Dunn v Minister for Immigration
[2007] FMCA 1349
•21 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUNN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1349 |
| MIGRATION – Migration Review Tribunal – denial of opportunity to cross examine – allegation of bias – alleged failure to take into account the fact that a Customs officer’s usual practice did not comply with MSI 383 – alleged failure of the delegate to afford natural justice. |
| Migration Act 1958, ss.5(1), 32(2), 98, 99, 100, 101, 102, 359, 359A, 366D Migration Regulations 1994, reg.2.41, Sch 1, item 1219 |
| Minister for Aboriginal Affairs & Anor v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration & Multicultural & Indigenous Affairsv Ahmed [2005] FCAFC 58 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561 |
| Applicant: | DARREL EDWARD JAMES DUNN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 157 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 21 June 2007 |
| Date of last submission: | 21 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 21 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Warren S. Mosley |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 15 February 2007 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 157 of 2007
| DARREL EDWARD JAMES DUNN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application filed on 15 February 2007 seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 13 February 2007. That decision affirmed a cancellation by the first respondent’s delegate of the applicant’s Special Category (Temporary) (Class TY) subclass 444 visa under s.109 of the Migration Act 1958 (“the Act”).
The applicant is a 38 year old male citizen of New Zealand. He arrived in Australia on 18 October 2004 and was granted a subclass 444 visa at the airport. On 2 June 2005, a delegate of the first respondent cancelled the applicant’s visa on the basis that he had provided an incorrect answer on his incoming passenger card. The incorrect answer concerned criminal convictions.
On 9 June 2005, the applicant applied to the Tribunal for review of the delegate’s decision. On 15 August 2005, the Tribunal affirmed the delegate’s decision. An application for judicial review of the Tribunal’s decision was filed in this court. On 2 March 2006, orders were made by consent setting aside the Tribunal’s decision and remitting the matter for further hearing. On 20 June 2006, the Tribunal, differently constituted, again affirmed the delegate’s decision. The applicant sought judicial review of the Tribunal’s second decision. On
10 October 2006, the Tribunal’s second decision was set aside by consent and remitted to the Tribunal, differently constituted, for further hearing.
On 13 February 2007, the Tribunal as reconstituted again affirmed the delegate’s decision. On 15 February 2007, the applicant filed an application for judicial review of the Tribunal’s third decision and a supporting affidavit. On 19 June 2007, the first respondent filed contentions of fact and law.
Legislation
The relevant requirements for the grant of a subclass 444 visa are set out in s.32(2)(a) of the Act which states:
(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a) a non‑citizen:
(i) who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and
(ii) is neither a behaviour concern non‑citizen nor a health concern non‑citizen; or
...
Behaviour concern non-citizen is defined in s.5(1) of the Act to mean a non-citizen who:
(a)has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b)has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i) any period concurrent with part of a longer period is disregarded; and
(ii) any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii)the crimes were of the same kind; or
(iv)the crimes were committed at the same time; or
(v)the convictions were at the same time; or
(vi)the sentencings were at the same time; or
(vii)the periods were consecutive; or
...
Item 1219 of Schedule 1 of the Migration Regulations 1994 (“the Regulations”) describes the application process for a subclass 444 visa. Essentially, the application consists of a completed incoming passenger card and a current New Zealand passport.
Sections 97 to 115 of the Act set out when visas based on incorrect information may be cancelled. Sections 98 to 102 of the Act state:
98 Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99 Information is answer
Any information that a non‑citizen gives, causes to be given or that is given on his or her behalf to the Minister, an officer or a person or Tribunal reviewing a decision under this Act in relation to the non‑citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen's application form, whether the information is given orally or in writing and whether at an interview or otherwise.
100 Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect.
101 Visa applications to be correct
A non‑citizen must fill in his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
102 Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
The applicant’s visa was cancelled under s.109 of the Act which states that a visa may be cancelled if incorrect information is provided. Section 109 provides that:
(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 prescribed circumstances referred to in sub-s.109(1)(c) are set out in reg.2.41 of the Regulations as follows:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a)the correct information;
(b) the content of the genuine document (if any);
(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
The Ministerial instruction
Ministerial Instruction (MSI) 383 says in relation to passenger cards:
5.7.1Primary line officers are to assist persons to accurately complete cards. This can be done by: explaining the meaning of a question to a person so that they can complete the question on the card; or confirming that the response provided by the person is accurate and, if not, the person corrects the response or the officer corrects the response on behalf of the person.
