Dep19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 541
•30 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DEP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 541
File number(s): SYG 2426 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 30 April 2021 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – cancellation of a protection visa – whether the Tribunal failed to consider probative evidence or whether the Tribunal erred in failing to get the applicant’s visa grant file considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 101, 109, 427, 438 Cases cited: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
Cotterill v Minister and Border Protection (2016) 330 ALR 617
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
DRY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1465
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Singh v Minster for Home Affairs [2019] FCAFC 3
WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319
Number of paragraphs: 64 Date of hearing: 19 March 2021 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitors for the Applicant: South West Migration & Legal Services Solicitors for the Respondents: Ms D Watson of Australian Government Solicitor ORDERS
SYG 2426 of 2019 BETWEEN: DEP19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
30 APRIL 2021
THE COURT ORDERS THAT:
1.The amended application filed on 12 February 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 July 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel the applicant’s protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Iraq of Sunni Islamic faith. On 22 October 2011 the applicant and his younger brother H arrived in Australian waters (at Christmas Island) by boat as unauthorised maritime arrivals.[1]
[1] Court Book (CB) 15 [1], 19.10, 90.5
On 17 November 2011 the applicant participated in an entry interview.[2] On 11 December 2011, the applicant provided a written statement in which he claimed that he was previously harmed in Iraq by members of the Al Dawa Party because he and his father worked in a Sunni mosque. He claimed that he would be harmed by members of the Al Dawa Party if he returns to Iraq.[3]
[2] CB 1-14
[3] CB 15-18
In relation to the applicant’s claims:
(a)the applicant referred to an event on 4 August 2011 involving the abduction of his brother H for half a day;
(b)the applicant stated that the following day (5 August) he was abducted and then detained in a house for two days and tortured;
(c)the applicant’s description of the torture[4] was consistent with scars and marks on his body which he showed at the entry interview on 17 November 2011.[5]
[4] CB 16.2
[5] CB 14.1
On 15 December 2011 the applicant attended a protection obligations evaluation interview.[6]
[6] CB 20.5
On 20 February 2012 an officer of the Minister’s Department issued a protection obligations evaluation outcome in respect of the applicant and his brother.[7] The officer determined that the applicant and his brother were persons to whom Australia owed protection obligations.
[7] CB 19-25
On 29 June 2012[8] the applicant lodged an application for a protection visa.[9] At CB 26-51 is an unsigned and undated copy of an application. According to part of a notice of intention to consider cancelling the applicant’s visa at CB 60-61, the unsigned statutory declaration at CB 15-16, or perhaps a signed copy of the statutory declaration, was attached to the protection visa application.
[8] CB 60.1, 90.6
[9] CB 26-51
On 3 July 2012 the applicant was granted a protection visa.[10]
[10] CB 59.5, 89.6
The applicant then visited Iraq:[11]
(a)from 3 June 2013 to 8 December 2013 (six months); and
(b)from 9 December 2014 to 26 June 2015 (six months).
