EGS17 v Minister for Immigration

[2018] FCCA 2539

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGS17 v MINISTER FOR IMMIGRATION [2018] FCCA 2539

Catchwords:
ADMINISTRATIVE LAW – Whether administrative decision-maker’s decision erroneous in law because the person affected by the decision had been denied natural justice, because the decision was manifestly unreasonable or because the decision reflected an improper exercise of power.

Legislation:

Administrative Decisions (Judicial Review) Act 1977, ss.5, 16

Australian Citizenship Act 2007, s.37
Freedom of Information Act 1982, s.50
Australian Citizenship Regulations 2007
Australian Citizenship Regulation 2016, reg.12

Cases cited:
Kioa v West (1985) 159 CLR 550
Immigration & Citizenship v SZMOK (2009) 247 FCR 404

Applicant: EGS17

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2959 of 2017

Judgment of: Judge Cameron

Hearing date: 13 February 2018

Date of Last Submission: 13 February 2018

Delivered at: Sydney

Delivered on: 11 September 2018

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: Parish Patience Legal and Migration Services

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Pursuant to s.16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977, the decision made on 31 August 2017 to affirm an earlier decision made on 14 July 2014 that the applicant is not a person entitled to be given a notice stating that she is an Australian citizen having the name and birth date specified in the application for that notice be set aside.

2. Order 1 has effect on and from 31 August 2017.

3. The applicant’s application for a notice stating that she is an Australian citizen under s.37(2) of the Australian Citizenship Act 2007 be remitted to the respondent for decision according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2959 of 2017

EGS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This application has been brought under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) for review of a decision of a delegate of the respondent (“Reviewer”) made on 31 August 2017 not to issue the applicant a notice under s.37(2) of the Australian Citizenship Act 2007 (“Citizenship Act”) stating that she is an Australian citizen.  The Reviewer’s decision effectively prevents the applicant from being recognised as an Australian citizen under her current name. 

2. The applicant seeks an order under s.16 of the ADJR Act quashing or setting aside the Reviewer’s decision. She seeks a further order directing the Minister to give her a notice under s.37(2) of the Citizenship Act or, alternatively, an order that her application be remitted for reconsideration.

RELEVANT LEGISLATION

Australian Citizenship Act

1. Division 4 of pt.2 of the Citizenship Act relates to how a person may obtain evidence of their Australian citizenship. Relevantly, s.37 provides:

   37     Evidence of Australian citizenship

   (1) A person may make an application to the Minister for evidence of the person’s Australian citizenship.

   Notice

   (2) The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.

   (3) The notice must:

   (a) be in a form prescribed by the regulations; and

   (b) contain any other matter prescribed by the regulations.

   Identity

   (4) The Minister must not give the person such a notice unless the Minister is satisfied of the identity of the person.

   …

Australian Citizenship Regulations

1. Regulation 12 of the Australian Citizenship Regulation 2016 (“Citizenship Regulations”) relevantly provides for the purposes of s.37(3) of the Citizenship Act that a notice issued under that section must be in accordance with the form in sch.2 to the Citizenship Regulations which is:

   COMMONWEALTH OF AUSTRALIA

   Australian Citizenship Act 2007

   Australian Citizenship

   (full name of citizen)

   born on (date of citizen’s birth)

   I, the Minister administering the Australian Citizenship Act 2007, give notice that the abovenamed is an Australian citizen and that citizenship was acquired on (date of acquisition or birth).

   (Signature or printed or stamped signature of the Minister)

   MINISTER FOR IMMIGRATION AND BORDER PROTECTION

   (Signature of presiding officer)

   Dated:

   Evidence No:

2. The Australian Citizenship Regulations 2007, as in force at the time the applicant applied for the s.37(2) notice, relevantly made the same provision.

