DXQ16 v Minister for Immigration

[2019] FCCA 3096

FEDERAL CIRCUIT COURT OF AUSTRALIA

DXQ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3096

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Decision to cancel the applicant’s Subclass 866 (Protection) visa – whether the Tribunal misunderstood and misapplied the relevant law – whether the Tribunal provided logical and rational reasons – whether the Tribunal’s adverse findings lack an evident and intelligible justification – no jurisdictional error arises by reason of the non-disclosure of the s.375A certificate – application dismissed.

Legislation:

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

Migration Regulations 1994 (Cth), r.2.41

Applicant: DXQ16

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3585 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 costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3585 of 2016

DXQ16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 Class XA subclass 866 Protection visa.

2. The applicant was the beneficiary of a Departmental assessment that she was stateless and that her husband was also stateless and that they failed to meet the criteria of the Refugee Convention on that ground.

3. On 24 September 2015, the applicant was sent a notice of intention to consider cancellation under s.109 of the Act. The notice identified questions that had been asked in the application for protection in which the applicant had asserted that she was stateless. The notice identified that on 29 June 2011 the applicant was granted a Class XA subclass 866 Protection visa on the basis that she was stateless.

4. The notice identified that, on 5 August 2014, the applicant, her son and her husband departed Australia, together with her younger Australian born son, and that the applicant and her sons returned to Australia on 7 October 2014.

5. The notice identified that, at the time of arrival, the applicant had in her possession an Iranian passport issued on 30 August 2014 and that there were Iranian passports that had also been issued on 10 September 2014 in respect of her two sons. The notice identified the significance of holding Iranian passports as well as the Department movement records in respect of the applicant’s departure abroad and that the applicant spent most of her time in Iran. The notice identified:

   Given this information it is apparent that you have provided incorrect information in your application for a Protection visa.

6. The notice further identifies that the applicant is not stateless and was at the time the holder of an Iranian passport and is an Iranian citizen. On 21 June 2016, the delegate cancelled the visa on the basis of the incorrect answers provided by the applicant in her application for protection, consistent with the notice under s.109(1) of the Act.

7. The applicant applied for review to the Tribunal on 11 July 2016. By letter dated 12 September 2016, the applicant was invited to attend a hearing on 5 October 2016. The applicant appeared on that date to give evidence and present arguments and was assisted by her migration agent representative. Submissions were also provided to the Tribunal on behalf of the applicant on 3 October 2016.

8. The Tribunal in its reasons identified the background to the review application. The Tribunal found that the notice complied with the requirements of s.107 of the Act.

9. The Tribunal turned to issue of whether there was non-compliance as described in the s.107 notice. The Tribunal noted the applicant had unequivocally admitted that she provided incorrect information when seeking protection from the Australian authorities. In these circumstances, the Tribunal found the applicant had not complied with s.101(a) of the Act which requires the applicant to complete the application form in such a way that no incorrect answer is given or provided. Accordingly, the Tribunal found there was non-compliance by the applicant in the way described in the s.107 notice.

10. The Tribunal then turned to the issue of whether the visa should be cancelled. The Tribunal identified what had occurred up until the commencement of the hearing on 5 October 2016. The Tribunal referred to the applicant’s explanation in relation to meeting people in Indonesia in detention who advised her not to disclose the truth and that there was also an issue that overlapped with this in relation to her marriage. The Tribunal found the applicant continued, up until very recently, to provide incorrect information and mislead the Australian authorities. The Tribunal found that, for a substantial period of time, the applicant continued to assert and make submissions that are false, which is serious The Tribunal gave significant weight to this when considering whether or not to cancel the visa.

11. The Tribunal referred to the applicant’s present circumstances in relation to her children. The Tribunal was not satisfied that the applicant’s present circumstances meant that the visa should not be cancelled. The Tribunal did give some weight to the fact that the applicant has admitted that she provided false information. However, the Tribunal found that admission could have come a lot earlier which might have assisted in the early resolution of this matter.

12. The Tribunal was satisfied that prior to the hearing before the Tribunal, the applicant never sought to correct the record or show a level of recognition of wrongdoing. The Tribunal gave this aspect significant weight in affirming the decision to cancel the visa.

13. The Tribunal considered each of the prescribed circumstances set out at r.2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”). Having considered those discretionary matters and the guideline, the Tribunal was satisfied that the applicant has provided incorrect information in order to achieve a favourable migration outcome.

