FOE17 v Minister for Immigration
[2019] FCCA 1861
•4 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOE17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1861 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant found to be a UK national – whether the Tribunal erred in determining the applicant’s identity (and hence nationality) considered – jurisdictional error established by the Tribunal’s failure to make an obvious inquiry. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: ApplicantWAEE v Minister for Immigration (2003) 75 ALD 630 Minister for Immigration v Dhanoa (2009) 180 FCR 510 |
| Applicant: | FOE17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3919 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A d'Arville, pro bono publico |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 28 November 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3919 of 2017
| FOE17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 November 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of the highly unusual background facts in this matter is derived from the submissions of the parties.
On 28 July 2010, the applicant applied for a protection visa.[1] The applicant claimed to be a Sri Lankan national named KA,[2] who entered Australia on 24 June 2010 using a Malaysian passport in the name of RV.[3] The applicant’s protection claims were set out in a statutory declaration dated 27 July 2010, including that he would face harm if returned to Sri Lanka as a Tamil who had been forced to assist the Liberation Tigers of Tamil Eelam (LTTE).[4] On 26 August 2011, the applicant was found to be a person to whom Australia owed protection obligations, and was awaiting health and other clearances to be granted a protection visa.[5]
[1] Court Book (CB) 2
[2] The name has been anonymised
[3] CB 8, 27, 45, 150. The name has been anonymised
[4] CB 151; CB 39-46
[5] CB 110-119
On 1 May 2015, the Minister’s Department received a Five Country Conference Fingerprint Match Report (Fingerprint Match Report) in which the applicant was positively identified through biometric information as SV,[6] a United Kingdom citizen born in Britain on 26 July 1971.[7]
[6] The name has been anonymised
[7] Annexure MB-1 to the affidavit of Madeleine Butler affirmed 19 September 2018
Following receipt of the biometric information, the applicant attended a second interview with the delegate on 14 October 2015 with the assistance of his migration agent.[8] On 8 December 2015, the applicant’s migration agent sent an email to the Minister’s Department confirming their instructions that the applicant maintained his initial assertion as to his identity.[9]
[8] CB 151
[9] CB 143
On 10 December 2015, the delegate found that based on the biometric data, the applicant was SV.[10] The delegate found that the applicant’s country of reference was the United Kingdom.[11] As the applicant claimed to fear harm only in Sri Lanka, and not in the United Kingdom or any other country, the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations.[12]
[10] CB 150-158
[11] CB 154
[12] CB 156, 157
On 15 January 2016, the applicant applied to the Tribunal for review of the delegate’s decision.[13] On 12 July 2017, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act), inviting him to comment on the following adverse information:[14]
a)on 1 May 2015 the Minister’s Department received a Fingerprint Match Report. In this report, the applicant was positively identified through biometric information (fingerprints) as SV, a United Kingdom citizen, who was born in Britain on 26 July 1971; and
b)movement records showed that SV first entered Australia as a United Kingdom citizen holding a 976 Electronic Travel Authority (ETA) with a United Kingdom passport. SV subsequently departed Australia but returned on a number of occasions, each time with an ETA. SV last arrived in Australia on 6 June 2010 and he had been unlawful in Australia since 6 September 2010.
[13] CB 159-163
[14] CB 171
The applicant did not respond to the s.424A invitation. On 8 August 2017, the applicant appeared at a hearing before the Tribunal.[15] On 2 November 2017, the Tribunal again wrote to the applicant pursuant to s.424A, inviting him to comment on the following adverse information:[16]
a)in the interview with the first delegate on 7 October 2010, the applicant stated that he entered Australia using a passport in name of RV;
b)Departmental movement records indicated that a person named RV entered Australia on 24 June 2010 travelling on a flight from Malaysia and departed Australia nine days later on 3 July 2010;
c)according to information on the applicant’s Departmental file, an examination of the relevant passenger cards indicated that the signature of RV completed on entry on 24 June 2010 was consistent with his signature on other occasions; and
d)the delegate's decision stated that the passport of SV was examined by an officer of the Minister’s Department on one of the occasions on which SV entered Australia and deemed to be a genuinely issued passport with a valid visa and that he was immigration cleared on this basis.