ADJR Act

1. Section 5(1) of the ADJR Act enables a person who is aggrieved by a decision to which the Act applies to make an application to this Court for an order of review in respect of that decision. It relevantly provides:

   5  Applications for review of decisions

   (1)  A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

   (a)  that a breach of the rules of natural justice occurred in connection with the making of the decision;

   …

   (e)  that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

   (f)  that the decision involved an error of law, whether or not the error appears on the record of the decision;

   …

   (2)  The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

   …

   (g)  an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;…

2. Section 16 of the ADJR Act sets out the types of orders which the Court may make in respect of applications for review. It relevantly provides:

   16  Powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review

   (1)  On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:

   (a)  an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

   (b)  an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

   (c)  an order declaring the rights of the parties in respect of any matter to which the decision relates;

   (d)  an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

   …

BACKGROUND FACTS

Requests under the FOI Act

1. On 13 July 1992 the applicant’s father lodged an offshore application for a permanent entry visa for Australia on the basis of humanitarian grounds.  The application included the applicant, her six siblings and their mother and the applicant’s name and date of birth were recorded as “ABCD”, 13 October 1977.  Relevantly provided in support of the application was a Republic of Iraq identification card for the applicant (issued on 27 December 1980) which also recorded her date of birth as 13 October 1977.  

2. On 5 January 1994 the applicant and her family were granted humanitarian visas.  The applicant was subsequently included in her father’s “Document for Travel to Australia” which recorded her name as ABCD, date of birth 12 October 1977.  The applicant entered Australia on 29 January 1994.

3. On 30 January 1996 the applicant lodged an application for conferral of Australian citizenship under the name “AD”, date of birth 12 October 1977.  The application was supported by a statutory declaration from the applicant who stated that she had ceased using the name ABCD and had instead been using the name AD since her arrival in Australia.  The applicant acquired Australian citizenship on 22 May 1996 in the name AD, date of birth 12 October 1977.

4. On 30 June 2008 the applicant lodged a request with what is now the Department of Home Affairs (“Department”) to amend, under s.50 of the Freedom of Information Act 1982 (“FOI Act”), the Department’s records relating to her date of birth from 12 October 1977 to 12 October 1983. Her request was refused on 20 August 2008 because the delegated decision-maker was not satisfied that the Department’s records were incomplete, incorrect, out-of-date or misleading.

5. On 14 April 2009 the applicant lodged another FOI request to amend her date of birth.  In her application form the applicant stated that when her family escaped to Iran they did not bring any documents with them.  She stated that her parents had simply given her a date of birth.  In support of her request the applicant provided a birth certificate and a certificate of baptism, both issued in 2008, which recorded her date of birth as 12 October 1983.  Her request was refused on 15 July (or May) 2009.

6. On 10 March 2010 the applicant made a further request under the FOI Act to amend her date of birth. Relevantly, the request was supported by an Iraqi passport in the applicant’s name (issued on 9 March 2010) which recorded her date of birth as 12 October 1983. On 8 April 2010 the applicant’s request was approved and the Department’s records were accordingly amended.

Requests under the Citizenship Act

1. On 8 July 2010 the applicant lodged a Form 119 with the Department requesting, under s.37 of the Citizenship Act, that she be issued with a (new) certificate of Australian citizenship in the name “ED”, date of birth 12 October 1983. Her application was refused on 5 April 2011 because the delegated decision-maker was not satisfied of the applicant’s identity for the purposes of the Citizenship Act. Specifically, the delegate was not satisfied that the applicant was the same person who had acquired Australian citizenship on 22 May 1996 in the name AD, formerly ABCD, born on 12 October 1977.

2. The applicant applied again in 2012, 2013 and 2014. These applications were similarly refused.

3. On 19 January 2016 the applicant lodged a further Form 119 requesting evidence of her Australian citizenship in the name ED, date of birth 12 October 1983.  In support of this application she relevantly provided:

   a)a New South Wales Change of Name Certificate dated 4 July 2010 for ED, date of birth 12 October 1983, former names listed as AD, AF and EF (“F” being her mother’s maiden name).  The certificate indicates that the date of birth of the registered person had previously been recorded as 12 October 1977;

   b)a New South Wales driver’s licence for ED, date of birth 12 October 1983; and

   c)various cards and accounts in the name of ED.