5.7.2The passenger or the primary line officer depending on the nature of the error should correct errors or omissions.
5.7.3When correcting information, officers need to keep in mind that under s 98 of the Act, a non-citizen who does not complete their passenger card is taken to have completed the card if another person completes it on their behalf.
5.7.4Section 271 prescribes the card as an evidentiary document (ie it may be used in court) so the original entry should not be obliterated – a faint line should be drawn through the error and the correction made.
5.7.5All corrections on the card are to be initialled by the officer and the passenger (or by the accompanying adult in the case of minors).
5.7.6Officers must ensure that they do not answer the questions relating to health and character for the person. As the answers to these questions can result in cancellation and a refusal to enter Australia the person must always complete these questions. If a person is unsure of the question or requires an interpreter then they are to be referred to the immigration inspector.
...
6.2.6All non-citizens are to answer questions relating to health and criminal convictions.
6.2.8As the answers to these questions can lead to cancellation of a visa or a refusal to grant a visa in immigration clearance, primary line officers are not to complete these questions for the person.
6.2.9If the non-citizen ticks ‘yes’ to the questions on health or criminal convictions, they are to be referred to the immigration inspector. (Emphasis added)
The answers on the passenger card
The passenger card submitted by the applicant contained a number of questions that required a yes or no answer. The instruction at the top of the form said “YOU MUST ANSWER EVERY QUESTION – IF UNSURE, X Yes”. In response to the question, “Do you intend to live in Australia for the next 12 months?” (“the residence question”), yes and no have both been ticked. In response to the question “Do you have tuberculosis?” (“the tuberculosis question”) and the question “Do you have any criminal convictions?” (“the criminal convictions question”), no has been ticked and there is a crossing out next to yes. The other yes or no questions all have a tick next to no. In relation to the question, “Your intended length of stay in Australia”, the answer was 3 days. The tick and the crossings out next to “yes” were in each case between the words “yes” and “no” and were considerably closer to the “no” than the “yes”.
The cancellation of applicant’s visa
The circumstances leading up to the cancellation of the applicant’s visa were set out at page 5 of the Tribunal decision as follows:
On 14 March 2005, after being observed breaking into cars, the applicant was arrested by Victoria Police, charged with numerous offences and remanded in custody.
On 30 May 2005 the Department obtained a copy of the applicant’s New Zealand criminal record. This record indicates that, between 1987 and 2004, the applicant was convicted of 131 criminal offences and sentenced to numerous periods of imprisonment totalling approximately 17 years, amounting to approximately 4 years and three months after disregarding concurrent sentences.
At approximately 2.30pm on 31 May 2005, the applicant was handed a Notice of Intention to Consider Cancellation on his visa (NOICC) informing him that he had failed to comply with sections 101 and 102 of the Act because he did not declare his criminal convictions when completing his passenger card on entry into Australia, attaching a copy of his New Zealand criminal history and giving him until 5pm on 31 May to provide a response in writing. The applicant provided comments in writing on 1 June 2006 and these were taken into account. On 2 June 2005, his visa was cancelled.
On 12 September 2005, the applicant was convicted of the following offences in Melbourne: possess amphetamines, possess controlled weapon without excuse, deal property reasonably suspected of being proceeds of a crime (x10), escape lawful custody, assault police (x2), resist police, theft from a motor vehicle (x2), attempted theft from a motor vehicle, state false name and address, criminal damage with a view to gain (x2), go equipped to steal and possess a prohibited weapon. He was sentences to 5 months for each of these offences to be served concurrently.
The evidence before the Tribunal
The Tribunal summarised the applicant’s evidence as follows:
The applicant claims that, at the time of his entry into Australia, he was largely illiterate and that, consequently he asked the Australian Customs Service (ACS) officer at the airport to assist him to complete the passenger card. The applicant claims that it was the ACS officer, not the applicant, who ticked no in response to the criminal convictions question.
