DCP17 and Anor v Minister for Immigration and Anor and DCR17 and Anor v Minister for Immigration and Anor
[2020] FCCA 1681
•25 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DCP17 & ANOR v MINISTER FOR IMMIGRATION & ANOR and DCR17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1681 |
| Catchwords: MIGRATION – Cancellation of Protection Visas – decisions of the Administrative Appeals Tribunal – whether the Tribunal did not give clear particulars of information – whether the Tribunal denied procedural fairness – whether refusal of extension of time was unreasonable – no jurisdictional error – applications dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.101, 107, 109, 362A, 375A, 424A, 425, 476 Migration Regulations 1994 (Cth), regs.4.35, 4.35B |
| Cases cited: Ibrahim v Minister for Immigration & Border Protection [2018] FCA 2087 Minister for Immigration & Border Protection v Haq [2019] FCAFC |
| First Applicant: | DCP17 |
| Second Applicant: | DCY17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1524 of 2017 |
| First Applicant: | DCR17 |
| Second Applicant: | DCY17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1525 of 2017 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 14 February 2019 |
| Date of Last Submission: | 14 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 25 June 2020 |
REPRESENTATION
| Counsel for the Applicants in proceedings MLG1524/2017 and MLG1525/2017: | Mr A. Aleksov |
| Solicitors for the Applicants in proceedings MLG1524/2017 and MLG1525/2017: | Visatec Legal |
| Counsel for the First Respondent in proceedings MLG1524/2017 and MLG1525/2017: | Mr P. Yuile |
| Second Respondent in proceedings MLG1524/2017 and MLG1525/2017: | Submitting appearance, save as to costs |
| Solicitors for the Respondents in proceedings MLG1524/2017 and MLG1525/2017: | Australian Government Solicitor |
ORDERS
IN PROCEEDINGS MLG 1524/2017
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The Application, as amended, be dismissed.
IN PROCEEDINGS MLG 1525/2017
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The Application, as amended, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1524 of 2017
| DCP17 |
First Applicant
| DCY17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
MLG 1525 of 2017
| DCR17 |
First Applicant
| DCY17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court are two individual judicial review applications both filed on 17 July 2017. The proceedings are related and were heard together. The grounds of the judicial review applications are identical. The materials relied upon in the proceedings are also the same. As such, the Court has produced one set of reasons.
In proceeding MLG1524/2017, the First Applicant, referred to as DCP17 in these reasons, is the father of the Second Applicant, referred to as DCY17.
In proceeding MLG1525/2017, the First Applicant, referred to as DCR17 in these reasons, is the mother of DCY17.
DCY17 is, therefore, a party in both matters. DCP17 and DCR17 are husband and wife.
The application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The Applicants in both matters seek judicial review of two individual (but similar) decisions made by the Administrative Appeals Tribunal (Tribunal) on 20 June 2017 to affirm a decision of a delegate of the First Respondent (Minister) to cancel DCP17’s Subclass 866 (Protection) visa and DCR17’s Subclass 866 (Protection) visa (together the Visas). The Tribunal determined that it did not have jurisdiction in relation to DCY17.
Background
The Applicants arrived in Australia as irregular maritime arrivals in April 2010[1]. DCP17 and DCR17 were married when they entered Australia and DCY17 was a child. On 26 July 2010, a delegate of the Minister (Delegate) found that DCP17 and DCR17 were “refugees” as that term was defined in the Act[2]. The Applicants claimed to be stateless Faili Kurds with no legally enforceable right to enter or reside in any country and who had a well-founded fear of persecution in their former place of residence, Iran, on the basis of their race and nationality. The Delegate found the Applicants to be refugees having accepted these claims.
[1] DCP17 Court Book (CB) 85; DCR17 CB 75.
[2] DCP17 CB 84-95; DCR17 CB 74-85.
Having satisfied the requirements to be granted the Visas, on 28 January 2011 the Applicants’ Visas were officially granted[3].
[3] DCP17 CB 99-102; DCR17 CB 87-89.
In March 2016, an individual presented at the Minister’s Department (Department) with various photographs of identity documents relating to DCP17 and DCR17 suggesting that they were Iranian nationals (Source Documents)[4]. The Minister’s Department undertook an “Identity Assessment” and formed the view that DCP17’s identity as provided to obtain his Visa was refuted[5]. A similar view was formed about DCR17.
[4] DCP17 CB 103-123; DCR17 CB 122-199; Supplementary Court Book (SCB) 3-5 and 8-9.
[5] DCP17 CB 124-134; SCB 21-40.
On 7 October 2016, DCP17 was sent a Notice of Intention to Consider Cancellation (DCP17’s NOICC)[6]. DCP17’s NOICC advised him that the Department was of the view that he had provided incorrect information in his Visa application and therefore had not complied with s.101(b) of the Act. The incorrect information DCP17 was alleged to have provided was that he was a stateless Faili Kurd when he was, in fact, an Iranian national. DCP17 was invited to respond. On 19 October 2017, DCP17 responded to DCP17’s NOICC[7]. The response indicated that DCP17 maintained that he was stateless and the information the Department had received was incorrect. Various supporting documents were provided.
[6] DCP17 CB 136-144.
[7] DCP17 CB 145-166.
On 20 October 2017, DCR17 was sent a Notice of Intention to Consider Cancellation (DCR17’s NOICC)[8]. DCR17’s NOICC was of the same substance as DCP17’s NOICC, namely that the incorrect information provided by DCR17 was that she was a stateless Faili Kurd when she was, in fact, an Iranian national. DCR17 was also invited to respond. On 27 October 2017, DCR17 responded to DCR17’s NOICC[9]. The response was substantively the same as DCP17’s response.
[8] DCR17 CB 201-214.
[9] DCR 17 CB 215-237.
On 21 December 2016, the Delegate cancelled DCP17’s visa[10] and on the same day, a different Delegate cancelled DCR17’s visa[11] (each respectively Delegate’s Decision). While the decisions were made by different Delegates they were substantially the same. Both cancellations were made under s.109 of the Act.
[10] DCP17 CB 170-187.
[11] DCR17 CB 239-259
Both parties sought review of their respective Delegate’s Decisions on 23 December 2016[12].
[12] DCP17 CB 188-189; DCR17 CB 260-261.
On 5 April 2017, the Applicants’ migration agent and lawyer provided submissions to the Tribunal and supporting documents[13]. Further submissions and documents were provided on 6 April 2017[14]. Further submissions and documents were also provided on 11 April 2017[15].
[13] DCP17 CB 224-435; DCR17 CB 293-501.
[14] DCP17 CB 436-457; DCR17 CB 502-523.
[15] DCP17 CB 458-466; DCR17 CB 524-532.
The Applicants attended a joint hearing before the Tribunal on 12 April 2017[16]. The Applicants’ migration agent and lawyer attended as did three witnesses. The hearing lasted for approximately four hours.
[16] DCP17 CB 467-472; DCR17 CB 533-538.
On 28 April 2017, the Applicants’ migration agent and lawyer was sent an invitation to comment or respond to information (Invitation)[17]. The Applicants were invited to comment on information DCP17 and DCR17 had provided during the hearing about the Source Documents and evidence that had been given by DCP17’s relatives to the Department during their own applications for protection which the Tribunal considered relevant. It was stated that if the Tribunal relied on any of the information, it may have found that the Source Documents are genuine, that the Applicants are not stateless Faili Kurds in Iran, that they have Iranian citizenship and that the information may cause the Tribunal to doubt the Applicants’ overall credibility.