[11] CB 62.3-62.5
In July 2016 the applicant applied for Australian citizenship.[12]
[12] CB 190 [68]
On 27 July 2017, the Minister’s Department notified the applicant that it was considering cancelling his protection visa under s 109 of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had provided incorrect information in his protection visa application (NOICC). In particular, the applicant was invited to comment on his travel to, and stay in Iraq, as it appeared that he did not hold the adverse profile as claimed in his protection visa application.[13]
[13] CB 59-67
On 11 August 2017, the applicant sent two medical reports to the Minister’s Department without any explanation.[14] On 12 October 2017, an International Treaties Obligations Assessment (ITOA) was conducted with respect to the applicant. It found that Australia did not owe any non-refoulement obligations to the applicant.[15]
[14] CB 73-78
[15] CB 79-85
On 3 April 2018, the applicant’s protection visa was cancelled by the delegate. The delegate found the applicant had fabricated his claims for protection, and exercised the discretion to cancel the applicant’s visa under s 109 of the Migration Act.[16]
[16] CB 86-101
On 23 April 2018, the applicant sought review of the delegate’s decision by the Tribunal.[17] On 30 April 2018, a certificate was issued pursuant to s 438 of the Migration Act (s 438 certificate).[18]
[17] CB 103-104
[18] CB 102
On 29 May 2019 the Tribunal prepared a summons to the Minister’s Department to produce by 12 June 2019 the visa grant file of the applicant’s brother H.[19]
[19] CB 116-117
Also, on 29 May 2019, the applicant provided further material to the Tribunal in support of the review application.[20] On 5 June 2019, the applicant attended a hearing before the Tribunal to give evidence and present arguments, with the assistance of his migration agent.[21] On 3 July 2019, the applicant provided post-hearing evidence and submissions to the Tribunal.[22]
[20] CB 118-141
[21] CB 150-152
[22] CB 159-172
Tribunal decision
As noted above, on 19 July 2019, the Tribunal affirmed the decision under review.[23]
[23] CB 179
The Tribunal found that the applicant had fabricated his claims for protection in the protection visa application for the following reasons:
(a)first, his evidence at the Tribunal hearing regarding the harm that he and his brother had suffered in Iraq was different in material aspects to his evidence to the delegate and a further statutory declaration submitted to the Tribunal;
(b)secondly, the applicant voluntarily returned to Iraq less than one year after he was granted the visa on two occasions for six months at a time. The Tribunal considered the applicant’s explanation and evidence in support, but was not satisfied this overcame its concerns. The Tribunal found the circumstances of the return visits undermined the applicant’s claims to fear harm; and
(c)lastly, he had approached the Iraqi consulate to obtain a letter to confirm his citizenship, and he was able to enter and exit Basrah airport without any incident.[24]
[24] CB 187-188 at [47]-[49]
As such, the Tribunal found the applicant had provided incorrect information in his protection visa application and thereby not complied with s 101 of the Migration Act.[25]
[25] CB 188 at [51]
In considering whether it should exercise its discretion to cancel the applicant’s visa, the Tribunal relevantly made the following findings:
(a)the grant of the protection visa was substantially or wholly based on the incorrect information provided by the applicant, which weighed significantly in favour of cancelling the visa;
(b)the applicant did not provide the incorrect information in circumstances where he held a genuine fear of harm in Iraq, which weighed in favour of cancelling the visa. Further, the applicant’s present circumstances provided little support for not cancelling the visa;
(c)in relation to Australia’s non-refoulement obligations, the Tribunal referred to country information and found that the applicant would not be subject to a real chance of serious harm should he return to Iraq.[26]
[26] CB 189-192 at [58]-[67], [80]-[87].
The Tribunal concluded that the considerations in favour of cancelling the visa outweighed the considerations against cancelling, and affirmed the decision under review.[27]
[27] CB 193 at [89]-[91]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 19 September 2019. At the trial of this matter on 19 March 2021 I granted the applicant leave to rely upon an amended application which had been filed on 12 February 2021. There are two grounds in that application:
1.In December 2011 the applicant swore a statutory declaration in which he set out his claims for protection in Australia. Shortly afterwards, the applicant attended an interview with a delegate of the Minister, following which the delegate made a decision accepting the applicant's claims. The Administrative Appeals Tribunal ("the Tribunal"), in its decision dated 19 July 2019, found at [50] that the applicant "provided incorrect information in his application when he made his claims of past harm and fear of return to Iraq because he was targeted by "Al Dawa Party". The Tribunal, in arriving at his finding, did not consider, or did not properly and genuinely consider:
a) The applicant's comparatively contemporaneous evidence in his statutory declaration and at interview with the Minister's delegate; and
b) The fact that the delegate was persuaded by this evidence and the applicant's demeanour at interview that the applicant's claims were true.
Where the Tribunal fails to consider, or properly and genuinely consider, probative evidence in the court of making a significant finding, this is a jurisdictional error.
2. The Tribunal ought to have taken steps to obtain the visa grant file of the applicant's brother from the Department. Its failure to do so involved failure to make an obvious enquiry within the principle in Minister v SZIAI (2009) 259 ALR 429.