[15] CB 178
[16] CB 181
On 24 November 2017, the Tribunal received a letter from the applicant maintaining his claimed identity.[17] On 28 November 2017, the Tribunal affirmed the decision under review.[18]
[17] CB 184-187
[18] CB 189-200
Tribunal decision
The Tribunal identified the issue on review to be whether the grant of the visa was prevented by s.91WA of the Migration Act because the applicant had provided bogus documents as evidence of his identity, nationality or citizenship, without a reasonable explanation for doing so.[19] The Tribunal summarised the applicant’s dealings with the Minister’s Department from 2010 to 2015.[20]
[19] CB 190; [3]-[4]
[20] CB 191; [8]-[18]
The Tribunal noted that on 12 July 2017, it had written to the applicant pursuant to s.424A of the Migration Act inviting him to comment on two items of information regarding the Fingerprint Match Report and the movement records of SV.[21] The Tribunal noted that the s.424A letter explained the relevance of those two items to the review and that if it relied on the information, the Tribunal would conclude that:[22]
a)the applicant had provided false information about his identity, country of nationality and circumstances in which he arrived in Australia;
b)the applicant’s name was SV, born in Britain on 26 July 1971 and a United Kingdom citizen, not a Sri Lankan citizen;
c)the applicant fabricated his claims to be a Sri Lankan citizen named KA and his claims to fear harm;
d)the country of reference for assessing the applicant’s protection claims was the United Kingdom; and
e)the applicant was not a person to whom Australia owed protection obligations.
[21] CB 192; [19]
[22] CB 192; [20]-[22]
The Tribunal noted that the applicant did not respond to the invitation by the due date, but indicated that he would attend the hearing on 8 August 2017, and that it had decided to exercise its discretion to proceed with the scheduled hearing, notwithstanding the applicant’s failure to respond to the s.424A letter.[23]
[23] CB 192, [23]
The Tribunal noted that the s.424A letter was read to the applicant during the hearing with the assistance of the interpreter.[24] The Tribunal noted that in response, the applicant asserted that one in every 100,000 fingerprints could match, stated that he had never been to Australia before, and denied being a United Kingdom citizen or having any name other than KA.[25] The Tribunal recorded that it put to the applicant that country information indicated that document fraud was prevalent in Sri Lanka and that it might give little weight to the applicant’s identity documents and place greater weight on the fact that his fingerprints had been identified as belonging to a person who had travelled to the United States and been identified as a United Kingdom citizen.[26]
[24] CB 193, [27]
[25] CB 193-194, [27]-[32]
[26] CB 193, [30]-[31]
The Tribunal further recorded that, pursuant to s.424AA of the Migration Act, it put to the applicant that on 1 May 2015, the Minister’s Department received a Fingerprint Match Report, positively identifying him as SV, a United Kingdom citizen, who was fingerprinted when he travelled to the United States and that a facial image of SV entering the United States bore a very close resemblance to the applicant.[27] The Tribunal noted that after the hearing, the Tribunal sent a further s.424A letter to the applicant, giving particulars of further information that it considered would be the reason or part of the reason for affirming the decision under review.[28]
[27] CB 194, [34]
[28] CB 194-195, [38]
The Tribunal placed significant weight on the Fingerprint Match Report, and found that the applicant had not credibly explained why his fingerprints matched those of SV.[29] The Fingerprint Match Report contained a photograph of the bearer of the United Kingdom passport in the name of SV, and the Tribunal, having seen the applicant in the hearing room, found that this was a photograph of the applicant.[30] The Tribunal rejected the suggestion that someone might have forged a passport using the applicant’s photograph as this did not explain why the applicant’s fingerprints matched those of a United Kingdom passport holder who entered the United States or why he had been photographed entering the United States.[31] Nor did the Tribunal accept that there had been confusion between the applicant and another person of the same name who lived in Canada or Sri Lanka.[32] Having regard to country information on the prevalence of document fraud in Sri Lanka, the Tribunal found that the identity documents produced by the applicant lacked probative value.[33]
[29] CB 195, [40]-[41]
[30] CB 195, [40]
[31] CB 195, [41]
[32] CB 195, [41]
[33] CB 195, [42]
The Tribunal found that the fact that the applicant had been positively identified through biometric information as a British citizen who was fingerprinted and photographed when he travelled to the United States, indicated that he was not who he claimed to be and nothing that he said could be relied upon.[34] The Tribunal found that the Departmental movement records of SV when considered together with the Fingerprint Match Report supported the conclusion that the applicant had not been truthful about his identity, nationality or circumstances in which he entered Australia, and that his true identity was SV.[35]
[34] CB 195-196, [43]
[35] CB 196, [44]
The Tribunal did not accept that the applicant entered Australia using the passport of RV, noting that Departmental records indicated that RV departed Australia on 3 July 2010 and an examination of his passenger cards indicated that his signature on entry on 24 June 2010 was consistent with his signature on other occasions.[36] The Tribunal did not accept that the applicant had told the truth about how he entered Australia.[37]
