Edi18 v Minster for Home Affairs

[2019] FCCA 631

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDI18 v MINSTER FOR HOME AFFAIRS & ANOR [2019] FCCA 631

Catchwords:
MIGRATION – Review of administrative appeals decision – interpretation of s.91WA(1)(b) of the Migration Act – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91WA; 91WA(1); 91WA(1)(a); 91WA(1)(b)

Cases cited:

BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72

Applicant: EDI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 818 of 2018

Judgment of: Judge Vasta

Hearing date: 11 March 2019

Date of Last Submission: 11 March 2019

Delivered at: Brisbane

Delivered on: 15 March 2019

REPRESENTATION

Counsel for the Applicant: Mr R.Hii

Solicitors for the Applicant: AustralAsia Law

Counsel for the First Respondent: Mr B. McGlade

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed 10 August 2018 and amended on 11 March 2019 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 818 of 2018

EDI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In 2014, the Migration Act 1958 (Cth) (“the Act”) was amended by adding s.91WA so that the Minister must refuse to grant a protection visa to an Applicant if the Applicant provided a bogus document or the Minister was satisfied that the Applicant destroyed or disposed of documentary evidence of their identity.

2. The main issue in this matter is whether s.91WA of the Act applies to this Applicant

History

1. The Applicant is a citizen of Vietnam.  He arrived in Australia as an unlawful maritime arrival on 19 May 2013.

2. At his biodata interview on 19 June 2013, the Applicant gave his name as Hoang Anh Hung with a date of birth of 15 July 1996.  Notwithstanding that he was claiming to be under the age of 17, the department determined that he was actually over the age of 18.  This meant that he was sent to another detention centre.

3. At his irregular maritime arrival entry interview on 3 July 2013, the Applicant maintained his false name and, because the Department had concluded that he was over the age of 18, his date of birth was recorded as 15 July 1994.  He said that he had no documentation to prove his identity but that he could contact his parents to see if they could give him a birth certificate. 

4. He told the department that he had no members of his family travelling with him on the boat and that he did not know anyone on the boat prior to boarding the boat.  He said that he had never travelled outside of Vietnam before he made the journey to Australia.  He said that he had never obtained or held a passport. 

5. After the interview, he was issued with a departmental “IMMI card” in the false name and with the false date of birth.

6. On 27 August 2013, the Applicant gave a statement to the department.  In that statement he said that “I presented wrong information because somebody told me that if I was younger I would be allowed to go to school and integrate faster.  If I told the truth, I would be expelled to Vietnam”.

7. The Applicant gave his proper name and detailed that his date of birth was 15 July 1991.  He said that he had travelled on the boat with his younger sister.  He admitted that when officials had questioned him when he arrived, he did not tell them that he had a sibling on the same boat.  He said that he wished to be reunited with his sibling.

8. On 16 June 2014, the Applicant made an application for a protection visa.  In that application, the Applicant said that he would provide a copy of his Vietnamese national ID card at a later time.  Also in that application, the Applicant admitted that he had used a passport but that he destroyed it on the way to Australia (CB 42).

9. That application was eventually refused.  The Applicant asked for a review by the Administrative Appeals Tribunal (“the AAT”).  The original decision was affirmed.  An application for review was filed in this Court.  The application was allowed, by consent, and the matter was remitted back to the AAT.

10. On 19 July 2018, the present AAT affirmed the decision not to grant the Applicant a protection visa. The present AAT decided the matter based upon their interpretation of s.91WA.

The decision of the AAT

1. The AAT went through all of the claims of the Applicant and listed them in paragraphs 30 to 42 of their reasons.  The Tribunal noted the Applicant’s original claims relating to his name and date of birth and asked him when it was that he “decided to tell the truth”.  The Applicant replied that he did so when he learned about his ability to claim as a refugee.

2. The Tribunal asked the Applicant why he lied about his age on entry and he said that he just followed the trend of what some others on the boat were doing when they were intercepted.

3. At paragraph 69 of the reasons, the Tribunal noted that they asked the Applicant when he destroyed his passport:

   He said he couldn’t not recall accurately.  He said that once he got on the boat he didn’t think he would need it any more.  The Tribunal asked him again, could he remember whether it was before he landed in Indonesia or Australia. He said that he just can’t remember, but the said that he didn’t think he would need it anymore.  The Tribunal asked him how he destroyed the passport. He said couldn’t remember how he did it either.  He said one of the other people might have done it for him.  He couldn’t recall.  The Tribunal confirmed that he had it when he left Vietnam.

