DOJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1882
•13 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DOJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1882
File number(s): ADG 273 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 13 August 2021 Catchwords: CITIZENSHIP AND MIGRATION – Migration –– Resident Return (subclass 155) visa – cancellation – application for revocation of cancellation – extension of time – dismissed with costs. Legislation: Migration Act 1958 (Cth), ss. 116, 116(1)(d), 116(1AA), 128, 128(a)(i), 128(a)(ii), 128(b), 129, 131, 131(1)(a), , 477(1), 477(2) Cases cited: Ametllari v Minister for Immigration and Border Protection [2015] FCCA 603
BNV15 v Minister for Immigration and Border Protection [2017] FCA 1048
Chhoun v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 198 ALR 500
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
DKX17 v Federal Circuit Court of Australia (2019) 268 FCR 64
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Jess v Scott (1986) 12 FCR 187
Jiang v Minister for Immigration [2018] FCCA 832
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1987) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Singh & Anor v Minister for Immigration [2006] FMCA 1163
SZJRV v Minister for Immigration and Citizenship [2008] FCA 298
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Number of paragraphs: 73 Date of last submission/s: 29 January, 2021 Date of hearing: 29 January, 2021 Place: Brisbane Counsel for the Applicant: Mr Barnes Solicitor for the Applicant: Beena Rezaee Legal and Migration Counsel for the Respondent: Mr Knowles Solicitor for the Respondent: The Australian Government Solicitor
Table of Corrections 18 August, 2021 In the quotation in paragraph 26 the applicant’s initials have been replaced with the court pseudonym. 18 August, 2021 In the quotation in paragraph 51 the applicant’s name and date of birth have been anonymised. ORDERS
ADG 273 of 2020 BETWEEN: DOJ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
13 AUGUST 2021
THE COURT ORDERS THAT:
1.The amended application filed on 13 January, 2021 is dismissed.
2.The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.
REASONS FOR JUDGMENT
JUDGE JARRETT:
The applicant seeks to review two decisions of the respondent namely, a decision made on 29 March, 2019 to cancel his Resident Return (subclass 155) visa and a decision made 19 August, 2019 not to revoke that cancellation. His application is made outside the time limited by s.477(1) of the Migration Act 1958 (Cth) for the purpose of bringing such applications. He seeks an extension of time within which to commence his application pursuant to s.477(2) of the Act.
EXTENSION OF TIME
The respondent neither consents to nor opposes the application for the extension of time. Subsection 477(2) of the Act permits the Court to extend time within which to file an application for judicial review if:
(a)an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The first of these matters is satisfied here. The question is whether it is in the interests of the administration of justice to make the order extending time sought by the applicant and if so, whether the discretion to make such an order should be exercised in favour of the applicant.
The discretion conferred by s.477(2) of the Act is unfettered once enlivened but must be exercised judicially. That requires an identification of the relevant factors that might bear upon the exercise of the discretion and weighing of those factors. This is a different exercise to determining whether it is necessary in the interests of the administration of justice to make an order extending the time within which the application must be commenced, although the two are inextricably connected. The discretion is not to be exercised in favour of an application lightly. The need for time limits to be observed is important: Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470. The longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187.
Ordinarily, the factors relevant to the exercise of the discretion to extend time within which proceedings for review of a decision such as these in issue here might be commenced include:
(a)the extent of the delay;
(b)whether there is a reasonable and adequate explanation for the delay;
(c)whether the substantive application is sufficiently arguable to support the application for an extension of time; and
(d)whether there is any prejudice to the respondents.
The proposed substantive application for judicial review should have such prospects of success so as to not render the extension of time an exercise in futility. Those prospects should be assessed at a relatively impressionistic level.
The delay in this case is considerable. The time period for filing a review application in respect of the decision made on 19 August, 2019 expired on 23 September, 2019. These proceedings were commenced on 12 August, 2020. These proceedings are more than 10 months out of time. I accept the respondent’s submission that the length of the delay here is significant in the context of a legislative intention that, in the ordinary case, proceedings should be commenced within 35 days. A “case would need to be exceptional before the time for commencing proceedings was enlarged by many months”: Re Commonwealth; Ex parte Marks (above) at 473-474 applied in BNV15 v Minister for Immigration and Border Protection [2017] FCA 1048 at [19].
The date the cancellation decision was made was 29 March, 2019. The date the decision was made to refuse to revoke the cancellation was 19 August, 2019. When both decisions were made, the applicant was in Quetta, Pakistan.
