper factual basis to reject the third ground for judicial review.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 18 November 2019
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