[17] DCP17 CB 475-481; DCR17 CB 541-546.
The Applicants’ migration agent and lawyer provided a “Part Response” to the Invitation on 12 May 2017[18]. Within that response, the Applicants requested an additional 14 days, until 9 June 2017, to provide a full response. On 1 June 2017, the Tribunal advised the Applicants that no extension was granted[19].
[18] DCP17 CB 484-520; DCR17 CB 549-583.
[19] DCP17 CB 521-523; DCR17 CB 584-586.
On 20 June 2017, the Tribunal affirmed (in separate decisions) each respective Delegate’s Decision to cancel the Visas[20]. The Tribunal also concluded that it did not have jurisdiction in relation to DCY17.
[20] DCP17 CB 527-559; DCR17 CB 590-622.
Tribunal’s Decisions
DCP17’s Tribunal Decision is 33 pages long and comprises of 188 paragraphs[21]. DCR17’s Tribunal Decision is also 33 pages long, however comprises of 184 paragraphs[22]. As the grounds of review only relate to the Tribunal’s consideration of whether there had been non-compliance with the s.107 notice (i.e., whether the Applicants had provided incorrect information), the Court only considers it necessary to summarise the Tribunal’s reasons in relation to this issue. As such, the Tribunal’s consideration of whether to exercise the discretion to not cancel the Visas will not be summarised in detail.
[21] DCP17 CB 527-559.
[22] DCR17 CB 590-622.
Paragraphs [1]-[16] of DCP17’s Tribunal Decision and [1]-[17] of DCR17’s Tribunal Decision are (save for pronoun changes) identical[23]. They detail the background of the application including the Delegate’s Decisions, the hearing that the Applicants attended, the submissions and information provided by their migration agent and lawyer and that two certificates purportedly issued under s.375A of the Act had been deemed to be invalid. Those paragraphs also explain why the Tribunal did not have jurisdiction in relation to DCY17[24]. That finding is not in issue in these proceedings and need not be discussed further.
[23] DCP17 CB 528-530; DCR17 CB 591-593.
[24] DCP17 CB 528, [3]-[4]; DCR17 CB 591, [3]-[4].
The Tribunal then turned to consider whether DCP17’s NOICC and DCR17’s NOICC was valid and set out the responses to the respective notices[25]. The Tribunal then summarised the Delegate’s Decisions in respect of both DCP17 and DCR17[26]. The Tribunal then summarised the submissions made by the Applicants’ migration agent and lawyer (it is noted that the summary in DCP17 is slightly more detailed than the summary in DCR17)[27].
[25] DCP17 CB 530-533, [17]-[28]; DCR17 CB 593-596, [18]-[28].
[26] DCP17 CB 533-535, [29]-[56]; DCR17 CB 596-598, [29]-[56].
[27] DCP17 CB 536-537, [59]-[71]; DCR17 CB 599-600, [59]-[67].
The Tribunal then detailed the information before it relating to the Applicants travel to Australia on false passports. Having outlined the Applicants’ evidence (and noted the inconsistent evidence that the Applicants had provided about how they left Iran), the Tribunal found that the Applicants had travelled to Australia on false passports using false claims and rejected the Applicants explanation that the passports (part of the Source Documents) were created to facilitate the creation of genuine passports in the Applicants’ real names[28].
[28] DCP17 CB 538-540, [72]-[81]; DCR17 CB 600-602, [68]-[77].
The Tribunal then considered what it referred to as the “false identity documents”. The Tribunal detailed the Applicants’ arguments and evidence that the identity documents (also part of the Source Documents) were not genuine and had been created by DCR17’s brother[29]. The Tribunal rejected the Applicants’ evidence and arguments and considered that the Source Documents were genuine and that they demonstrated that the Applicants were Iranian citizens[30].
[29] DCP17 CB 540-541, [82]-[89], DCR17 CB 602-604, [78]-[87].
[30] DCP17 CB 541-542, [90]; DCR17 CB 605, [88].
The Tribunal turned to consider the Applicants’ evidence about the individual who had created the false passports which were used by the Applicants to leave Iran. The Tribunal noted that the evidence was inconsistent and found that the Applicants had “concocted” the claim that DCR17’s brother had created the documents in an attempt to explain the Source Documents and did not accept that DCR17’s brother had any role in the manufacture or provision of the identity documents[31].
[31] DCP17 CB 542-544, [91]-[98]; DCR17 CB 605-607, [89]-[96].
The Tribunal considered the information it had received that other family members of the Applicants were Iranian citizens. The Tribunal referred to information from DCP17’s paternal nephew that he was an Iranian citizen and considered that DCP17’s refuting of this was untruthful. The Tribunal found that the information from DCP17’s paternal nephew was “corroborative evidence completely unrelated to the documentary information provided in March 2016 regarding the citizenship of the [Applicants]”[32].
[32] DCP17 CB 544-546, [99]-[109]; DCR17 CB 607-609, [97]-[107].
The Tribunal then stated as follows[33]:
112. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: Incorrect answers to questions, including the answers as provided at questions 6, 19-21, and 41-46 of that form. The delegate also included information from the Statutory Declaration provided with the application form, with the claims of the applicant included.
113. The Tribunal has considered the explanation of the applicant that his wife’s brother created the documents that were handed into the Department on 18 March 2016, that they were provided by angry relatives who promised to destroy their lives. The Tribunal notes that it has not accepted this explanation, the Tribunal considers that the documents that were provided are genuine documents that demonstrate that the applicant and his family are in fact Iranian citizens. The Tribunal accepts that the disclosure of this information to the Department has been done in a malicious manner, however that does not mean that the documents are false. The Tribunal further notes that there is separate evidence that the applicant is an Iranian citizen provided by another family member on the applicant’s side who has not been involved in the dispute with the applicant’s wife’s nephews.
114. The Tribunal finds that the documentary evidence as provided by aggrieved family members, that identifies the applicant, his wife and son as Iranian citizens, are genuine documents that reflect their status in Iran. The Tribunal considers that the information on the documents that references the applicant as having a National Identity number is an accurate reflection of the applicant’s citizenship. The Tribunal finds that the applicant is a citizen of Iran.
115. The Tribunal considers that the applicant has provided incorrect information with respect to his citizenship. The Tribunal considers that the applicant has incorrectly indicated in his protection visa application that he is stateless, when the correct information is that he is a citizen of Iran. The applicant has stated this in answer to questions 6, and 19- 21 of the Form 866C he completed. The applicant has provided further incorrect information about his circumstances in the statutory declaration lodged with his protection visa application and referred to in questions 41-46 of his Form 866C. The applicant has included this information in his Protection visa application as lodged in June 2010. The Tribunal considers that the applicant’s answers regarding his nationality and not being able to return to Iran for fear of persecution are incorrect.
116. For these reasons, the Tribunal finds that there was non-compliance with s101(b) by the applicant in the way described in the s.107 notice.
[33] DCP17 CB 546-547, [112]-[116]; DCR17 CB 609-610, [109]-[113]. The Court notes that there were minor differences between these paragraphs however nothing turns on this.