The applicant relies upon an affidavit deposed by his solicitor filed with the initial proceeding which swears to the following:
Reasons for Delay in Appealing First Decision
15. I am instructed that sometime in April 2019, the Applicant contacted Hayatullah Rahimi for assistance in responding to the First Decision. He knew Hayatullah Rahimi as a community activist and believed he could assist him.
16. I am instructed the Applicant had also sought Nematullah Kadrie's help in finding representation in Australia as it was difficult for him to organise this whilst in Pakistan.
17. I am instructed the Applicant generally had poor phone and internet connection.
18. I am instructed that Hayatullah Rahimi advised the Applicant he should provide a written response to the First Decision and provide reasons why that decision should be revoked.
19. I am instructed that when the Applicant got into contact with Hayatullah Rahimi, he advised the Applicant that he would find the 'best lawyer' to prepare a response to the First Decision on his behalf.
20. I am instructed that the Applicant and Nematullah Kadrie only ever had dealings with Hayatullah Rahimi.
21. I am instructed that the Applicant was of the belief that Hayatullah Rahimi was a migration agent registered with the Migration Agents Registration Authority (MARA) but that he would find an expert lawyer to represent and prepare the response to the First Decision.
22. I am instructed that the Applicant had asked Hayatullah Rahimi whether he could speak with the 'lawyer' preparing his response to the First Decision as he wanted to give that person instructions.
23. I am instructed Hayatullah Rahimi informed the Applicant those instructions could be given to him and that there was no need to speak with the person preparing his response to the First Decision.
24. I am instructed that the Applicant provided all information for the written response of 7 May 2019 to Hayatullah Rahimi under the belief this information would be passed onto the person preparing the response.
25. I am instructed that at that time, the Applicant did not know the name of the person preparing his response to the First Decision.
26. I am instructed that the invoice for the written response of 7 May 2019 was paid to Hayatullah Rahimi.
Reasons for Delay in Appealing Second Decision
27. I am instructed that after the Second Decision was made, the Applicant received a call from Hayatullah Rahimi informing him the Department had made the decision not to revoke the cancellation of his visa.
28. I am instructed that the Applicant asked Hayatullah Rahimi if there was anything he could do to challenge the Second Decision.
29. I am instructed that Hayatullah Rahimi told the Applicant there was nothing more he could do as he was outside of Australia.
30. I am instructed that sometime after this call, the Applicant received a copy of the Second Decision via email. I am instructed the Applicant does not remember exactly when he received this email and cannot find this email in his inbox.
31. I am instructed that the Applicant believed there were no options for him to appeal the Second Decision because the Second Decision and accompanying Notification of Decision Not to Revoke Visa Cancellation Under Section 131 of the Migration Act 1958 dated 19 August 2019 (Notification of Second Decision) did not state the Second Decision could be appealed.
Now produced and shown to me marked "BR-5" is a copy of the Notification of Second Decision dated 19 August 2019.
32. I am instructed that once the Applicant received a copy of the Second Decision, he learned his response to the First Decision was prepared by someone named Gurpreet Kaur (MARN: 1799542).
33. I am instructed the Applicant never had dealings with Gurpreet Kaur and that all information to be included in the written response of 7 May 2019 was provided to Hayatullah Rahimi.
34. I am instructed the Applicant later learned that Gurpreet Kaur was not a lawyer.
35. On 4 August 2020, I conducted a search of the Victorian Legal Services Register of Lawyers for a legal practitioner by the name 'Gurpreet Kaur'. This search returned no results.
Now produced and shown to me marked "BR-6" is the result of my search of the Victorian Legal Services Register of Lawyers for a legal practitioner by the name 'Gurpreet Kaur'.
36. I am instructed that all migration advice the Applicant received in relation to the First Decision and Second Decision was provided by Hayatullah Rahimi.
37. I am instructed that after the Applicant learned he could not appeal the Second Decision, he believed there was nothing more he could do so he stopped contacting Hayatullah Rahimi.
38. I am instructed that in early July 2020, the Applicant was informed by his cousin, Mohammad Ali Noori, that the Second Decision could be appealed in the Federal Circuit Court of Australia.
39. I am instructed that the Applicant asked Mohammad Ali Noori to organise an appointment with a lawyer who could give him more information about what to do.
40. I am instructed that Mohammad Ali Noori was referred to Beena Rezaee Legal & Migration for assistance.
41. On 17 July 2020, I met with Mohammad Ali Noori who appeared on the Applicant's behalf for a consultation with me at my office located at Unit 33/55 Gawler Place, Adelaide SA 5000.