14. The Tribunal found that there was non-compliance in the way described with a notice under s.107 of the Act. Having regard to all the relevant circumstances, the Tribunal concluded that the visa should be cancelled. 

Before this Court

1. These proceedings were commenced on 16 December 2016. On 27 April 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The hearing was conducted consecutively with a hearing in relation to the applicant’s husband. The applicant confirmed that she understood the nature of the hearing explained by the Court.

3. From the bar table, the applicant maintained that she had now told the truth and repeated, in substance, the explanation she had given to the Tribunal about being told by friends in Indonesia not to disclose her Iranian citizenship and to say that she was stateless. The applicant’s submissions from the bar table, in substance, invited this Court to engage in merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. There are eight grounds in the application which 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. In relation to ground 1, this is a generalised allegation of error of law and unparticularised it is incapable of making out any jurisdictional error. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and made adverse findings that were open for the reasons summarised above. No erroneous application of the relevant law is apparent on the face of the Tribunal’s reasons. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, unparticularised, this allegation is also incapable of making out any jurisdictional error. There has been no misapplication, misunderstanding or misrepresentation of the law by the Tribunal identified by the applicant. Nor was any such misunderstanding or misapplication apparent on the face of the Tribunal’s reasons.

2. There is no correct question identified that the Tribunal should have asked. On the face of the material before the Court, the Tribunal correctly applied the legislative provisions and made adverse findings that were open to the Tribunal 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 proposition that there is no evidence to support the Tribunal’s decision is not capable of being made out. There was the admission by the applicant herself in respect of the false answers the subject of the notice, quite apart from the other material identified by the Tribunal which was discussed with the applicant. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, no relevant consideration has been identified by the applicant that the Tribunal failed to take into account. No jurisdictional error arises by reason of ground 4.

Ground 5

1. In relation to ground 5, no irrelevant consideration has been identified by the applicant that the Tribunal failed to take into account. No jurisdictional error is made out by ground 5.

Ground 6

1. In relation to ground 6, it is apparent that the Tribunal considered the applicant’s particular circumstances and, in that regard, considered the merits of the particular case. The Tribunal’s reasons reflect an active intellectual engagement with the applicant’s claims and evidence. Accordingly, no jurisdictional error as alleged in ground 6 is made out.

Ground 7

1. In relation to ground 7, the Tribunal has provided logical and rational reasons in support of the confirmation of the cancellation of the applicant’s visa. Those reasons include the admitted incorrect answers by the applicant which were maintained up until the time of hearing before the Tribunal. The adverse finding is not one that no reasonable decision-maker could come to. Nor is the adverse outcome one that could be said to lack an evident and intelligible justification. That evident and intelligible justification is identified in the Tribunal’s reasons as summarised above. No jurisdictional error is made out by ground 7.

Ground 8

1. In relation to ground 8, there is no identified uncertainty in respect of the exercise of the decision of the Tribunal. The adverse findings were clear and open. No jurisdictional error is disclosed by ground 8.

Section 375A Certificate

1. The first respondent, consistent with its duties as a model litigant, drew the Court’s attention to the existence of a certificate issued on 25 July 2016 under s.375A of the Act which provision had no application to the Tribunal in the circumstances of the present case.

2. The Minister conceded that the certificate was invalid and tendered into evidence, without objection, the folios the subject of the invalid certificate. In the case of this applicant, every one of the folios was disclosed to the applicant prior to the hearing on 5 October 2016. The documents were identified in attachment B to the letter dated 26 September 2016, providing access to the whole of the documents the subject of the s.375A certificate.

3. In these circumstances, it is clear that the applicant suffered no practical injustice in the conduct of the review. Further, it is apparent that the substance of the only potential adverse information in those folios was disclosed by the notice of intention to cancel. On the face of the Tribunal’s reasons, the issue was raised by the Tribunal with the applicant in respect of whether the visa should be cancelled and the applicant had a real and meaningful hearing.

4. Further, given the applicant’s admission in respect of the incorrect answers, none of the folios could be said to be material. The non-disclosure of the certificate and the documents the subject of the certificate in the circumstances of the present case could not possibly have given rise to a different outcome in respect of the review.

5. Accordingly, no jurisdictional error arises by reason of a non-disclosure of the certificate or the documents the subject of the certificate.

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

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  27 November 2019