4. The applicant’s application was refused on 14 July 2016 as the decision-maker was not satisfied of the applicant’s identity.

Application for review

1. On 5 August 2016 the applicant requested an internal review of the decision of 14 July 2016.  Relevantly, she submitted the following documents in support of her review application:

   a)a letter from the Consulate-General of the Republic of Iraq/Sydney dated 18 January 2012 confirming the validity of her Iraqi passport;

   b)statutory declarations from the applicant’s father, mother and siblings, all confirming that she was born on 12 October 1983;

   c)her own statutory declaration in which she claimed the following:

   i)she was born in Iraq on 12 October 1983;

   ii)when her family escaped to Iran, they were not able to bring all their official documents with them;

   iii)during the process of preparing their humanitarian visa applications, her father wrote down her date of birth incorrectly and the mistake was not picked up.  This eventually became her official date of birth in the Department’s records;

   iv)she was granted Australian citizenship in the name AD, which was her baptized name, but her name was in fact ED;

   v)she adopted her mother’s surname for security reasons in order to travel to Iraq (although she did not end up going).  She eventually changed her surname back to her father’s surname; and

   vi)when she applied for an Iraqi passport in 2010, the Iraqi embassy ascertained her identity by using her father’s original Iraqi identity document.  Consequently, the passport which was issued to her contained the correct details, including her real date of birth, as it had been recorded in official records in Iraq to which her family had lost access.

Reviewer’s decision

1. On 31 August 2017 the Reviewer affirmed the previous delegate’s decision not to give the applicant a notice under s.37(2) of the Citizenship Act. While the Reviewer was satisfied that the applicant (i.e. ED) was the same person who arrived in Australia on 5 [sic] January 1994 as ABCD, and subsequently acquired Australian citizenship as AD, she was not satisfied that the applicant’s date of birth was as claimed. The Reviewer accepted in this regard that the applicant’s Iraqi passport was genuine but found that the provision of identity documents did not of themselves prove one’s date of birth; rather, they needed to be assessed within the context of information provided to the Department at various stages.

2. The Reviewer found that the following matters added weight to the finding that the applicant was born in 1977 and not in 1983:

   a)the humanitarian visa application which was lodged by her father in July 1992 consistently recorded at various parts of the form that the applicant was born in 1977.  In addition, the applicant was consistently recorded as being the third child (of seven children) in lists of family members and was also recorded as having completed six years of schooling.  The details in that form were consistent with the details provided in another form, namely, a “Form 590 – Community refugee resettlement scheme referral” dated 19 October 1992;

   b)the applicant’s eldest sister completed a “Form 842A – Details of child or other dependent family member aged 18 years or over” on 13 July 1992, which recorded the applicant as being 15 years old and the third eldest sibling.  While the Reviewer accepted that the applicant’s sister might not have been aware of the applicant’s exact birthday, she found it unlikely that her sister would not know the ages or the order of the children in the family;

   c)if the applicant had been born in 1983 as claimed, she would have been 9 years old at the time of the humanitarian visa application.  The Reviewer found it unlikely that the applicant would have completed six years of schooling at that age; rather, it was more likely that this would have been the number of years completed if the applicant had been born in 1977;

   d)if the applicant had been born in 1983 she would have been the second youngest sibling.  The Reviewer found it unreasonable that the applicant’s parents and older sister would have consistently and incorrectly recorded the order of the children’s birth and would not know the difference between a 9 year old and a 15 year old child;

   e)an Islamic Republic of Iran Laissez-Passer for the applicant’s father issued on 14 May 1988 (provided in support of the humanitarian visa application) included details of the applicant’s mother and siblings.  The document included a photo of various children and listed the children’s names, apparently in order of birth.  Again, the applicant was recorded as the third child in the family.  Further, while the Reviewer observed that the photo was not completely clear, in her opinion none of the three eldest girls appeared to have the physical characteristics of a 5 year old which would have been the applicant’s age if she had been born in 1983;