As noted above, the Court will not descend into detail concerning the Tribunal’s decision not to exercise the discretion to not cancel the Visas. It suffices to state that the Tribunal was not minded to choose not to cancel the Visas in the circumstances[34].
[34] DCP17 CB 547-557, [117]- [188]; DCR17 CB 610-620, [114]-[182].
Judicial Review Application
The Applicants filed an amended application on 30 January 2019 (Amended Application). The Amended Application was identical in both matters and contains three grounds of review. Those grounds provide as follows:
1.The Second Respondent failed to comply with section 424A.
Particulars.
i. DCP17 and DCR17 are husband and wife respectively, and DCY17 is their son. In each case, the son was a dependent on the protection visas held by DCPl7 and DCR16. The department cancelled the protection visas of each applicant on the basis that they contained false information, supposedly that the applicants were Iranian citizens, rather than stateless Faili Kurds as claimed in support of their protection visa applications. For the reasons that follow, the decision of the Tribunal in each case is affected by jurisdictional error (for the same reasons).
ii. The affidavits of Ms Anne Nguyen in each matter depose to information that was apparently before the Tribunal (and see the Supp CB) but which the applicants were not made aware of:
a. in the case of DCP17, except to the extent set out in the NOICC at CB 139 [14], and the letter by the Tribunal under s 424A at CB 477-481.
b. in the case of DCRl7, except to the extent set out in the NOICC at CB 203, and the letter by the Tribunal under s 424A at CB 542-546.
iii. There have never been in place any valid certificates in respect of this information, nor is there any claim to public interest or any other immunity in the Supp CB material.
iv. This material was highly adverse information to the applicants’ interests, and in each case included photographs of ID documents and other identifying information, as well identify assessment reports expressing opinions as to the applicants’ supposedly true identity. The applicants’ principal answer to this material was that it was not genuine, in the sense that someone was acting maliciously and seeking to cause them harm.
v. In circumstances where the genuineness of documents, including photographic evidence, was in issue, the only way in which the Tribunal could have given “clear particulars” of this information to the applicants as required by s 424A was to give them a copy of the relevant documents - it is only if they are armed with copies of the documents themselves that they could arrange for an undertaking of the necessary forensic inquiries to establish their claim that the documents sent to the Department were not genuine.
2. The Second Respondent failed to comply with section 425.[35]
[35] At hearing, Counsel for the Applicant corrected a typographical error in the Amended Application to ensure that Ground 2 was a reference to s.425 of the Migration Act 1958 (Cth).
Particulars.
i. DCP17 and DCR17 are husband and wife respectively, and DCY17 is their son. In each case, the son was a dependent on the protection visas held by DCPl7 and DCR16. The department cancelled the protection visas of each applicant on the basis that they contained false information, supposedly that the applicants were Iranian citizens, rather than stateless Faili Kurds as claimed in support of their protection visa applications. For the reasons that follow, the decision of the Tribunal in each case is affected by jurisdictional error (for the same reasons).
ii. The affidavits of Ms Anne Nguyen in each matter depose to information that was apparently before the Tribunal (and see the Supp CB) but which the applicants were not made aware of:
a. in the case of DCP17, except to the extent set out in the NOICC at CB 139 [14], and the letter by the Tribunal under s 424A at CB 477-48 1.
b. in the case of DCR17, except to the extent set out in the NOICC at CB 203, and the letter by the Tribunal under s 424A at CB 542-546.
iii. There have never been in place any valid certificates in respect of this information, nor is there any claim to public interest or any other immunity in the Supp CB material.
iv. This material was highly adverse information to the applicants’ interests, and in each case included photographs of ID documents and other identifying information, as well identify assessment reports expressing opinions as to the applicants’ supposedly true identity. The applicants’ principal answer to this material was that it was not genuine, in the sense that someone was acting maliciously and seeking to cause them harm.
v. Alternatively, because the Tribunal did not give to the applicant copies of these documents, they did not receive a fair hearing as required by s 425(1) - they were disabled from having the opportunity to give evidence and present argument meaningfully in relation to all issues in the review, including the genuineness of the adverse information in the form of supposed Iranian ID documents and the assessment reports.
3. The decision of the Second Respondent is affected by legal unreasonableness.
Particulars.
i. On 12 May 2017, at a time when there were unmet requests under the Freedom of Information Act which requests related to the material in the Supp CB and which material was centrally relevant to the review, the applicants gave a “partial response” to the Tribunal’s concerns in each case (DCP17 - CB 484-488; DCR17 - CB 549-553) and requested an extension of time in which to provide a further response for 14 days.
ii. In each case, one basis of that request was the unmet request under the FoI Act. Another basis was a purported request under s 362A, but that was misguided given that provision applies only to Part 5 reviews and not to Part 7 reviews. Another basis for the request was difficulties with interpretation.
iii. This request came not long after the Tribunal’s formal 424A letters on 24 April 2017, and was not a particularly lengthy extension request, given that the application for review was lodged in 2016, and given that there was no apparent urgency for the Tribunal to reach a decision.
iv. Despite specifically addressing this issue the Tribunal gives no reason for why it refused this request (DCP 17 at Reasons [15]; DCR l7 at Reasons [16]). It should be inferred therefore that the Tribunal did not have any “justifiable” reason for refusing the request, and that its decision is affected by legal unreasonableness.
v. There is no merit in any suggestion that the Tribunal’s delay until 20 June 2017 (11 days past the date that the applicants requested the Tribunal adjourn) given that the applicants were not at that stage in a position to supply their further material as they had not received the documents sought under the FoI Act (being highly relevant documents over which there is no claim for immunity). This is supported by the evidence of Ms Nguyen, their registered agent in each case.
While pleaded as two separate grounds, both the Applicant and the Minister combined Grounds 1 and 2 together in their written submissions and oral argument. Noting that Ground 2 is an alternative to Ground 1, the Court will consider them separately though notes that the consideration will somewhat overlap.
The Applicants relied on an affidavit of Anne Nguyen filed 29 January 2019 (Nguyen Affidavit). The Nguyen Affidavit sets out the documents that the Tribunal had before it that the Applicants were not aware of, despite a Freedom of Information request to both the Minister’s Department and the Tribunal. The documents that the Applicants did not have access to or know were before the Tribunal are documents that are in the Court Books of this proceeding.
The Court Books in both matters were similar in content and both filed on 25 May 2018. Supplementary Court Books were also filed in both matters on 18 September 2018 which contained further documents.
Both parties provided written submissions. The submissions filed in both matters were the same. The Applicants’ submissions were filed on 29 January 2019 (Applicants’ Submissions). The Minister’s submissions were filed on 11 February 2019 (Minister’s Submissions). The Court heard extensive oral submissions from Counsel for both parties and has closely reviewed the transcript when preparing these reasons.
At hearing, Counsel for the Applicants indicated that, given the way the Amended Application was pleaded and argued, if the Applicants were to succeed in one matter they would succeed in the other and if they were not to succeed in one matter they would not succeed in the other. As such, most of the argument was directed toward the Tribunal’s decision in DCP17. Therefore, most of the references made during the course of argument were to materials in the Court Book prepared in MLG1524/2017. To the extent it has been able, the Court has also referenced the Court Book in MLG1525/2017 to ensure that both matters are properly addressed.