The applicant has stated that he filled out his name, passport number, flight number and intended address in Australia on the passenger card.
In his comments to the Department on 1 June 2005 and in a letter to the Tribunal received on 19 July 2005, the applicant indicated that he ticked yes and no to the residence question, the tuberculosis question and the criminal convictions question. He stated that the ACS officer, after questioning him, crossed out the yes ticks for the tuberculosis question and the criminal convictions question.
In his submissions to the Tribunal received on 3 May 2006 and at the hearing, however, the applicant stated that he ticked yes and no to the residence question and that he ticked yes to the tuberculosis question and the criminal convictions question.
At the hearing, and in a subsequent submission, the applicant indicated that his earlier written statements of 1 June and 19 July 2005 were a result of misunderstanding arising from his illiteracy and his reliance on other prisoners to assist him with those statements. The applicant asserted at the hearing that he ticked yes to the tuberculosis question and the criminal conviction question and that he then approached the ACS officer for assistance.
The applicant asked the Tribunal to summon the Customs officer who processed his entry to give evidence at the hearing. The officer was not identified prior to the Tribunal hearing. However, he was subsequently identified and the Tribunal interviewed him by telephone pursuant to s.359(2) of the Act.
By letter dated 25 January 2007, the Tribunal invited the applicant to comment on the content of the interview with the officer pursuant to s.359A of the Act. The Tribunal set out the relevant information and the reason the information was relevant as follows:
On 24 January 2007, the Tribunal interviewed the Australian Customs Service (ACS) officer who processed your entry into Australia on 18 October 2004. The officer was provided with a copy of your incoming passenger card. The officer told the Tribunal that he had no recollection of you or your passenger card and that he was not able to comment on the circumstances in which your passenger card was completed.
The Tribunal asked the officer questions about his usual practices when processing passengers.
The officer provided the following information about his usual practices.
·In his experience, it is unusual to see a passenger card where a passenger has ticked yes to the question about tuberculosis and the question about criminal convictions and it indicates that the passenger may have made a mistake. If a passenger had ticked yes to both questions, he would ask the passenger if he or she has tuberculosis and if she or he has any criminal convictions. If the passenger answered no to the question about criminal convictions, he would amend the card or ask the passenger to amend the card. If the passenger answered yes to the question about criminal convictions, he would refer the passenger to the immigration inspector.
·If a passenger had ticked yes and no in answer to the criminal convictions question, he would ask the passenger if he or she had any criminal convictions. If the passenger answered no, he would amend the card. If the passenger answered yes, he would refer the passenger to the immigration inspector.
·If a passenger told him that he or she does have criminal convictions, he would not enter into any discussions with the passenger about the nature of those convictions but would refer the passenger to the immigration inspector straight away.
·If a passenger told him that he or she could not fill out the passenger card because he or she was illiterate, he would read the questions to the passenger and ask the passenger to tick the correct answer.
·The crossing out on the passenger card in this case is very close to the ‘no’ answer. If a passenger had ticked the card in the location of the crossing out, he would ask the passenger if they intended to answer no to the questions. If the passenger indicated that the correct answer was no, he might amend the form.
·It is unlikely that he would fill in the contact details on the back of the card, or ask the passenger to complete these, because of the limited time (incoming passengers are generally processed in about 30 seconds) and because the information is less important than the questions on the front of the card.
This information indicates that:
·If you had ticked ‘yes’ to the questions about tuberculosis and criminal convictions, the officer would have asked you if these answers were correct;
·The officer would only have amended the card himself if you told him that you did not have criminal convictions; and
·If you had told the officer that you had criminal convictions, he would have referred you to the immigration officer.
The information is relevant to the review because it contradicts your claim that the ACS officer amended your incoming passenger card to show that you had no criminal convictions, even though you had answered yes to the question and told the ACS officer that you did have criminal convictions.
On 29 January 2007, the Tribunal received the applicant’s response to the invitation to comment.
The Tribunal’s reasons for decision
In its findings and reasons, the Tribunal said:
On the applicant’s passenger card, the answer to the criminal convictions question is no. This answer is clearly incorrect as the applicant had 131 criminal convictions in New Zealand at the time the form was completed.
