FNJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 362
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FNJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 362
File number(s): MLG 2785 of 2017 Judgment of: JUDGE VASTA Date of judgment: 14 April 2022 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth): s 101, s 107, s 108, s 109, s 424A Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 14 April 2022 Date of hearing: 14 April 2022 Place: Brisbane Counsel for the Applicant: Ms Zhou Solicitor for the Applicant: Visatec Legal Counsel for the First Respondent: Mr Murano Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2785 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FNJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Application filed on 19 December 2017 as amended on 17 March 2022 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.
NOTATION:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 23 November 2017, the Administrative Appeals Tribunal (“the Tribunal/AAT”) affirmed a decision to cancel the Protection visa of the Applicant, FNJ17. On the 19th of December 2017, the Applicant asked this Court to review that decision.
The matter was first mentioned some nine months later by Registrar Alloway who made the usual procedural orders and then ordered that the application be listed for final hearing before Judge Reithmuller (as His Honour then was) on a date to be advised. The matter, it would seem, stayed in the docket of His Honour until it was that all matters were subsumed into the national docket.
Once this matter was subsumed into the national docket. it was allocated to be heard by me at 10:00am today, 14 April 2020, and that means that the Applicant has been waiting for more than four years for this matter to be finalised in this Court. The Court must apologise to the Applicant for the delay in being able to finalise his matter and that is why it is incumbent upon me to give a decision as quickly as possible.
The background to this matter is that the Applicant came to Australia from Iran in March of 2010. He applied for a Protection visa in September 2010 and the basis of this was a statutory declaration that he had made in May of 2010. The delegate granted the applicant the Protection visa when the delegate considered the claim.
On the 11th of March 2015, the Applicant travelled back to Iran. He returned to Australia on the 19th of May 2015. The Department discovered that the Applicant had been issued an Iranian passport on the 10th of February 2015, presumably by the Iranian Consulate in Canberra.
Section 101 of the Migration Act 1958 (Cth) (“the Act”) states:
A non‑citizen must fill in or complete his or her application form in such a way that:
…
(b) no incorrect answers are given or provided.
Section 107 of the Act states that,
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101… the Minister may give the holder a notice:
(a) gives particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice mentioned in subsection (1A), the holder may give the Minister a written response to the notice….
Section 108 of the Act states:
The Minister is to
(a) consider any response given by a visa holder in the way required by paragraph 107 (1)(b); and
(b) decide whether there was non-compliance by the visa holder in the way described in the notice.
Section 109 allows,
(1) The Minister after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about non-compliance given in a way required by the paragraph 107(1)(b);
(c) having regard to any prescribed circumstances;
may cancel the visa.
The Department, having been made aware that the Applicant travelled to Iran which was a country from which he sought protection and was granted protection, issued a notice pursuant to s 107 because the Minister had considered that the visa Applicant had given incorrect information. The s 107 notice was given in August 2016. That notice is reproduced in the court book at CB 144.
The notice speaks of there being a consideration by the Minister that there has been non-compliance with s 101(b) of the Act in that this section states that “a non-citizen must not give incorrect answers”. The notice then further details questions that were asked in the Protection visa application form. The notice then speaks of the Applicant’s answers to those questions in which he said that he referred to the previously submitted statutory declaration of May 2010.
The notice then summarised, in dot point form, the aspects of that statutory declaration and then, on page 3 of the notice which is found at CB 146, the notice says this,
Given that you have returned to Iran under your true identity, with no apparent issue, suggests you did not hold the claimed adverse profile as claimed by you in your Protection visa application. The available evidence indicates that you have had contact with the Iranian authorities, have represented yourself in your true identity to them, with no apparent issue arising. This significantly undermines your claims for protection and suggests that you did not hold the claimed adverse profile with the Iranian authorities nor were you of interest to them as claimed by you in your protection visa application.