During the course of the hearing an issue arose as to whether a reference by the Tribunal to the “Document Examination Unit” may have indicated that there was an examination of the Source Documents by the Document Examination Unit (as opposed to the “Identity Assessor”). The Minister’s solicitors were required to obtain instructions on this issue as it may have required further argument. On 4 March 2019, the Applicants’ lawyer emailed Chambers advising that the Minister’s solicitors had undertaken their searches and inquiries and the Applicants no longer considered there to be any issue.
Consideration
Ground 1
Ground 1 focusses upon s.424A of the Act which relevantly provides as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
In Ibrahim v Minister for Immigration & Border Protection [2018] FCA 2087 the principles relevant to s.424A of the Act were summarised as follows:
68. First, the particulars that must be provided are particulars of “information”; the obligation to give particulars does not extend to particulars of “subjective thought processes or determinations” or the “existence of doubts, inconsistencies or the absence of evidence”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [23]-[28]; SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; HCA 26 at [18].
69. Second, the information must be information that “would be the reason, or part of the reason, for affirming the decision that is under review”: SZBYR at [17]. That criterion directs attention not to the prospective reasoning process of the Tribunal, or the Tribunal’s published reasons, but rather to the criteria for the making of the decision in the first place: SZBYR at [17]. The “use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of [the section] is to be determined in advance – and independently – of the [T]ribunal’s particular reasoning on the facts of the case”: SZBYR at [17].
71. Third, for the requirement or obligation in s 359AA to be engaged, the information in question should in its terms involve a “rejection, denial or undermining” of the review applicant’s claims relevant to the visa criteria in question: SZBYR at [17]; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [22].
72. Fourth, the relevant criterion depends on the Tribunal’s “consideration”, that is, its opinion, that certain information would be the reason, or part of the reason, for affirming the decision under review: SZLFX at [24]; SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 at [33]. There must be some evidence or necessary inference that the Tribunal “considered” or had an opinion about the information in question before it could be said that it was required to give particulars of that information for the purposes of the section.
73. The “attitude” or opinion of the Tribunal in relation to the information can be gleaned or inferred from its published reasons: cf. SZLFX at [26]. That is not to say, however, that the published reasons will necessarily be conclusive in respect of the issue. As “the obligation arises during the course of the review, it is not sufficient, in order to exclude it, merely to point to the reasoning disclosed in the decision after the review has been conducted and completed”: Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173 at [45] (Buchanan J, with whom Yates J agreed).
74. Fifth, the section speaks of information which “would”, not which “could” or “might”, be the reason, or part of the reason, for affirming the decision under review: SZLFX at [25].
75. Sixth, the requirement to give information may not extend to a requirement to disclose the entirety of any document in which the information is contained; how much, if any, of the surrounding context in which the information appears must also be disclosed will depend upon the facts and circumstances of the particular case: SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [23]; referred to with approval in SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 at [27], [32]. It must also follow that the requirement does not extend to giving the applicant a copy of the document in which the relevant information is contained: SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 14 at [9].
76. Seventh, it is readily apparent that the purpose of the disclosure required by s 359AA is to enable the applicant to “comment on or respond to the information”: s 359AA(1)(b)(ii), (iii) and (iv). It must follow that the particulars of the information that are provided must be sufficient to enable the applicant to “meaningfully” respond or comment: SZNKO at [23], [27].
The Applicants’ Submissions repeated the particulars of Ground 1. At the hearing, Counsel for the Applicants summarised the argument as being that the manner in which the Tribunal put to the Applicants (via the Invitation) the existence of the adverse information, did not rise to the level of giving them “clear particulars”. In particular, it was submitted that in circumstances where the genuineness of the Source Documents was the issue, what was disclosed or put to the Applicants was simply not sufficient. While Counsel for the Applicants did not submit that the Tribunal was required to provide the Source Documents, something more, in his submission, was required by the Tribunal to comply with s.424A.
The Minister submits that it was not necessary to provide the Source Documents themselves (the Source Documents were photographs of the original documents – the Department did not have actual copies of the original documents) as they did not constitute “information” for the purposes of s.424A. Further, the relevant information drawn from those Source Documents was described in full in the Invitation. The Minister argued that while providing the Source Documents might have allowed for certain other analysis, the lack of the Source Documents themselves did not prevent the Applicants from understanding the Tribunal’s concern, from arguing that what the Source Documents depicted were forgeries, or from responding to the broader concerns about all of the information that the Tribunal had.
At the hearing, Counsel for the Minister further submitted that the “information” for the purposes of s.424A was not the Source Documents, rather the information was the fact of the provision of the Source Documents and the variety and scope of the Source Documents. It was not the photographs which the Source Documents depicted. Therefore, the Invitation did comply with s.424A. In response, Counsel for the Applicants disagreed with the Minister’s characterisation of “information”. He stated that “Every pen stroke, every squiggle, every identification of emblems”[36] was “information”. It was submitted that the only reason the Source Documents had any probative force was because they appeared to be in relation to the Applicants and were consistent with a “genuine” identity article.
[36] Transcript P33:L25.
The Nguyen Affidavit confirms that the Applicants did not have access to the Source Documents. Attempts were made to obtain access to the Source Documents, however these were considered exempt from release. Therefore, the Applicants had not physically seen the Source Documents.
The Invitation provides[37]:
[37] DCP17 CB 477-481; DCR17 CB 542-546.
The information relates to you and your wife’s responses about the documents provided to the Department of Immigration, and evidence and evidence given by your relatives to the Department during their own applications for protection.
The particulars of the information are:
Your response to the documents of 18 March 2016
On 18 March 2016, 37 documents were provided to the Department of Immigration (“the Department”). These were a significant number of varied and detailed documents regarding the Iranian citizenship of you, your wife and your son. These documents included National ID cards of the applicants [DCP17] and [DCR17]. It provided Shenasnamehs for [DCP17], [DCR17] and [DCY17].
The Shenasnameh for [DCP17] states he was born in Ilam, and included information that his father was [AB], with a reference to a Shenasnameh for [AB] included in this document.
A series of documents were included in the name of [DCP17], including an Iranian passport; a bank card; savings booklets, including photos; health insurance booklet and form; receipt for purchase of mobile phone service; and contract for purchase of apartment, with [DCP17] named as the purchaser.
A series of documents were included in the name of [DCR17], including savings booklets; health insurance booklet; Sonography reports; and a marriage certificate with [DCR17] and [DCP17] named.
A series of documents were included in the name of DCY17, including savings booklets; health insurance booklet; a series of school reports and family situation declaration for school.
These are a significant number of varied and detailed documents regarding the applicants. As discussed in the delegate’s decision, the documents have been viewed by the Document Examination Unit and have been determined to be genuine items, based on the knowledge of such documents.
At the hearing, you and your wife stated that these documents are fake and were provided by [AP], your wife’s nephew, who had an argument with your wife on 29 February 2016.
You and your wife also stated that these documents:
1. were created by [AP], your wife’s brother; and
2. were created at the time of departure from Iran to assist in gaining an Iranian passport, rather than created after 27 February 2016.