[36] CB 196, [45]
[37] CB 196, [45]
The Tribunal therefore did not accept that the applicant was a Sri Lankan citizen and found that his true identity was SV.[38] The Tribunal found that the applicant’s country of reference was the United Kingdom.[39]
[38] CB 196, [46]-[47]
[39] CB 196-197, [48]
The Tribunal found, pursuant to s.91WA(1)(a) of the Migration Act, that the Sri Lankan birth certificate and identity card provided by the applicant in the name of KA were bogus documents, and were provided as evidence of the applicant’s identity, nationality or citizenship during or in connection with an application for a protection visa.[40]
[40] CB 197, [53]-[54]
As the applicant did not acknowledge providing bogus documents, and insisted that his Sri Lankan documents were genuine, the Tribunal was not satisfied that the applicant had provided a reasonable explanation for providing the bogus documents.[41] Accordingly, pursuant to s.91WA of the Migration Act, the Tribunal affirmed the decision under review.[42]
[41] CB 197-198, [57]-[59]
[42] CB 198, [60]
Further and in the alternative, having found that the applicant was a United Kingdom citizen, the Tribunal briefly assessed the applicant’s protection claims in relation to the United Kingdom, and determined that the applicant neither had a well-founded fear of persecution for a Convention reason nor met the complementary protection criterion.[43]
[43] CB 198-199, [64]-[67]
The current proceedings
These proceedings began with a show cause application filed on 18 December 2017. There are six grounds in that application:
1.Ground 1 - The Tribunal failed to disclose to the applicant the documents that were used by the department which caused the delegate and the Tribunal to infer that the applicant was not who he claimed he was.
Particulars
a.At [19] the Tribunal states that it had invited the applicant to comment pursuant to s424A of the Act.
b.The Tribunal did not provide the applicant the Five Country Fingerprint Match Report that it relied upon to reach its finding concerning the applicant's identity.
c.Withholding information such as the Five Country Fingerprint Match Report amounts to a denial of procedural fairness, therefore the Tribunal has committed legal error as the applicant has not been afforded a fair hearing and the opportunity to respond appropriately.
2.Ground 2 - It was not open for the Tribunal to infer that the applicant was Mr SV a British Citizen [34]
Particulars
a.At [34] the Tribunal states that it had a "facial image of the applicant entering the United States" and that this facial image "bore a very close resemblance to the applicant".
b.The Tribunal did not provide the image to the applicant or his representative it appears from reading the decision record.
c.It was not open for the Tribunal to make a firm finding on the basis of an image that bore "very close resemblance" where the photo was taken prior to applicant's arrival into Australia (i.e. he arrived in 2010, so the photo that was produced was prior to 2010).
d.If the facial image was taken in 2009 / 2010 prior to the applicant arriving in Australia the facial image would have been taken 7 years earlier, it would be unreasonable for the Tribunal to give weight to a facial image that was taken 7 years ago.
e. For this reason the Tribunal could not have made a finding on the basis of the facial image.
3.Ground 3 - The Tribunal exercised its discretion in a manner that was so unreasonable when determining the applicant's identity to be that of a British Citizen.
Particulars
a.The applicant provided sufficient explanation in support of his claimed identity and also provided certified copies of original documents of his Sri Lankan national identity card and original Sri Lankan birth certificate to the department along with his application.
b.The AAT failed to consider the certified copies of the applicant's identity documents when considering copies of the applicant's identity documents on file [30].
c.The AAT's discretion to place greater weight upon the fact that the applicant's finger prints had been identified as those belonging to a person who travelled to the US as a British citizen is infected with legal error as it did not consider that the applicant's identity documents tendered in were certified by his representative, this means the original identity documents tendered in were "sighted" by the applicant's representative.
d.More details will be provided later.
4.Ground 4 - The Tribunal erred by sending the request to comment letter under 424A to the applicant instead of sending to his representative
Particulars
a.The Tribunal states the applicant was represented by the migration agent [17]
b.The Tribunal states that it sent a letter for the applicant to comment under s424A [19]
c.The Tribunal states the applicant did not respond to the 424A letter.
d.The applicant was represented, therefore the 424A letter should have been sent to the applicant's representative not the applicant who is not an English speaker.
5. Ground 5 – The Tribunal failed to consider and give weight to the fact that the applicant was found to meet Australia’s protection obligations [11] when drawing negative inference about the applicant’s identity
Particulars
a.The Tribunal states that the applicant was found to be a refugee in 2011 [11].
b.The Tribunal failed to consider and give weight to the fact that the applicant was accepted as a refugee.
