DSM16 v Minister for Immigration
[2018] FCCA 1615
•21 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DSM16 v MINISTER FOR IMMIGRATION | [2018] FCCA 1615 |
| Catchwords: MIGRATION – Judicial review – Application for Safe Haven Enterprise Visa – decision of delegate – refusal of visa – whether applicant satisfied criteria for excluded fast track applicant – whether provision of bogus document – whether delegate erred in interpreting s.5(1)(a)(vi) of the Migration Act 1958 (Cth) – whether failure to comply with s.57(2) of the Migration Act 1958 (Cth) – delegate’s decision affected by error – writs issued. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.15 Pts. 5, 7 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184 |
| Applicant: | DSM16 |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | PEG 596 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing date: | 12 April 2018 |
| Date of Last Submission: | 12 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 21 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondent: | Mr P. MacLiver |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
A writ of certiorari issue quashing the decision of the respondent dated 18 November 2016.
A writ of mandamus issue directed to the respondent requiring it to determine the applicant’s application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 596 of 2016
| DSM16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 6 December 2016, amended on 29 March 2018, the applicant sought judicial review of a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) made on 18 November 2016 to refuse the applicant’s application for a protection visa.
The applicant seeks an order that the decision of the Minister be quashed and a writ of mandamus be directed to the Minister. To succeed in this Court, the applicant must show that the delegate fell into jurisdictional error.
The Court had before it a Court Book (“CB”) numbering 134 pages. The Court also had written submissions from the parties as follows:
a)written submissions from the Minister dated 27 February 2018,
b)written submissions from the applicant dated 29 March 2018; and
c)supplementary written submissions from the Minister dated 11 April 2018.
The applicant was represented by Mr Saul-Janke of Estrin Saul Lawyers. The Minister was represented by Mr MacLiver of Counsel.
The quality of the written and oral submissions in this matter was of a particularly high standard. The Court thanks Mr MacLiver and Mr Saul-Janke for their invaluable assistance both prior to and during the hearing of this matter.
Background
The Court adopts the factual and procedural background outlined at paragraphs 1 – 17 of the Minister’s written submissions dated 27 February 2018 as the procedural and factual background to these proceedings. This background information was not in dispute and is, relevantly, as follows.
The applicant is a citizen of Afghanistan (CB at 14) who arrived in Australia at Christmas Island by boat on 3 February 2013 (CB at 1 and 17). As a result of this entry the applicant was an unlawful non-citizen and unauthorised maritime arrival within the meaning of s.5AA(1) of the Migration Act 1958 (Cth) (the “Act”).
On 12 February 2013, the Department of Immigration and Citizen (the “Department”) received an email attaching (CB at 7-11):
a)scanned copies of two photographs purportedly of the applicant in military uniform whilst working with other military personnel in Kandahar, Afghanistan (the “Photographs”);
b)a Letter of Recommendation for the applicant purportedly from a Commander Joel R Becker, US Army (the “Letter of Recommendation”).
c)a Certificate of Appreciation purportedly awarded to the applicant from the aforementioned Commander Becker, US Army, NATO Training Command, Afghanistan (the “Certificate”); and
d)an untranslated document.
On 15 February 2013, the applicant took part in an Irregular Maritime Arrival Entry Interview with an officer of the Department and an interpreter (CB at 12-26).
In or about February 2016, the Minister exercised his power under s.46A(2) of the Act to allow the applicant to lodge a valid application for a Temporary Protection (Subclass 785) visa, or a Safe Haven Enterprise (Subclass 790) visa (“SHEV”).
By letter dated 24 February 2016 the Department invited the applicant to lodge an application for either of these visas, and advised how an application should be made (CB at 27-32).
By an application dated 3 June 2016 and lodged with the Department by his migration agent, the applicant made an application for a SHEV. The application was supported by a statutory declaration made by the applicant on 3 June 2016, and other documents attached with the application, including the Letter of Recommendation dated 12 February 2013 (CB at 33-83 and 11).
On 12 July 2016, the Department requested that the applicant provide documentary evidence of his identity, nationality or citizenship pursuant to s 91W(1) of the Act.
The applicant’s migration agent provided identification documents for the applicant on 20 July 2016 (CB at 90-95).
On 23 August 2016, the Department invited the applicant to attend a protection visa interview scheduled for 15 September 2016 (“SHEV Interview”).
The applicant attended the SHEV Interview with a Minister’s delegate and his migration agent on that date (CB at 96-100 and 119).
On 19 September 2016, the applicant’s migration agent provided the Department with a correction to the applicant’s SHEV application relating to to the details of his brother’s place of residence. The brother’s residence was changed from “Missing” to “Afghanistan” (CB at 102-103 and 52).
On 18 November 2016, a delegate of the Minister made refused to grant the applicant a SHEV. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) or (aa) of the Act.