Identity of [AP]
You have provided the following information about your wife’s siblings to the Department:
• You provided a Form 866 and a Form 80 on 17 June 2010 as part of your protection visa application, which contained attachments with details about you and your wife’s family1. In these attachments you identify your brothers-in-law [A], [G], [H], and [B].
Your wife provided the following information to the Department about her family composition:
• On 1 May 2010, she took part in an entry interview, conducted with the assistance of a Kurdish interpreter. At this interview she listed her siblings including those who had the same mother and father as her, [S] [omitted], [F] [omitted], [M] [omitted] and C [omitted]. She also identified that she had half-brothers, from her father’s second wife, called [T] [omitted], [I] [omitted] and [D] [omitted].
• She provided Form 866 and a Form 80 on 17 June 2010 as part of her protection visa application, which contained attachments with details about her family. In these attachments she identified her sisters [S], [F], and [M]; and her brothers [C], [T], [I], and [D].
This information is relevant to the review because there is no reference in any of these materials, provided over a period of time by you and your wife separately, to your wife having a brother called [AP]. The Tribunal considers that if your wife had a brother called [AP], you and your wife would have mentioned him in these documents. If the Tribunal relies on this information in making its decision, it may consider that [AP] is not your wife’s brother/your brother-in-law, that he does not exist, and that you have fabricated this evidence to support your claims that the documents given to the Department on 18 March 2016 were fake. The consequence of this is that the Tribunal may find that those documents are genuine and that you are an Iranian citizen rather than a stateless Faili Kurd, and this would be the reason or part of the reason for affirming the decision under review.
How you obtained documents to depart Iran
In your entry interview with the Department on 1 May 2010, you said the arrangements to depart Iran were made by a smuggler called [SA]. Your work colleague [HA] put you in contact with Sharif, who then made the documents.
In your wife’s entry interview she stated that you worked with a [HA]. She stated that [HA] had a friend who could help make arrangements to leave Iran, and he organised the passport.
This information is relevant as it contradicts your claim at the hearing that your brother-in-law [AP] was involved in creating the documents that allowed you and your family to come to Australia. The Tribunal may determine that if [AP] did exist and did assist in the creation of documents to assist you to depart Iran, you would have mentioned this at the entry interview, when asked specifically about the arrangements made to depart Iran, including the creation of a passport for you to depart. You did not do so. The Tribunal may determine that this is further evidence that no person by the name of [AP] exists, and that you have fabricated this evidence to support your claims that the 18 March 2016 documents were fake; or in the alternative, if [AP] does exist, he did not arrange the documents to enable you to depart Iran, which throws doubt on your explanation that the documents were created at an earlier point in time and may cause the Tribunal to doubt your overall credibility. The consequence of this is that the Tribunal may find that the 18 March 2016 documents are genuine, that the numbers on the documents are genuine, and you are an Iranian citizen rather than a stateless Faili Kurd, which would be the reason or part of the reason for affirming the decision under review.
Which passports you used to depart Iran
At the entry interview with the Department on 1 May 2010, you said:
• You left Iran on 8 March 2010 on a passport with your photo in it.
• In these passports, your name was [MB], your wife was [ZN] and your son was [OB].
• You used the passports to fly to Dubai, then Jakarta.
• You could not remember if the passports were stamped.
In the submission made by your agent to the Tribunal dated 6 April 2017, it was stated that:
We receive by way of instructions from the review applications that upon making arrangements with people smugglers to be smuggled out of Iran, the smugglers issued [the applicants] with false passports under the following names:
[MB]; [OB]; [ZN]
All the review applicants admit using false names and passports as per above to be able to leave the Iranian border with a passport however, on instructions, once they arrived in the United Arab Emirates, the smugglers seized the passports.
At the hearing with the Tribunal on 12 April 2017, you provided the following evidence:
• The statement that your family used false names on passports was not correct.
• Passports were created in your own names, created at the same time and used to travel out of Iran.
• You had doubts as to whether your son had his own passport.
• The documents that were provided to the Department on 18 March 2016 were copies of documents made at the time of departure to assist in gaining a passport.
At the hearing, your wife provided the following evidence:
• She did not travel with a passport with a false name.
• She did have a passport in her own name
• The smuggler came to the airport and gave you the passports.
• She travelled on a passport in her own name.
• She was not aware of what document your son travelled on.
The information you provided is contradictory evidence with respect to the documents used to depart Iran, the issuing of a passport to your son, the names used on the passports, what happened to the passports and where they were taken from you.
This information is relevant as it causes the Tribunal to have significant concerns about the credibility of your evidence that the documents provided to the Department were created for the purpose of assisting you to depart Iran. It demonstrates that you have provided different information over a period of time with respect to the nature of the documents that were used to leave Iran. The Tribunal may consider that your overall credibility is affected by this alternate evidence as provided by you. The consequence of this is that the Tribunal may find that the 18 March 2016 documents are genuine and you are an Iranian citizen rather than a Faili Kurd, which would be the reason or part of the reason for affirming the decision under review.
[MA] & [YB]
This information was provided to you subject to a valid 375A certificate placed on the information by the Department. The Tribunal has provided information from this document to ensure you have a general understanding of the information contained in the document.
The Department has identified [MA] and [YB] who claim to be your paternal nephews. The Department has assessed [MA’s] identity through an identity interview conducted with [MA] in October 2014 and found that, given information by him at the hearing that his paternal grandfather was [AB] (your father) and that his paternal uncles were [J], [K] and [L]. The Department identified that YB was a paternal cousin of MA who had a shared family member, a paternal uncle [J] (you). The Department has assessed that the family on [MA] and [YB]’s paternal side have Iranian citizenship by birth. This would include you and your son.
This information is relevant because it may demonstrate that you and your son have Iranian citizenship through right of birth, and your wife has Iranian citizenship through marriage to you, according to Iranian citizens law. The consequence of this is that the Tribunal may conclude that you provided incorrect information that you are a stateless Faili Kurd in Iran
If the Tribunal relies on any of the above information in making its decision, it may find that the documents provided to the Department are genuine, that you are not a stateless Faili Kurd in Iran and that you have Iranian citizenship. The Tribunal may also doubt your overall credibility. This would be the reason, or part of the reason, for the Tribunal affirming the decision under review.
The Applicants’ argue that the Invitation did not provide “clear particulars” of the “information”. Determining whether “clear particulars” were provided is context specific.
While the Applicants did not press that the Source Documents were required to be provided in their entirety, the Court does note that there is no automatic right for an applicant to have an entire document provided under s.424A. In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 at [23] (SZNKO), it was stated:
There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context it which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that s 424A and s 424AA require the disclosure of so much as to ensure that the opportunity to “comment… or respond…” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.
The question, therefore, is whether the Invitation provided a meaningful opportunity for the Applicants to respond to what the Tribunal considered would be the reason for affirming the decision on review.
The Court is satisfied that the Invitation was sufficient and gave “clear particulars” of the “information”. Emphasis was placed on the fact that the Tribunal referred to the “genuineness” of the documents and, in the absence of further particulars, the Applicants could not interrogate that genuineness of the documents. Were it the case that the Tribunal’s findings turned only on the genuineness of the documents and that the Identity Assessor had considered the Source Documents as “genuine items”, the Court may agree that s.424A of the Act required the Tribunal to provide the Source Documents to the Applicants for analysis.