42. On 30 July 2020, I conducted a search of the Register of Migration Agents (Register) on the MARA website. I searched the Register for the name 'Hayatullah Rahimi' and purported nickname, 'Hayat Rahimi'. I also searched the Register for the business name 'Easyget Visa & Migration Services PTY LTD'. I then searched the Former Agents Register on MARA' s website for the name 'Hayatullah Rahimi' and purported nickname 'Hayat Rahimi'. Unlike the Register search, I was not given the option to search the Former Agents Register by business name.
43. All searches conducted on 30 July 2020 on the MARA website returned no results. Now produced and shown to me marked "BR-7" are the results of the three searches I conducted of the Register and the two searches I conducted of the Former Agents Register on MARA's website 30 July 2020.
Leaving aside that the evidence relied upon by the applicant is not direct evidence and there is no explanation as to why direct evidence from him is not available, this deposition does not explain the delay. What it demonstrates is that in respect of the first decision, the applicant knew that he had rights of response and he took those rights up. He exercised them. Moreover, he made a decision to leave the exercise of those rights in the hands of another person. He knew that his response to the first decision was being prepared by somebody whose name he did not know. That he subsequently found out the identity of the person who prepared his response is not to the point.
The applicant then says that he did not know he had rights of review in respect of the second decision and that he only learned of those rights from his cousin in July, 2020. However, this evidence does not address the email communications between the applicant and respondent’s Department in October, 2019 which culminated with an email from the respondent’s Department to the applicant suggesting that he may wish to consider consulting a migration agent or lawyer. There is no suggestion that he did that. In any event, a lack of legal advice is not, of itself, a sufficient excuse for a failure to lodge an application for review within time: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [35]. Nor will ignorance of the relevant time limits ordinarily justify an extension of time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6].
Prejudice to each of the parties is a relevant factor. The respondent does not assert that he suffers any specific prejudice by the late application beyond the general prejudice to the administration of justice arising by reason of the delay and the injury to the public interest that requires that there be finality in relation to the efficacy of administrative decision making. But the mere absence of prejudice is not sufficient to justify the grant of an extension of time: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86.
The applicant identifies the significance of the consequences of a refusal of an extension of time to prosecute his review application. He asserts and I accept, that he will be deprived of an opportunity to quash a decision of great personal significance to him.
The final matter which is of significance is the prospects of the proposed application for review. These should be assessed at a relatively impressionistic level: DKX17 v Federal Circuit Court of Australia (2019) 268 FCR 64.
To make an assessment of the proposed grounds of review, it is necessary to understand the background against which the applicant now wishes to proceed.
The six grounds of review focus on the propriety of the use by the Minister of his power under s.128 of the Act to cancel a visa, without notice to the visa holder, at a time when the visa holder is not in Australia and where the Minister has available to him powers of cancellation elsewhere in the Act that might be exercised upon notice to the visa holder.
BACKGROUND
The applicant arrived in Australia on 14 April, 2010 as an unlawful maritime arrival for the purposes of the Migration Act. He was first interviewed at Christmas Island on 20 May, 2010 and claimed that he was born in Afghanistan in 1995, is an Afghani citizen and a Hazara Shia Muslim. He claimed that he did not hold any identity documents.
He subsequently made an application for a Protection (Class XA) visa and that was granted on 1 December, 2010.
In January, 2012 an Australian Titre de Voyage was issued to the applicant enabling him to travel overseas and return to Australia. Using that document, the applicant travelled to Pakistan in 2012.
On 17 December, 2014 the applicant applied for Australian citizenship. The application was refused because the respondent’s delegate was not satisfied as to the applicant’s identity. The refusal was the subject of an application to review, it was quashed in the Federal Court and the application for citizenship remitted to the respondent’s Department for further consideration.
On 28 June, 2016 the applicant was granted a Resident Return visa, entitling him to leave and re-enter Australia for indefinite stay within the currency of the visa.
In July, 2016 the applicant again travelled to Pakistan, returning on 12 November, 2016.
In August, 2017, the applicant withdrew his application for citizenship.
On 16 January, 2019 the applicant departed Australia to visit family in Pakistan.
On 29 March, 2019 the respondent cancelled the applicant’s return resident visa. The visa was cancelled under s.128 of the Act while he was offshore.
