DDP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 338
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DDP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 338
File number(s): MLG 1528 of 2017 Judgment of: JUDGE A KELLY Date of judgment: 10 May 2022 Catchwords: MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of decision of Administrative Appeals Tribunal – where applicant made protection claims to being stateless – where applicant claimed he could not return to either Iraq or Iran – where applicant was granted protection visa – where applicant and partner lodged application for a partner visa which included false birth certificates for the couples’ dependents – where Minister deployed false birth certificates in finding applicant had provided incorrect information when making earlier protection visa application – where Minister made decision to cancel protection visa – where Minister obliged to consider applicant’s response before cancelling visa – whether Tribunal failed to consider applicant’s claim that he would not voluntarily return to Iran – whether Tribunal failed to consider applicant response to notice of cancellation – applicable principles – writ of certiorari issued – writ of mandamus issued. Legislation: Migration Act 1958 (Cth), ss 5, 5J, 36, 97A, 100, 101, 103, 107, 108, 109, 111, 189, 348, 349
Migration Regulations 1994 (Cth), reg 2.41Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
AYY17v Minister for Immigration and Border Protection (2018) 261 FCR 503
Bhatti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1583
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
CSL15 v Federal Circuit Court of Australia (2017) 72 AAR 502
Dranichnikov vMinister for Immigration and Multicultural Affairs (2003) 214 CLR 496
DUP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1063
Federal Court in Minister for Home Affairs v Omar (2019) 272 FCR 589
Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 16 December 2021 Place: Melbourne Counsel for the Applicant: Mr A. Aleksov with him, Ms K Chan Solicitor for the Applicant: Carina Ford Lawyers Counsel for the First Respondent: Ms N. Campbell Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 1528 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DDP17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
10 MAY 2022
THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.The amended application filed on 19 November 2021 be allowed.
4.An order in the nature of a writ of certiorari issue quashing the decision of the second respondent made on 14 June 2017 (Case Number 1613526).
5.An order in the nature of a writ of mandamus issue remitting the matter to the second respondent, differently constituted, for determination according to law.
6.The first respondent pay the costs of the applicant as agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).REASONS FOR JUDGMENT
KELLY A, J
Introduction
By amended application dated 19 November 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 June 2017 affirming a decision of a delegate of the first respondent (Minister) to cancel a Protection (Class XA) (Subclass 866) (visa) pursuant to s 109 of the Migration Act 1958 (Cth) (Act) on the basis the applicant had provided incorrect answers in completing his protection visa application.
The applicant has established that the decision was affected by jurisdictional error by reason that the Tribunal failed properly to consider a clearly articulated claim; namely, whether he was a person who (as he said), would not voluntarily return to Iran and, in that event, was a person who could not be forcibly returned to Iran (the present policy of Iran being that the Iranian embassy would not issue him travel documents) with the suggested result that upon return he would thereby come to the attention of the authorities as a failed asylum seeker.
The errors which occurred in this case are akin to those identified in CSL15 v Federal Circuit Court of Australia (2017) 72 AAR 502, [58]-[62]; that is, the Tribunal failed to ask and answer the question whether or not the applicant could be forcibly returned to Iran. As Charlesworth J held at [64], an answer to that question was not supplied by a finding whether an applicant would return or could be returned voluntarily. The question for the Tribunal was whether or not the applicant could be forcibly returned. The Tribunal failed to address that question including in failing to expressly consider relevant country information before it. Upon that country information, it was clear the Iranian embassy would not issue travel documents to an Iranian national in circumstances where, as here, he or she did not wish to be forcibly returned.
Background
The background below was common ground and has been drawn from the parties’ submissions together with my examination of the materials in the court book.
On 26 November 2009, the applicant, a male citizen of Iran, now aged 60 years, came to Australia as an irregular maritime arrival.
On 17 March 2010, the applicant lodged the visa application in which he stated that: (a) his citizenship at birth was Iraqi; (b) his current citizenship was ‘Stateless’ and he had lost his citizenship under Saddam Hussein’s regime; (c) two of his children were also stateless; (d) he was of Faili Kurdish identity; (e) because he was not an Iranian citizen, he had been denied basic rights in Iran, and; (f) because of his identity as a Faili Kurd and his undocumented statelessness, he could not return to either Iraq or Iran.