Therefore, the information you have provided in your statutory declaration dated 14 May 2010, and attach to your application for an RSA and including your Protection visa application in reference to being of adverse [sic] to the Iranian authorities and your fear of being imprisoned and tortured or otherwise seriously harmed by the Iranian authorities appear to be incorrect.
The Applicant had to answer that notice. The visa was cancelled by the delegate. The Applicant asked for a review by the Administrative Appeals Tribunal.
The legislative pathway, that the AAT had to follow in doing this review, is set out in the Act.
Firstly, the AAT had to take notice of the answers that were given to the Department by the Applicant in the application of September 2010.
The Tribunal then had to look at the s 107 notice to look at what particulars were given of the possible non-compliance.
The Minister then had to consider the response given and to then decide whether there was actual non-compliance in the way described in the notice.
Then, if that were established, s 109 allowed the Minister, after certain prerequisites, to cancel the visa. The use of the words “may cancel the visa” did not mean that the cancellation was automatic but rather a discretionary matter.
What the Tribunal did, when one looks at their reasons, was to set out firstly what information particularly constituted non-compliance. The Tribunal did so, at paragraph 2, by saying this midway through the paragraph.
…The incorrect information identified by the delegate is the adverse profile the applicant claimed to have upon which his protection claim was based. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Tribunal reproduced, in effect, in summary form, the s 107 notice and spoke of all of the information that it had before it. These are summarised at paragraphs 13, 14, 15, 16, 17, 18, 19 and 20 of the reasons.
The Tribunal went through what the Applicant had said about his travel back to Iran. The Applicant had said that he returned to Iran because his father had passed away earlier, and then that his mother was very sick and did not know how long she had left. The Applicant said that his return to Iran was arranged through his brother-in-law, and that the brother-in-law organised for a man to meet him at the airport upon arrival to Iran. The Applicant said that this man came to him and took him through the airport. He said that after one day, his luggage and passport were delivered to his address. He said that he did not talk to officials in the airport, and specifically said that he was not interviewed or interrogated.
The Applicant described the processes he went through in the airport. In effect, the Applicant was conveying that he was still in danger, but that this person, that the brother-in-law had arranged, was a form of “fixer” and that he was able to get the Applicant through the airport through “staff only” entrances so that the Applicant avoided detection.
The Tribunal had concerns with that tale and put to the Applicant a number of issues that they had with that story and the Applicant made responses to them. The Tribunal then put country information to the Applicant that suggested that it was very difficult for anyone to leave through the Iranian airport illegally.
The Tribunal then put to the Applicant information, pursuant to s 424A, given that the Applicant had just said to the Tribunal that he was not interviewed and that the fixer was able to usher him through the airport so that he was not detected. The information put to the Applicant was the Department’s interview record upon return to Australia in May 2015; that is, the interview the Applicant had with Australian authorities when he returned. Specifically, it read that:
Passenger stated on arrival in Iran he had been questioned regarding his time in Australia. Passenger stated he was also questioned on departure from Iran and was initially not able to board his flight. He stated a friend who works at the airport helped sort things out.
That was the notion of the report. Again, the response by the Applicant was that he did not understand why this was relevant, and the Applicant said that there was a misunderstanding. Three years ago, he could not speak English a hundred per cent, and that he was excited to be back in Australia, and he was just saying that, but it was a misunderstanding. The Tribunal did not accept that explanation.
The Applicant then provided the department with a subpoena that purportedly was issued on 20 August 2015 by Iranian authorities seeking his appearance in Court. For a number of reasons, the Tribunal did not find that that subpoena was a genuine document.
The Tribunal then looked at matters which they headed in their reasons in bold “Was there non-compliance as described in the s.107 notice?” The Tribunal said the issue before the Tribunal is whether there was non-compliance in the way described in the s107 notice, being the manner particularised in the notice, and, if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects. It then, in effect, reproduced part of the s 107 notice.
