DXN19 v Minister of Immigration

[2021] FCCA 133

FEDERAL CIRCUIT COURT OF AUSTRALIA

DXN19 v MINISTER OF IMMIGRATION & ANOR [2021] FCCA 133

Catchwords:
MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate to cancel a Protection visa under s.109 of the Migration Act 1958 (Cth) – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.101, 109, 425, 430.

Migration Regulations1994 (Cth) reg.2.41.

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 63

Applicant: DXN19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2613 of 2019

Judgment of: Judge Obradovic

Hearing date: 4 August 2020

Date of Last Submission: 4 August 2020

Delivered at: Parramatta

Delivered on: 3 February 2021

REPRESENTATION

Appearing for the Applicant: In person with the assistance of an Interpreter

Counsel for the First Respondent: Mr Johnson

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed on 10 October 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2613 of 2019

DXN19

Applicant

And

MINISTER OF IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 10 October 2019 the applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) dated 5 September 2019, which affirmed the decision of the Delegate of the Minister to cancel the applicant’s protection (Class XA) visa pursuant to s.109 of the Migration Act 1958 (the Act) which had been granted to him on 5 October 2011.

2. The applicant originally applied for a protection visa on 28 August 2011 on the basis that he was stateless and that he feared harm if he returned to either Iraq, being the country of his birth, or Iran, being the country of his primary residence prior to his departure to Australia.

Background

Grant of Protection Visa

1. The applicant arrived in Australia from Tehran, via Indonesia in June 2010, where he was detained on Christmas Island.

2. On 28 August 2011 the applicant applied for a protection visa. The applicant made the following claims for protection[1]:

   a)That he did not have any citizenship documents and was stateless by birth;

   b)That he was born in Iraq and that he and his family were expelled from Iraq in 1980 with no identity documents, and had lived in Iran undocumented ever since;

   c)That he was issued with a green card in Iran and later (in or about 2002) issued with a white card in lieu. The white card did not entitle him to work, hold a driver’s licence or bank account, medical treatment and travel. The white card was solely for the purpose of identification;

   d)That he met his wife in 1992 and that she was an Iranian citizen;

   e)That his father-in-law bribed “somebody” with 50 000.00 tumans to secure his two children a birth certificate;

   f)That in 2004 he was badly beaten and fined for travelling to a region as an undocumented person;

   g)That he is unable to return to Iraq due to the sectarian fighting; and

   h)That he is unable to return to Iran because he will be detained for not having identification documents and be beaten, deported or killed.

   [1] That application being granted on 5 October 2011.

3. On 28 June 2017, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa by a delegate of the Minister under s.109 of the Act for non-compliance with s.101(b) of the Act. The applicant was thereby advised that the delegate had considered that the applicant had provided incorrect answers in his protection visa application, in particular matters including his real name, his age, the year when he met his wife, his citizenship status and that he feared harm if he returned to Iran.

4. The NOICC relied on information provided by the applicant’s wife in her application for a visa application, lodged in December 2013. The applicant was the sponsor for that visa application.

5. On 21 July 2017, the applicant’s representative provided a response to the notice[2], disputing that the applicant provided incorrect information to the Department.

   [2] CB: 56

6. However, on 20 November 2017, the Minister cancelled the applicant’s visa under s.109. The applicant applied to the Tribunal for a review and was subsequently invited to a hearing. Further submissions were provided by the applicant on 27 February 2019.

7. On 5 September 2019, the Tribunal determined the applicant’s case. It affirmed the decision of the delegate to cancel the applicant’s protection visa.

The application before this Court

1. The applicant relied on a single ground of review, namely that:

   The Tribunal erred by its failure to discuss and give reasons in its Decision for its finding.

2. The applicant was self-represented with the assistance of an interpreter.

The matters advanced by the applicant at the hearing

1. The applicant did not file any written submissions, however he was provided the opportunity to make oral submissions in respect of the application before the Court.

2. The applicant told the Court that he was 5 years old when he left Iraq. When Iran received him, he lived in a camp where he spent several years. While he was in Yazd, he got to know his wife, who is Iranian. They wanted to get married. Her father was then able to get him papers so that they could marry, and they subsequently did marry and had two children. After a while, he realised that there was an intention to deport him to Iraq, and fearing that he would be considered a spy if he went back to Iraq, he found a contact and obtained a fake Iranian passport to fly to Indonesia. The smuggler who got him to Indonesia then took his passport, and sent him on a boat to Australia. When he arrived in Australia, he spent two years in a camp, and he was eventually granted a visa. He has been in touch with his wife, who told him that his children were suffering from depression. He then travelled to Iran, and he entered “like an Australian citizen”. He only had a white card.

3. The applicant says that he has told the truth to the Tribunal, about his father in law obtaining identification cards for his children, and that everything else he said was also the truth.

4. The applicant requested that the Court help him.

5. The applicant’s submissions did not address in any way his sole ground for judicial review, nor did he raise any issues in his submissions about not being provided with proper or adequate reasons. The applicant did not raise with the Court any issue which might have been capable of being considered as a jurisdictional error argument.

6. The applicant’s complaint boils down to an impermissible merits review application.

Determination

1. A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led the Tribunal to somehow fail to fulfil its duty and function of reviewing the decision of the delegate. In order to succeed, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error.

2. It is clear from the Tribunal’s reasons that the Tribunal found that the applicant was not stateless and that he is in fact was an Iranian citizen.

3. Further, the Tribunal, as is disclosed in its reasons:

   a)was not prepared to accept the applicant’s claim that he did not possess an Iranian birth certificate and that it was his father-in-law who arranged his wife and children’s identity documents through bribery[3];

   b)was concerned with the inconsistencies of the applicant’s information, including his name and date of birth. The Tribunal ultimately found that the applicant’s evidence was ‘confused and disingenuous’[4]; and

   c)was not convinced about the applicant’s credibility having regard to what the applicant alleged to have happened to him at Tehran airport, that is that he was taken away for interrogation of the airport officials.[5]

   [3] CB: 152 at [47]

   [4] CB: 152 at [48]

   [5] CB: 153 at [49]

4. Noting that cancellation of the applicant’s visa is discretionary, the Tribunal then went on to consider its obligations pursuant to s.109(2) of the Act, specifically considering the prescribed circumstances set out in reg. 2.41 of the Migration Regulations 1994 (Cth). The Tribunal in its reasons went on to consider these factors and lastly concluded that it was satisfied to exercise its discretion to cancel the visa.

5. The Tribunal was required to conduct a hearing in accordance with s.425 of the Act, that is, to give the applicant the opportunity to appear before it and give evidence and present arguments, which it did. The applicant was well aware at all times of the concerns the Tribunal had about his citizenship status, and had given him the opportunity of addressing those concerns.

6. The Tribunal was required to provide a written statement of its reasons pursuant to s.430 of the Act, which it did. It was not however, required or obliged to reveal its entire reasoning process to the applicant[6].

   [6] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; [2006] HCA 63; (2006) 228 CLR 152 at [48]

7. The Tribunal’s reasons were nonetheless cogent and comprehensive. They were compliant with its obligation under s.430 of the Act to give reasons for its decision.

8. The Tribunal’s reasons did not involve any illogicality or unreasonableness.[7]  The findings of the Tribunal and the outcome of its decision, were open to a reasonable decision maker on the material that was available to the Tribunal.

   [7] ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at 47

9. The applicant has not established any jurisdictional error in respect of the Tribunal’s decision.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 3 February 2021