   f)the applicant’s Iraqi identification card (also provided in support of the humanitarian visa application) recorded the applicant’s date of birth as 13 October 1977.  In the Reviewer’s opinion, the fact that the card was issued in 1980, prior to the applicant’s claimed date of birth, added weight to a finding that she was born in 1977.  The Reviewer observed that the date of birth in the identification card was different from the date of birth recorded in the Department’s records (i.e. 12 October).  However, she considered this to be a minor discrepancy whereas it was unlikely that the error with the year would not have been identified at the time of issuing given the six year difference being claimed.  The Tribunal also noted that the document contained a photograph of a child, which would not have been possible on the applicant’s claimed date of birth as she would not have been alive at the time the document was issued;

   g)the Reviewer observed that according to standard protocols the issuance of a Document for Travel to Australia required each person named on the document to provide a photograph which was no more than six months old.  Having viewed the photographs attached to her father’s Document for Travel to Australia, the Reviewer was satisfied that the photograph of the applicant was not of a nine year old child (her age based on her claimed date of birth) but more resembled a teenage child (her age based on her recorded date of birth);

   h)the Reviewer considered the statements made by the applicant and her father that the error with her date of birth was not initially identified during the processing of their humanitarian visa applications.  However, given that the documents and photographs on the applicant’s migration file did not support the applicant’s claimed date of birth, the Reviewer placed no weight on their evidence;

   i)the Reviewer also had regard to Departmental notes made during the visa application process which indicated that the applicant’s father had identified and amended an error in one of the children’s dates of birth.  The Reviewer found it unlikely that the applicant’s father would not have also identified the error with the applicant’s date of birth, particularly given the six year difference being claimed;

   j)in relation to the birth certificate which recorded the applicant’s date of birth as 12 October 1983, the Reviewer took into consideration previous decisions by the Department which noted that the document lacked the usual security features and was unable to be verified as genuine.  The Reviewer also noted that the information contained in the birth certificate relating to the ages of the applicant’s parents was contradicted by other documentation held by the Department.  For these reasons, and given that the document was not issued immediately after the applicant’s birth, the Reviewer placed no weight on the birth certificate as supporting her claim that she was born in 1983;   

   k)given the lack of security features contained in the certificate of baptism, the Reviewer also placed no weight on this document; and

   l)finally, the Reviewer placed no weight on the Australian issued documents which recorded the applicant’s date of birth as 1983 as it was likely that those documents had been issued as a result of the applicant’s Iraqi passport.

3. Having considered all the information before her and the relevant legislation, the Reviewer found that the applicant was not a person who was eligible to be given a notice stating that she was an Australian citizen in the name of ED, date of birth 12 October 1983.

PROCEEDINGS IN THIS COURT

1. In her amended application the applicant alleged:

   1.The decision involved an error or errors of law within the meaning of s.5(1)(f) of the Administrative Decisions (Judicial Review) Act, 1977 (Cwth).

   Particulars

   (a)The delegate who made the decision on review dated 31 August 2017 (the reviewer), misconstrued and misapplied the word, “identity” in s.37(4) of the Australian Citizenship Act, 2007, by conflating the question of whom she is with that of her date of birth.

   (b)The delegate having found that the applicant, now known as [ED], was the same person who arrived in Australia on 5 January 1994 as [ABCD], and who subsequently acquired Australian citizenship as [AD], erred in failing to find that she was satisfied as to the applicant’s identity for the purposes of s.37(4) of the Australian Citizenship Act, 2007.

   2.The decision involved an improper exercise of power within s.5(1)(e) of the Administrative Decisions (Judicial Review) Act, 1977, read with s.5(2)(g) thereof.

