DXN16 v Minister for Immigration

[2019] FCCA 3097

FEDERAL CIRCUIT COURT OF AUSTRALIA

DXN16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3097

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Decision to cancel the applicant’s Subclass 866 (Protection) visa – whether the Tribunal complied with its statutory obligations – whether the Tribunal had an active and intellectual engagement with the applicant’s claims and submissions – whether the Tribunal’s adverse findings lack an evident and intelligible justification – no jurisdictional error by reason of the non-disclosure of the s 375A certificate – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101, 107, 109, 375, 476

Migration Regulations 1994 (Cth), r.2.41

Applicant: DXN16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3584 of 2016

Judgment of: Judge Street

Hearing date: 29 October 2019

Date of Last Submission: 29 October 2019

Delivered at: Sydney

Delivered on: 27 November 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3584 of 2016

DXN16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 November 2016 affirming a decision of the delegate to cancel the applicant’s Subclass 866 (Protection) visa.

2. The applicant applied for a protection visa on 12 April 2011 and answered questions to the effect that he was stateless. The applicant had arrived in Australia on 26 October 2010, together with his wife and his sons. On 10 March 2011, the delegate was satisfied the applicant met the requirements of the Refugees Convention by reason of circumstances relating to the applicant’s claim of being stateless.

3. On 24 September 2015, the applicant was sent a notice of intention to cancel the visa under s 109 of the Act. The notice identified the consideration in relation to whether the applicant complied with ss 101(a) and 101(b) of the Act in the application for protection and made reference to the question and answer by the applicant that effectively propounded that the applicant was stateless.

4. The notice identified that the applicant was in fact issued with an Iranian passport on 15 August 2014. The notice referred to movement records showing the applicant departed Australia on 4 February 2013 and returned on 25 April 2013, and that the applicant had spent most of his time abroad in Iran. The notice referred to the applicant’s two sons having Iranian passports issued on 10 September 2014 and referred to country information also in relation to the passports held by the applicant’s sons. The notice identified that it is apparent that the applicant had provided incorrect information in the protection visa application and that the applicant is not stateless. The notice identified that at the time of the protection application the applicant was in possession of an Iranian passport and is a citizen of Iran.

5. On 21 June 2016, the delegate found that the ground for cancelling of the applicant’s visa had been made out and was satisfied the grounds for cancelling the visa outweigh any reason for not cancelling the visa. The delegate proceeded to cancel the applicant’s visa.

6. The applicant applied for review to the Tribunal on 11 July 2016. By letter dated 10 August 2016, the applicant was invited to attend a hearing on 15 September 2016. The applicant requested a postponement of the hearing and on 12 September 2016, the hearing was postponed to 5 October 2016. The applicant attended the hearing on 5 October 2016 to give evidence and present arguments and was assisted by his migration agent representative. Submissions were provided to the Tribunal on behalf of the applicant on 3 October 2016.

7. The Tribunal in its reasons identified the background to the review application and set out the relevant law. The Tribunal found that the notice issued complied with the requirements of s 107 of the Act.

8. The Tribunal turned to the issue of whether there was noncompliance with the s 107 notice. The Tribunal identified the course of the hearing in which the Tribunal sought to explore with the applicant whether he was a Iranian citizen and the applicant’s assertion that he obtained Iranian citizenship in 2013, and the applicant acknowledged that he lied to the Tribunal in relation to being stateless. The applicant contended he had been forced to lie as he was told this was the best way to succeed in obtaining migration to Australia, to claim to be stateless. The Tribunal found the applicant provided incorrect information in the application for a protection visa in the manner identified in the s 107 notice.

9. The Tribunal found the applicant did not comply with s 101(a) of the Act, which required the applicant to complete the application form in a way that no incorrect answer was given or provided. The Tribunal found there was noncompliance by the applicant in the way described in the s 107 notice.

10. The Tribunal turned to the issue of whether the visa should be cancelled. The Tribunal identified giving significant weight to the fact the applicant has provided incorrect information when he applied for the protection visa.