In support of his visa application, the applicant made a statutory declaration which stated:
My name is [name omitted] and I am a 47 year old male born in Badra, Iraq . . .
I was forced to leave my birth country of Iraq in 1980 . . .
I left Iran because the Iranian Government, like the Iraqi Government, didn't accept us as citizens. Because I am Faili Kurd I am denied identity as well as basic human rights. For example, 1 cannot buy or own property in Iran, sustain sufficient employment for a long period of time or obtain medical insurance for me and my family. Also I cannot send my children to school and provide for them sufficiently . . .
I have spent my entire life in Iran watching over my back for fear of being captured and tortured by the Basij . . .
Despite being an Iraqi citizen, I cannot return back there because my citizenship was taken from me and I am now stateless . . . I cannot go back to Iran as 1 have no rights as a citizen or resident . . .
I believe I will also be killed if I returned to Iran because the Iranian Authorities will think I am a spy. I left Iran illegally and returned to Iran illegally . . .
I believe that the authorities in both Iraq and Iran will not protect me because I am Kurdish Faili and have no identity . . . I am no longer a citizen of Iraq nor am 1 a citizen or resident of Iran. I am stateless . . .
On the basis of his application, on 19 March 2010, the applicant was granted a protection visa.
On 28 June 2010, the Registrar of Births, Death and Marriages changed the applicant’s name.
On 25 November 2010, the applicant proposed his family’s application for a Global Special Humanitarian (subclass 202) visa. The applicant stated that “there was no movement on this application for at least two years.” Upon the case advanced by the applicant he was confronted by a Catch-22 situation. He stated that he was consistently told by embassy officials that the delay was due to his failure to provide further identity documents; he was told that “if he could not provide Shenasnameh’s [birth certificates], passports, education documents and a formal marriage certificate then his family's visa would be refused” and “no one in Iran could be living without these sorts of documents so he had to provide them.”
In correspondence to the Department submitted on the applicant's behalf, the applicant's representative also noted that “this situation of requesting documents from [applicants] that don't exist remains an ongoing and relevant issue in these cases.” The applicant would later rely upon this delay as being the reason which prompted him to obtain and deploy bogus documents in support of the partner visa referred to below.
As appears in greater detail below in relation to Ground 2, par 101(b) of the Act obliges a visa applicant in imperative terms when completing a visa application, to complete it in such a way that, relevantly, no incorrect answers are given or provided.
On 30 June 2013, the applicant and his wife lodged an application for a partner visa including as dependents the couple’s two younger children. Documents supplied in support of the application were: Iranian passports in the name of the applicant’s two children; Shenasnamehs in the names of the applicant’s wife and their two children, and; various educational documents issued in relation to the applicant’s daughter. By his submissions in this court, the applicant stated he had submitted counterfeit documents in support of the application, including false Iranian Shenasnamehs and passports for the two children, for which he had paid 20 million Iranian Rial (AU$4,000). The use of those documents for the purposes of the partner visa application were then relied upon by the Department to reassess the information given at the time of the protection visa application. In short, the Department instead considered the information in the bogus documents to be true and so, to indicate that the information provided at the time of the protection visa application (to undocumented statelessness) to be untrue, thereby engaging other provisions of the Act which flowed from a breach of par 101(b).
At a hearing conducted by the Tribunal on 11 November 2016, the applicant gave evidence that he became increasingly desperate to be reunited with his wife and children and, on the basis of conversations between other Kurds in Australia and which he overheard, he conceived a plan to obtain counterfeit documents to support his partner visa application. The position so adopted by the applicant was reiterated in a post-hearing submission to the Tribunal dated 2 December 2016 at [5]-[14], [50]-[51]. The use of bogus documents was common ground.
By letter dated 19 January 2015, the applicant was sent a notice of intention to consider cancellation of his Protection visa pursuant to s 107 of the Act (Notice) and in which:
(a)the delegate stated that the children's Iranian Shenasnameh and Iranian passports received in support of the partner visa application indicated that they were citizens of Iran, and so, the applicant must also be an Iranian citizen of Iran (as, in Iran, children acquired their Iranian citizenship from their father);
(b)accordingly, the delegate considered the applicant had provided incorrect information in breach of par 101(b) of the Act, including that: the applicant's children were stateless; his place of birth was ‘Bandra, Iraq’; he lost his Iraqi citizenship under Saddam Hussein's regime, and; he was not a citizen of Iran but was stateless.