Prior to this decision, the respondent’s Department carried out two identity assessment reports, the first issued on 18 July, 2016 and the second issued on 27 March, 2018. Each of these reports cast doubt on the information supplied by the applicant as to his identity. The conclusion of the second report was that:
Based on the information available to me, I cannot be satisfied that Mr. [DOJ20] has been truthful about his identity or citizenship. I am not satisfied that Mr. [DOJ20, DOB] has provided the Department with his true identity and I am not satisfied that Mr. [DOJ20] is a citizen of Afghanistan. I therefore find Mr. [DOJ20]’s claimed identity is Not Supported
Based on the reports and the other information referred to in the delegate’s decision, the delegate concluded that the ground for cancellation of the applicant’s visa existed for the purposes of s.128(a)(i) of the Act, namely that s.116(1AA) of the Act was engaged. The respondent’s delegate was not satisfied as to the visa holder’s identity. The visa was cancelled without notice to the applicant.
The delegate considered that it was appropriate to cancel the applicant’s visa without notice because:
(e)the applicant departed Australia on 16 January, 2019 and had not returned;
(f)the applicant was granted a Protection visa based on satisfying the Minister as to his identity. Since the grant of his Protection visa an identity assessment had been completed by a “department identity delegate” who found the applicant’s identity was “not supported” and therefore the delegate was not satisfied as to the applicant’s identity;
(g)the applicant had been given a number of opportunities to establish his identity since his arrival in Australia and had failed to provide any sufficient evidence to do so; and
(h)if the applicant was to return to Australia, he may be refused immigration clearance and removed.
The delegate then considered the exercise of the discretion to cancel, setting out what was considered to be relevant and the weight to be given to those relevant matters. The respondent’s delegate found that he was not satisfied of the applicant’s identity and that the applicant had made inconsistent and contradictory statements regarding his date of birth, nationality, life history, and complete family composition. The delegate had regard, among other things, to earlier findings that the applicant knowingly provided false documents to Australian authorities when he used a fake Afghan license to procure a Victorian drivers licence and that information regarding the date of his wedding and the issue of his family’s Pakistani proof of registration cards was incorrect.
The delegate determined to cancel the applicant’s return residence visa.
On 7 May, 2019 the applicant lodged submissions in response to the cancellation and applied under s.129 of the Act for revocation of the cancellation of his visa. In support of that application, the applicant submitted that:
(i)he had always presented the same identity, namely that he was a citizen of Afghanistan from Qarabagh in Ghazni province. He provided a recently acquired Taskera as proof of this, stating that there was a period “until recently” that the system did not exist in Afghanistan for people to obtain legitimate Taskera;
(j)he was at risk of serious harm as a Shia Hazara if he was forced to return to Afghanistan;
(k)he was at risk of being forced to return to Afghanistan upon expiry of his temporary visa in Pakistan and refusing entry to Australia by cancelling his visa could lead to his refoulement to Afghanistan as a direct consequence. He maintained he has no lawful right to reside in Pakistan as he was only residing there on a temporary visa;
(l)he was gainfully employed in Australia and had strong business and personal links in the Australian community. He and his family would face considerable hardship due to loss of income. He was a person of good character who had contributed to the community; and
(m)he had adequately addressed the delegate’s concerns about the various statements regarding his date of birth, nationality, life history and family composition.
On 19 August, 2019 the respondent, by a different delegate to that who made the cancellation decision, declined to revoke the cancellation. The delegate determined that the applicant had presented conflicting and inconsistent information regarding his identity and that his identity was still not known. The delegate placed little weight on the additional identity documents provided by the applicant because he had previously submitted identity information to the Department on the pretext that it was his true identity. He had only now chosen to reveal the additional information despite having numerous opportunities to do so. The delegate determined that the applicant withheld information regarding his family’s proof of registration cards because it would have indicated his family were not living unlawfully in Pakistan as he had claimed. The delegate thought it significant that the applicant had procured his Victorian drivers licence using false documents and the applicant’s actions in that regard supported the Department’s concerns about the applicant’s identity. The delegate reasoned that if the applicant was genuinely an Afghan national, there would be no need to obtain a license in such a manner.
The delegate noted that there was a discrepancy in the name of the applicant’s father listed on the applicant’s Taskera, which placed further doubt on his identity and the relationship to the person nominated as his father.
The delegate also noted that the second marriage certificate provided by the applicant to support his claims indicated that he submitted a Taskera to register his marriage. The second delegate considered the applicant withheld that Taskera from the Department because it would reveal his true identity and potentially reveal information unfavourable to his claims.
The delegate also thought that the applicant’s explanations about his wife’s family composition lacked credibility and did not address the Department’s findings made earlier about those matters.
The delegate concluded that notwithstanding that a degree of hardship would likely befall the applicant by the refusal of his application and that there would be impacts on his family and connections, the applicant had not been able to satisfactorily refute the analysis made by the Department in the cancellation decision, nor had he provided any satisfactory explanations as to his true identity and the cancellation should not be revoked.