However, that was not the reason for affirming the decision. The “information” which was the reason for affirming the decision was clearly identified by the Tribunal in the opening passage of the Invitation:[38]
The information relates to you and your wife’s responses about the documents provided to the Department of Immigration, and evidence and evidence given by your relatives to the Department during their own applications for protection.
(Emphasis added)
[38] DCP17 CB 477; DCR17 CB 542.
The “information” was the Applicants responses to the Source Documents. It was not the Source Documents themselves. The “consequence” of the Tribunal relying on the “information” was that it may find that the Source Documents were genuine. Hence, the “probative force” of the Source Documents would be derived from the “information” that was put to the Applicants under s.424A. The “information” for the purposes of s.424A was the inconsistencies and concerns that arose from the Applicants’ response to the Source Documents.
That is not to say that the Source Documents were not “information”. Rather, it was not “information” for the purposes of s.424A of the Act. The only “information” that the Tribunal relied upon in the Source Documents was that it conveyed that the Applicants were not stateless. That information was already known to the Applicants. The “information” for the purposes of s.424A was the Applicants responses to what the Source Documents conveyed.
One may argue that to characterise the “information” as the Court has above overlooks s.424A(3)(b) of the Act and that the Tribunal would not have to put this information to the Applicants and therefore the Court should not do so. However, noting that the Applicants did provide the Delegate’s Decision with their review applications, it was nevertheless necessary for the Tribunal to put the matters in the Invitation to the Applicants as the Applicants review applications were separate. The Tribunal was required, under s.424A, to put information provided by DCP17 to DCR17 and vice versa before it could rely upon it in its decisions.
The Invitation was, in effect, putting credibility concerns to the Applicants. Read as a whole, it is apparent that it was not the fact that the Source Documents indicated that the Applicants were Iranian citizens that was the reason for affirming the Delegate’s Decision, it was that the Applicants attempts to explain why the Source Documents (which were of large number and scope) were provided caused credibility concerns such that the Tribunal may consider that the Source Documents were genuine.
The Tribunal’s concerns with the Applicants’ evidence surrounding the Source Documents, together with “completely unrelated” corroborative evidence from MA and YB, was the reason for affirming the Delegate’s Decision. All of these pieces of adverse information were properly identified and particularised in the Invitation. The Invitation complied with s.424A. There was no error and Ground 1 must be dismissed.
Even if the Court were wrong and the Source Documents were “information” for the purposes of s.424A of the Act. The Court is nonetheless satisfied that the Invitation was sufficiently particularised to allow the Applicants a meaningful opportunity to respond and to advance their arguments as to why the documents were fraudulent: SZNKO at [23].
It is important to bear in mind that the Applicants were already aware of what information the Source Documents conveyed. They were also in possession of certain specific details in the Source Documents by virtue of the Delegate’s Decision. For example, the Applicants were provided with information which enabled them to provide the following response (prior to the Invitation being issued)[39]:
[39] DCP17 CB 445; DCR17 CB 507-509.
A. Credibility of Iranian Identity Cards.
It is submitted that even in procuring these documents, there are a number of fallacies even though a ‘Departmental Identity Assessor’ assessed ‘these documents appear[ing] [to be] consistent with genuine articles’.
With respect the supposed Iranian identity cards from:
• Decision 1 being [omitted] and belonging to RA 1; and
• Decision 2 being [omitted] and belonging to RA 2,
One could reasonably expect that identity cards are issued in a sequentially increasing manner at the time of application. We note that between the first and second identity numbers, there is a difference of about 366 applicants between the RA1 and RA2. We also submit that there is an age difference of more than 3 years between RA1 and RA2. Given that there would be hundreds if not thousands ofbi1ths in Iran each year, it is not plausible for RA1 and RA2 to be allocated ID numbers which is 366 applicants apart.
B. Credibility of Iranian Birth Certificate- Shenasnameh
The Shenasnameh given to RA1 is Number [omitted] having been born in Ilam, Iran whilst RA2’s is Number [omitted] having been born in Ilam, Iran.
Between the two registration numbers, there is a difference of 464 registered births. Again, given that there is an age gap between the spouses of more than 3 years and assuming there would be hundreds, if not thousands ofbit1hs in Iran, we question the plausibility of this document.
C. Credibility of Iranian Passport
We note that there are no mentions of the RA2 or the Dependent Review Applicant’s (herein referred as ‘DRA’) passport that were provided to the Depai1ment of Immigration (herein referred as ‘DIBP’) yet RA1’s passport has been provided to the DIBP.
We receive by way of instructions from the review applicants that upon making agreements with people smugglers to be smuggled out of Iran, the smugglers issued RA1, RA2 and DVA with false passports under the following names:
[MB] (RA1),
[OB] (DVA); and
[ZN] (RA2).
All the review applicants admit using false names and passports as per above to be able to leave the Iranian border with a ‘passport’ however, on instructions, once they arrived in the United Arab Emirates, the smugglers seized the above passports.
It is questionable that even if RA1 does have an Iranian passport (Number [omitted]), would not it have made more sense for him to depart Iran with this passport to avoid any potential issues at Iranian customs and, subsequently discard such evidence of citizenship or identification to falsely claim statelessness? Further, if RA1 did possess this Iranian passport, as the head of family unit and in a patriarchal society, why did he not organise such passports for his wife and only son? Hence, the fact that only one set of Iranian passport appears is questionable or that perhaps Mr AP was not able to quickly procure these documents in time for his son to present to DIBP.
D. Regarding Iranian bank accounts and health insurance documents
On submission, we presume that financial and health institutions in Iran generally, have a system of verifying one’s identity and details assuming that these institutions presumably want to keep their reputation in line with their company policies. Yet, we question the procedures and verifications of these institutions with the quick release of such documents and information and the authenticity of such documents/ information.
…
We note that DIBP has had an Identity Assessor have assessed the genuineness of the articles in issue. Even if they were produced in it’s highest counterfeit quality or even if it was produced through legitimate means and through the appropriate and corrupt Iranian authorities, RA1, RA2 and DRA have never been granted Iranian citizenship or any form of Iranian permanent residency whilst residing in Iran and instruct that have always been and continue to be stateless.
The presence of these Iranian documents does not negate the fact that RAI, RA2 and DRA are Failli Kurds.1
As is demonstrated from the above, the Applicants, prior to the Invitation, were in possession of sufficient details about the Source Documents to make submissions. While they noted it was difficult, the Applicants were not prevented from advancing their arguments or meaningfully engaging with the Source Documents. The Invitation provided further insight into the scope of the Source Documents (including the exact number of the documents and itemising the particular documents).
Taking into account the surrounding context (including that the Applicants had provided an explanation with supporting documentation to explain why the Source Documents were provided and that submissions as to their genuineness were made), the Court is not satisfied that there has been any breach of s.424A of the Act. The Invitation contained clear particulars of the substance of what would be the reason for affirming the decision.
There was no denial of procedural fairness in this matter. The Applicants were on proper and clear notice of the adverse information that the Tribunal was considering would be the reason for affirming the decision on review.
Ground 1 is dismissed.