The delegate further found that the applicant met the definition of an “excluded fast track review applicant” in s.5(1) of the Act (CB at 117 and 131). In effect, this means that the applicant is only afforded a limited form of review in relation to the decision to refuse to grant him a visa. This is discussed in more detail below.
The applicant was advised by the Department of the delegate’s decision by letter dated 18 November 2016 (CB at 113-116).
On 6 December 2016, the applicant filed an application in this Court seeking review of the delegate’s decision. He contends that the Minister’s EFTRA Assessment was vitiated by jurisdictional error and that the Minister failed to comply with s.57(2) of the Act.
Synopsis
For the reasons set out below, the delegate’s decision refusing the applicant’s application for a protection visa was affected by jurisdictional error in the manner alleged by the applicant in grounds 1 and 2 of his application.
The Court orders that the decision of the Minister be quashed and a writ of mandamus be directed to the Minister requiring the applicant’s SHEV application to be determined according to law.
The Delegate’s decision
Applicant’s Claims
The applicant’s claims for protection within his SHEV application were, in summary, as follows (CB at 119):
a)He fears returning to Afghanistan because he will be persecuted due to his Hazara ethnicity, Muslim Shia religion and his imputed political opinion as someone opposed to the Taliban.
b)In 2011 he was employed by IMA, an American company, as a general helper with maintenance as well as providing an interpreting service at Kandahar Airport. In 2012 he began to receive death threats from the Taliban for working for the Americans. He was accused of being an informant and cooperating with the enemy. In order to retain his job and stay safe he was forced to live at the airport.
c)Prior to this employment, he lived in his home village of Nawzuk (also spelt Nazuk on some maps) in the province of Maidan Wardak (also simply referred to as Wardak Province). Every year the Kuchis would come to Maidan Wardak in the spring and summer, killing innocent Hazaras and setting fire to their belongings. The Kuchis use the Hazara land for their animals to graze on.
d)If he returns to Afghanistan the Taliban will kill him for working for the Americans. If he returns to his village the Kuchis will kill him. The Taliban persecute and kill Hazara people because of their ethnicity and religion. His facial features and name identifies him as a Hazara person and it would only be a matter of time until he was killed or seriously injured.
The delegate considered the Photographs, the Letter of Recommendation and the Certificate as evidence in support of the applicant’s claims.
The delegate also considered that if the applicant were returned to Afghanistan the applicant would be a “Returnee from a Western Country”. The delegate addressed this despite it not being a claim made by the applicant (CB at 120).
Delegate’s Findings
The delegate found that the applicant was a Hazara from Markazi District, Maiden Wardak and a Shia Muslim. The delegate was willing to accept that there have been attacks on Hazaras by the nomadic Kuchis in the applicant’s home region in recent years but did not accept the applicant's claim that his family were personally attacked or had their house burnt down by the Kuchis.
This conclusion was based on the finding that the applicant was not a credible witness overall in conjunction with the fact that the applicant stated in his Arrival interview that he had not been personally attacked by the Kuchis (CB at 121)
In his February 2013 Arrival Interview the applicant stated that his older brother had gone missing approximately four years earlier. The applicant also listed his brother as missing in his SHEV application lodged in June 2016 (CB at 52).
However, in his SHEV Interview on 15 September 2016 the applicant told the interviewer that his missing brother had been found “about a year ago…maybe a year and half”.
It was then put to the applicant that the interviewer would check the applicant’s social media pages after the interview in order to verify his claims.
The subsequent check of the applicant’s relevant social media pages revealed that his brother had been posting online from September 2013-- three years prior to the SHEV Interview.
As a result, the delegate concluded that the applicant had deliberately provided false information to the Department about his brother being missing and was unwilling to accept that his brother had ever been missing.
The delegate was of the opinion that if the applicant returned to Afghanistan and endeavoured to return to his home village, he would face a real chance of persecution from the Taliban and other militant groups on the roads between Kabul and Wardak because he was a returnee from a Western country.
The delegate also noted that, if returned to Afghanistan, the applicant would be returned to the capital city of Kabul. He found that the applicant would not face a real chance of persecution in Kabul as a result of his race or religion. Nor would he face a real chance of serious harm in Kabul for the reason of being a returnee from Australia
During the SHEV Interview the applicant confirmed that the Photographs and the Certificate provided to the Department were bogus documents (CB at 123).
The delegate noted that the Letter of Recommendation contained numerous grammatical mistakes. Nonetheless, the applicant maintained that it was genuine, saying ‘when the letter was given to me I realised there was lot of spelling wrong but it was already given to me’. Despite this, the delegate was not satisfied that the Letter of Recommendation was genuine, saying that it was implausible that a Commander of the US military would defer to a person in the applicant’s position in the manner described in the letter.
The delegate was unwilling to accept that the applicant’s explanation for providing the “bogus documents” was reasonable.
By virtue of providing “bogus documents” without a reasonable explanation, the delegate was satisfied that the applicant met the definition of an “excluded fast track review applicant” in s5(1) of the Act (“EFTRA Assessment”) (CB at 130 – 131).