6.Ground 6 - The Tribunal's decision is infected with legal error as Health and Character checks commenced 6 -7 years after the applicant was found to be a refugee in 2011 [11].
Particulars
a.The Tribunal states that the applicant was found to be a refugee in 2011 [11].
b.The Tribunal states Health and Character checks commenced recently.
c.The evidence relied upon (facial image) was taken prior to applicant arriving in Australia (prior to 2010).
d.Therefore the facial image was available to the department when the applicant was found to be a refugee in 2011.
e.The applicant was found to be a refugee in 2011 in circumstances where the facial image the delegate and Tribunal relied upon in 2017 was available to the department in 2011.
f.The delay in commencing Health and Character checks contributed to an adverse decision.
g.More information will be provided later.
(applicant’s emphasis removed)
The matter came before me for a show cause hearing on 18 October 2018. At that time I relevantly made the following order:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to whether the Tribunal should have made enquiries of the United Kingdom authorities whether the applicant is a United Kingdom citizen.
I also issued a referral certificate under Part 12 of the Federal Circuit Court Rules 2001 (Cth). The applicant was represented by pro bono counsel at the trial of this matter on 4 July 2019. The Court is grateful for the willingness of counsel to appear on that basis.
At the trial, the applicant sought leave to rely upon an amended application which was handed up in court. The amended grounds are:
Ground 1 - The Tribunal failed to disclose to the applicant the documents that were used by the department which caused the delegate and the Tribunal to infer that the applicant was not who he claimed he was.
Particulars
a.At [19] the Tribunal states that it had invited the applicant to comment pursuant to s424A of the Act.
b.The Tribunal did not provide the applicant the Five Country Fingerprint Match Report that it relied upon to reach its finding concerning the applicant's identity.
c.Withholding information such as the Five Country Fingerprint Match Report amounts to a denial of procedural fairness, therefore the Tribunal has committed legal error as the applicant has not been afforded a fair hearing and the opportunity to respond appropriately.
2.Ground 2 - It was not open for the Tribunal to infer that the applicant was Mr SV a British Citizen [34]
Particulars
a.At [34] the Tribunal states that it had a "facial image of the applicant entering the United States" and that this facial image "bore a very close resemblance to the applicant".
b.The Tribunal did not provide the image to the applicant or his representative it appears from reading the decision record.
c.It was not open for the Tribunal to make a firm finding on the basis of an image that bore "very close resemblance" where the photo was taken prior to applicant's arrival into Australia (i.e. he arrived in 2010, so the photo that was produced was prior to 2010).
d.If the facial image was taken in 2009 / 2010 prior to the applicant arriving in Australia the facial image would have been taken 7 years earlier, it would be unreasonable for the Tribunal to give weight to a facial image that was taken 7 years ago.
e. For this reason the Tribunal could not have made a finding on the basis of the facial image.
f. The basis of the Tribunal’s consideration of the “facial image” was its conclusion that it was a photo of the Applicant taken in the US, which conclusion was based on the report referred to as the Five Country Fingerprint Match Report;
g. The Five Country Fingerprint Match Report did not provide any indication of the author of the report, how any fingerprint data was received by the author of the report, the qualifications of the author of the report or the methods used by the author of the report to identify any fingerprint match and, therefore, the facial image referred to in the report;
h. For the reasons in sub-paragraph (g), there was no material in the Five Country Fingerprint Match Report upon which the conclusion in sub-paragraph (f) could be based;
i. The Five Country Fingerprint Match Report was not authorised for use by the Tribunal such that the Tribunal was not entitled to give it any weight;
j. The Five Country Fingerprint Match Report had not been validated by DIBP fingerprint experts and the Tribunal could not be satisfied that it had been prepared or considered by any fingerprint expert;
k. The Five Country Fingerprint Match Report specifically authorised and encouraged decision-makers to make further investigations if the information in the report was disputed (which it was).
3.Ground 3 - The Tribunal exercised its discretion in a manner that was so unreasonable when determining the applicant's identity to be that of a British Citizen.
Particulars
a.The applicant provided sufficient explanation in support of his claimed identity and also provided certified copies of original documents of his Sri Lankan national identity card and original Sri Lankan birth certificate to the department along with his application.
b.The AAT failed to consider the certified copies of the applicant's identity documents when considering copies of the applicant's identity documents on file [30].
c.The AAT's discretion to place greater weight upon the fact that the applicant's finger prints had been identified as those belonging to a person who travelled to the US as a British citizen is infected with legal error as it did not consider that the applicant's identity documents tendered in were certified by his representative, this means the original identity documents tendered in were "sighted" by the applicant's representative.
d.More details will be provided later.