In addition to the book of relevant documents (court book) filed on 26 November 2019 I have before me as evidence the affidavit of Sheetal Balakrishnan made on 12 March 2021, to which is annexed four bundles of documents. To the extent that those documents relate to the s 438 certificate purportedly issued by the Minister’s Department, no issue was raised by the applicant and the documents are not relevant. Some other documents were referred to in oral argument in relation to the grounds of review and those documents are relevant.
CONSIDERATION
Applicant’s contentions
Ground 1 – Failure to consider contemporaneous evidence
In December 2011 the applicant made a statutory declaration in which he set out his claims for protection in Australia.[28] Shortly afterwards, on 15 December 2011, the applicant attended an interview with a delegate of the Minister,[29] following which the delegate made a decision accepting the applicant’s claims.[30] The delegate’s decision includes some information the applicant gave at the interview on 15 December 2011 concerning his claims of past harm and fear of return to Iraq, eg the information in the paragraph at CB 23.3-23.5. The delegate also stated:[31]
I believe that the claimants have provided consistent accounts of their situation at entry interview, on their written statement of claims and during their POE interviews.
They provided frank and spontaneous responses to questions put to them.
[28] CB 15-18, 125-128
[29] CB 20.6
[30] CB 19-25
[31] CB 21.6
The Tribunal, in its decision dated 19 July 2019, found at [50][32] that the applicant “provided incorrect information in his application when he made his claims of past harm and fear of return to Iraq because he was targeted by Al Dawa Party”.
[32] CB 188
The Tribunal, in arriving at this finding, did not expressly refer to the evidence the applicant gave at the interview on 15 December 2011, or to the delegate’s observation and assessment at CB 22.6 that the applicant “provided frank and spontaneous responses to questions put to” him, which observation and assessment is said to have supported a conclusion that the applicant was telling the truth.
The applicant’s complaint is that the Tribunal failed to have regard to, or did not properly and genuinely consider, this evidence.
Failing to have regard to material
The mere fact that the Tribunal did not expressly refer to particular evidence in its reasons for decision does not necessarily lead to a conclusion that the Tribunal failed to have regard to the evidence. However, where a decision-maker with a statutory obligation to give reasons for a decision, including to “set out the findings on any material questions of fact” and “refer to the evidence or any other material on which the findings of fact were based” fails to do so it may be material.[33]
[33] section 368(1); see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] and Cotterill v Minister and Border Protection (2016) 330 ALR 617 at [100]-[106] and [121]-[123]
Where a decision-maker overlooks or fails to have regard to material or significant evidence or an issue, this is a jurisdictional error, see for example, WAFP v Minister for Immigration and Multicultural and Indigenous Affairs[34] at [21] where the Full Federal Court stated:
However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction
[34] [2003] FCAFC 319
Failing to give proper and genuine consideration to material
Alternatively, the applicant contends that the Tribunal failed to give the evidence referred to above proper and genuine consideration. In relation to a decision-maker’s obligation to give proper and genuine consideration to evidence and issues, in Singh v Minster for Home Affairs[35] at [30] the Full Federal Court stated:
If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
[35] [2019] FCAFC 3
The Full Federal Court added at [36]-[37]:
The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1)First, the degree of consideration which is necessary for the jurisdiction to be exercised … is affected by the centrality of the matter which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
Ground 2 – failure to obtain or consider evidence associated with brother’s claims
The Tribunal at CB 116-117 prepared a summons to produce to the Minister’s Department for the “visa grant file of the applicant’s brother ...”. This is said to have been an appropriate step by the Tribunal, given that the applicant and his brother were the subject of the same decision granting them protection visas and each provided evidence in support of the other.
There are no documents from the brother’s file in the court book.
The summons, although prepared by the Tribunal, is not signed or sealed with a seal of the Tribunal and, based on the materials in the court book, there is no evidence that the summons was served on the Minister’s Department.
