DTW17 v Minister for Immigration
[2019] FCCA 512
•5 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTW17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 512 |
| Catchwords: MIGRATION – Application for review of a decision of the Immigration Assessment Authority – protection visa – notice of intention to consider cancellation – power to cancel visa discretionary – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.107, 109, 424A, 427 |
| Cases cited: Ali v Minister for Immigration and Border Protection [2018] FCA 650 |
| Applicant: | DTW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1832 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 8 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 5 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Mr Grant |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1832 of 2017
| DTW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an amended application, dated 18 January 2019, wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 19 July 2017 which affirmed a decision of a delegate of the Minister for Immigration and Border Protection (‘the delegate’) dated 19 October 2016 to cancel the Applicant’s subclass 866 protection visa (‘the visa’), granted 26 November 2012, under s.109(1) of the Migration Act 1958 (Cth) (‘the Act’).
Section 109(1) of the Act is as follows:-
“Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.”
The Applicant alleges that the Tribunal fell into jurisdictional error on three grounds:-
“1. The Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) in that it did not give to the Applicant clear particulars of the previous positive protection visa decision.
2. The Tribunal unreasonably failed to call a corroborative witness, in circumstances where that witness may have given material evidence on the provenance of the passport.
3. The Tribunal failed to consider a legal consequences of its actions, being the possibility of indefinite administrative detention.”
Section 424A of the Act is as follows:-
“Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention— by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”
The First Respondent submits no jurisdictional error attends the decision of the Tribunal and that the application should be dismissed with costs.
The Court has before it the evidence as contained in the Court Book and Amended Supplementary Court Book; an affidavit affirmed by Ms Catherine Jane Farrell on 30 January 2019, to which is annexed a true copy of the transcript of the Tribunal hearing; and the written submissions of each of the parties.
Background
The background leading up to the Tribunal decision is as stated in the First Respondent’s submissions. Those submissions set out succinctly the relevant material as contained in the evidence before the Court and there is no dispute as to this background history. It is useful contextual material and so is set out below:-
“On 14 November 2011, the applicant arrived in Australia as an Irregular Maritime Arrival, claiming to be a stateless Faili Kurd born in Iran. During his entry interview he claimed that he was stateless, he did not have any identity documents or a birth certificate, that he had departed Iran on a fraudulently procured passport, and that if returned to Iran he would be persecuted as a Kurd. On 1 November 2012, the applicant applied for the Visa. He maintained that he had never held a valid passport, and had been disadvantaged in Iran as an undocumented Faili Kurd. On 26 November 2012, the applicant was granted the Visa on the basis that the applicant had a well-founded fear of persecution in Iran as a member of a particular social group constituted by unregistered or undocumented people living in Iran.
On 15 August 2013, the applicant departed Australia on an Australian issued Titre De Voyage, and returned to Australia on 30 September 2013. On his outgoing and incoming passenger cards he indicated that the country in which he would, and did, spend most of his time abroad was Iran. On his return the applicant was found to be in possession of an Iranian passport issued in his name by the Iranian Embassy in Canberra on 25 June 2013, and which detailed an Iranian National ID Number, a birth certificate number, and that the applicant had last departed Iran on 3 October 2011.
On 28 January 2016, a delegate of the Minister issued the applicant with a notice of intention to consider cancellation of his Visa under s 109 of the Act (the NoICC) on the basis that the contents of the Iranian passport found in the applicant’s possession appeared to indicate that his claims to be a stateless Faili Kurd in (inter alia) his Visa application were incorrect. The applicant was invited to provide a response within 14 calendar days after he was taken to have received the NoICC.
On 22 February 2016, the applicant’s registered migration agent provided a written response in which the applicant reiterated that he had originally departed Iran on a false passport, and claimed that the Iranian passport found in his possession on his re-entry to Australia was another false passport obtained by an agent with connections to the Iranian Embassy in Canberra.
On 19 October 2016, the delegate cancelled the applicant’s Visa. The delegate found that the applicant had provided incorrect answers in his Visa application, and that he had not complied with s 101(b) of the Act. The delegate was satisfied that there was a ground for cancelling the Visa, and that the reasons for cancelling the Visa outweighed the reasons for not cancelling the Visa.