11. The Tribunal found that the decision to grant the applicant’s protection visa was wholly or partly based on the incorrect information provided by the applicant for the protection visa. The Tribunal referred to the applicant’s unequivocal admission in the course of the hearing that he has been untruthful about his nationality. The Tribunal referred to the submissions advanced on behalf of the applicant in the Tribunal.

12. The Tribunal noted that the applicant continued to assert that he had not provided false or incorrect information and it was not until the last few minutes of the hearing that he decided to let the Tribunal know that he had been lying. The Tribunal was satisfied that the circumstances in relation to noncompliance indicate that the visa should be cancelled.

13. The Tribunal referred to the present circumstances of the visa holder, including his wife and children and the contribution he has made in working in the community and having a home and further referred to having carefully considered the interest of the applicant’s children. The Tribunal identified having genuine empathy for their circumstances and that the children are innocent and had in no way contributed to the provision of false and misleading information. The Tribunal, however, found that the applicant’s sons would not be in Australia but for the incorrect information. The Tribunal was satisfied the two children are young and if returned to Iran would have the opportunity to learn Persian and develop their own cultural identity.

14. The Tribunal was not satisfied the applicant’s present circumstances mean the visa should not be cancelled. The Tribunal addressed each of the prescribed circumstances in r 2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”). Having considered all the discretionary matters, including the guidelines, the Tribunal was satisfied that the applicant has provided incorrect information in order to achieve a favourable immigration outcome.

15. The Tribunal found there was noncompliance by the applicant in the way described under the s 107 notice. Having regard to all the circumstances, the Tribunal concluded the visa should be cancelled and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 16 December 2016. On 26 April 2017, a Registrar of the Court made orders give the applicant an opportunity to put on affidavit evidence, amended application and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The Court explained that the applicant’s application and his wife’s application were being heard consecutively. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that they had been forced to say lies and that as they had now told the truth, had been here some seven years and that they had been peaceful and contributing to the community and drawing on Centrelink. The applicant contended that their visa should not be cancelled. The applicant referred to the values of Australian society reflecting freedom, humanity and kindness, and contended that his visa should not be cancelled.

4. The applicant also referred to the fact that he had not been able to return since the cancellation of the visa to see his parents who are unwell, and that effectively he was now the subject of a form of imprisonment.

5. Nothing said by the applicant identified any jurisdictional error. The applicant’s submissions, in substance, invited the Court to engage in merits review. This Court has no power to review the merits, nor can this Court decide the matter on compassionate or discretionary grounds. No jurisdictional error was made out by anything said by the applicant.

The grounds

1. The grounds in the application are as follows:

   Ground 1: Error of Law

   1. The decision by the Second Respondent involved an error of law, whether or not the error appears on the record of the decision.

   Ground 2: Misapplication of law or failure to ask the correct question

   2. Second Respondent either misrepresented, misunderstood or misapplied the applicable law, or has otherwise failed to ask itself the correct question.

   Ground 3: No Evidence

   3. There was no evidence or other material to justify the making of the decision by the Second Respondent or the Second Respondent relied on evidence which did not exist.

   Ground 4: The Failure to Take into Account Relevant Considerations

   4. The Second Respondent failed to take into account a relevant consideration in the exercise of power.

   Ground 5: The taking into account of irrelevant considerations

   5. The Second Respondent took into account an irrelevant consideration in the exercise of power.

   Ground 6: Without regard to the merits

   6. The Second Respondent exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

   Ground 7: Unreasonableness

   7. The Second Respondent exercise power in a manner that is so unreasonable that no reasonable person could have so exercised the power.

   Ground 8: Uncertainty

   8. The Second Respondent exercised power in such a way that the result of the exercise of the power is uncertain.

Ground 1

1. Ground 1 is an unparticularised general assertion of error of law. Unparticularised, ground 1 is incapable of making out any error. On the face of the Tribunal’s reasons, the Tribunal complied with its statutory obligations in the conduct of a review. On the face of the Tribunal’s reasons, the applicant had a real and meaningful hearing before the Tribunal. The Tribunal had an active intellectual engagement with the applicant’s claims and submissions. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the assertion of a misunderstanding, misapplication or misrepresentation of the applicable law is not supported by any particular, and on its face is incapable of making out any jurisdictional error. Equally, the assertion, unparticularised, of a failure to ask the correct question, is incapable of making out any jurisdictional error.

2. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law. There is no basis to find on the face of the Tribunal’s reasons that the Tribunal misapplied or misunderstood the relevant law. Nor is there any basis to find that the Tribunal did not correctly apply the relevant law in its adverse findings and were open for the reasons given by the Tribunal. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the applicant’s alleges that there was no evidence to justify making the decision. The applicant admitted at the end of the hearing before the Tribunal to having lied and provided incorrect information in his application for the protection visa in respect of being stateless when he was not. There was ample evidence in those circumstances to support the adverse finding by the Tribunal, quite apart from the other evidence, the subject of a notice discussed by the Tribunal with the applicant on the face of the Tribunal’s reasons. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, no relevant consideration that was not taken into account has been identified. Accordingly, no jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, no irrelevant consideration is identified that the Tribunal took into account. Accordingly, no jurisdictional error is made out by ground 5.

Ground 6

1. In relation to ground 6, it is apparent that the Tribunal took into account the merits of the applicant’s circumstances as identified in the reasons above. On the face of the Tribunal’s reasons, the Tribunal had an active intellectual engagement with the applicant’s claims and evidence. No jurisdictional error is made out by ground 6.

Ground 7

1. In relation to ground 7, the contention that the outcome of the Tribunal’s decision was one to which no reasonable person could come to is without substance. This is so in circumstances where the applicant falsely asserted that he was stateless in order to obtain a favourable migration outcome and provided incorrect information the subject of the s 107 notice and then admitted, at the end of the hearing and not earlier, that he had lied and provided incorrect information. The Tribunal’s adverse findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 7.

Ground 8

1. In relation to ground 8, there is no uncertainty identified in respect of the review decision. The adverse findings were open for the reasons given by the Tribunal. No jurisdictional error is made out by ground 8.

Section 375A Certificate

1. The first respondent, consistent with its duties as a model litigant, drew attention to the issue of a s 375A certificate that had no application to the Tribunal in the circumstances of the present case. The certificate was invalid.

2. The first respondent has put on evidence in respect of each of the folios the subject of the certificate. The submissions have also identified that, prior to the hearing, the applicant was provided with all of the folios except for folios 21 to 22, 66 to 68, 74, 82, 83, 88, 93 to 95, 240 to 241, 243 to 244.

3. The Court has considered each of those folios and the submissions advanced by the Minister in respect of the same. Given the applicant’s admission that he lied “a little bit”, and the admission in respect of not being stateless and that he was a citizen of Iran, none of the contents of the folios that were not disclosed by the Freedom of Information request could be said to be material. The Court finds that the nondisclosure of the certificate and the folios that are not the subject of the Freedom of Information request provided to the applicant could not possibly have given rise to a different outcome in respect of the review.

4. Further, the substance of the folios, insofar as they referred to information that might be adverse in respect of the applicant not being stateless, were clearly the subject of the s 107 notice and the subject of discussion as identified by the Tribunal in its reasons with the applicant.

5. The nondisclosure of the certificate and the documents the subject of the certificate gave rise to no practical justice in the conduct of the review in the circumstances of the present case.

6. The applicant ultimately made admissions concerning his citizen status when he came to Australia in 2010 and admitted that he was the holder of an Iranian shenasnameh.

7. The failure to disclose the existence of a certificate under s 375A of the Act, or any of the folios the subject of the certificate, could not possibly have any impact on the review. No jurisdictional error arises by reason of the issue of the s 375 certificate and the nondisclosure of that certificate or the information the subject of that certificate.

8. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate:

Date: 10 December 2019

Corrections

Paragraph 27 line 2 – delete “failed to take” insert “took”

Paragraph 32 line 1 – delete “applicant” insert “first respondent”