The Tribunal then, headed Considerations, spoke of what considerations it made. At paragraph 36:
36. The applicant claimed but I did not accept he was compelled to return to Iran because his mother needed surgery which could put her life at risk. He claimed but I did not accept that he undertook measures to avoid being detected when entering and leaving Iran. What is known and accepted is that he engaged with the Iranian embassy to obtain a passport despite fearing the Government of Iran and that he returned to Iran for a period of two months passing through immigration control where he was questioned by authorities and released each time.
37. That the applicant departed Iran using the passport in his name, engaged with the Iranian Embassy in Australia and passed through immigration controls in Iran twice I find to be sufficient evidence that the applicant is not and never was a person of interest to the Iranian authorities. For this reason I find that the applicant provided incorrect information in the form of his claimed government profile when describing the harm he feared.
38. For those reasons, the Tribunal finds there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
The Tribunal then looked at the question of whether the visa should be cancelled. At paragraph 42, when looking at their considerations, the Tribunal looked at the correct information related to what is in question and said:
42. The correct information was established through the earlier reasoning and is that the applicant does not have the adverse government profile that he claimed. I place considerable weight in favour of exercising the discretion to cancel the visa.
At paragraph 45, under the heading Circumstances in which the Non-Compliance Occurred, the Tribunal wrote:
The applicant had claimed in his application he had fled Iran in 2010 using a ‘false Iranian passport’. At the hearing, he maintained that he had left Iran illegally. The Tribunal put to him via correspondence following the hearing under s 424A, the following:
You have provided to the Tribunal a copy of the Observations page within your passport. It appears that the note on this page indicates that under your current name the Iranian government has recorded your preliminary departure from Iran as being 13.11.1388 (2 February 2010). This departure aligns with your claimed departure date of 31 January 2010.
Can you please provide the Tribunal with a certified translation of this page in your passport?
In addition, if it is that the page refers to your preliminary exit from Iran to Australia under your current name can you reconcile this evidence with your claim in your statutory declaration dated 14 May 2010 and at the hearing that your preliminary departure from Iran was on a false passport in the name of [name omitted]
This information is relevant to the review because it goes to your claim of having departed illegally and the consequences you fear upon return resulting from this action. Furthermore, it goes to your credibility and it could lead to further doubt about the other claims you have made.
If we rely on this information in making our decision, we may choose to affirm the decision to cancel the visa.
46. The applicant responded by explaining he was under stress at the time he made the application for an Iranian passport and that when he was asked of his last departure date from Iran he responded with 2 February 2010 as he couldn’t remember the exact date. He claimed that ‘the officer at the Iranian embassy requested that he guess his departure date, rather than provide an exact date’. The applicant reasoned that the Embassy’s informal approach was because of their interest in having people who left illegally return so that the government can punish them. I find the applicant’s answers unconvincing. I find it implausible the Iranian government would instruct applicants to guess their departure date and not have such information available to them. The applicant’s departure date would be known to those responsible for producing the new passport if the applicant departed under his real name. Not accepting that the Embassy would be so informal as to ask for applicants to give an approximate date of their last departure and so unsophisticated that they would not have had that information available it follows then that he provided his real name when he left Iran the first time to come to Australia. Furthermore, I find his reasoning of why they would do what he claims contradictory. If the Iranian government was intentionally loosening their procedures to facilitate the return of illegal departures then it would have been flagged that the applicant was returning and he would have been caught upon arrival in Iran. This did not occur.
47. I found the applicant departed Iran on his first journey to Australia on a legitimately obtained genuine passport. It is not in dispute that upon arrival to Australia the applicant did not acknowledge that he had left legitimately but rather claimed he had to procure a false passport under another name, [Name omitted]. He claimed he was wanted by the government and this compelled him to acquire a false identity with which he could leave the country. Having found that the applicant left Iran on a legitimately obtained passport under his real name I find that the applicant intentionally concocted his claims so as to further his chances of obtaining a protection visa. For this reason I place considerable weight in favour of exercising the discretion to cancel the visa.