On 20 October 2016, the applicant applied to the Tribunal for review of the delegate’s decision. A copy of the delegate’s decision was attached to the applicant’s application for review.
On 20 April 2017, the applicant was invited to attend a hearing before the Tribunal on 23 May 2017. He did so with the assistance of his registered migration agent and a Kurdish interpreter.
On 25 May 2017, the Tribunal invited the applicant to comment on information which it considered would be the reason, or a part of the reason, for affirming the decision under review. The information was that his Iranian passport stated that his last departure from Iran was on 3 October 2011. The information was stated to be relevant to the review as it would suggest that when he originally departed Australia he did so under his real name, that he held an official passport, and that he was a citizen of Iran at the time.
On 28 June 2017, the applicant’s registered migration agent responded to the Tribunal’s 25 May 2017 invitation, advising that the applicant had provided an incorrect date of his departure from Iran to the agent who had procured his Iranian passport from the Iranian embassy in Canberra.” [1]
[1] First Respondent Submissions, 5–13.
Consideration
The Tribunal, in its Statement of Decision and Reasons (‘the Decision Record’), observed that the exercise of the cancellation power under s.109 of the Act was conditional on the Minister for Immigration and Border Protection (‘the Minister’) issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. The Tribunal was satisfied that the notice issued under s.107 of the Act had complied with the statutory requirements. The Tribunal thereafter stated, as set out in paragraph 10 of the Decision Record:-
“The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b).
Section 101: Visa applications to be correct
s101. A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered, and
(b) no incorrect answers are given or provided”
The Tribunal had regard to each of the claims made by the Applicant and in findings set out in paragraphs 26 to 28 of the Decision Record said as follows:-
“26. Considering that the Observations section of the second passport shows the applicant to have departed Iran in the right time frame for his arrival to Australia in 2011 and not being convinced by the applicant’s evidence that he accessed it fraudulently I find that the applicant departed Iran using a legitimately obtained passport in his name.
27. As the applicant has held an Iranian passport I find that the applicant is not stateless. Not being stateless means that he has equal access to education and as such could go to school in Iran. As such I find that the applicant provided incorrect information on his statelessness and ability to access schooling. As such I find that the applicant provided incorrect information in this regard.
28. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.”
The Tribunal thereafter moved to a consideration as to whether the visa should be cancelled noting that “cancellation in this context is discretionary.”[2]
[2] Decision Record, 29.
The Tribunal found that the Applicant is an Iranian citizen of Faili Kurd ethnicity. [3]
[3] Decision Record, 32.
Under the heading “The content of the genuine document (if any)” the Tribunal set out the following findings:-
“33. I find that the Iranian passport which records the date of his last departure from Iran to be a legitimately obtained official document. As I have not accepted the evidence provided by the applicant claiming that he accessed it fraudulently I find that the genuine document as it relates to the question of whether he is stateless or not is the Iranian passport found on the applicant upon his return from Iran. For this reason I place considerable weight in favour of exercising the discretion to cancel the visa.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
34. The Tribunal has access to the original decision which granted the applicant his protection visa based upon the harm a stateless Faili Kurd may encounter. This included the effects of the absence of documentation which inhibited stateless people from legal employment, education, registration of marriages and obtaining birth certificates. The second element to the harm the delegate determined the applicant, as a claimed stateless Faili Kurd, may encounter was based upon imputed political opinion which would lead to a harsher and more frequent ill-treatment by authorities. In both cases statelessness is central to the decision maker’s determination. As such I find that the decision to grant the visa was wholly based upon the incorrect information provided by the applicant. For this reason I place considerable weight in favour of exercising the discretion to cancel the visa.”
Under ground one of the application, the Applicant argues that by reference to the Tribunal’s stated findings in paragraph 34 of the Decision Record, the obligation under s.424A of the Act applied in respect of that information, being the, as described, “original decision”, and that the Tribunal did not comply with its obligation of providing that information to the Applicant
The First Respondent accepts that the basis of the original decision granting the Applicant the visa was “part of the reason” for affirming the decision under review, and that it would comprise “information” for the purposes of s.424A of the Act, but for s.424A(3)(b) of the Act.
In the Department’s notification of the delegate’s decision, it stated:-
“Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugees Convention. You consistently maintained that you were stateless and as a result of your statelessness would face persecution in Iran. This claim was fundamental to the determination that you are a person to whom Australia has protection obligations...”[4]
[4] Court Book at page 33.