Under section 98 of the Act, the applicant is taken to have filled out the passenger card even if he caused it to be filled out on his behalf. The applicant has argued that the ACS officer changed the card without his knowledge, consent or authorization and that he therefore should not be held responsible for the incorrect answer.
The Tribunal accepts that the ACS officer who processed the applicant’s entry into Australia has no recollection of the applicant or his passenger card. The Tribunal considers this to be unremarkable given the length of time which has elapsed since the applicant entered Australia, the volume of incoming passengers processed by ACS officers and the very brief period of time spent processing each passenger.
The Tribunal has weighed up the applicant’s evidence and the evidence of the ACS officer about his usual practices. The Tribunal considers it highly unlikely that an ACS officer would question the applicant about his criminal history and then, having ascertained that the applicant had a criminal history, change the applicant’s passenger card to indicate that he had no criminal convictions. The Tribunal considers it highly unlikely that an ACS officer would determine that the applicant had only committed minor offences because he had no drug trafficking, armed robbery or kidnapping convictions and then amend the applicant’s passenger card to indicate that be had no criminal convictions. The Tribunal places greater weight on the evidence of the ACS officer that he would refer a passenger who answered yes to the question about criminal convictions to an immigration inspector. This evidence is consistent with the instructions contained in MSI and with the officer’s role and function. The officer had nothing to gain from falsely completing the applicant’s passenger card. The applicant has suggested that the officer was in a hurry to process him, however, as the officer had only to refer the applicant to an immigration inspector, delay does not appear to be a relevant factor. The Tribunal considers it more likely that the applicant ticked the no answer himself or was asked the question by the ACS officer and answered no.
The Tribunal does not accept that the ACS officer amended the applicant’s passenger card without the applicant’s knowledge, consent or authorization. The Tribunal is satisfied that the applicant gave incorrect answers on his passenger card and that he did not non-comply with section 102 of the Act. This non-compliance was not known at the time the applicant was granted the subclass 444 visa and, consequently, the Tribunal must consider whether to exercise the power to cancel the visa.
The Tribunal then considered whether it was appropriate in the exercise of its discretion to cancel the applicant’s visa. The Tribunal considered each of the discretionary factors set out in reg.2.41 of the Regulations. Among other things, the Tribunal noted the applicant’s extensive criminal history in New Zealand consisting of 131 convictions resulting in sentences of four years and three months imprisonment, after disregarding concurrent sentences. The Tribunal also noted that the applicant would not have been granted a visa had his criminal history been disclosed and the fact that the applicant had been convicted of 13 relatively serious offences in Melbourne and sentenced to five months imprisonment on each count to be served concurrently.
The Tribunal considered the policy directions under MSI 368: Visa Cancellations under sections 109, 116, 128 and 140. The Tribunal found that the policy required it to consider any matters raised by the applicant as secondary considerations. Having weighed up all the relevant matters, the Tribunal was satisfied that the applicant’s visa should be cancelled.
Grounds of review
In the application filed on 15 February 2007, the applicant set out the following grounds of review:
1.The insufficiency of the evidence being unjust and oppressive.
2.In contempt of the Tribunal by disrupting the taking of evidence.
3. Criterion of jurisdictional errors.
The applicant sent a number of lengthy faxes to the court prior to the hearing on 21 June 2007. However, at the hearing before this court, the applicant handed up another document. He said he did not rely on his earlier material and just relied on the matters he stated orally to the court on 21 June 2007 and the matters that were included in the document he handed up on that day.
At the hearing before this court, the applicant said that he was denied an opportunity to cross examine the Customs officer who processed his entry. He said further that the Tribunal had ignored the requirement in para.5.7.5 of the MSI that any alteration to the answers given by a passenger needed to be initialled by the Customs officer and the passenger. The applicant also noted that the officer had said in his evidence that if a person had answered yes to both the criminal convictions question and the tuberculosis question or yes and no to the criminal convictions question or the tuberculosis question he would ask the person verbally whether he had tuberculosis or criminal convictions, as the case may be, and if the person said no, he would amend the card accordingly. The applicant said that, under paragraph 6.2.9 of the MSI, if a passenger had ticked yes to the criminal convictions question, the officer should not have asked the passenger any questions and should not have amended the card but should have referred the passenger directly to an immigration officer. The applicant argued that the Tribunal had ignored the Customs officer’s non-compliance with the relevant requirements of the MSI.