4.Ground 4 - The Tribunal erred by sending the request to comment letter under 424A to the applicant instead of sending to his representative.
Particulars
a.The Tribunal states the applicant was represented by the migration agent [17]
b.The Tribunal states that it sent a letter for the applicant to comment under s424A [19]
c.The Tribunal states the applicant did not respond to the 424A letter.
d.The applicant was represented, therefore the 424A letter should have been sent to the applicant's representative not the applicant who is not an English speaker.
5. Ground 5 – The Tribunal failed to consider and give weight to the fact that the applicant was found to meet Australia’s protection obligations [11] when drawing negative inference about the applicant’s identity
Particulars
a.The Tribunal states that the applicant was found to be a refugee in 2011 [11].
b.The Tribunal failed to consider and give weight to the fact that the applicant was accepted as a refugee.
6.Ground 6 - The Tribunal's decision is infected with legal error as Health and Character checks commenced 6 -7 years after the applicant was found to be a refugee in 2011 [11].
Particulars
a.The Tribunal states that the applicant was found to be a refugee in 2011 [11].
b.The Tribunal states Health and Character checks commenced recently.
c.The evidence relied upon (facial image) was taken prior to applicant arriving in Australia (prior to 2010).
d.Therefore the facial image was available to the department when the applicant was found to be a refugee in 2011.
e.The applicant was found to be a refugee in 2011 in circumstances where the facial image the delegate and Tribunal relied upon in 2017 was available to the department in 2011.
f.The delay in commencing Health and Character checks contributed to an adverse decision.
g. More information will be provided later.
7. Ground 7 – The Tribunal committed jurisdictional error by failing to carry out the review required of it by the Migration Act 1958 (Cth) because it failed to make obvious enquiries about whether the Applicant held a United Kingdom passport.
Particulars
a. The Tribunal should have sought further information from the first respondent about what enquiries had been made of the UK authorities in respect of the personal details of the holder of the UK passport identified in the FCC Fingerprint Report and the movements of the holder of that passport.
b. The Tribunal should have required the first respondent to carry out further investigations of the UK authorities in respect of the personal details of the holder of the UK passport identified in the FCC Fingerprint Report and the movements of the holder of that passport.
c. Alternatively to (b), the Tribunal should itself have invited the relevant UK authority to provide information (pursuant to section 424 of the Act) in respect of the personal details of the holder of the UK passport identified in the FCC Fingerprint Report and the movements of the holder of that passport.
I granted the leave sought (although no formal order was made) noting that new Ground 7 was consistent with the show cause order I made and that it was open to the Court to permit the applicant to argue other grounds notwithstanding the show cause order. Grounds 4, 5 and 6 were not pressed.
In addition to the court book filed on 22 February 2018, I have before me as evidence the affidavit of Ms Butler made on 19 September 2018 and two exhibits handed up in court on behalf of the applicant.[44]
[44] Exhibit A1 is a high quality reproduction of the Five Country Conference Fingerprint Match Report relied upon by the Tribunal and Exhibit A2 is a case finalisation checklist, apparently emanating from the Minister’s Department
Both the applicant and the Minister filed written submissions in advance of the trial and made oral submissions at the trial. I have been assisted by those submissions.
Consideration
Ground 7 – did the Tribunal fall into error by failing to make an obvious inquiry about whether the applicant held a United Kingdom passport?
Applicant’s contentions
A jurisdictional error can arise in circumstances where a decision maker does not make obvious inquiries in relation to a point that is central to its decision. This is sometimes referred to as a “duty to inquire”. In Prasad v Minister for Immigration,[45] Wilcox J referred to the principle as follows (at 169-170):
The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to a decision ... to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have to exercised it.
(applicant’s emphasis retained)
[45] (1985) 6 FCR 155
In Minister for Immigration v SZIAI,[46] the plurality stated:[47]
[R]eferences to a ‘duty to inquire’ [are] apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
(applicant’s emphasis retained and footnote omitted)
[46] [2009] HCA 39
[47] [25]
In SZIAI, the High Court concluded that the principle did not apply in that case. However, in Wei v Minister for Immigration,[48] Nettle J applied the principle[49] where a decision maker did not make an inquiry in respect of a student’s university enrolment, in circumstances where such an inquiry was simple and there was a clear link between the decision maker’s failure to make that inquiry and its determination to cancel the relevant visa.