On the basis that he was an Iranian citizen by birth and not stateless with the result his children were also Iranian citizens and not stateless, the applicant was informed he had provided incorrect information in making his application for the protection visa such that his visa may be cancelled. By the Notice, the applicant was informed that he could provide a written response to these matters within 14 days and advised of the two-step process that would follow in deciding whether or not his visa would be cancelled.
On receipt of this notice, the applicant promptly appointed solicitors (who have represented him in this hearing), and who made a request for copies of any information relating to all visa applications that he had made. Although several communications passed between those representatives and the Department in the intervening period, nearly a year later, on 21 January 2016, they responded to the Notice and maintained that: for the reasons summarised above, he had felt compelled to provide counterfeit documents when applying for a partner visa; he had not given any incorrect information, and; his claims to statelessness remained true and correct. Upon that basis, it was submitted the applicant remained entitled to a protection visa.
Review by delegate and Tribunal
The delegate, who undertook a detailed International Treaties Obligation Assessment (ITOA), decided that the applicant had not complied with s 101(b) of the Act and exercised her discretion under s 109 of the Act to cancel the visa. Reasons for not cancelling the visa were not considered sufficient to outweigh countervailing reasons to do so.
While the applicant had claimed his children’s Iranian passports were fraudulent, the delegate found that the children were the holders of legitimately issued genuine Iranian passports and instead that the applicant was a documented, recognised Iranian citizen. The delegate found that the applicant was not stateless and had the same rights and opportunities bestowed on other Iranian citizens. The delegate was satisfied that the circumstances in which the non-compliance occurred appeared to be voluntary and not beyond the applicant’s control.
On 16 August 2016, the delegate decided to cancel the applicant's visa under s 109 of the Act and on 25 August 2018, the applicant applied to the Tribunal for review of that decision.
Tribunal’s decision
The Tribunal conducted a hearing that was of about 3.5 hours duration. On 14 June 2017, the Tribunal made a decision affirming the decision to cancel the visa and provided a statement of reasons for doing so (Reasons). The Tribunal found he had provided incorrect answers when completing the application and thereby breached s 101(b) of the Act. Findings made by the Tribunal in reaching the decision included that:
(a)the applicant had provided incorrect information [86];
(b)the applicant claimed not to have a valid passport [89];
(c)the applicant had been granted protection on the basis of the incorrect information that he was stateless [92];
(d)the applicant wilfully and deliberately provided the incorrect information to the Department in order to obtain a protection visa [94];
(e)the applicant was injured at work in 2015, had been unable to work since and engaged lawyers for the purpose of pursuing a claim for worker’s compensation [97];
(f)the applicant suffered from depression and had experienced suicidal ideation [98];
(g)the applicant continued to deny that he has provided the incorrect information [100];
(h)in 2010, 2013 and 2014, the applicant had claimed he was stateless and not an Iranian national [104];
(i)the Department had not been aware of the applicant’s non-compliance until after the applicant’s wife and children lodged an application for a partner visa in 2013 [106];
(j)there were no other established breaches of the law made by the applicant; the applicant had made no contribution to the community and the applicant was Faili Kurdish, suffered a hand injury, never had a comfortable life financially, and in the past not in serious harm by reason of his ethnicity [108]-[112].
The Tribunal concluded the applicant was not stateless but was an Iranian national who had left that country using a genuine passport, and not illegally; further, that he was entitled to apply for a new Iranian passport from the Iranian embassy in Canberra, [70], [113], [118]-[119]. Upon that premise, it was not satisfied that if the applicant was to return to Iran, Australia would be in breach of its non-refoulement obligations, concluding that upon cancellation he would become an unlawful non-citizen and so liable to be detained and removed from Australia but could return to Iran upon obtaining a new Iranian passport [116]-[118].
The decision made on 14 June 2017 is the subject of this application for judicial review.