The applicant said finally that he had ticked yes to the criminal convictions question and the Customs officer had amended his answer without authorisation and the applicant was now being held responsible for the Custom’s officer’s mistake.
The document handed up by the applicant during the hearing on
21 June 2007 referred to particular paragraphs of the MSI and said that the Customs officer had admitted that his usual practice did not comply with the MSI. The document also said there was a denial of natural justice in relation to the delegate’s decision.
The first respondent’s submissions
The first respondent’s written submissions filed on 19 June 2007 noted that the applicant’s claims about the answers that he provided on the passenger card had changed over time, as recorded by the Tribunal. The first respondent noted that the Tribunal had rejected the applicant’s claims that the ACS officer, after questioning him about his criminal history, had changed his answer to the criminal convictions question without his knowledge or consent. The first respondent said that the Tribunal had found, as a fact, that the applicant gave incorrect answers on his passenger card and that he did not comply with s.102 of the Act. The first respondent submitted that the finding of facts was for the Tribunal alone, and referred to SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 at [12] where the Full Court quoted with approval from the decision of Selway J at first instance, as follows:
[16] I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The appellant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingham (1999) 93 FCR 220 at [146]:
A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 355, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC) ... I agree with the remark of Katz J In Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.
The first respondent also referred to NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 157 where the Full Federal Court said at [9]:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact.
The first respondent submitted orally that the Tribunal did not accept that the Customs officer had amended the passenger card so there was no occasion for anyone to initial it. In any event, the first respondent submitted that the MSI was a policy directive to processing officers and there was no jurisdictional error in the Tribunal not considering the MSI. In relation to the cross examination point, the first respondent referred to s.366D of the Act.
After the hearing, and in response to a request from the court, the first respondent filed further written submissions in relation to authorities concerning the effect of s.98 of the Act as follows:
The decision of Smith FM in Shen v MIMIA [2004] FMCA 693 deals with section 98. At paragraph [3], His Honour stated that:
The delegate’s decision, which was affirmed by the Tribunal, applied a power conferred by s.109 of the Migration Act after deciding that “there was non-compliance by the holder of a visa” and after “having regard to” the list of discretionary considerations prescribed in Migration Regulation 2.41. The allegation of “non-compliance” which was found to be established was a failure to comply with the requirement of s.101 that “a non-citizen must fill in his or her application form in such a way that … no incorrect answers are given.” The effect of ss.98, 100 and 111 is that a breach of this obligation can occur if an application form is filled in by someone else on behalf of the applicant, even if the applicant did not know that the answer was incorrect, and whether the non-compliance was deliberate or inadvertent. ...
The other cases that refer to section 98 include: SZGJO v MIMIA [2006] FCA 393; NAWZ v MIMIA [2004] FCAFC 199 at [17]; SZHLY v MIMIA [2006] FMCA 771 at [28]; SZHTW v MIMIA [2006] FCA 1086 at [26]; and SZBIV v MIMIA [2006] FCA 56
Ground 1: no cross examination of the Customs officer
The applicant argued that he was denied procedural fairness before the third Tribunal because he was given no opportunity to cross examine the Customs officer who processed his entry. However, s.366D of the Act provides as follows:
Examination and cross-examination not permitted
A person is not entitled to examine or cross‑examine any person appearing before the Tribunal to give evidence.
It is clear from that provision that the applicant had no right to cross examine the Customs officer. The Parliament is entitled to remove common law rights by clear words. If there had been any common law right to cross examine the Customs officer in the circumstances of this case, the Parliament has removed that right with the clear words of s.366D of the Act. Accordingly, the fact that the applicant was not given an opportunity to cross examine the Customs officer is not a jurisdictional error. This ground is not made out.