[48] (2015) 257 CLR 22
[49] at [49]-[51]
The three requirements that must be satisfied to establish this ground of jurisdictional error are that:
a)the inquiry to be made is “obvious”. This means that the material that is before the decision maker contains “some obvious omission or obscurity that needs to be resolved before a decision is made”;[50]
b)the existence of the fact was “readily available” or “easily ascertained”. This means that the inquiry should demand little effort from the decision maker;[51] and
c)the fact about which the inquiry would be made was “critical”. The precise meaning of that term has not been made clear in the authorities. The information must be material in the sense that it affects the ultimate outcome.[52]
[50] Videto & Anor v Minister for Immigration (1985) 8 FCR 167, 178 (Toohey J)
[51] Brown v Minister for Immigration (2009) 112 ALD 67 [96]
[52] Minister for Immigration v Dhanoa (2009) 180 FCR 510 at [50]
Minister’s contentions
The circumstances in which the Tribunal will be under a duty to inquire are very limited. The High Court has stated that such a duty may arise when there is an “obvious” inquiry about a critical fact, the existence of which is “easily ascertained”.[53] As stated in Kaur v Minister for Immigration[54] at [33] such a duty will only arise in rare and exceptional circumstances, and the mere fact that it may have been reasonable for the Tribunal to make an inquiry does not mean the lack of such inquiry amounts to jurisdictional error.
[53] SZIAI at [25]
[54] [2017] FCAFC 184
In this case there was said to be no obvious inquiry to be made of the United Kingdom authorities. The Tribunal already had evidence from the Minister’s Department’s movement records that there is a British citizen named SV born in the United Kingdom on 26 July 1971 and holding a British passport who last arrived in Australia on 6 June 2010 and had apparently never left. The delegate’s decision had noted that SV’s United Kingdom passport was found to be genuine when examined by a Departmental officer,[55] as the Tribunal noted at [47].[56] It is said to be not apparent what further information the United Kingdom authorities could be expected to have that would confirm that the applicant was SV. In those circumstances, the Minister submits it cannot be said that there was any “obvious” inquiry to be made of the United Kingdom authorities.
[55] CB 152-153
[56] CB 196
The applicant’s submissions at [57] state that the Tribunal “should have sought further information from the Minister about what checks had been done with the UK in order to verify the applicant’s identity”, but this is said to beg the question of what obvious inquiries there were to be made of the United Kingdom authorities. The applicant does not identify what further information the United Kingdom authorities could be expected to have that would assist in confirming the applicant was indeed SV.
The applicant’s submissions also claim at [57] that the Minister “should also have required the Minister to have carried out further investigations in respect of the veracity of the [Fingerprint Match Report], including in respect of both the fingerprint testing and the source of the photograph in the report”. This would have required inquiries to be made of the United States and Australian authorities. Such inquiries could hardly be said to be “obvious” in the absence of some reasonable basis to suggest that there was some clear identifiable error in the fingerprint testing or photo taking. The fact that further information could have been sought as suggested in the applicant’s submissions at [47] concerning the identity and qualifications of the author of the Fingerprint Match Report, and how the fingerprint data in it was provided and matched, does not mean that there was a legal duty on the Tribunal to make such inquiries. Any such inquiries would be no more than a fishing expedition rather than an “obvious” inquiry about a critical fact.
Finally the applicant’s submissions claim that further inquiries of the United Kingdom authorities concerning SV’s passport should have been made, but again do not identify any obvious inquiry other than about the movements of the holder of that passport. It is not apparent why the United Kingdom authorities would have any information on the passport holder’s movements that would be of obvious relevance to the issues before the Tribunal. At most they may or may not have information as to when the passport holder departed the United Kingdom. It is said to be not apparent how this could be said to be a critical fact when the Tribunal had the dates of the passport holder’s travels to Australia in the movement records at CB 166-168 before it.
Resolution
It is, to say the least, surprising that a citizen of the United Kingdom would impersonate a Sri Lankan asylum seeker. That, however, is what the Tribunal found the applicant did. It is a necessary conclusion to draw from the Tribunal’s findings. Why the applicant would do such a thing has not been explained and, for his part, the applicant denies that he did so. The applicant continues to maintain that he is KA, a Sri Lankan national who has suffered persecution in that country and fears continuing persecution. He denies that he is SV and he specifically denies that he has ever used that identity or been to the United States.
That last denial by the applicant lacks credibility. It is tolerably clear from the available material that the applicant did use the identity of SV to enter the United States. His fingerprints and a photographic image at US Border Control established that to the Tribunal’s satisfaction and, having seen the material, I agree.
What is by no means clear is whether the applicant’s real identity is SV or KA, or something else. He appears not to be RV, who has left Australia.