4. At paragraph 70:

   The Tribunal reminded the applicant that he had told the interviewer on entry that he had destroyed his passport.  He had also stated on his Protection Visa Application form that he destroyed his passport. 

5. On my reading of the material, it was not until he filled out his protection visa application that the Applicant had admitted destroying his passport.  Previous to this, the Applicant had said that he had no passport.

6. At paragraph 71, the Tribunal again queried the Applicant’s reason for destroying the passport. The Tribunal reminded the Applicant that he had been to Thailand before and he needed a passport to leave Vietnam and to enter Thailand and to do the same on return.  The Tribunal pointed out that it was implausible to think that the Applicant would not need a passport unless he knew that he would not be going through an immigration checkpoint.  The Applicant simply said that he did not think he would need it again.

7. It was at this point that the Tribunal considered whether the application was required to be refused pursuant to s.91WA.

8. The Tribunal came to the conclusion that, because the Applicant had destroyed documents, that the application must be refused unless the Tribunal was satisfied that the Applicant had a reasonable explanation for destroying the passport and had provided documentary evidence of his identity.  The Tribunal found that, whilst the Applicant had provided such evidence, he had not given a reasonable explanation for destroying his passport.  Therefore the application had to be refused.

The grounds of this application

1. There are five grounds of the amended application. They are:-

   1.   The Administrative Appeals Tribunal (the Tribunal) in its decision on 19 July 2018 failed to take into account section 91 WA(2) of the Migration Act 1976 and refused the application on the basis of the first limb of the section only, viz. s.91WA( l ).

   2.   The Tribunal acted beyond its jurisdiction throughout the process of determining that the Applicant was precluded by s.91WA(1) from being granted a TPV.

   3.   The Tribunal reached conclusions that were not based on factual evidence raised by the Applicant or available to it in relation to the Applicant;

   4.   The Tribunal failed to take into account a relevant consideration in its determination as to whether the Applicant had a reasonable explanation for the alleged destruction of the documentary evidence.

   5.   The Tribunal's decision was manifestly unreasonable and a denial of natural justice as it is based on conclusions and determinations not based on any material or fact before it.

2. Realistically, the Applicant submits that s.91WA was not applicable to his situation because there was no temporal link between the destruction of the documentation and the application for the protection visa.

3. At this point, it is instructive to look at the provisions of s.91WA:-

   Providing bogus documents or destroying identity documents

   (1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

   (a)the applicant provides a bogus document as evidence of the applicant's identity, nationality or citizenship; or

   (b)  the Minister is satisfied that the applicant:

   (i)  has destroyed or disposed of documentary evidence of the applicant's identity, nationality or citizenship; or

   (ii)  has caused such documentary evidence to be destroyed or disposed of.

   (2)Subsection (1) does not apply if the Minister is satisfied that the applicant:

   (a)has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

   (b)  either:

   (i)  provides documentary evidence of his or her identity, nationality or citizenship; or

   (ii)  has taken reasonable steps to provide such evidence.

   (3) For the purpose of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

4. The reasoning of the Applicant is based on what was said by the Full Court in BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72.

BGM16

1. In that case, the Full Court was looking at a person from Albania who had travelled to Australia on a false Greek passport.  The person was granted two further visitor visas and a student visa over a two-year period using that false Greek passport.  An application for a second student visa had been refused.

2. Eventually, the scheme was unravelled because of problems that the person had in attempting to obtain a driver’s license in New South Wales.  The person was placed in immigration detention.  One month afterwards, he made an application for a protection visa in his full and correct name.

3. The question, that the Full Court was grappling with, was whether the provisions of s.91WA(1)(a) applied. There was no doubt that the person had provided a bogus document in the past; that is, when he entered Australia, when he applied for subsequent visas and when he applied for a drivers licence in New South Wales. However he did not use that bogus document when he applied for his protection Visa.

4. The Full Court noted, at paragraph 28 of the judgment, that there was a difference between ss.91WA(1)(a) and ss.91WA(1)(b). In the former, it was a matter of fact whether a bogus document was provided whereas in the latter, it was a matter for the satisfaction of the Minister whether documentation had been destroyed.