This statement was repeated on page seven of the delegate’s decision. Further, it was noted by the delegate at page 10 of the delegate’s Decision Record:-
“The visa holder’s Protection visa was granted on the basis that he satisfied the Minister that the visa holder engaged Australia's protection obligations under the Refugees Convention. The visa holder has consistently maintained that he are [sic] stateless. This claim was fundamental to the determination that the visa holder is a person to whom Australia has protection obligations. As the incorrect information provided was material to this determination it appears the visa holder may not have engaged Australia's protection obligations.”
As can be observed from the above, it is the matter of statelessness that was part of the reason for affirming the decision under review.
The Applicant attached copies of both the Department’s notification and the delegate’s decision to his application to the Tribunal for review. He takes no issue with that. It was therefore given by the Applicant for the purpose of the review, and fell within the exception to s.424A of the Act at s.424A(3)(b) of the Act. I agree with the First Respondent that it does not matter that the Tribunal’s decision referred to the source of the information as the original visa decision itself; rather, the question is whether the Applicant gave the information for the purpose of the review, and thus brought it within the ambit of s.424A(3)(b) of the Act.
This ground must fail.
Ground Two
By ground two the Applicant, in particular, turns to paragraph 20 of the Decision Record of the Tribunal. Paragraph 20 is as follows:-
“I asked him if he knew that Iranian passports have biometric data. He responded that he did know. I put to him that biometric data includes fingerprints and so I asked him how he thought that the applicant’s fingerprints appeared onto the biometric passport. He responded that he didn’t provide any to the man organising his passport. I asked him what happened when he returned to Iran and he was required to put a finger on a scanner for immigration to get a finger print. He responded that he didn’t have to do that. I put to him that I was not convinced that he had fraudulently obtained the passport because it had his name correctly written but a different birth date even though he claimed to have given his driver’s license to him which had the correct date on it. He responded that he gave his name and photo to that person, he doesn’t know anything further and instead offered the name and number of the man who organised the passport for him. I chose not to dial the number provided by the applicant for the reasons that it would be impossible to determine who was on the other side of the line and as such any information provided would be severely undermined and secondly if the person on the other side of the line was who the applicant claims him to be then it could lead to the Iranian government being informed of the applicant’s asylum claims.”
The transcript of the hearing is in evidence before the Court. Pages 12 to 14 are, relevantly, as follows:-
“TRIBUNAL MEMBER: So let me understand. So you claim that it was the correct passport, but it was fraudulently obtained. So it's a true passport, but fraudulently obtained. Now, you're saying that it's someone else's passport. Is that correct?
INTERPRETER: Sorry, to explain - - -
TRIBUNAL MEMBER: Earlier you said that the passport was an official passport, but fraudulently obtained. Now, you're saying it's someone else's passport. Is that right?
INTERPRETER: The passport I obtained (indistinct)
TRIBUNAL MEMBER: Yes.
INTERPRETER: Because he issued - formally he issued with a passport and put in my photo. It could be - said it could be formally issued, but not through the formal process (indistinct) that he put another photo, it became fake passport.
TRIBUNAL MEMBER: I understand that, but then why does it have your name? Why does it have your name in it?
INTERPRETER: Because when they make it - he makes it because he doesn't like it to - for me to face a problem- face a problem, that's why he make it under my name.
TRIBUNAL MEMBER: So the name is correct, but the birthday is wrong.
INTERPRETER: Yes.
TRIBUNAL MEMBER: I understand that Iranian passports have biometric data on them. Do you understand what biometric data is?
INTERPRETER: Yes, I know that.
TRIBUNAL MEMBER: So biometric data includes fingerprints. How do you think he put your fingerprint on to that passport?
INTERPRETER: Well, that one I didn't provide any fingerprint for that one, but in Iran when I - in Iran, you never provided your fingerprints to issue the passport.
TRIBUNAL MEMBER: Okay. So when you came - you landed in the airport in Iran and you have to put your fingerprint on the scanner, what happened? You didn't put your finger on the scanner?
INTERPRETER: No.
TRIBUNAL MEMBER: Did other people put their finger on the scanner?