Based on the fact that the applicant had provided bogus Photographs and a bogus Certificate of Appreciation to the Department, in conjunction with the anomalies contained within the Letter of Recommendation, the delegate found that the applicant was not a credible witness.
Further, the delegate found that, despite the applicant being able to provide some basic information regarding his employment at Kandahar Airport, based on the inconsistencies and fabrication of evidence, and the applicant's lack of credibility overall in relation to his claims, the delegate did not accept that the applicant worked at Kandahar Airport as claimed (CB at 123).
The delegate concluded that the applicant was not a person in respect of whom Australia has protection obligations because he did not satisfy the criteria for the grant of a SHEV under s.36(2)(a) and s.36(2)(aa) of the Act.
The Court’s Jurisdiction - Legislative Framework
The issue of the Court’s jurisdiction to hear this matter was addressed (albeit briefly) in the Minister’s submissions dated 27 February 2018.
A more detailed examination of this issue is a useful starting point as it covers much of the relevant legislative framework relating to this matter.
Section 15 of the Federal Circuit Court of Australia Act 1999 (Cth) (the “FCCA Act”) gives this Court the power, in relation to matters in which it has jurisdiction, to make orders it thinks appropriate.
Section 476(1) of the Act outlines the Court’s jurisdiction in relation to migration decisions as follows:
(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
Relevantly, s.476(2)(a) of the Act limits the Court’s jurisdiction in relation to migration decisions by extinguishing the Court’s jurisdiction to deal with decisions that are “primary decisions”.
Section 476(4) of the Act defines “primary decision” as follows:
(4) In this section:
“primary decision” means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period; or
(c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).
Part 7AA of the Act provides that decisions to refuse to grant protection visas to “fast track review applicants” must generally be referred to the Immigration Assessment Authority. Decisions of this nature which do not rely on s.5H(2); s.36(1B) or (1C) or paragraph 36(2C)(a) or (b) are “fast track decisions”.
As rightly pointed out by Judge Smith in ASF17 v Minister for Immigration [2017] FCCA 2498, a “fast track decision” is not reviewable either under pts.5 or 7 or s.500 of the Act: sub-ss.338(1)(d), 411(2)(c) and s.500(3) (at [5]).
Section 5(1) of the Act defines “fast track review applicant” to mean a “fast track applicant” who is not an “excluded fast track review applicant”.
Section 5(1) of the Act defines a “fast track applicant” as a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
…
It is not in dispute that the applicant is unauthorised maritime arrival within the meaning of s.5AA(1) of the Act. It is also undisputed that the Minister exercised the power under s.46A(2) of the Act allowing the applicant to lodge an application for a protection visa, which he did on 3 June 2016. The applicant therefore satisfies the criteria for a “fast track applicant” under s.5(1) of the Act.
Section 473BB of the Act defines “fast track reviewable decision” as a “fast track decision” in relation to a “fast track review applicant”.
Section 473CA of the Act provides that the Minister must refer a “fast track reviewable decision” to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.
However, as is relevant to this matter, “fast track review applicant” means a “fast track applicant” who is not an “excluded fast track review applicant”: s.5(1) of the Act.
The delegate of the Minister’s EFTRA Assessment of the applicant turned on s.5(1)(a)(vi) of the Act. Relevantly, s.5(1)(a)(vi) defines an “excluded fast track review applicant” as follows:
“excluded fast track review applicant” means a fast track applicant:
(a) who, in the opinion of the Minister:
…
(vi)without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or
A “bogus document” is defined by s.5 of the Act as follows:
“bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
As a result of an EFTRA Assessment a Ministerial delegate concluded that the applicant was not a “fast track review applicant” because, despite being a “fast track applicant” within the meaning of the Act, he was also an “excluded fast track review applicant” by virtue of him providing “bogus documents”.
The delegate’s conclusion that the applicant was an “excluded fast track review applicant” means that the decision by the delegate was not a “fast track reviewable decision”. Therefore, it did not fall within s.473CA of the Act and was not referred to the IAA under pt.7AA of the Act.
Accordingly, the delegate’s decision was not a “primary decision” and is a decision that this Court has jurisdiction to review.
Having addressed this issue the Court must whether the decision of the delegate affected by jurisdictional error.
Judicial Review Application
The applicant relies on two grounds of review in support of his Amended Application.
The applicant’s first ground of review is that the Minister’s EFTRA Assessment was vitiated by jurisdictional error. The applicant particularised this ground of review as follows:
a. In conducting the EFTRA Assessment, the Respondent found that, without a reasonable explanation, the ‘applicant has provided bogus documents’ namely, ‘photographs of himself in military uniform as support for his claim that he previously worked at Kandahar Airforce Base, as well as a Certificate of Appreciation purportedly awarded to the applicant for undertaking the aforementioned employment’: CB 130[4]. No documents other than the photographs and Certificate of Appreciation were identified as ‘bogus documents’ in the EFTRA Assessment: CB 130-131.
b. Neither the photographs nor the Certificate of Appreciation were provided, given or presented to an officer of the Department or the Minister in support of the Applicant’s protection visa application.
c. As a result, the jurisdictional fact that the photographs and Certificate of Appreciation are ‘bogus documents’ that were provided, given or presented by the Applicant in support of his application did not exist.