5. It was also noted that the language of ss.91WA(1)(a) was in the present tense because it used the word “provides”. The language of ss.91WA(1)(b) is in the past tense because it uses the words “destroyed”, “disposed” and “caused”.

6. The difference in tense is telling.

7. At paragraph 80 the Full Court said:-

   The present tense “produces” is used in s 91W(2) and (3), as it is for “provides” in s 91WA(1), (2) and (3). Clearly, however, the text is referring to conduct that does not occur at one particular point in time. It is referring to conduct that occurs, or might occur, over a certain period of time and in conjunction or contemporaneously with another event: namely, the protection visa application and decision-making process. For example, where in s 91WA(2) (the exculpatory provision) the provision posits first a reasonable explanation and then states that an applicant “provides” documentary evidence of her or his true identity, the use of the apparently present tense there must sensibly refer, in fact, to a past event. That is – bogus documents have been provided, they are discovered, an applicant gives an explanation which is satisfactory to the Minister and also “gives” or “presents”, or “provides” evidence of her or his true identity. In reality, this conduct is occurring in the past. However, the text uses the present tense to signify contemporaneity with the process in which the conduct occurs – that is, the protection visa process.

8. The conclusion of the Full Court is neatly summarised by Siopis J who said at paragraph 8:-

   In my view, therefore, on its ordinary meaning, when read in context, the text of s 91WA(1)(a) is directed specifically to conduct by an applicant for a protection visa in relation to the making of an application for a protection visa.

9. In effect, the Full Court ruled that the person did not come within the purview of s.91WA because he did not “provide” a bogus document as an Applicant for a protection Visa.

Application of BGM16 in the present matter

1. The Applicant contends that because the destruction did not occur at the time of, or have a temporal link to, the application for a visa, s.91WA can have no application in this case. While the Applicant concedes that BGM16 was concerned with ss.91WA(1)(a), nevertheless the submission is that the same principle also applies to subsection ss.91WA(1)(b).

2. The Applicant points to paragraph 49 of the judgment of the Full Court in BGM 16. In that paragraph, the Full Court gives an example of a situation where it may be said that ss.91WA(1)(b) applies. It reads:-

   Second, a Rohingya who flees the regime in Myanmar and who (let it be assumed) has a meritorious claim for protection. During her entry interview she confesses that during military raids while she was in Myanmar she destroyed all her identity documents and fled across the border to Thailand where, after several years and before her entry into Australia, through UNHCR she secured new identity documents disclosing her true identity. Her conduct would nevertheless be within s 91WA(1)(b) on the Minister’s construction. The destruction of her original identity documents had nothing to do with her claim for protection in Australia, and was done to avoid detection by the Myanmar military while she lived in Myanmar. She was honest and made full disclosure of her true identity and nationality in her protection visa application. To access Australia’s protection visa regime, the person would be dependent on the discretionary application of s 91WA(2) and her credibility would have to withstand an initial assessment, out of context and under the pressure of knowing she may lose her right to apply for asylum, before she could make her claims on the merits.

3. The Full Court said nothing more about this particular example other than a reference, at paragraph 71, that an outcome as envisaged in paragraph 49 may be seen as “unfair”.  However, there are many examples of the outcome of statutorily interpreting legislation that lead to a result that some may feel as “unfair”; it does not necessarily mean that the interpretation is therefore wrong.

4. It is a matter now for this Court to decide how ss.91WA(1)(b) ought be interpreted.

Interpretation

1. The starting point is the text itself. As noted previously, this subsection is written in the past tense and is therefore quite different to ss.91WA(1)(a). The temporal nexus between the application process and the destruction of documentation is realistically non-existent because of this difference.

2. It may well be said that if there is no temporal nexus then the example given by the Full Court in paragraph 49 of BGM16 may lead to an unfair result.  However, it does seem to me that the “unfairness” is removed, or at least ameliorated, by the provisions of s.91AW(2). Notwithstanding that such a person may be dependent on the discretionary application of this subsection, it would be difficult in the paragraph 49 example to imagine how the proper use of the discretion in this subsection would not lead to the Minister finding that there was a reasonable explanation for the destruction.