THE PROPOSED GROUNDS OF REVIEW
The applicant proposes to press five grounds of review. The first two relate to the first decision and the remaining grounds relate to the second decision.
Shorn of the particulars, ground 1 is expressed in the following terms:
1. Ground 1: The Minister fell into jurisdictional error by asking the wrong question or applying the wrong test in reaching a state of satisfaction as to whether it was ‘appropriate to cancel’ the Applicant’s visa in accordance with s.128(a)(ii) of the Migration Act.
The particulars to this ground of review suggest a rather different basis to the challenge that the ground itself identifies. The particulars suggest that the respondent’s decision was “illogical/irrational” because the decision maker took into account matters that the applicant argues were of no relevance to and could not be logically connected to the decision to be made.
The applicant argues that the power to cancel a visa pursuant to s.128 of the Act arises where the respondent is satisfied that:
(n)there is a ground for cancelling a visa under s.116: s.128(a)(i);
(o)it is appropriate to cancel in accordance with Subdivision F: s.128(a)(ii); and
(p)the visa holder is outside Australia: s 128(b).
I accept this submission.
Moreover, I accept the submission that once the power is enlivened, the respondent is not obliged to exercise it to cancel a visa. It is the exercise of the discretion to cancel the visa, once the power has been enlivened, to which the applicant’s submissions under this ground are directed. He argues that it was not “appropriate” to cancel the visa because none of the four reasons identified by the respondent’s delegate constitutes a “sufficient reason” for what this Court has described as the “broad and draconian” power under s.128. In advancing that submission, the applicant relies upon Singh & Anor v Minister for Immigration [2006] FMCA 1163 at [99] (footnotes omitted):
Section 128 of the Migration Act, when read with s.118, confers a broad discretion to cancel unfettered by the constraints otherwise imposed upon cancellation decisions by subdivisions of the Act other than subdivision F. The discretion to cancel or not to cancel is available even in circumstances where cancellation would otherwise be mandatory. Further, the opportunity to cancel a visa under subdivision F does not exclude the possibility that it would also be appropriate to cancel under a different subdivision. The obligation under s.128(a)(ii) is to reach a state of satisfaction that the exercise of the broad and draconian power of cancellation so conferred is “appropriate”. It would be an invalid exercise of the power to limit one’s consideration to the fact that the visa holder is outside Australia. That is a separate and necessary criterion for the exercise of the power pursuant to s.128(b). It would be relevant to consider the possibility that the visa holder might seek to re‑enter Australia but a proper consideration of that issue necessitates a consideration of the consequence of that possibility occurring. If the relevant ground relied upon was, for example, the ground in s.116(1)(e) the consequence of a visa holder entering Australia would be obvious. In other cases the consequence may not be obvious and may require express consideration.
As I have set out above, the respondent’s delegate identified four reasons why it was appropriate to cancel the applicant’s visa under s.128 of the Act. The applicant argues that each of the four reasons could “equally be pertinent (assuming they are relevant) to a decision to cancel a visa under subdivision C and in particular s.116(1AA) of the Act. The power to proceed under s.116(1AA) can be exercised whether or not the applicant is in Australia: s.117(2)”. However, whilst I accept this as a general proposition, it is not to the point. That the factors considered by a particular decision-maker as making it appropriate to act under s.128 of the Act might also be relevant to the exercise of a discretion to cancel a visa under another section of the Act does not mean that moving under s.128 of the Act is not appropriate. The delegate’s reasons identify the basis upon which the decision was reached. The reasons do not, in my view, permit of a finding that the findings made by the delegate were illogical or irrational.
The applicant further submits that in considering the “appropriateness” of using the s.128 power, it would not be appropriate to cancel a visa under subdivision F if it would be more appropriate to do so under either subdivision C or D. The applicant submits that the respondent is required to consider the relative merits of proceeding under one subdivision or another. For each of these propositions the applicant relies upon the decision in Singh (above) at [100] (footnotes omitted):
In my view, it would not be “appropriate” to cancel under subdivision F if it would be more “appropriate” to cancel under subdivision C or subdivision D. There was no consideration of the relative merits of cancellation under any division other than subdivision F. Moreover, although the delegate stated that she was “concerned” that there was a possibility that the applicants might attempt to enter Australia if they were given prior notice of any cancellation she did not explain why she was concerned. What harm would result from the applicants’ re-entering Australia? The delegate’s decision is silent. It surely could not be a sufficient basis for the delegate’s concern that the applicants would seek to enjoy the rights available to any holder of a permanent resident visa. Indeed, that right is, in my view, protected by Article 12 of the International Covenant on Civil and Political Rights which provides:
1.Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2.Everyone shall be free to leave any country, including his own.