The applicant’s second ground of review is that the Minister failed to comply with s.57(2) of the Act, which he particularised as follows:
a. Following the conclusion of the Respondent’s interview with the Applicant, the Respondent conducted a further search on social media internet websites and obtained a social media post purportedly made by the Applicant’s brother in September 2013: CB122[1].
b. The Respondent did not give particulars of the September 2013 social media post to the Applicant or invite him to comment on it in accordance with s 57(2) of the Act.
The application was supported by an affidavit by the applicant sworn on 6 December 2016 which annexed a copy of the delegate’s decision record.
The applicant also filed an affidavit sworn by Zemyna Louise Kuliiukas on 28 March 2018 annexing a transcript of the recording of the applicant’s SHEV interview which took place on 15 September 2016 (“Annexure ZLK1”).
The Court will address each of the applicant’s grounds in turn below.
Consideration
Ground 1
In relation to ground 1, the Court must determine whether the Minister’s EFTRA Assessment was affected by jurisdictional error.
The key issue to be determined in relation to this ground is whether the “bogus documents” can be said to have been provided “in support of” the applicant’s SHEV application. A relevant factor in relation to this consideration is the temporality between the provision of the “bogus documents” and the timing of the applicant’s SHEV application.
The applicant submitted in his written submissions to this Court that the Photographs and Certificate of Appreciation (the admitted “bogus documents”) did not form part of his SHEV application. The applicant drew the Court’s attention to the fact that the Photographs and Certificate of Appreciation were provided to the Department three years before his SHEV application.
The applicant argued that in order for the applicant to be captured by the definition of “excluded fast track applicant” he would need to have already attained the status of a “fast track applicant” when he provided these “bogus documents”.
On this point, the applicant relied on the Full Court of the Federal Court’s examination of s.91WA of the Act in BGM16 v Minister for Immigration and Border Protection [2017] FCAFA 72 (BGM16).
In relation to the approach taken in BGM16, the applicant submitted as follows:
25.Section 91WA(1) prescribes that the ‘Minister must refuse to grant a protection visa to an applicant for a protection visa if’:
(a) the applicant provides a bogus document as evidence of the applicant's identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant's identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
26.Section 91WA(2) provides an exception in circumstances where the Minister is satisfied that an applicant has ‘a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence’ and that the applicant has either provided evidence of identity, nationality or citizenship, or has taken reasonable steps to do so.
27.Finally, s.91WA(3) prescribes that an applicant ‘provides’ a document if the person ‘provides, gives or presents the document or causes the document to be provided, given or presented’.
28.In BGM16, the appellant provided a bogus document (i.e. a false passport) upon entering Australia, in two subsequent visitor visa applications and as part of a student visa application, but not as part of the protection visa application. The Administrative Appeals Tribunal (AAT) had found that s.91WA(1) of the Act applied to the appellant and that the grant of the visa was prevented by s.91WA of the Act.
29.However, the Full Court of the Federal Court rejected the AAT’s interpretation of s.91WA. Mortimer and Wigney JJ (Siopis J agreeing) found at [78] that ‘the person whose conduct is the subject matter of the provision must be an applicant for a protection visa’ and that the ‘provision contemplates the person will have that status when she or he “provides” the bogus document’.
30.Similarly, the text of the definition of ‘excluded fast track review applicant’ in s.5(1)(a)(vi) of the Act contemplates the person will have the status of being a ‘fast track applicant’ when she or he ‘provides’ the ‘bogus document’.
31.Section 5(1) of the Act defines a ‘fast track applicant’ as follows:
“fast track applicant” means:
(a) a person:
(i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii) who has made a valid application for a protection visa in accordance with the determination; or
(b)a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).
32.None of classes of persons specified by legislative instrument made under paragraph (1AA)(b) of the Act relate to the Applicant.
33.Therefore, the Applicant only attainted the status of ‘fast track applicant’ upon lodgement of his SHEV application on 16 June 2016.
34.In light of BGM16, in order to be captured by the definition of ‘excluded fast track review applicant’, an applicant must hold the status of ‘fast track applicant’ at the time she or he ‘provides’ the ‘bogus document’.
…
36.This approach is also supported by the observation of Mortimer and Wigney JJ (Siopis J agreeing) at [79] and [80] in BGM16 that ‘the verb “provides” in s.91WA in the present tense has significance’ and that ‘the text is referring to conduct that does not occur at one particular point in time’ but that it is ‘referring to conduct that occurs, or might occur, over a certain period of time and in conjunction or contemporaneously with another event: namely, the protection visa application and decision-making process.’