Procedural history
On 18 July 2017, the applicant filed an application for review of the Tribunal’s decision advancing one particularised ground of review together with an affidavit deposed by his solicitor exhibiting a copy of the Tribunal’s decision and Reasons.
By a response filed on 15 August 2017, the Minister opposed the application seeking the applicant’s final orders be dismissed on the basis the application for judicial review did not establish jurisdictional error in the Tribunal’s decision.
On 19 November 2021, the applicant filed an amended application for review maintaining the orders sought and adding a second particularised ground of review together with written submissions and an affidavit, attaching a copy of the Department of Foreign Affairs and Trade (DFAT) Country Information Report, published on 21 April 2016, being DFAT information as referenced in the Reasons at [114]. Later, on 2 December 2021, a further affidavit was filed exhibiting a copy of the transcript of the hearing before the Tribunal.
Ground 1 – failure to consider involuntary return to Iran
Ground 1 of the amended application reads:
The Tribunal failed to consider a clearly articulated claim made by the Applicant.
PARTICULARS
a.In the oral evidence given by the Applicant, and in written submissions prepared by the Applicant's representatives, it was claimed that the Applicant would not voluntarily return to Iran.
b.Submissions to the Tribunal stated that Iran does not accept involuntary returnees. This submission was made independently of any submissions regarding non-refoulement.
c.The Tribunal failed to consider that Applicant's claim that he would be the subject of indefinite detention if Iranian authorities did not allow him to return to Iran in circumstances where he was not returning voluntarily.
The applicant’s substantive submission was that the Tribunal failed to consider his claim that he would not voluntarily return to Iran.
The Minister submitted that the Tribunal considered and rejected the applicant’s claim that he would be unable to obtain an Iranian passport and found that the applicant: was validly a citizen of Iran by birth; had left the country on a valid passport; and, could apply for a passport from the Iranian embassy in Canberra.
Resolution
The applicable principles were not in dispute. An administrative decision-maker must consider each articulated claim and each claim that clearly arises from the review material before it: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [60]. However, it need only to consider claims which are: “the subject of substantial clearly articulated argument, relying on established facts”; or “clearly emerge from the material”: AYY17v Minister for Immigration and Border Protection (2018) 261 FCR 503, [18]. It is trite that a finding of failure to consider such claims is not to be lightly made.
Counsel for the applicant candidly acknowledged that no claim had been expressly made that the applicant would not voluntarily return to Iran, however, it was submitted such a claim had been clearly articulated to the Tribunal.
On the whole of the materials, I am satisfied the applicant clearly articulated a claim that: he would not voluntarily return to Iran; Iran would not accept involuntary returnees; and, in circumstances where he was not returning voluntarily, he would be the subject of indefinite detention if Iranian authorities did not allow him to return to Iran.
The following matters support the conclusion that such a claim was clearly articulated.
The applicant's representative provided submissions to the Tribunal in advance of the hearing which took place on 11 November 2016 and two post-hearing submissions. In those pre-hearing submissions it was maintained that the applicant had not given incorrect information in relation to the protection visa application and that he was in fact a stateless Faili Kurd.
Further by the applicant’s pre-hearing submissions at [64], attention was drawn to “Any other relevant matters which should be considered” in relation to the issue of cancellation. Contextually, while there was extensive reference to the applicable conventions, legislative framework and available country information as it applied to persons of Faili Kurdish ethnicity, it was not put that the applicant would not be issued travel documents on the basis he would be an involuntary returnee to Iran. Consistently with the absence of any such claim at that point, nothing in the conclusion to the pre-hearing submissions at [104]-[109] contain any suggestion the applicant’s claims resisting cancellation of his visa was premised upon any consequences of him being an involuntary returnee. However, a transcript of the applicant’s evidence given to the Tribunal was tendered. From the transcript at T.16 in one exchange it was stated:
Speaker 4:The other thing to consider if you do find him an Iranian citizen, is he’s going to risk [unintelligible 00:39:35] detention if he doesn’t voluntarily agree to return to Iran because Iran won’t accept him. He believes he is not an Iranian citizen, so he won’t be returning,
Interpreter: [Farsi language]
Member: [Crosstalk] detention here in - - ?