Ground 2: bias
The applicant suggested that the Tribunal had been biased against him, apparently in connection with his lack of legal assistance. The Tribunal was under no obligation to provide the applicant with legal assistance or to only proceed with his case if he had legal assistance. The lack of legal assistance is not indicative of bias on the Tribunal’s part. I am unable to detect anything else in the Tribunal’s conduct of this matter that gives rise to any suggestion of bias. This ground is not made out.
Ground 3: failure to consider the non-compliance with MSI
At its highest, the applicant’s argument on this ground appears to be that the Tribunal, in assessing the credibility of the Customs officer’s evidence, failed to take account of the fact that he had patently not complied with the MSI and the Tribunal’s failure in that regard amounted to a failure to take into account a relevant consideration, namely, the failure of the Customs officer to comply with the MSI.
The applicant made a similar argument at the hearing before the Tribunal. It noted at page 6 of its reasons that:
In support of this claim, the applicant raised a number of other aspects of the card which, he claims, are illustrative of how the officer failed to comply with MSI 368, the officer failed to comply with the directions in MSI 383 and which therefore substantiates his claim that it was the officer who provided the answer to the criminal convictions question. These include failing to make a notation on the passenger card (not relevant to this case), failing to initial the alterations to the answers on the card and failing to correct an omission on the card by not completing the applicant’s contact details in Australia or his emergency contact details.
From this passage, it is clear that the Tribunal was aware of the claim that the Customs officer in certain respects had not complied with the MSI. The Tribunal did not expressly state that it accepted the Customs officer’s evidence notwithstanding that his usual practice did not in all respects comply with the MSI. However, that is clearly the view that the Tribunal took. The Tribunal was entitled to believe the Customs officer, rather than the applicant, notwithstanding that the Customs officer’s usual practice did not comply with the MSI. This is a matter that concerns the merits of the case. The authorities clearly state that the merits are a matter for the Tribunal to determine. The Tribunal may place whatever weight it sees fit on the different aspects of the evidence.
The relevant findings that the Tribunal made were that:
The Tribunal considers it highly unlikely that an ACS officer would question the applicant about his criminal history and then, having ascertained that the applicant had a criminal history, change the applicant’s passenger card to indicate that he had no criminal convictions. The Tribunal considers it highly unlikely that an ACS officer would determine that the applicant had only committed minor offences because he had no drug trafficking, armed robbery or kidnapping convictions and then amend the applicant’s passenger card to indicate that be had no criminal convictions. …
The Tribunal does not accept that the ACS officer amended the applicant’s passenger card without the applicant’s knowledge, consent or authorization. …
The Tribunal was entitled to make those findings whether or not the Customs officer’s usual practice complied with the MSI. The Tribunal’s findings were not based on a view that the Customs officer had followed all the relevant protocols rigorously, but on the overall likelihoods of the matter. The Tribunal did not make a jurisdictional error in doing so.
In any event, whether a particular matter is to be taken into account by the Tribunal is largely for the decision maker to determine, unless the governing legislation expressly or impliedly requires the decision-maker to take into account a particular matter: Minister for Aboriginal Affairs & Anor v Peko-Wallsend (1986) 162 CLR 24, Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363. There is nothing in the Act or Regulations that I am able to detect that expressly or impliedly requires the Tribunal to take into account, when assessing the credibility of a Customs officer’s account, whether his usual practice complies with a Ministerial Instruction. A person may act in breach of any number of protocols but his account might still be regarded as more credible than another person’s. It was entirely a matter for the Tribunal to decide the credibility of each person’s account.
The fact that the Customs officer’s usual practice did not comply in all respects with the MSI was not a relevant consideration that the Tribunal was bound to take into account. Even if it had been, the passage cited at paragraph 34 above shows that the Tribunal did take that matter into account. This ground is not made out.
Ground 4: natural justice before the delegate
The applicant alleged that there was a denial of natural justice in relation to the decision of the delegate. However, it is well established that any deficiency in that regard can be corrected by the Tribunal itself affording the applicant natural justice: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561; Minister for Immigration & Multicultural & Indigenous Affairsv Ahmed [2005] FCAFC 58. In the present case, the Tribunal’s hearing process did afford the applicant natural justice. This ground is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 21 August 2007
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