Ground 2
Ground 2 argues that for the reasons pleaded in Ground 1 the Tribunal also, or alternatively, breached s.425(1) of the Act. Section 425 states:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
At hearing, Counsel for the Applicants submitted the “only real substantial argument” advanced by the Applicants was that the Source Documents were fake and in the absence of having access to the Source Documents the Applicants could not have had the real and meaningful hearing required by s.425(1) of the Act.
The Minister submits that s.425(1) of the Act is an obligation on the Tribunal to provide a meaningful opportunity to the Applicants to “turn up”, present evidence and make submissions on the issues in relation to the review. The Applicants clearly understood the issue and how it related to the review and were able to provide a meaningful response. It is not a wholesale requirement to afford every possible advantage to an applicant. In this case, the Applicants were provided with everything that s.425(1) requires.
Section 425(1) of the Act is directed to the procedural fairness to be offered at a hearing. Hence, Ground 2 proceeds on the basis that in order for the Applicants to have had a real and meaningful opportunity to present evidence and arguments at the hearing was for them to have access to the Source Documents.
There is nothing to suggest that the Applicants did not have a meaningful opportunity to present evidence and advance arguments about why the Tribunal should find that they were stateless and should reject that they were Iranian Nationals. The Applicants clearly came prepared to offer explanations about the Source Documents and why they should not be accepted as evidence of any Iranian citizenship. Ultimately, the evidence and arguments advanced later would form part of the Invitation as it was inconsistent with previous information provided and was a basis to undermine the Applicants’ claims to be stateless.
The Applicants attended a hearing and were on notice of the determinative issue. They were aware that the ground for cancellation was that they had provided incorrect information in their Visa applications. They provided three sets of submissions to the Tribunal and specifically addressed this issue. The Tribunal hearing occurred over four hours. The Tribunal’s decision records the Applicants’ responses to the Tribunal’s concerns that were discussed at the hearing relating to this particular issue.
For the reasons above, and for those discussed in Ground 1, the Tribunal was not required to show the Applicants the Source Documents in order for the Applicants to have a proper and meaningful opportunity. The Applicants were given a proper and meaningful hearing in accordance with s.425(1) of the Act.
Ground 2 is dismissed.
Ground 3
The Applicants’ Submissions in relation to Ground 3 merely recite the particulars of Ground 3. At hearing, Counsel for the Applicants submitted that the Tribunal failed to give sensible consideration to the request for an extension of time to respond to the Invitation and that the Tribunal gave no reason or, alternatively, made an observation of fact that the Applicants had “had enough time”, and the refusal therefore lacked any intelligible justification. In the submissions of Counsel for the Applicants, in circumstances where the Applicants were “borderline prodding in the dark, with very limited information, one hand tied behind their back” awaiting information from external sources, the Tribunal’s refusal of an extension of time was unreasonable.
The Minister submits that the Tribunal’s reasons at [10]-[16] set out the context and conclusion about the extension request and provide an evident and intelligible justification for refusing an extension of time. The circumstances were that the Applicants had already had the benefit of time since the hearing, the mandated time following the Invitation, and an extension of time, to provide a response to respond to the Tribunal’s concerns. The Tribunal also did not make the decision until after the date upon which the requested extension was sought. Finally, there was nothing to suggest that a further extension would have resulted in the provision of further documents or, subsequently, submissions. It was therefore reasonable for the Tribunal not to grant an extension.
In Minister for Immigration & Border Protection v Pandey [2014] FCA 640 the principles of legal unreasonableness were summarised as follows:
41. The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
42. The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?
Subsequent legal authority has stated that when assessing legal unreasonableness in the exercise of a discretion, the Court is not confined to looking only at the reasons. Rather, the Court’s primary focus should be on the reasons expressed, however where those reasons are deficient the Court may look beyond the reasons to the particular circumstances of the individual case to consider whether it was “legally unreasonable” for the Tribunal to proceed as it did[40].
[40] Minister for Immigration & Border Protection v Haq [2019] FCAFC 7 at [32] and [35] (Griffiths J) and [83] (Colvin J).
The Applicants requested a further 14 days within which to provide a “full” response to the Invitation. The reason for such extension was set out at the base of the “partial response”[41]:
There are two main reasons for this request. First, the Review Applicants and in turn, their translator was only able to give us responses and/ or information relating to The Invitation on 24 May 2017. The delay in translating appointments and in tum, the translations onto our office.
Secondly, our office has made a request to Access to Information under s362A of the Migration Act 1958 with the Tribunal as of today.
[…]
Further, with respect to the fundamental duties of solicitors, we have been unable to further deliver legal services competently, diligently and/ or promptly as reasonably possible to the client and in turn, our duty to the Tribunal and the administration of justice because of the hindrances of the non-disclosure of information. Until such information under section 37(1)(b) of the Freedom of Information Act can be released on the principles of discovery, we will be able to carry out our duty to the client and of course, our paramount duty to the Tribunal.
Furthermore, with the non-disclosure in conjunction with the Review Applicant’s translated information we have therefore been unable to provide the Tribunal with a full response to The Invitation given that the non-disclosure, the Review Applicant’s cancellation and statelessness goes to the heart of the Tribunal matter.
[41] DCP17 CB 484-520; DCR17 CB 549-583.
The reference to the “delay in translating” is in the past tense. It is said that the Applicants were only able to provide their documents on 24 May 2017. It explains why, perhaps, the response was not provided by 12 May 2017 when it was due. However, it is of no bearing on why more time was needed. It does not indicate that the Applicants had any further information to provide in response to the Invitation or they were attending a further appointment with their migration agent for that purpose that would be delayed because of translating. It simply indicates what has occurred previously and therefore is not a reasonable basis for an extension of time.
On that basis, the only “specific basis” upon which the Applicants had requested the extension of time had to do with the non-disclosure of the documents under a Freedom of Information request (FOI Request). The Minister submits that there was no suggestion that a process was underway to overcome the “hindrance” of the FOI Request. In Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) at [122] it was noted that the adjournment in that case was sought for “highly specific purpose clearly articulated” by the visa applicant’s representative. Here, the Minister submits, that is not the case.
While the submissions did not articulate clearly that a process was on foot to gain access to the Source Documents, there was some reference to the Applicants seeking to obtain the Source Documents via other methods (a misconceived request under s.362A of the Act and “on the principles of discovery”). Contrary to the Minister’s submissions, the extension was not for an indeterminate period. The request specified an identified time period (14 days). The Court is prepared to find that the extension was requested for a set time and a “specific purpose”. This must inform the context of whether it was reasonable for the Tribunal not to grant the extension.
The “focal point” of the Court’s analysis is the Tribunal’s reasons for refusing to grant an extension of time. The letter advising the Applicants that they would not be granted an extension of time provided no reason. It stated as follows[42]:
[…]
The Tribunal notes that 26 May 2017 has passed and the Tribunal is now considering the information before it, including the material received by the Tribunal on 26 May 2017 but dated 12 May 2017.
The Tribunal will make a decision in due course. The request for a further extension of time, included in the documentation received on 26 May 2017, is not agreed to. No further extension of time is provided and the Tribunal will make its decision based on the information before it, as clearly stated in the correspondence provided on 15 May 2017.
[…]
[42] DCP17 CB 523-524; DCR17 CB 584-585.