Speaker 4: Yes (Emphasis added)
The preceding parts and remainder of the transcript on this point contain no indication the Tribunal member took up this point or engaged upon it any further way.
As was submitted in relation to Ground 1, upon a fair reading of the transcript, the applicant should have been understood by the Tribunal member as stating he would be an involuntary returnee to Iran on the basis that he maintained his stateless status and further that the member’s reference to “detention here” could only be sensibly understood in that context. The force of that submission gained added weight in light of the contemporaneous post-hearing submissions referred to below.
At the conclusion of the hearing the Tribunal member allowed the applicant’s representatives an opportunity to file post-hearing submissions. In the first of those submissions, dated 2 December 2016, the applicant’s solicitors adhered to the position the impugned documents were bogus and that the applicant was stateless: [7]-[10], [45]-[51]. In conclusion, the applicant’s solicitors urged the Tribunal to the view that there was insufficient evidence to establish the genuineness of the documents and, given the gravity of the consequences for the applicant of visa cancellation, the Tribunal ought not affirm the delegate’s decision unless it was certain of the genuineness of the documents adding at [47]:
If the Review Applicant’s visa remained cancelled, we submit that he risks remaining in indefinite detention in Australia as he will be unable to obtain travel documents to return to Iran and Iran continue[s] to refuse to accept failed asylum seekers where they do not voluntarily choose to return to Iran.
The following URL was the footnote to this submission: accessed 2 December 2016.
It was common ground that the relevant DFAT Country Information acknowledged at [5.33] that “Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran”.
In the second of the applicant’s post-hearing submissions dated 16 January 2017, his lawyers provided a summary of his claims including that: the documents provided were bogus; had they been genuine, logically, the documents would have been provided at least two years earlier; the applicant consistently maintained he was a stateless Faili Kurd; if he was an Iranian national and at no risk of persecution in Iran, he would have returned to Iran long ago, adding at [10]:
We emphasise the significant consequences for the Review Applicant if the Review Applicant’s visa remained cancelled. As outlined in the hearing, the Review Applicant is of the firm belief that he is a Stateless Faili Kurd and we urge the Tribunal to consider the fact that if the Review Applicants Visa remained cancelled and he is detained by Border Force, he is likely to remain in indefinite detention as he will not voluntarily return to Iran as stated during the hearing and Iran continue to refuse to accept non—voluntary returnees. (Emphasis added)
Further, upon the basis of the country information cited by the Tribunal, it was implicitly accepted that travel documents would not be issued by the Iranian authorities to involuntary returnees. The basis for that implication lies in the Reasons at [111] and [114] together with the detailed assessment made by the Department pursuant to Australia’s International Treaties’ Obligations and the DFAT Country Information there referred to.
Instead of addressing the claim which the applicant had made – he would not voluntarily return to Iran – the Tribunal adopted a path of reasoning which: found him to be an Iranian national and so entitled to apply for an Iranian passport [113]; considered country information and how it informed whether the applicant had a well-founded fear of persecution or a real risk he would suffer significant harm [114]-[116]; correctly, put to one side (as irrelevant), any question of non-refoulement arising in relation to the applicant’s children (all of whom were now adult) [117]; accepted that upon cancellation, the applicant would be detained under s 189 of the Act [118]; disposed of that consideration on the basis the applicant would be free to apply for an Iranian passport [1118]-[119].
It was clearly established that the applicant maintained he would be an involuntary returnee. I consider that this raised substantial issues that required consideration by the Tribunal.
On any fair reading of the Reasons, the Tribunal did not address the applicant’s clearly articulated claim that he would not return to Iran. Nor did it confront the consequences for the applicant in this case of the DFAT Country Information at [5.33] above. This information reflected the position, current at 2016, and as acknowledged by Australia, that if the applicant approached the Iranian embassy in Australia, it would not issue travel documents to him in circumstances where the Australian government wished to return him involuntarily to Iran.
I conclude that the claim objecting to forcible return to Iran had been clearly articulated and, contrary to the Minister’s submissions, was a freestanding independent claim. Further, it was not given the consideration required of the Tribunal upon review. Upon the basis of those matters, there was a constructive failure to exercise jurisdiction: Dranichnikov vMinister for Immigration and Multicultural Affairs (2003) 214 CLR 496, [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [55]; CLS15 v Federal Circuit Court of Australia (2017) 72 AAR 502, [44].