In Minister for Immigration and Citizenship v SZIAI[36] at [25] the High Court stated:
The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[36] (2009) 259 ALR 429
The applicant’s complaint is that the Tribunal ought to have taken steps to obtain the brother’s visa grant file from the Minister’s Department, such that its failure to do so involved failure to make an obvious enquiry within the principle in SZIAI.
Whether or not the summons was merely a draft, or issued by the Tribunal but not served on the Minister’s Department, or served on the Minister’s Department but not pressed, it was open to the Tribunal to obtain the brother’s visa grant file from the Minister’s Department, but the Tribunal did not do so.
The applicant submits that obtaining the visa grant file was “an obvious enquiry”. The fact that the Tribunal prepared the summons is said to confirm that the enquiry was obvious.
The brother’s evidence to the Minister’s Department was “critical”, since it corroborated the applicant’s claims for protection and hence corroborated “critical facts”.
The applicant submits that it was easy for the Tribunal to obtain a copy of the brother’s file. The Tribunal knew the Minister’s Department held the file and the Tribunal knew it could issue a summons to produce to the Secretary of the Minister’s Department under s 427 of the Migration Act which would compel the Secretary to produce the file. The file was therefore “easily ascertained”.
The applicant further submits that the Tribunal’s failure to obtain a copy of the brother’s file was material. If the Tribunal had obtained a copy of the file, it may have been persuaded by the brother’s evidence on the brother’s file that the claims by the applicant and his brother were true, in which case “there is a realistic possibility that the Tribunal’s decision may have been different”.[37]
Minister’s contentions
[37] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [48]
Ground 1
The Minister submits that the first particular to the ground misunderstands the Tribunal’s findings. Contrary to the applicant’s contention, the Tribunal did consider the applicant’s “contemporaneous evidence” in his statutory declaration made in December 2011 (which was consistent with his evidence to the delegate at the interview at CB 21 that led to the grant of the visa).[38] The Tribunal’s concern was that the applicant’s oral evidence to the Tribunal significantly differed to that “contemporaneous evidence” which he gave to the delegate.[39] Moreover, the applicant did not offer any explanation for the inconsistencies. The Tribunal considered the effluxion of time but was not satisfied that this factor accounted for the significant inconsistencies in the applicant’s account. As the contemporaneous nature of the applicant’s evidence to the delegate does not account for this inconsistency, this particular is said to necessarily fail.
[38] CB 182 at [15]
[39] CB 183 at [22], 187 at [47]
The Minister submits that the second particular, at its highest, appears to assert the Tribunal should have had regard to the positive credibility finding made by the delegate who granted the visa. However, the Tribunal is not bound by the delegate’s credibility finding, and particularly in circumstances where the Tribunal has additional information before it that was not available to the delegate. It is therefore said to be entirely open to the Tribunal to make its own credibility finding based on the evidence available at the time of its decision. In the present case, the Tribunal made comprehensive adverse credibility findings in relation to the applicant’s claims. Those findings were based on the applicant’s own inconsistent evidence regarding his protection claims, his repeated return to Iraq and his willingness to approach Iraqi authorities, from whom he claimed to fear harm. For these reasons, the Minister contends that the Tribunal’s adverse credibility findings were open to it for the reasons it gave. This is said not to be a case where the Tribunal’s adverse credibility findings were irrational or illogical.[40]
[40] see generally Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
The applicant’s written submission asserts that the Tribunal’s failure to have regard to the positive credibility findings made by the delegate meant that the Tribunal failed to have regard to “relevant material” or give “proper, genuine and realistic consideration” to that material. The Minister submits that for the reasons explained above, the Tribunal was not obliged to have regard to the delegate’s credibility findings in circumstances where the Tribunal relied on the inconsistencies in the applicant’s evidence about his protection claims.
Ground 2
While the Minister accepts that in certain circumstances, it would be a jurisdictional error if the Tribunal fails to make an obvious inquiry about a critical fact, the existence of which is easily ascertainable, he submits that this is not one of those matters.