It is possible that the Tribunal is correct and that the applicant is SV and, as found by the Tribunal, that he used a bogus document as evidence of his identity and nationality. As noted above, however, that would be a very strange thing for the applicant to do.
It is also possible that the applicant is KA and that he used the identity of SV for the purposes of undertaking travel, including to Australia and to the United States. That would suggest that the United Kingdom passport he was using for that purpose is bogus. However, the applicant did not use that United Kingdom passport for the purposes claiming protection, which bears on the veracity of the Tribunal’s application of s.91WA of the Migration Act.
The Tribunal proceeded on the basis that the United Kingdom passport used by SV was genuine. The Minister’s Department, however, has not carried out any forensic examination of that passport and relied upon a simple visual inspection of it by a Departmental officer on one occasion. This raises a question of doubt.
The issue of doubt could have been readily and simply resolved by an inquiry being made of the United Kingdom authorities whether the United Kingdom passport used by SV was genuine and, if it was genuine, whether there was any evidence of it having been fraudulently obtained. If the United Kingdom passport was not genuine or had been fraudulently obtained, other questions would have had to have been resolved by the Tribunal but its conclusion that the applicant was SV, a United Kingdom national would probably have had to have been put aside. It probably would not have been open to the Tribunal to proceed on the basis of the application of s.91WA.
In the highly unusual circumstances of this case, I prefer the submissions of the applicant to those of the Minister. The postulated inquiry to the United Kingdom authorities was obvious, could have been easily made and the fact about which the inquiry would have been made is plainly critical. That inquiry was not undertaken and, in my view, the failure to make it in the circumstances of this case goes to the Tribunal’s jurisdiction.
I find that this ground has been established.
Other grounds
I accept the Minister’s submissions in relation to the other grounds raised in the application as amended.
Grounds 1 and 2 assert a denial of procedural fairness. The particulars to Ground 1 contend that the applicant was not provided with the Fingerprint Match Report, while the particulars to Ground 2 complain that the applicant was not provided with the facial image of the person who had used the passport of SV.
First, a document per se is not information.[57] Secondly, s.424A(1) of the Migration Act may only require the Tribunal to provide “clear particulars” of any information to which it applies, not any “document” referable to those particulars.[58] This is not a case where s.424A of the Migration Act required the Tribunal to disclose the whole document.
[57] Nader v Minister for Immigration (2000) 101 FCR 352 at [59]; SZLPO v Minister for Immigration (No.1) (2009) 177 FCR 1 at [111]
[58] SZLJC v Minister for Immigration [2008] FCA 1361 at [24]; SZNKO v Minister for Immigration (2010) 184 FCR 505 at [23]
In relation to the Fingerprint Match Report, the s.424A letter sent on 12 July 2017[59] gave sufficient details as to the particulars of the Fingerprint Match Report. Namely, the s.424A letter indicated that the Fingerprint Match Report identified the applicant as SV, a United Kingdom citizen who was born in the United Kingdom on 26 July 1971. In relation to the facial image of SV, the Tribunal put to the applicant pursuant to s.424AA that the Fingerprint Match Report also contained a facial image of the applicant entering the United States which bore a close resemblance to the applicant.[60]
[59] CB 171
[60] CB 194, [34]
“Information” for the purposes of s.424A(1) refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal.[61] Further, a photograph has the capacity to contain (and convey) information, rather than being information in itself.[62] The Tribunal complied with the relevant legislative requirements under ss.424AA, 424A and 424B and provided clear and sufficient particulars of what the adverse information was.
[61] AZR16 v Minister for Immigration [2017] FCA 1453; VAF v Minister for Immigration [2004] FCAFC 123 at [24]
[62] SZESF v Minister for Immigration [2007] FCA 6 at [32]
No breach of the Tribunal’s procedural fairness obligations is apparent.
In any event, even if a breach of the Tribunal’s obligations in respect of s.424A was established (which I have not found), I would withhold relief in the exercise of the Court’s discretion. This is in circumstances where the evidence before the Court shows that the Fingerprint Match Report was released on 12 November 2015 in full to the applicant by reason of an access request under the Freedom of Information Act 1982 (Cth) (at a time he was legally represented).[63] Having been provided with a complete copy of the Fingerprint Match Report well before the hearing before the Tribunal, it can be reasonably inferred that the applicant was aware of the contents of the Fingerprint Match Report including the photographs. As such, even if there was a breach of s.424A, no practical injustice arose and on that basis, relief should be withheld.[64]
[63] Affidavit of Ms Butler affirmed 19 September 2018 ([5] and Annexures MB-2 and MB-3)
[64] Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at [38]; Minister for Immigration v WZARH (2015) 256 CLR 326 at [57]
In relation to the remainder of the particulars to Ground 2, it was open to the Tribunal to find that the facial image bore a close resemblance to the applicant notwithstanding when it was taken. In any event, the Tribunal’s findings were based on the cumulative effect of the matters to which it had referred, including the fingerprints, movement records, passenger cards, and its adverse credibility findings.