INTERPRETER: I didn't see anything, just I show the passport.
TRIBUNAL MEMBER: At the moment, I'm not convinced that you fraudulently obtained this passport. I'm not convinced because it's got your name and birth date, which is a different birth date to the driver's licence birth date, even though you said you gave the driver's licence to the man so he has the right birth date.
INTERPRETER: I gave the name and the photo to that person. I don't know how he make it. If you like, I can give you the name and the number for that person who make that passport.
TRIBUNAL MEMBER: Sure. What is the name and number?
INTERPRETER: Mr [X] - - -
THE APPLICANT: Can I just use my phone?
TRIBUNAL MEMBER: Sure.
INTERPRETER: Sorry. [phone number omitted]---
TRIBUNAL MEMBER: Just a minute. [phone number omitted]? Yes.
INTERPRETER: - - - [phone number omitted]- - -
TRIBUNAL MEMBER: Yes.
INTERPRETER: - - - [phone number omitted].
TRIBUNAL MEMBER: [phone number omitted]? Okay.
INTERPRETER: I have the embassy number because that was - all my communication was through that number.
TRIBUNAL MEMBER: Okay.”
As is evident from the transcript, the Applicant does not specifically request of the Tribunal that the Tribunal call any person. It was for the Applicant to make out his case and the Tribunal had no duty in that respect. I agree with the First Respondent that the matter was not a critical fact the existence of which was easily ascertained. [5] Whilst the genuineness of the passport was a critical fact, it was not an easily ascertainable fact and the Tribunal set out its concerns. The Tribunal could not satisfy itself of the identity of a person whom it might call. The Tribunal was concerned also as to the possibility that the Iranian authorities may learn of the Applicant’s asylum claims. Its approach was prudent and its concerns justified.
[5] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
The Tribunal determined to make no phone call. It set out in paragraph 20 of the Decision Record, its reasons for not doing so. Even assuming that the Applicant was requesting of the Tribunal to exercise its discretionary statutory power to take evidence on oath or affirmation at s.427(1)(a) of the Act, a fact the Court does not accept, the refusal to do so by the Tribunal was not legally unreasonable.
There was an evident and intelligible justification provided by the Tribunal.
This ground cannot succeed.
Ground Three
The Applicant, under this ground, refers in particular to paragraphs 69 to 71 of the Decision Record of the Tribunal. They are as follows:-
“69. The Department’s guidelines set out other additional matters that should be taken into account where relevant. This includes whether there are mandatory legal consequences to a cancellation decision, for example detention as well as whether indefinite detention is a likely consequence of the cancellation decision.
70. I now turn my mind to consider whether there are provisions in the Act which prevent the applicant from making a valid application for any visa without the Minister personally intervening. In this applicant’s case these are s46A, s48, s48A and s189. When exercising these provisions the applicant will not be able to make any further lawful applications nor be issued any further visas other than those prescribed or without Ministerial intervention and therefore, he may be detained.
71. Whilst detained the applicant has the option of returning to Iran. If he chooses not to involuntary return becomes a possibility. The fact that the Iranian regime does not accept involuntary returns is a matter at the forefront of my mind. The question before the Tribunal is whether affirming the delegate’s decision would lead to indefinite detention due to the Iranian regime’s refusal to accept involuntary returnees. In this case it does not. The applicant is an Iranian citizen and having found earlier that he does not face a real chance of serious harm or a real risk of significant harm whether the applicant faces indefinite detention in Australia is dependent upon a choice he makes rather than the outcome of this decision.”
This ground cannot succeed.
The Applicant argues that it was legally wrong for the Tribunal not to have appreciated that the Tribunal decision was a necessary contributing factor to the possibility that the Applicant may languish in indefinite detention and it cannot be said that it was not material to the outcome (the Tribunal could only have dealt with the issue of the weight to be given to this consideration once understanding it in its proper legal context). A material failure to act on correct legal principle, correctly applied, amounts to jurisdictional error.
The reasons of the Tribunal expose no error. They expose no misunderstanding as to the power being exercised. [6]
[6] Ali v Minister for Immigration and Border Protection [2018] FCA 650, 34.
The Application must be dismissed. No jurisdictional error attends the decisions of the Tribunal. Costs shall follow.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 5 March 2019
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