In written submissions, the applicant asserts that his brother’s evidence was “‘critical’, since it corroborated the applicant’s claims for protection and hence corroborated ‘critical facts’”. On the applicant’s analysis, the alleged “critical fact” is the evidence from the applicant’s brother about the applicant’s protection claims.
It is apparent that the Tribunal did not issue the summons which appears at CB 116-117.[41] However, had that summons been issued, the Tribunal would have obtained the visa grant file of the applicant’s brother’s resident return visa. A copy of those documents are annexed to the Balakrishnan Affidavit.[42] It is clear from those documents that it did not contain any information regarding the applicant’s protection claims.
[41] Affidavit of Ms Balakrishnan affirmed on 12 March 2020 (Balakrishnan Affidavit), Annexure SB-5
[42] Annexure SB-4
The Minister submits that, to the extent that the applicant can be understood as asserting that the Tribunal ought to obtain a copy of the applicant’s brother’s protection visa file, in the circumstances of this case, the Tribunal was not obliged to do so.
The Minister also submits that the Tribunal relied on the inconsistency between the applicant’s statutory declarations and his oral evidence to the Tribunal in relation to his protection claims, in finding that he had fabricated those claims. That inconsistency exists irrespective of the documents on the applicant’s brother’s protection visa file. This is not a case where an applicant’s claims are disbelieved due to a lack of corroborative evidence. In those circumstances, it is said to be apparent that evidence from the applicant’s brother’s file would not be of any assistance to the applicant. As such, there was no “obvious inquiry” to be made by the Tribunal.
Resolution
Ground 1
As noted above, Ground 1 is as follows:
In December 2011 the applicant swore a statutory declaration in which he set out his claims for protection in Australia. Shortly afterwards, the applicant attended an interview with a delegate of the Minister, following which the delegate made a decision accepting the applicant’s claims. The Administrative Appeals Tribunal (“the Tribunal”), in its decision dated 19 July 2019, found at [50] that the applicant “provided incorrect information in his application when he made his claims of past harm and fear of return to Iraq because he was targeted by “Al Dawa Party”. The Tribunal, in arriving at his finding, did not consider, or did not properly and genuinely consider:
a) The applicant's comparatively contemporaneous evidence in his statutory declaration and at interview with the Minister’s delegate; and
b) The fact that the delegate was persuaded by this evidence and the applicant's demeanour at interview that the applicant's claims were true.
Where the Tribunal fails to consider, or properly and genuinely consider, probative evidence in the court of making a significant finding, this is a jurisdictional error.
The applicant complains that at [45][43] the Tribunal makes no mention of the decision to grant the applicant a protection visa. However, as conceded by counsel for the applicant in oral argument, it is apparent from [47] that the Tribunal considered not only the applicant’s original claims for protection but also his oral evidence at interview with the delegate who made the decision. That paragraph is important and hence I reproduce it below:
Firstly, his evidence to the Tribunal about what happened to him in Iraq that led him to depart was inconsistent with the claims made in his protection visa application in material respects. In his protection visa application, he made claims for protection in a Statutory Declaration dated 11 December 2011 and gave oral evidence in an interview with the delegate, providing details of incidents in August 2011 in which his brother and he were threatened and harmed by Shi'ite militias which led them to flee the country. He repeated these claims in a Statutory Declaration dated 28 May 2019 provided to the Tribunal. However when asked about the reasons he left Iraq at the hearing on 5 June 2019, he provided a different account. He referred to himself being threatened first by the Al Dawa people in 2010, and then two days later he was taken away and held for two days. He said his brother had a similar incident in 2009, and was also taken away for 2 days. When the Tribunal invited him to respond to these inconsistencies at the hearing he offered no explanation or clarification, simply responding that the things that happened to him in Iraq were true. While the Tribunal acknowledges the passage of time that has passed since the applicant left Iraq and first made his claims, and that this may have affected his recollection of events, it considers matters such as the order of who was threatened first and whether it was days or years between the threats to him and his brother, are of such material significance that his inability to provide a consistent account leads the Tribunal to have serious doubts about whether he is giving a truthful account. The Tribunal notes a reference to him suffering depression in the Mental Health Plan document submitted, but in the absence of any further evidence of a medical report explaining the nature of the condition and its impact, if any, on, for example, the applicant's memory, it considers the information in this document alone is insufficient to explain the discrepancies in his evidence.