   Particulars

   (a)The reviewer failed to consider the issue of a notice under s.37 of the Australian Citizenship Act, 2007 stating the applicant’s date of birth to be 12 October  1977, in circumstances where she was satisfied as to the applicant’s identity and, it may be inferred, was satisfied that her date of birth was indeed 12 October 1977.

   3. The decision involved a breach of the requirements of natural justice within s.5(1)(a) of the ADJR Act.

   Particulars

   The delegate relied on undisclosed information in finding that the applicant’s date of birth was not 12 October 1977, that information being that in;

   (a)The visa application form 842 lodged by the applicant’s father which included his family, and which consistently recorded the applicant’s date of birth as 12 October 1977.

   (b)Information in that form which recorded the applicant as being the third child in the family and as having completed six years of primary schooling;

   (c)A form 590 in which the birth order of the applicant and her siblings was recorded consistently with that in the Form 842;

   (d)A form 842A, submitted by the applicant’s sister on 13 July 1992, stating that the applicant was then 15 years of age.

   (e)An Islamic Republic of Iran Laissez-Passer for the applicant’s father issued on 14 May 1988 which included photographs of the children and appeared to list them in order of their birth.

   (f)A photograph of the applicant on her family’s Document for Travel to Australia held on the department’s file.

CONSIDERATION

Ground 1

1. The applicant submitted in relation to the first ground of the amended application that although the prescribed form of notice required the insertion of a birth date, reg.12 did not, with the consequence that the prescribed form was inconsistent with the Citizenship Act.

2. Relying on that contention, the applicant argued that for a notice to issue the Minister needed only to be satisfied of a person’s identity. She observed in that connection that s.37(4) poses a question as to whether the applicant for the notice is who they say they are but argued that it imposed no requirement that the Minister be satisfied as to the applicant’s birth date.

3. The applicant further argued that as the Reviewer concluded that she was the person who had been granted citizenship in 1996, the question of her birth date was irrelevant to the Reviewer’s task under s.37 of the Citizenship Act. She submitted that as the Reviewer had taken that matter into consideration she had erred in law.

4. The first allegation depends on the success of the contention, which was not elaborated, that the prescribed form was inconsistent with the Citizenship Act. Any inconsistency will only be relevant if it affects the validity of the form. As long as the prescribed form was not invalid as the product of an invalid exercise of the power delegated by the Citizenship Act, it was effective and required that a person to whom a notice of citizenship would be issued be identifiable by reference to the three discriminating particulars it cited, being name, date of birth and date of acquisition of Australian citizenship.

5. The applicant did not argue that the form was invalid and I do not believe that it was. That being so, the fact that the notice required the insertion of details not mentioned in s.37(4) does not mean that the consideration of such matters was erroneous. The task of the Reviewer was to determine whether the applicant was entitled to a notice of citizenship in the form prescribed by the regulations and she would only be entitled to such a notice if she could be identified by reference to all of the three discriminating particulars which it required be cited on its face.

6. In those circumstances, the Reviewer did not err by considering whether the applicant was identifiable by the 1983 birth date she contended was hers.

Ground 2

1. In support of her second allegation the applicant submitted that even if the Reviewer was entitled or required to be satisfied of her (the applicant’s) date of birth before issuing a s.37 notice, the Reviewer erred by not considering whether to issue a notice stating a date of birth of 12 October 1977. The applicant argued that failure to consider the exercise of the discretion to issue a notice under s.37 of the Citizenship Act, when the decision maker is satisfied that the applicant is in fact a citizen and has reached a conclusion about date of birth, albeit one that is different to that stated by an applicant, lacked an evident and intelligible justification.

2. This argument did not deal with the fact that in the form she completed to apply for the s.37 notice, the applicant stated her date of birth to be 12 October 1983. Following receipt of the application, the Department wrote to the applicant expressing its understanding that she was:

   … requesting the Department to issue you evidence of your Australian citizenship with date of birth 12 October 1983.