3.The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4.No one shall be arbitrarily deprived of the right to enter his own country.
These passages have been the subject of criticism. In Ametllari v Minister for Immigration and Border Protection [2015] FCCA 603 at [28]-[33] a differently constituted court said:
28. … Further, it is strictly unnecessary for me to address the decision in Singh. However, in my view, Judge Driver was clearly wrong to find that it could not be “appropriate” to cancel a visa without notice if the only consequence of a failure to do so is that the non-citizen would be able to afford procedural protections afforded by Parliament and a right enjoyed under international law: see [102] of Singh.
29. First, as noted by the Full Court in Cheaib v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 75 FCR 308, the Explanatory Memorandum that accompanied the Migration Reform Bill 1992 which introduced s.128 revealed that the power given under that provision was aimed at visa holders who might respond to a notice by travelling to Australia in the belief that it would be more difficult for the person’s visa to be cancelled and the person removed: item 149 at p.39.
30. Secondly, as s.118(3) makes clear, the various cancellation powers are not limited by or otherwise affected by each other.
31. Thirdly, it is not the case that a person whose visa is cancelled under s.128 is denied procedural fairness. Section 127A provides that subdiv.F (ss.127A – 133) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 129 requires notice to be given of a decision under s.128 that also states that the former visa holder has the opportunity to have the cancellation decision revoked. Section 131 provides the power to revoke the decision after consideration of any response to the notice under s.129. Thus, like the provisions in ss.501(3) and 501C(3), ss.128 - 131 operate together: see Re Patterson; ex parte Taylor (2001) 207 CLR 391 at 453 [190] per Gummow and Hayne JJ. It is a fundamental principle of statutory construction that legislation be read as a whole. Once that is done it is clear that a person whose visa is cancelled under s.128 does have the right to be heard in respect of the loss of his or her entitlement to enter Australia. Thus, there is no draconian consequence that requires a restrictive approach to what may or may not be “appropriate” within the meaning of s.128. Certainly, there is no warrant for reading that word as though it meant “more appropriate”.
32. Fourthly, the international rights to which Judge Driver referred do not support his Honour’s conclusions. The right to freedom of movement expressed in Article 12 of the International Covenant on Civil and Political Rights (“ICCPR”) does not extend to a right to enter Australia. That right or entitlement is, at least in the case of non-citizens (cf. the position of citizens in Article 12(4) and see Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU (2013) 215 FCR 35 at 57 to 63 per Flick J), governed by the visa system. Visas granted under that system are always subject to the power of cancellation. Of course, if his Honour was referring to the right to move around once in Australia, he was correct to link it to the ICCPR. However, as that right must be contingent upon entry into Australia, it has no bearing on the proper construction of the power to cancel visas found in s.128 of the Act.
This criticism is well made. Like Judge Smith in Ametllari, I consider that the observations relied upon by the applicant here in Singh are clearly wrong and should not be followed. The requirement for the respondent to be satisfied that it is appropriate to cancel a visa in accordance with subdivision F is not qualified in the way in which the applicant here suggests or as is suggested by the decision in Singh. There is nothing in the text of s.128(a)(ii) that would support such a construction.
The applicant’s arguments do not demonstrate any jurisdictional error in the respondent’s first decision and an impressionistic level. Whilst this ground cannot be said to be devoid of merit, any merit in the argument is likely to turn out to be illusory upon a proper examination of the ground.
Ground 2 is in the following terms (again shorn of the particulars):
2. Ground 2: The Minister further erred in placing “little weight” in respect of Australia’s protection obligations towards the Applicant, and “no weight” in respect of Australia’s international obligations towards the Applicant.
This ground relates to Australia’s continuing obligations towards a person found to be in need of protection as a refugee or one who will suffer “significant harm” if returned to his/her country of origin. The applicant argues that the reasoning of the respondent is opaque. Rhetorically, the applicant poses the question “Why, it may be asked, did the Minister consider that any weight was to be given to Australia’s protection obligations? Either Australia owed (and still owes) protection obligations towards the applicant, in which case this is a factor of considerable, and potentially decisive, weight, or it does not, in which case no weight should be given.”