37.Similarly, the use of the present tense verbs ‘provides, gives or presents’ and ‘causes such a document to be so provided, given or presented’ in the definition of ‘excluded fast track review applicant’ imposes the same temporal limit described in BGM16 at [81]: ‘the temporal limit is that the provision must occur during or in connection with an application for a protection visa.’
38.Finally, in BGM16, Mortimer and Wigney JJ (Siopis J agreeing) rejected at [104] the Minister’s submission ‘that the appellant’s stated intention about his earlier visa application (that is, in applying for the earlier visas he had been seeking “protection”) somehow brings him within s 91WA’:
… the scope of s 91WA does not on any view extend to the provision of bogus documents on any visa application where a person seeks “protection”, as that word is used colloquially. The Minister’s submission conflates the appellant’s description of his motivation on first entry with the making of a claim for a protection visa under the Act. Entry on a student visa might “protect” a person, or at least a person might think it is capable of doing so. Section 91WA is not directed to such a situation. Its scope concerns what occurs during the process of making a protection visa application under the Act. There is no basis for dismissing the appeal because of the use by the appellant in his evidence before the Tribunal of the word “protection”. This submission is without merit.
The Minister, in turn, submitted that the circumstances in BGM16 are distinguishable from those applicable to this matter. Relevantly, the Minister submitted in his outline of submissions dated 27 February 2018:
32.… Although the photographs and Certificate of appreciation were provided to the Department prior to the applicant’s Safe Haven visa application, they were provided to support his claim that he had worked for the United States Army at Kandahar airport, and it was this employment that provided one of the bases of his claims for protection. These were not documents that were provided in conjunction with applications for an entirely different class of visa, as was the case with the appellant in BGM16: see Mortimer and Wigney JJ at [104].
33.In his Biodata interview shortly prior to providing the bogus photographs and bogus Certificate of appreciation, the applicant had stated that he had worked as an interpreter for the American Army at Kandahar airport, and had been targeted by the Taliban during 2011-2012 and forced to quit the job due to fear for his life. He further stated that he could not be taken to a Regional Processing Centre as due to his work as an interpreter for the American Army, he believed that he would be assessed as quickly as possible and found to be a refugee because of persecution by the Taliban. Accordingly, the photos and Certificate were provided in conjunction with the subsequent Safe Haven visa application as they were provided by the applicant to support the same factual claim (his work as an interpreter for the United States Army) that was the basis for one of the claims for protection that he made in his Safe Haven visa application.
Counsel for the Minister expanded on this point during the proceedings arguing that the applicant’s preliminary protection claims (CB at 3) (identical to the claims which form the bases of his SHEV application) were that he feared persecution from the Taliban by reason of having worked at the Kandahar Airport for the United States armed forces -claims he supported using the “bogus documents”.
Counsel for the Minister explained that these claims laid the foundation for the applicant’s SHEV application and that the applicant does not get to the ‘first base’ of making a SHEV application or the Minister exercising his power under s.46A(2) of the Act unless he first makes those preliminary protection claims.
Counsel for the Minister explained that because the “bogus documents” were used to support the applicant’s preliminary protection claims and these claims were necessary to initiate the preparatory procedures for a SHEV application (and ultimately formed the bases for such an application), they had been used “in support of” the applicant’s subsequent SHEV application.
Timing
It is not in dispute that the Photographs and Certificate (the “bogus documents”) were provided to the Minister well before the applicant’s application for a SHEV(CB at 7-11).
Both s.91WA(1)(a) and s.5(1)(a)(vi) of the Act refer to circumstances where an applicant “provides” a “bogus document”.
In this regard, the Court notes the Full Court’s findings in BGM16 and rejects the Minister’s submission that BGM16 is distinguishable in this matter.
In particular, the Court notes the following comments made by Mortimer J and Wigney J in BGM16 (at [78] and [104]) as follows:
78.The first is that, read with the chapeau to sub-s (1), where s 91WA(1)(a) refers to “the applicant provides”, it obviously means “the applicant for a protection visa provides”. That is, just as with s 91W, the person whose conduct is the subject matter of the provision must be an applicant for a protection visa. The provision contemplates the person will have that status when she or he “provides” the bogus document.
…
104.Finally, we reject the Minister’s submission that the appellant’s stated intention about his earlier visa application (that is, in applying for the earlier visas he had been seeking “protection”) somehow brings him within s 91WA. Accepting the Tribunal’s reasons indicate the appellant made such statements, the scope of s 91WA does not on any view extend to the provision of bogus documents on any visa application where a person seeks “protection”, as that word is used colloquially. The Minister’s submission conflates the appellant’s description of his motivation on first entry with the making of a claim for a protection visa under the Act. Entry on a student visa might “protect” a person, or at least a person might think it is capable of doing so. Section 91WA is not directed to such a situation. Its scope concerns what occurs during the process of making a protection visa application under the Act. There is no basis for dismissing the appeal because of the use by the appellant in his evidence before the Tribunal of the word “protection”. This submission is without merit.