I also accept the submission that errors of the kind identified in CLS15 v Federal Circuit Court of Australia (2017) 72 AAR 502, [57]-[60] were repeated in this case. As Charlesworth J observed at [57], [60], it was important to recognise the claim being put; and, as importantly, those which were not. As in CLS15, here, no occasion arose for the Tribunal to consider a claim to voluntary return. As her Honour held at [58]:
The country information to which the Tribunal referred in its reasons did not permit of any circumstance in which the appellant might be issued valid travel documents so as to enable his forcible return to Iran. If the Tribunal uncritically adopted that portion of the country information, then it would have been unnecessary for it to continue, as it did, to consider the likelihood that the appellant would be persecuted or suffer significant harm “on return to Iran”. The appellant could either be forcibly returned to Iran or he could not. The appellant’s claims, and the evidence before the Tribunal, were such that the Tribunal was obliged not only to consider which scenario would apply, but to supply an unambiguous answer to the question.
See also DUP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1063, [59], [70], [77], [83] (Banks-Smith J). In contrast with the analysis undertaken by Banks-Smith J in DUP16, here no consideration was given, nor was any finding made upon the claim that the applicant would not return voluntarily to Iran.
Contrastingly, in the present case, the Tribunal gave but passing and elliptical reference to the DFAT country information. More precisely, nowhere do the Reasons either cite [5.33] of that DFAT report or expressly acknowledge the position reflected by that information; namely, that the Iranian embassy would not issue travel documents to the applicant in circumstances where the Australian government wished to return him involuntarily to Iran.
I am persuaded the Tribunal failed to consider the applicant’s clearly articulated claim above.
Ground 1 is made out.
Ground 2 – failure to consider applicant’s response to the notice
Ground 2 of the amended application (without underlining), reads:
The Tribunal constructively failed to undertake the statutory task required by section 109(1)(b) of the Migration Act 1958 (Cth) by failing to ‘consider’ by the applicant's response to the notice given pursuant to s 107 of the Act.
PARTICULARS
a.The applicant was served with a notice issued under s 107 of the Act contending that he had provided incorrect answers when applying for a protection visa that he had been granted. In substance the allegation was that he had lied about being a stateless Faili Kurd.
b.The catalyst for the sending of the notice was that the applicant submitted, in support of his wife's partner visa application, documents purporting to be their children's Iranian Shenasnameh and Iranian passports which led the Minister to conclude that the applicant was an Iranian citizen.
c.The applicant responded to the notice and stated that, even if the Minister concluded that he was an Iranian citizen (which was not conceded), he would still be at real risk of serious harm or significant harm by reason of his Kurdish accent and ability to speak Kurdish, the fact that he was granted a protection visa on the basis that he claimed to be Kurdish, and the fact that he sought asylum in a Western Country and would be imputed with anti-Iranian political views.
d. The Tribunal was required to ‘consider’ these claims under s 109 of the Act in considering whether Australia's non-refoulement obligations were engaged. To ‘consider’ means to engage in a real process of consideration of information submitted – an active intellectual process directed at the information.
e.The Tribunal made no specific findings in relation to these claims or whether they would engage Australia's non-refoulement obligations in the exercise of discretion under s 109 as it was required to do.
f.The failure to consider the claims in the applicant’s response was a failure to properly undertake the Tribunal's statutory task.
Ground 2 contends that the Tribunal failed to ‘consider’ a submission that the applicant faced a risk of harm if he returned to Iran because he was Faili Kurdish and his Kurdish attributes.
The Minister submitted that the Tribunal did, in fact, consider the applicant’s submission that he would be at risk of harm if he were returned to Iran (even if he were an Iranian citizen); because of his claim to be Faili Kurdish; and his Faili Kurdish attributes.
Legislative framework
Ground 2 arises in the context of the exercise of a discretionary power of cancellation of a visa (based on the provision of incorrect information) pursuant to s 109(1) of the Act.