In the Tribunal’s decision, the Tribunal stated:
11. The Tribunal notes that the applicant made a FOI application to the Department for documents relating to them on the file. A significant number of Folios were released to the applicant, though not all. The Tribunal notes that there are separate provisions of the Commonwealth FOI Act that govern the release of information as detailed in a submission to the Tribunal, the applicant’s agent stated:
However, there are several documents which have not been disclosed by the Department with respect to section 37(1)(b) of the Freedom of Information Act 1982
FREEDOM OF INFORMATION ACT 1982 - SECT 37
(As per relevant provisions)
Documents fleeting enforcement of law and protection of public safety
(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information in relation to the enforcement or administration of the law;
Or
[bolding in submission]
12. The Tribunal does not release the information on the Department file, this release of this information is conducted by the Department. The Tribunal has no power to affect a decision of the Department to not release information.
13. The Tribunal discussed relevant aspects of this information that was not released pursuant to the FOI request at the hearing and in the 424A letter. This information was not subject to any Certificate.
14. The Tribunal held the hearing with the applicant on 12 April 2017. At the hearing the Tribunal discussed the information before it, including adverse information. The Tribunal noted that due to the complexity of the matter, including the evidence of the witnesses, the Tribunal would be required to write to the applicant post hearing. The Tribunal noted that this would provide the applicant the time to respond to information discussed at the hearing. The applicant and the agent were made aware of the adverse information at the hearing.
15. The Tribunal sent the applicant the s424A letter on 28 April 2017. This has a prescribed time requirement for the response to be provided. On the day the response was required the applicant’s agent wrote to the agent and asked for an extension of time. The Tribunal wrote to the agent and advised that the Tribunal would not make a decision in this matter until after 26/5/2017, and would consider all the information before it at that time.
16. On 26 May 2017 the applicant’s agent provided a ‘part response’ to certain elements of the invitation to comment on adverse information. The applicant provided some further documents. The applicant asked for a further extension until 9 June 2017. The Tribunal did not provide this further time, noting that the Tribunal had advised the agent that it would make the decision based on the information before it after 26 May 2017.
17. The Tribunal notes that in any event the Tribunal did not finalise this matter until after the requested 9 June 2017 date for the provision of further submissions. The applicant did not provide further submissions to the Tribunal with respect to the adverse information beyond the partial response of 26 May 2017, despite the opportunity to do so, the Tribunal noting that it would make its determination on the information before it. The Tribunal considers that an extended period was provided to the applicant to respond to the adverse information, and that she chose to do it only in a partial manner.
The Applicants submit that the Tribunal in these paragraphs (particularly [16]) has stated “No. You’ve had enough time. That’s the end of it”. In the Applicants’ submission such is an observation of fact that “goes nowhere” and is not a reason.
As the High Court accepted at [82] in Li, it will be reasonable, in an appropriate case, for the Tribunal to decide to refuse an adjournment (or an extension of time) on the basis that an applicant has had “enough time” so long as it is apparent how that conclusion was reached.
Contrary to the Applicants’ submission, it is apparent how the Tribunal reached its conclusion (i.e., it did provide reasons) and, further, the Tribunal did not just make an observation that the Applicants had had enough time. To summarise, in [11]-[17] the Tribunal noted that:
a)The Tribunal had no control over whether the Department would release the documents the Applicants sought but was aware that the Department had not released documents to the Applicants;
b)The Tribunal had discussed the relevant aspects of the information that the Applicants had not been able to obtain via the FOI Request at the hearing which the Applicants and their representative attended;
c)The Tribunal had also provided to the Applicants in writing the relevant aspects of the documents that were not released to them under the FOI Request and its concerns (i.e. what it would be relying upon in those documents and why it was relevant/adverse to their application). The Tribunal had complied with the statutory time limit to receive a response;
d)The Tribunal advised the Applicants that a decision would not be made before 26 May 2017 (which was an additional 14 days) and the Applicants could provide further information;
e)The Applicants had provided a “partial response” to the Invitation;
f)The Tribunal did not make a decision until some time after the Applicants had indicated they required an extension to provide information and that no further information was provided.
Reading the above as a whole, the Tribunal’s reasons for not granting the extension of time was not just because the Applicants had had “enough time”. This was one reason. However, another more critical reason which addressed the Applicants’ “specific purpose” for requesting the extension was that the Tribunal had already discussed with the Applicants and had provided to the Applicants, in writing, all of the relevant particulars about what would be relied upon as a reason for affirming the decision (which did not require the Source Documents) and had given them the opportunity to comment upon this. Therefore, the “specific reason” for the request was unnecessary. The Tribunal had, for the reasons given in Ground 1 and 2, given the Applicants all that was necessary to present their arguments and advance their case.
Whether the Applicants had sought and been denied the documents in the FOI Request was immaterial as the Tribunal made clear that it had already discussed and invited the Applicants to comment on the relevant matters that would inform its decision. The Tribunal expressly states that it “discussed relevant aspects of this information that was not released”.
Against this background it was entirely reasonable for the Tribunal to consider that the Applicants had had “enough time” to provide information. The Applicants had been on notice of the adverse information for over one month. They were first advised at the hearing on 12 April 2017 of the adverse information, they did not receive the Invitation until 28 April 2017 (16 days later) and they had been advised that the despite the deadline for the Invitation being 16 May 2017, there would be an additional 10 days to provide information (until 26 May 2017) before the Tribunal would begin considering the application.
The statutory time period for the Applicants to respond to the Invitation was prescribed to be 14 days[43]. The period which the Tribunal could extend the time to respond to the Invitation was 14 days[44]. The Applicants were advised that they had the full benefit of the prescribed period and the extended period. While the reason for requesting additional time was identified as being for a specific purpose (to attempt to obtain the Source Documents via other means), it is the case that obtaining the Source Documents was unnecessary to answer the Tribunal’s concerns.
[43] Migration Regulations 1994 (Cth), reg.4.35(3)
[44] Migration Regulations 1994 (Cth), reg.4.35B(2).
In circumstances where the legislature has prescribed the statutory period to respond, and the period of any extension, and the Applicants had that time period (and more) and there was no sufficient reason to provide more time, it was within the area of decisional freedom for the Tribunal to determine not to grant a further extension of time and to determine that enough time had been provided and to proceed to make a decision.
The Tribunal also noted that the decision was not made until after the time that the Applicants had requested an extension to. While the Applicants submit that this is not significant, the Court does not agree. The Applicants, while they did not know when a decision would be made, had further time to respond to the Invitation (in fact, the entire 14 day period they requested for an extension to), and provide any submissions or information. The Applicants did not do so. While this cannot be considered as part of the Tribunal’s reasons for not granting an extension of time, it does suggest that no practical unfairness was suffered. In any event, however, the Tribunal’s reasons for refusing an extension were entirely reasonable.
Ground 3 must fail. The Tribunal’s reasons for not granting an extension of time were not arbitrary or capricious. They do not lack an evident or intelligible justification. Rather, they demonstrate a well-considered approach that did not exceed the area of decisional freedom. This matter was one, as discussed in Li at [82], where the circumstances (including the purpose for the extension as put by the Applicants) meant that it was reasonable for the Tribunal to consider that “enough time” had been provided.
Ground 3 is dismissed.
Conclusion
The Amended Application has not identified any jurisdictional error. The Amended Application is dismissed.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 25 June 2020
0
16
3