(emphasis added)
Mortimer J and Wigney J then discussed the use of the word “provides” in s.91WA(1), (2) and (3) of the Act (at [79]-[81]). Their Honours noted that the text uses the present tense to signify contemporaneity with the process in which the conduct occurs – that is, the protection visa process (at [80]). Their Honours concluded by saying (at [81]) that the use of the present tense in this way imposes a temporal limit that the provision must occur during or in connection with an application for a protection visa.
A literal reading of s.5(1)(a)(vi) of the Act suggests that a person must “provide” a “bogus document” after they have made a valid application for a protection visa. In this case, the applicant provided the Photographs and Certificate almost 3 years before he made an application for a SHEV.
The Court agrees with the applicant’s submission that the definition of “excluded fast track review applicant” provided by s.5(1)(a)(vi) of the Act contemplates that the person will have already attained the status of a “fast track applicant” when they “provide” a “bogus document”. This reading of the s.5(1)(a)(vi) of the Act is consistent with the findings in BGM16 (albeit in relation to s.91WA) that the scope of the section concerns what occurs during the process of making a protection visa application under the Act.
The Court is of the opinion that applicant’s provision of the Photographs and the Certificate falls outside the temporal connection established by BGM16.
‘In support of’
Further, s.5(1)(a)(vi) of the Act contemplates that the provision of the “bogus documents” will be “in support of” an applicant’s application.
The Court disagrees with counsel for the Minister’s argument that the provision of these “bogus documents” ultimately laid the ground work for the applicant’s SHEV application and (as such) they were used in support of that application.
It is not in dispute that the applicant did not submit the Photographs and Certificate with his SHEV application or seek to rely on them in support. Indeed, when it was put to him during his SHEV application interview that these documents were bogus the applicant freely admitted that this was the case (Annexure ZLK1 pp.16-17).
The Court prefers the applicant’s submission (at [39] of his written submissions) that the provision of the Photographs and Certificate in support of his initial protection claims is not captured by the scope of the “excluded fast track review applicant” definition because to do so would conflate the applicant’s description of his motivation on first entry with the making of a claim for a protection visa under the Act (BGM16 at [104]).
Having regard to the above, the Court is of the opinion that the delegate erred in in his construction of the scope and operation of s.5(1)(a)(vi) of the Act. The applicant did not “provide” the Photographs and Certificate “in support of” his SHEV application.
In the circumstances, the conclusions in the EFTRA Assessment that the applicant is an “excluded fast track review applicant” would be affected by jurisdictional error if it was only based on the purported provision of the Photographs and Certificate. This is because the delegate would have made a finding that was not open on the material before him.
Letter of Recommendation
The Minister broadly argued that even if the Photographs and Certificate were not “bogus documents” within the meaning of the Act, the Letter of Recommendation that the applicant did submit in support of his SHEV application was a “bogus document” so that the conclusions in the EFTRA Assessment were still open to him.
In his reasons for decision the delegate concluded that the Letter of Recommendation was not “genuine” (CB at 121, [1]):
“Based on the fact that the applicant has provided bogus photographs and a bogus Certificate of Appreciation to the Department, in conjunction with the aforementioned anomalies contained within the purported Letter of Recommendation, I do not accept that the purported Letter of Recommendation, also from Commander Becker, is genuine. I find it implausible that a Commander of the US military would defer to a person in the applicants position, in the manner described in the letter.”
It was put to the applicant at the SHEV interview that the delegate did not accept that the Letter of Recommendation was “genuine”. The applicant did not furnish the delegate with an explanation for the Letter of Recommendation other than to confirm its authenticity (Annexure ZLK1, p.17).
Counsel for the Minister submitted that the fact the delegate did not expressly find that the Letter of Recommendation was a “bogus document” was irrelevant given that it was clear from the delegate’s reasons that he reasonably suspected that the Letter of Recommendation purported to have been issued to the applicant was not genuine and therefore not actually issued to him.
However, as counsel for the applicant rightly pointed out, the delegate did not expressly touch upon the Letter of Recommendation in the EFTRA Assessment. Nor did he expressly make an assessment of whether it met the definition of a “bogus document” under s.5(1) of the Act.
In relation to the delegate’s failure to expressly touch upon the Letter of Recommendation in the EFTRA Assessment the Court notes the comments made by the High Court in ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (“WAEE”) that the inference that the decision maker has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons (at [47]).
Further, in Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162, French J stressed that what the Courts are looking for in a statement of reasons is “a statement of the real findings and the real reasons”.
The Court notes the Minister’s argument that it should be inferred from the whole of the delegate’s reasons, not just the reasons for the EFTRA Assessment, that the delegate considered the Letter of Recommendation was a “bogus document”. However, the Court disagrees with the proposition as put.