However, this ground is devoid of merit. Section 128 of the Act prescribes no matters that the Minister must take into account when exercising the discretion granted by that section to cancel a visa, if the discretion is otherwise enlivened. It is trite that where a statute does not expressly stipulate considerations that must be taken into account, a consideration will only be treated as mandatory where an implication is available from the subject matter, scope and purpose of the legislation in question that the decision-maker is bound to have regard to that consideration: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1987) 162 CLR 24 at 39-40. Generally speaking, it is for the decision-maker to decide what matters are relevant to the exercise of the discretion at hand and the comparative weight to be accorded to matters which he so regards: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Jiang v Minister for Immigration [2018] FCCA 832 at [43]. The respondent was not required to consider Australia’s protection obligations to the applicant or any international obligations in making the decision to cancel. The requirement was not specified in the text of s.128 of the Act and in my view, it does not arise by necessary implication having regard to the subject matter, scope and purpose of that section.
In any event, the respondent’s delegate did consider the fact that the applicant had been granted a protection visa but determined to give that consideration no weight. The respondent’s delegate gave a rational and cogent explanation for that approach. There was a clear connection between, on the one hand the evidence concerning applicant’s identity and the uncertainty that that evidence revealed and, on the other, the previous findings in relation to protection obligations. The respondent’s delegate concluded that the applicant had failed to establish his identity as a person fearing persecution in Afghanistan and that he was in fact trying to conceal his true identity from the Department. The respondent’s delegate said:
In the absence of any identity documents, the Protection visa delegate accepted on face value that the visa holder was [DOJ20], born [xx xxxx 1985], an Afghan citizen from Ghazi, Afghanistan. Based on the identity the visa holder presented, as well as his claims details in his RSA statement regarding fearing persecution in Afghanistan, he was found to be a person who engaged Australia’s protection obligations and was granted a Protection visa on 1 December 2010.
Since the grant of his Protection visa, an identity assessment has been conducted by a departmental identity delegate who concluded that the visa holder presented contradictory information to the Department about his life and identity and therefore his claimed identity is ‘not supported’. The information provided throughout the identity assessment leads me to consider that the visa holder has provided false information which casts considerable doubt on his claimed identity.
I do not consider there are any extenuating circumstances beyond the visa holder’s control that led to the grounds existing, because the visa holder has been given a number of opportunities to establish his identity and has provided inconsistent and contradictory information to the Department, including bogus documents.
I accept the respondent’s submission that implicit in the first delegate’s decision that he could not be satisfied of the applicant’s identity is the finding that the first delegate could not be satisfied that the applicant was a refugee or at real risk of harm if prevented from re-entering Australia. In my view, it necessarily followed from that finding that, logically, no or little weight could be given to Australia’s protection obligations towards the applicant.
As to Australia’s international obligations in relation to non-refoulment, the respondent’s delegate said:
Australia’s international obligations apply to persons within Australia's territory and jurisdiction. As the visa holder is no longer within Australia’s territory or jurisdiction, Australia’s obligations in relation to the visa holder no longer apply
This statement is clearly correct: Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [136]; Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [42]; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [492].
Ground 3 is dependent upon the outcome of the applicant’s challenge to the first decision. Ground 3 can only succeed if the challenges to the first decision or either of them succeed. In my view neither of them have any merit at an impressionistic level. It follows that ground three has no merit either.
The same fate befalls ground 4. It is expressed in the following terms:
The Minister fell into jurisdictional error in failing to consider whether it was still ‘appropriate to cancel’ the Applicant’s visa in accordance with s.128(a)(ii) of the Act as is required by s.131(1)(a) of the Act.
Section 131 is in the following terms:
131 Decision about revocation of cancellation
(1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:
(a) if not satisfied that there was a ground for the cancellation; or
(b) if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
(2) The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.
It will be apparent from the terms of s.131 there is no obligation on the Minister, when considering any response to a notice under s.129 of the Act to consider “whether it was still “appropriate to cancel” the applicant’s visa”. To the extent that this argument suggests that the respondent’s delegate ought to have revisited the earlier determination that it was appropriate to cancel the visa pursuant to s.128 rather than some other provision in the Act, the argument has no merit for the reasons I have given above in relation to the applicant’s challenge to the first decision on this basis. There is no prescription that such a matter must be considered.
However, in Chhoun v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 198 ALR 500 at [54] Mansfield J relevantly said:
…Section 131(1)(b) requires the delegate to then address whether there is another reason why the cancellation should be revoked. That may refer to that element of the initial decision required by s 128(a)(ii), namely that it is appropriate to cancel the visa under s 128 whilst the visa holder is out of Australia, rather than under the procedures prescribed by Subdiv E. Those procedures provide more substantial procedural fairness entitlements to the visa holder before cancellation of the visa. As the power to cancel a visa under s 128 is discretionary, the decision to revoke the cancellation may also have regard to other discretionary considerations, as contemplated by s 131(1)(b). In my judgment, the second decision reflects a ‘rubber stamping’ of the first decision without the consideration which s 131 requires. It is not for me to speculate why an officer of the respondent failed to perform the function required, but I think the failure is clear.