   The applicant did not subsequently suggest to the Department that its understanding was incorrect.  Indeed her solicitors’ submissions to the Reviewer dated 5 August 2016 pressed her application by reference to the 1983 date.

3. The applicant did not point to anything which would have suggested to the Reviewer that she sought or would have been satisfied with a notice citing the 1977 date.  In fact, the evidence points quite the other way. 

4. It was therefore not unreasonable of the Reviewer to decide the review by reference to the application which the applicant had made and pressed on review, rather than to one she did not make or even suggest.

Ground 3

1. The applicant submitted in connection with ground 3 that in reaching a decision on the review the Reviewer had relied on the information particularised in the amended application but had not put it to her for comment or response and so denied her natural justice. 

2. On 31 March 2017 the Reviewer wrote to the applicant putting her on notice of certain matters.  Relevantly the Reviewer said:

   In considering your claims that you were born on 12 October 1983 and not 12 October 1977 I have reviewed the information the department holds on you.  This is because a change to a date of birth relies not only on documentation but also consideration of existing information held by the department.  I intend to take into consideration the following information which may result in your application for evidence of citizenship to be refused because 1 am not satisfied of your identity.

   In your statutory declaration dated 30 July 2016 you state that your father did not bring any of your family's official documents with him to Iran.  A similar statement is made in your father, Mr [D]’s statutory declaration dated 30 July 2016.  However, the department has on file a copy of a number of documents for you (and your family members) including Republic of Iraq Identification Card and Mr [D]’s Islamic Republic of Iran Laissez-Passer.  These documents were provided to the department as part of the Application for a Permanent Entry Visa for Australia on Refugee or Humanitarian Grounds (Form 842) completed by your parents on 13 July 1992.

   The translation of the Republic of Iraq Identification Card for you was issued on 27 December 1980, three years before your claimed date of birth.  Details recorded from this card are includes the following:

   Name:   A

   …

   Date of Birth:        13.10.1977

   …

3. The relevant test has been expressed by Brennan J in Kioa v West (1985) 159 CLR 550 in the following terms:

   A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise. (at 628)

   But, as the Full Court of the Federal Court said in Minister for Immigration & Citizenship v SZMOK (2009) 247 FCR 404 at 418 [60]:

   … there is no unfairness where a person affected knows what he is required to prove to the decision-maker and is given the opportunity to do so.

4. In this case, the applicant had to satisfy the Reviewer that she had been born on 12 October 1983 and all the matters cited in the particulars of this allegation were concerned with that issue.  Each of the matters particularised in support of this allegation was information adverse to that claim and yet none were provided to the applicant so that she might address them.  Importantly, the evidence does not support a conclusion that the applicant was aware of the contents of the documents in question from prior access or exposure to them.

5. The Reviewer should have provided the information in question to the applicant in discharge of her duty to accord the applicant natural justice. Her failure to do so leads to the conclusion that her decision must be set aside under s.5(1)(a) of the ADJR Act for that reason.

CONCLUSION

1. I note that in her amended application the applicant sought the following relief:

   1.An Order pursuant to s.16(1)(a) of the Australian Citizenship Act, 2007, quashing or setting aside the decision ab initio.

   2.An Order pursuant to s.16(1)(d) of the Australian Citizenship Act, 2007, directing the Minister, to give the applicant a notice stating that she is an Australian citizen as at the date of these Orders.

   3.Alternatively to Order 2 above, an Order that the applicant’s application for a notice stating that she is an Australian citizen under s.37(2) of the Australian Citizenship Act, 2007 be remitted to the Minister for decision according to law.

2. I assume that the references to the Citizenship Act in prayers 1 and 2 were intended to be references to the ADJR Act.

3. As the Reviewer’s decision was based on a denial of natural justice to the applicant it must be set aside.  For the reasons given in relation to the second ground of the amended application, it is not appropriate to make the order sought in the second prayer for relief.  Rather, the Court should order that the matter be returned to the Minister for a decision in accordance with law. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  11 September 2018