The Court is not satisfied, on the material before it, that the delegate actually turned his mind to whether the Letter of Recommendation was in fact a “bogus document” within the meaning of the Act. The effect of providing “bogus documents” in support of a protection visa application is that the applicant is denied later merits review of that application. The Court is of the opinion that where the consequences for an applicant are so dire, the considerations which result in an applicant being considered an “excluded fast track review applicant” should be clear and unequivocal. In this case they are not.
The Court is not willing to infer that because the delegate found that the Letter of Recommendation was not “genuine” that he applied the test provided for by s.5(1)(a)(vi) of the Act so as to invite a conclusion that the Letter of Recommendation was in fact a “bogus document”.
The Court agrees with the applicant’s submission that the Letter of Recommendation formed no part of the delegate’s consideration in the EFTRA Assessment and that the EFTRA Assessment was limited to the Photographs and Certificate. This conclusion is supported by the EFTRA Assessment reasons (CB at 130) where the delegate states:
The applicant has provided bogus documents to the Department. On 12 February 2013 he provided photographs of himself in military uniform as support for his claim that he previously worked at Kandahar Airforce Base, as well as a Certificate of Appreciation purportedly awarded to the applicant for undertaking the aforementioned employment. The applicant admitted during the SHEV interview that these documents were bogus. (emphasis added)
The delegate references documents that the applicant admitted were “bogus”. There is a strong inference that he is only referring to the Photographs and the Certificate. This is because the applicant did not at any stage admit the Letter of Recommendation was “bogus”. Therefore, the Letter of Recommendation does not belong to the class of admittedly bogus documents to which the delegate referred.
Further, the delegate specifically turned his mind to the issue of “bogus documents” as part of the EFTRA Assessment but at no point did he reference the Letter of Recommendation as part of that Assessment. The Court finds that because the delegate expressly applied the “bogus document” test (as part of the EFTRA Assessment), the omission of the Letter or Recommendation suggests that the delegate either omitted it intentionally or did not consider it all: (WAEE at [47]).
The Court finds that the conclusion in the EFTRA Assessment that the applicant met the definition of an “excluded fast track review applicant” under s.5(1)(a)(vi) of the Act was based solely on the provision of the Photographs and the Certificate and did not include a consideration of the Letter of Recommendation.
Jurisdictional error
Having regard to the findings above, the Court must now determine whether the delegate’s conclusion that the applicant met the definition of an “excluded fast track review applicant” under s.5(1)(a)(vi) of the Act was affected by jurisdictional error.
Unfortunately, the applicant did not guide the Court on the issue of jurisdictional error; in particular, what species of error they say befell the delegate’s decision.
Jurisdictional error can occur in circumstances where a decision is “illogical or “irrational” or “unreasonable”: Minister for Immigration v SZMDS (2010) 240 CLR 61 (SZMDS) at [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26] – [28]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44].
In SZMDS, Crennan and Bell JJ set out the test for irrationality or illogicality at [131] as follows:
the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Crennan and Bell JJ added at [135] that:
A decision might be said to be illogical or irrational… if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The definition of “excluded fast track review applicant” refers to the “opinion” of the Minister. On this point, the Court notes the following comments made by the High Court in SZMDS:
[23]…the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms “arbitrary, capricious, irrational” as well as “not bona fide” to stigmatise the formation of an opinion upon which a statutory power was enlivened. Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open.
[24] A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact.
…
[120] An erroneously determined jurisdictional fact may give rise to jurisdictional error.
(footnotes omitted)
As noted above, the Court is satisfied that in forming the “opinion” that the delegate had provided “bogus documents” the delegate relied solely on the Photographs and the Certificate.
For the reasons outlined above, the Court is of the opinion that s.5(1)(a)(vi) of the Act applies only if the bogus documents are provided as part of, or in connection with, the protection visa application, and not if, at any time a bogus document is provided by a person who then applies for a protection visa: BGM16 at [8], [13] and [14]. The Court finds that the delegate erred in his application of s.5(1)(a)(vi) of the Act in a manner analogous to the findings made in BGM16 when he applied that section to the Photographs and Certificate.
Further, and as a consequence of this finding, the Photographs and the Certificate were not “bogus documents” for the purposes of s.5(1)(a)(vi) of the Act. Given that they were the only documents relied upon as part of the EFTRA Assessment, the delegate’s decision that the applicant met the definition of an “excluded fast track review applicant” was irrational because it was simply not open to the delegate on the evidence.
Accordingly, the Court finds that the EFTRA Assessment was affected by jurisdictional error.
Ground 2
During the SHEV Interview the delegate questioned the applicant about his missing brother. The applicant stated that his brother was missing at the time of his Irregular Maritime Arrival Entry Interview but was found about a year before the SHEV Interview. The applicant said he did not want to complicate matters by advising the Department that his brother had subsequently been found so he kept this information to himself (Annexure ALK, p.19)
In response, the delegate advised the applicant that he would seek to verify this claim, saying:
…I will check when I go upstairs, that’s all, if I see he’s posting on his [social media] page for the past 4 or 5 years it’s clear he’s not missing, so I’m just giving you that chance now.