Grounds 1 and 2 do not identify any arguable case of jurisdictional error on the part of the Tribunal.
Ground 3
By Ground 3, the applicant contends that the Tribunal failed to consider the certified copies of the applicant’s identity documents and takes issue with the Tribunal giving greater weight to the applicant’s fingerprints matching a person who travelled to the United States. The Tribunal expressly referred to the identity documents at [49] of its decision record,[65] including that they were accompanied by a stamp attesting that they were true copies of original documents sighted by an Australian legal practitioner. However, in the absence of any explanation as to why the applicant’s fingerprints and photograph matched those of the person entering the United States, and noting country information on the prevalence of document fraud in Sri Lanka, the Tribunal found that the proffered identity documents lacked probative value. It is well-established that it was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight.[66] Further, it was reasonably open to the Tribunal to prefer the biometric evidence to the identity documents put forward by the applicant. The applicant’s contentions in Ground 3 do not establish a case of jurisdictional error.
[65] CB 197
[66] Tran v Minister for Immigration [2004] FCAFC 297 at [5]-[7]; ApplicantWAEE v Minister for Immigration (2003) 75 ALD 630 at [46]
For completeness, three possibly separate argument are addressed in the applicant’s submissions.
The first argument[67] is that it was allegedly legally unreasonable for the Tribunal to regard the Fingerprint Match Report as evidencing that the applicant entered the United States.[68] The Fingerprint Match Report indicates that the fingerprints on the person who entered the US on that day match those of the applicant, and the photo taken on 14 October 2008 appeared to the Tribunal be that of the applicant who appeared before it.[69] That provides a rational basis for relying on the Fingerprint Match Report as evidence that the applicant was the person who entered the US on 14 October 2008. The notes to the Fingerprint Match Report relied upon in the applicant’s submissions do not deny that it is prima facie evidence of what it states or establish any “extreme illogicality” in the Tribunal so regarding it as evidence as required by CQG15 v Minister for Immigration[70] at [59]-[61]. “Emphatic disagreement” with the Tribunal’s reasoning is not sufficient to make out illogicality.[71] If reasonable minds could differ about the assessment of evidence, that assessment cannot be said to be illogical or irrational.[72] On its face the Fingerprint Match Report is probative of the applicant being the person who entered the United States on 14 October 2008 because they share the same fingerprints and appearance, and it was open for the Tribunal to regard it as such.
[67] applicant’s submissions at [56]
[68] apparently on 14 October 2008
[69] CB 195 [40]
[70] (2016) 253 FCR 496
[71] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124]
[72] SZMDS at [131]
The second argument[73] is that the Tribunal should have given the applicant a copy of the Fingerprint Match Report. This fails for the reasons given above in relation to Grounds 1 and 2. In short, s.424A(1)(a) of the Migration Act only required that the Tribunal give the applicant “clear particulars” of relevant information, which it did in relation to the Fingerprint Match Report in its two s.424A letters[74] and at the hearing pursuant to s.424AA.[75] There was no breach of s.424A. Further, the applicant has not demonstrated a realistic possibility that the Tribunal would have come to a different decision if the Fingerprint Match Report had been disclosed in full to the applicant, as he already had a complete copy of it through a Freedom of Information request.
[73] [58] of the applicant’s submissions
[74] CB 171-173, 181-183
[75] CB 194 [34]
The third argument[76] is that it was unreasonable for the Tribunal to give little weight to the applicant’s documents. The Tribunal explains why it regarded the applicant’s documents as lacking probative value at [42].[77] The reasons there given, referring to the Fingerprint Match Report and country information on document fraud in Sri Lanka cannot be said to demonstrate “extreme” illogicality as required. Plainly if the Tribunal was not satisfied that the applicant was who he claimed to be because of the other evidence before it, then his purported identity documents could not ultimately be found probative of his identity, especially given the country information the Tribunal refers to. This complaint is no more than an appeal for merits review.
[76] applicant’s submissions at [59]
[77] CB 195
Conclusion
The applicant has established that the decision of the Tribunal is affected by jurisdictional error. He should receive he relief he seeks.
I will hear the parties as to costs.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 September 2019
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