Part 2 of the Act deal with the subjects, Arrival, presence and departure of persons. Division 3 of that Part concerns Visas for non-citizens. Within Div 3 of Pt 2, Visas for non-citizens, Sub-div C, Visa based on incorrect information may be cancelled, is comprised of ss 97-115. The subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals: Act, s 97A(1).
In completing a visa application, a non-citizen must complete it in such a way that, relevantly, no incorrect answers are given or provided: Act, par 101(b). A non-citizen must not give, present, produce or provide a bogus document in relation to such an application: Act, s 103. For the purposes of Sub-div C of Div 3, an answer given or provided in relation to the completion of a visa application is ‘incorrect’, irrespective of whether a person knows that an answer was incorrect: Act, ss 100, 111.
The expression bogus document is defined by s 5 of the Act and relevantly, in relation to a person, includes a document which the Minister reasonably suspects was obtained because of a false or misleading statement whether or not made knowingly.
Section 107 confers certain power on the Minister to consider cancellation of a visa. The availability of the power to cancel a visa depends in the first instance upon the issue of a valid notice pursuant to s 107(1) of the Act. Where s 107 is engaged, the Minister is then obliged to ‘consider’ any response that is received from a visa applicant and must do so in the context that s 109 confers a discretion not to cancel a visa, despite any incorrect information having been supplied in relation to a visa application.
Section 108 requires the Minister to consider any response given by a visa holder and to decide whether there has been non-compliance by the visa holder “in the way described in the notice.” Section 109 confers a discretionary power to cancel a visa which is conditioned upon requirements that: a decision has been made under s 108 that there was non-compliance by the holder of the visa; any response by the visa holder has been considered, and; regard has been had to any prescribed circumstances. Additionally, the Minister must cancel a visa if there are circumstances declared by the regulations to be circumstances under which the visa must be cancelled: Act, s 109(2). By reg 2.41 of the Migration Regulations 1994 (Cth) certain circumstances are prescribed in relation to the possible cancellation of a visa.
Section 109 of the Act reads:
Cancellation of visa if information incorrect
(1) The Minister, after:
(a)deciding under section 108 that there was non-compliance by the holder of a Visa; and
(b)considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exists circumstances declared by the regulations to be circumstances in which a Visa must be cancelled. (Emphasis added)
Recently, in Bhatti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1583 at [10], Mortimer J confirmed that the exercise of power to cancel a visa was a two-step process and that the requirement imposed by par 108(b) to decide whether there was non-compliance by the visa holder “in the way described in the notice” did not involve a finding upon a jurisdictional fact but was “a matter about which the Minister or delegate must be satisfied, or must form an opinion” (citations omitted). Bhatti largely concerned the scope of the expression “incorrect answers”: [2021] FCA 1583, [129]-[139].
In Bhatti, the applicant was permitted to advance further grounds of review including that the Tribunal had not conducted a proper review for the purposes of ss 348-349 of the Act. Over what appears to have been a strident objection, leave was granted, including in circumstances where the court concluded that the Tribunal’s task had so fundamentally miscarried that it’s decision could not be allowed to stand and that the gravity of errors demonstrated in the Tribunal’s approach also supported a conclusion that “the task undertaken by the Tribunal was not on any measure the review task required of it under s 348 of the Migration Act”: [2021] FCA 1583, [129], [140]; see also Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314, [36] (Hely, Gyles and Allsop, JJ). It does not appear that Bhatti has yet been cited or considered further.
Otherwise, the applicable principles were not in dispute.
In a statutory context, the rationale for and content of an obligation to ‘consider’ is well settled. In Federal Court in Minister for Home Affairs v Omar (2019) 272 FCR 589, [36(c)], a five member Full Court distilled the holding in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, [35]-[41] and in doing so identified the distinct obligation to actively engage when considering a matter in issue including, (in contrast with the present context) where the subject legislation does not explicitly impose an obligation to consider. Relevantly, the Court drew attention to the need for genuine consideration with recognition of the human consequences at issue where the statutory context includes (as here) significant consequences for a visa applicant. To emphasise the importance of this matter to an evaluation of the legality of administrative decision-making, the Court endorsed the statement in Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 at [3] that:
Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
The reasoning in Omar at [40] perhaps illuminates the need to recognise that the principles stated above should be applied with a proper and proportionate appreciation of the nature of the risk of harm and whether it involves a real risk of substantial harm: cf Act, ss 5J, 36(2)(aa).