The respondent submits that despite what was said in Chhoun (above) the respondent is not required to reconsider the s.128(a)(ii) requirement in every case. Whether it is relevant will depend upon the facts of each particular case. Where an applicant for revocation raises matters which bear directly on that issue, those matters may have to be addressed by the decision-maker. However, here the issues relevant to s.128(a)(ii) and the first delegate’s decision to proceed pursuant to s.128 formed no part of the representations made to the respondent by the applicant when seeking revocation of the cancellation decision.
In my view, whilst this ground is not devoid of merit, at an impressionistic level the merits are so slight as to consider that it has no real prospect of success.
Ground 5 is in the following terms:
Ground 5. The Minister erred by deciding that grounds for cancellation of the Applicant’s visa existed pursuant to s. 116(1)(d) of the Act.
The applicant argues that it is apparent from the reasons with respect to the revocation decision that the respondent, without any notice at all to the applicant, concluded that there existed power to cancel the visa under s.116(1)(d) of the Act.
The respondent submits that this complaint depends on an unfair reading of the second delegate’s decision. I accept that submission. It is clear that the delegate’s decision was about the ground of cancellation relied upon by the delegate to cancel the visa in March, 2019. The relevant ground was s.116(1AA) of the Act and the delegate determining the revocation application was alive to that. The decision is replete with references to that section. Part C of the second delegate’s reasons deal with “CONSIDERATION OF REVOCATION”. The first paragraph appearing after that heading is in the following terms:
I consider that grounds for cancellation still exist under s128 of Migration Act, relying on grounds at s116(1)(AA) as I am not satisfied as to the former visa holder’s identity.
Thereafter follows a series of paragraphs in which the question of the applicant’s identity in the evidence before the decision-maker is discussed. Two pages later, the delegate concludes:
I find that nothing the former visa holder has provided in his request for revocation has been able to satisfactorily refute the analysis made by the Department in the cancellation decision, nor has he provided any satisfactory explanations as to his true identity.
Having assessed the information provided by the former visa holder in his request for revocation and all other relevant information, I find that grounds for cancellation of the former visa holder’s Resident Return visa exist at section 116(1)(d) of the Migration Act 1958.
In my view the reference to s.116(1)(d) set out above is nothing more than a misdescription of the relevant section and I so find. I do not consider that the second delegate made a finding that grounds for cancellation of the applicant’s visa existed pursuant to s.116(1)(d). Nowhere else in the second delegate’s reasons for decision is there a reference to that subsection. In my view it is more likely than not that what was intended was a reference to s.116(1AA).
In any event, even if that conclusion is wrong, this ground is not available to the applicant because any failure by the second delegate to put the applicant on notice that s.116(1)(d) was in issue was not material. The second delegate’s reliance on s.116(1AA) and the finding that the delegate made (I have set out above) provided a separate and independent basis for arriving at the conclusion that there was a ground for cancellation for the purposes of s.131(1)(a): cf. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [35].
This ground has no merit.
Ground 6 is in the following terms:
6. Ground 6. The Minister erred in concluding that only “little weight” could be given in respect of Australia’s protection obligations towards the Applicant and “no weight” could be given to in Australia’s international obligations towards the Applicant.
This is a repeat of ground 2 agitated in respect of the cancellation decision. The submissions made by the applicant in support of it are the same as those made in respect of ground 2. There is no basis to think that in relation to the revocation decision, this ground has any better prospects of success than it does in respect of the cancellation decision.
CONCLUSIONS
There is a significant delay of many months between the making of the decisions that the applicant now wishes to challenge and the commencement of these proceedings. In my view, the applicant’s evidence concerning the reasons for the delay is unsatisfactory and unconvincing. I find that there is no satisfactory explanation or indeed any explanation at all for that delay.
Further, I am not satisfied that even at an impressionistic level, the grounds of review that the applicant wishes to agitate in respect of either the cancellation decision or the revocation decision have sufficient merit to warrant the grant of an extension of time. I am not satisfied that it is necessary in the interests of the administration of justice to make the order sought by the applicant extending the time within which to commence these proceedings. In reaching that conclusion, I have taken into account prejudice that will flow to the applicant from that refusal.
The application must be dismissed with costs.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 13 August, 2021. Associate:
Dated: 13 August 2021
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