3. There is some guidance as to what the intention of Parliament was in the second reading speech of the Minister.  The Minister said this to Parliament:-

   …Changes to section 91W of the Migration Act, and the introduction of a new section 91WA, introduce a power to refuse the grant of a protection visa unless the applicant provides documentary evidence of their identity, nationality or citizenship when requested to do so, or has taken reasonable steps to do so. Presenting bogus documents for the purpose of establishing identity will result in refusal of a protection visa application unless the applicant has a reasonable explanation for presenting them and either provides documentary evidence of their identity, nationality or citizenship, or has taken reasonable steps to do so. The same applies to an applicant who has destroyed or discarded identity documents, which has been a common practice of those who have entered Australia illegally, or has caused that to happen at the hands of another person such as a people smuggler. (my underlining)

4. The situation that is present in this matter is exactly what the Minister was referring to in the second reading speech.  Even if there were a temporal link to the destruction of documentation and the application for protection, the second reading speech demonstrates that the Applicant is well within that temporal link.

Conclusion on interpretation

1. I am of the view that a proper interpretation of s.91WA(1)(b) means that it has application to the circumstances of the Applicant. Having come to that conclusion, it follows that I do not accept that the Tribunal acted beyond its jurisdiction in making the determination that it did. This means that ground two fails.

Consideration of the other grounds

1. Having come to the conclusion that the Applicant was covered by s.91AW(1)(b), I must look at whether any aspect of the consideration of this subsection was attended by jurisdictional error.

2. Having gone through the reasons of the Tribunal, it is clear that the Tribunal was satisfied that the Applicant had destroyed his passport.  This was a very important first step.  The Applicant had said when he gave his false name and date of birth that he had no documentation.  When he made his visa application, he wrote that he destroyed the passport on the voyage to Australia.

3. On this evidence, it was open to the Tribunal to be satisfied that the Applicant had destroyed his passport.  Notwithstanding that the Applicant was vague about what happened to his passport and that he thought that he did not need it anymore, the Tribunal was not bound to accept that evidence, especially when he had previously admitted having destroyed the passport.

4. Because of this, there is no merit in ground three.

5. Ground four is really a complaint that the delegate and the first AAT did not consider that s.91WA applied. What the delegate and the first AAT did may be of assistance in giving the present AAT some context and guidance, but the present AAT must approach its task as it sees fit.

6. Just because no previous decision maker had relied upon s.91AW did not preclude the present AAT from relying upon it. This could never amount to a “relevant consideration”. For it to be a relevant consideration, it must be mandatory for the present AAT to take into account that no previous decision maker had referred to s.91WA. The Applicant has failed to illustrate why such would be a “relevant consideration”.

7. There is no merit in this ground and accordingly ground four fails.

8. The decision of the Tribunal demonstrates that it had a clear understanding of the “exculpatory” provision in s.91WA(2). In fact, it is because there was no reasonable explanation as to why the Applicant had destroyed his passport that the Tribunal found as it did.

1. Therefore, ground one fails.

2. The final ground is really an invitation for an impermissible merits review.  For this ground to be successful, it must be illustrated to the Court that the conclusion reached by the Tribunal was simply not supported by the evidence; in other words, the conclusion was not open.

3. When one looks at the whole history of the matter, it reveals the following.  The Applicant arrived in Australia and gave a false name and false date of birth.  He said that he had no documentation to prove his identity.  He was assessed as being older than he claimed.  Notwithstanding this, the Applicant maintained the false identity.

4. He then told the department his true identity because he said that he wanted to be housed with his sister.  He then made an application for a protection visa where he admitted that he did have proof of identity but that he destroyed it in the voyage to Australia.  When asked about this by the Tribunal, he became very vague as to what happened to his passport and said that he did not think that he would need it anymore. 

5. The Tribunal noted that the Applicant had been to other countries before and had used his passport to do so.  The Tribunal found it incongruous that the Applicant would think that he did not need his passport anymore.

6. On this evidence, the conclusion that the Tribunal came to, that they were satisfied that he had destroyed his passport, was open. 

7. The conclusion that they were not satisfied that the Applicant had given a reasonable explanation for destroying his passport was also open.  It must be remembered that this conclusion is one of non-satisfaction.  It is always for the Applicant to satisfy the decision-maker.  On this evidence, it was clearly open to the Tribunal to not be satisfied. Therefore ground five also fails.

8. I dismiss the application with costs fixed in the sum of $7,467.00.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:       15 March 2019