Following the SHEV Interview the delegate conducted a further search on social media internet websites and obtained a social media post purportedly made by the applicant’s brother in September 2013.
The delegate did not provide the particulars of that post to the applicant or invite him to comment on it.
Section 57 of the Act requires certain information to be given to the applicant. Section 57(2) of the Act provides that the Minister must:
a)give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
c)invite the applicant to comment on it.
Section 57(1) of the Act defines, “relevant information” as meaning information (other than non-disclosable information) that the Minister considers:
a)would be the reason, or part of the reason:
i)for refusing to grant a visa; or
ii)for deciding that the applicant is an excluded fast track review applicant; and
b)is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
c)was not given by the applicant for the purpose of the application.
Section 57 of the Act is an exhaustive statement of the natural justice hearing rule in relation to onshore applicants and what information they are entitled to receive and be invited to comment upon: see s.51A and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252.
In support of Ground 2 the applicant broadly submitted that the September 2013 social media post formed part of the adverse credibility finding because it provided a basis for the delegate to find that the Applicant had not been truthful about aspects of his evidence, which cast doubt on the credibility of his claims overall.
It was further submitted that this adverse overall credibility finding led to the delegate finding that no protection obligations were owed to the applicant. Accordingly, the September 2013 social media post was therefore “relevant information” and the delegate failed to comply with s.57(2) of the Act when he did not give particulars of the September 2013 social media post to the Applicant or invite him to comment on it.
Conversely, counsel for the Minister argued (in summary) that the information about the September 2013 social media post was clearly not information which the delegate considered would be the reason, or part of the reason, for deciding that the applicant is an “excluded fast track review applicant” or for refusing to grant the applicant a SHEV.
On this basis, counsel for the Minister submitted that the information about the September 2013 social media post did not constitute “relevant information” and because of this the delegate was not required to give particulars of the post to the applicant or invite him to comment on it in accordance with s.57(2) of the Act.
In relation to whether the information in question meets the condition under s.57(1)(a) of the Act that it “would be the reason, or part of the reason … for refusing to grant a visa”, it has been held by the High Court in respect of a materially identical provision, “is to be determined in advance -- and independently -- of the [Minister’s] particular reasoning on the facts of the case”: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17].
The High Court has also stressed (in respect of a provision which mirrors s.57 of the Act) that the information “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant’s claim”: Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 (SZLFX) at [22], [25].
The key issue in relation to Ground 2 is whether the September 2013 social media post was “relevant information” so as to require the delegate to give the applicant the particulars of that post or invite him to comment on it in accordance with s 57(2) of the Act.
This will ultimately depend on what the delegate’s reasons were for refusing the SHEV application.
The applicant argues that a series of adverse findings were premised on information which the applicant had no opportunity to comment on and that those findings were integral to the delegate’s reasons for rejecting the applicant’s claim that he did worked at the Kandahar airport and was aligned with a western force.
In determining whether the September 2013 social media post was “relevant information” the Court has had regard to the delegate’s reasons for decision and the findings made in relation to any protection obligations owed to the applicant (CB at 123 -126 and 127 -129).
It is clear from the delegate’s reasons for decision (CB at 121) that the finding that “the applicant is not a credible witness overall”, was based on the credibility concerns in relation to evidence that included the September 2013 social media post.
While the Court notes that the September 2013 social media post was only a component of the adverse credibility finding, that adverse credibility finding arguably had the effect of undermining the applicant’s claims that he worked at the Kandahar airport for the US Military.
As a result, the applicant was not afforded the benefit of being considered an applicant who had worked for the US Military, a finding which would have affected the delegate’s consideration in relation to whether he could relocate to Kabul if returned to Afghanistan.
The Court finds that the information gleaned from the September 2013 social media post satisfies the condition provided for by s.57(1)(a) of the Act.
The September 2013 social media post also satisfies the second and third requirements of “relevant information” under s.57(1) of the Act because it is specifically about the applicant or another person (s.57(1)(b)) and was not given by the applicant for the purpose of the application (s.57(1)(c)).
Having regard to the above, the Court is satisfied that the information gleaned from the September 2013 social media post meets the criteria of “relevant information” under s.57(1) of the Act.
The Court finds that the delegate contravened s.57(2) of the Act when he failed to give particulars of the September 2013 social media post to the applicant or invite him to comment on it. As a result, he failed to afford the applicant procedural fairness as described in Kioa v West (1985) 159 CLR 550 and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22.
In the circumstances, the Ministerial delegate’s decision to refuse the applicant’s application for a protection visa was affected by jurisdictional error in the manner alleged by the applicant in Ground 2 of his application.
Conclusion
For the reasons outlined above, the Court orders that the decision of the Minister be quashed and a writ of mandamus be directed to the Minister, requiring the applicant’s SHEV application be determined according to law.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 21 June 2018
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