[43] CB 186
The fact that the Tribunal found inconsistencies between the evidence given to it and what the applicant had stated years before would have been cause for concern if the Tribunal had not taken into account the passage of time and the impact on the applicant’s recollection of events. It is also noteworthy that the delegate who conducted the protection obligations evaluation in respect of the applicant in 2012 found the applicant and his brother to have given consistent accounts (presumably both internally and as between one and another).[44]
[44] CB 21
Further, the finding that the applicant had not, or that the Tribunal had doubted whether the applicant was, giving a truthful account to it at the hearing does not carry any necessary implication as to whether the applicant had given a truthful account to the delegate in 2012.
The Tribunal’s findings at [47] should not, however, be considered in isolation. The Tribunal went on to consider other matters at [48] and [49].[45]
[45] CB 187-188
In my opinion, the applicant’s challenge to the Tribunal decision under Ground 1 is not made out. The Tribunal was plainly aware of the earlier material and had regard to at least the applicant’s claims in writing and orally. The reasoning of the protection obligations evaluation delegate in 2012 did not obviously bear upon the Tribunal’s assessment in 2019 that the applicant had provided incorrect information.
I reject the first ground.
Ground 2
As noted above, Ground 2 contends that:
The Tribunal ought to have taken steps to obtain the visa grant file of the applicant’s brother from the Department. Its failure to do so involved failure to make an obvious enquiry within the principle in Minister v SZIAI (2009) 259 ALR 429.
In DRY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[46] at [10]-[12] the Federal Court (Logan J) stated:
It is not, as, with respect, the Minister correctly submitted, either immediately apparent, or apparent at all, how it is that the IPA (including for the avoidance of doubt the record of interview) in 2012 was relevant to the Tribunal’s review. It was not the decision of the delegate who granted the protection visa that was under review by the Tribunal; the granting of that visa was a given. The decision under review was that of a delegate cancelling the protection visa.
This acknowledged, it does appear that in the IPA’s reasons there was recorded answers which had been given in 2012 at the time of interview. However that may be, it was always in the appellant’s interests to advance such reasons as he was disposed and advised as to why it was that the protection visa should not be cancelled. If something was to be made in his favour in terms of statements given to the Independent Protection Assessor or otherwise in 2012 it was for him to make something of them and to furnish the requisite supporting material to the Tribunal.
The core function of the Tribunal was that of review, not inquisition. The absence of the IPA did not, in my view (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, at [18], go to jurisdiction. The Tribunal was not under any obligation to seek out the IPA. All the more so, it was under no such obligation because it was not asked to do that.
[46] [2020] FCA 1465
I reach the same conclusion here. The Tribunal was aware that the applicant and his younger brother claimed protection together and were considered together. The Tribunal was also aware that the applicant’s brother had accompanied him on his second trip to Iraq. It also appears that he stayed away from Australia longer. The Tribunal was aware that the applicant’s brother had been granted a resident return visa to deal with that lengthy absence[47] because the Tribunal had prepared a summons for that file. However, the summons was never acted upon. The documents annexed to the Balakrishnan Affidavit at pages 133-134 indicate that in 2018, consideration had been given to cancelling the applicant’s brother’s visa but that had not been followed through, at least at the time the resident return visa was being dealt with.
[47] CB 116
In my view, if the Tribunal had obtained the applicant’s brother’s protection visa file, it would probably have raised as many questions as it answered. It was not, in my view, an obvious inquiry that may have been determinative. It was for the Tribunal to determine at the time of its decision whether this applicant’s visa should be cancelled, notwithstanding the obviously favourable consideration it had been given to the grant of the visa, both to the applicant and his brother.
I reject the second ground.
CONCLUSION
I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 30 April 2021
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