Resolution
The applicant contends that the Tribunal failed to ‘consider’, as required by s 109(1)(b) of the Act, his claims and whether they would engage Australia’s non-refoulement obligations.
As the particulars to Ground 2 make clear, the applicant further contends that the Tribunal failed to engage in a real process of consideration, and in particular, to undertake an active intellectual process directed at consideration of his Faili Kurdish ethnicity and his distinctive Kurdish accent and attributes.
Paragraphs [111]-[116] of the Reasons are relevant in relation to Ground 2 and read:
Non-refoulement obligations and other PAM3 considerations
[111]In the present case the Department undertook a detailed International Treaties Assessment Obligation (sic).
[112]The Tribunal accepted that the applicant is Faili Kurdish and that he has suffered a hand injury in Australia. The Tribunal further accepts that the applicant had never had a comfortable life financially. Nevertheless, the Tribunal considers that the applicant had not in the past been subjected to serious harm or significant harm by reason of his Faili Kurdish ethnicity or any other reason.
[113]The Tribunal found that as the applicant was an Iranian national, he left the country using a genuine passport in his name. He did not leave the country illegally. He was entitled to a new passport which he could obtain from the Iranian embassy in Canberra.
[114]In relation to the claim that the applicant may be harmed, because he was a failed asylum seeker, a returnee from the West or a person who has spent a long time outside of Iran/in the West, at the hearing the Tribunal discussed with the applicant the relevant country information, including the DFAT Country Information Report on Iran of 21 April 2016 (at 5.33).
[115]The Tribunal suggested it indicated that a person’s risk of harm is proportionate to their profile in Iran (before they leave the country) or abroad. In other words, if the applicant did not have a profile in Iran and did not acquire one while in Australia, he could return to Iran without any problems. The visa holder agreed with the Tribunal that he had no political profile and that if he were in fact an Iranian national he would not be prosecuted in Iran.
[116]On the evidence before it, the Tribunal was not satisfied that if the applicant were to return to Iran, Australia would be in breach of its non-refoulement obligations . . .
As the Minister emphasised, contrary to the applicant’s submissions, those paragraphs of the Reasons demonstrate that the Tribunal both recognised and considered the applicant’s submission that he would be at risk of harm if he were returned to Iran (even if he were an Iranian citizen), because of his claim to be Faili Kurdish and his Faili Kurdish attributes.
As was common ground, the Tribunal explicitly accepted that the applicant was both an Iranian citizen and Faili Kurdish: Reasons, [112]-[113]. That it did so is to be considered in the context that the Tribunal referred at [30], [32] and [50] to the:
(a)Department’s “detailed International Treaties Assessment Obligation [sic]”;
(b)applicant’s submission that he would be at risk because he was a failed asylum seeker returning from the West.
Implicit in the Reasons is that each of those factors was considered in arriving at the Tribunal’s ultimate conclusion at [116], that there would be no breach of Australia’s non-refoulement obligations. By referring to the ITOA, the Tribunal implicitly indicated that it had regard to it: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593, [46]-[47]. Albeit that the international treaties giving rise to Australia's obligations were referred to in a cursory way, I agree that the Tribunal did consider the risk posed by the applicant’s Faili Kurdish identity (such as his accent, his ability to speak Kurdish, and the fact that he had claimed to be Kurdish in his protection visa application). Further, and particularly in light of the detailed analysis of principles in Omar, I consider that the facts and circumstances of the present case stand in marked contrast with the types of risk which were presented for consideration in that appeal: see, e.g., (2019) 272 FCR 589, [6], [10]-[15]. Stated in other terms, I consider the Reasons disclose that due consideration was given in this case to the generalised claim to a well-founded fear of harm on the basis of his Faili Kurdish ethnicity and Kurdish accent. The Tribunal’s reasoning was a proportionate response to and sufficiently reflected what was reasonably called for in relation that claim.
Ground 2 is rejected.
Conclusion
For the foregoing reasons, the applicant has demonstrated that the Tribunal’s decision was affected by jurisdictional error and is entitled to the relief sought.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 10 May 2022
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