The Tribunal went through all of the other prescribed matters that they must consider pursuant to s 109, and then made the decision that the decision of the delegate should be affirmed and that the visa should be cancelled.
The application today proceeds upon an amended application that was filed on 17 March 2020. There is one ground only. That ground is that,
1.The decision of the Second Respondent was illogical, irrational not supported by probative evidence, or the Second Respondent did not reasonably obtain the requisite state of satisfaction under s.108 of the Migration Act 1958 in respect of its findings that there was non-compliance.
The argument here is a very narrow one. It really relates to the statutory framework upon which I talked of at the beginning of these reasons.
The way in which the Tribunal had to reason was that they had to consider whether there were answers given in the application in September 2010; whether the s.107 notice particularised what the Minister considered to be incorrect information given in those answers; taking into account all of the matters that the Applicant had said about this claim of incorrect information, decide whether there had been non-compliance by the visa holder in the way described in the notice; and then, consider whether there ought be cancellation. The way in which the Tribunal looked at the matter, it was submitted, was looking at the circumstances that obtained with respect to the Applicant’s travel to Iran, rather than whether the answers given or the information given in the visa application, was incorrect.
It was submitted that the conclusion, that was made at paragraph 38, was, having a look at the reasons, only based on what the Applicant said about the reason for going to Iran, what the Applicant had said about his entry and exit through Iran and what the Applicant had claimed with regard to a subpoena that he said issued after he arrived back in Australia. It was submitted that was all the consideration that the Tribunal had undertaken, before reiterating the aspects of the statutory declaration that were referred to in the s 107 notice.
Upon all of that, the submission is that the Tribunal came to an illogical and irrational conclusion when it said in paragraph 37 “That the applicant is not and never was a person of interest to the Iranian authorities”.
It was submitted that all of that information may be sufficient to say that the Applicant is not a person of interest to the Iranian authorities now, but what the AAT had so far considered (in terms of what the AAT had written in the reasons at this point) was nowhere near sufficient to come to a conclusion that the Applicant never was a person of interest. Given that this is the conclusion at paragraph 37, paragraph 38 is a summary saying that the Tribunal was satisfied that there had been non-compliance, as required under s 108(b).
The submission is that such a conclusion, that the Applicant never was a person of interest, is simply illogical and irrational.
It seems to me, however, that, whilst one might look at the matter in a technical way, and point out that there has not been a sort of consideration that one might expect the Tribunal to have engaged upon, to simply segment the reasons in this particular way is not looking at the reasons as a whole.
The rationale given by the Tribunal at paragraphs 42, 45 and 46, which I have already read into the record, are easily sufficient to justify the conclusion. However, the Applicant points to the way in which the Tribunal has structured the reasons. The Applicant submits that the Tribunal has not relied upon the reasoning in those three paragraphs to inform its conclusion at paragraph 38 that there had been non-compliance. If those paragraphs had appeared earlier in the discussion as to whether there was non-compliance, then the argument may be different.
Again, it seems to me that this is looking at the matter in far too technical a manner. The Tribunal has, when one looks at it overall, discussed what the non-compliance was. It is clear, from paragraph 2 of the reasons, that the Tribunal was well and truly informed that the essence of the non-compliance was the claim made in the visa application that the Applicant had an adverse profile to the Iranian authorities.
The discussion that occurred then at paragraphs 42, 45 and 46, while it may have been categorised by the Tribunal as being matters looked at pursuant to s 109, are matters that can be used logically by the Tribunal, and be seen to have been used by the Tribunal, in informing its conclusion at paragraph 38, which was that s 108(b) had been complied with.
The Tribunal’s reasoning, therefore, is not illogical and it is not irrational. It is a conclusion to which reasonable minds may differ, but it was certainly a conclusion that was open to it, and it is one that has been made on a proper consideration of the evidence.
For that reason, I do not find that there has been any jurisdictional error illustrated.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 17 May 2022
0
0
0