Fpe17 v Minister for Immigration
[2020] FCCA 1942
•21 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FPE17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1942 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa cancellation – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to cancel the Applicant’s Protection visa under s.109 of the Migration Act 1958 (Cth) for non-compliance with s.101(b) with respect to his Protection visa application – Applicant needed a four and a half month extension of time under s.477(2) to make his application to this Court – Applicant claimed that the Tribunal erred in considering the Notice of Intention to Consider Cancellation as valid as it contained information relating to his brother and not to himself and that the Tribunal’s decision was not based on evidence – Notice of Intention to Consider Cancellation was valid as to form and substance – no reasonable explanation for delay of four and a half months in commencing proceeding – no reasonable prospects of success for proposed substantive grounds – application for extension refused. |
| Legislation: Migration Act 1958 (Cth), ss.101, 102, 103, 104, 105, 107, 109, 110, 111, 477 Migration Regulations 1994 (Cth) |
| Cases cited: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 Minister for Immigration and Citizenship v Brar (2012) 201 FCR 420 |
| Applicant: | FPE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3944 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 7 August 2019 |
| Date of Last Submission: | 21 August 2019 |
| Date Reserved: | 4 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2020 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms K. Garaty |
| Solicitors for the First Respondent: | HWL Ebsworth |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 18 December 2017 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3944 of 2017
| FPE17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is aged 45 years, having been born in Kuwait but having claimed at all material times to be a stateless Bidoon.
By Application filed in this Court on 19 December 2017 he seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 4 and a half months outside the 35 day time limit prescribed by s.477(1) to make his substantive application for judicial review to this Court; and
b)to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 June 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 March 2017 to cancel his Protection (Class XA) (Subclass 866) visa (Protection visa) under s.109 of the Act for having given incorrect answers under s.101(b).
Background
The Applicant arrived on Christmas Island on 29 November 2011 as an unauthorised maritime arrival on a boat codenamed “YUM007” and claimed to have left Kuwait International Airport on 10 October 2011 and transited through Indonesia using a false passport on his way to Australia. On the same boat were his brother Allan (i.e. a pseudonym) and his nephew Shannon (i.e. a pseudonym), who were also unauthorised maritime arrivals.
On 4 February 2012 the Applicant, through a registered migration agent employed by Vrachnas Lawyers, requested a Protection Obligations Determination from the Department of the Minister. He attended a Protection Obligations Evaluation interview at Darwin Airport Lodge on 6 February 2012. In a Statement of Claims dated 4 February 2012 (Statement of Claims) forming part of his request he stated that he had been born in Kuwait, that his wife and children were living in Syria and claimed protection as a stateless Bidoon who faced danger in Kuwait. In his Statement of Claims he claimed that on 18 February 2011 he took part in a peaceful rally with other stateless Bidoon people, including his brother Allan, and that he was there arrested by security forces, separated from his brother and tortured mentally and physically. He claimed that he was imprisoned for about a month but was ultimately released. At [5] and [14] – [17] of the Statement of Claims he stated as follows:
[5]In Kuwait we are deprived of our civil rights Bidoon’s living in Kuwait do not have the right to work, no right to attend university, no drivers license, no marriage certificates. We were denied birth certificates and denied medical treatment. We were denied all of our civil rights.
[14] I did not know what had happened to my brother. I suspected he was still in the prison because we had been at the same rally. We tried to help my brother but we had no connections to get him out.
[15]I really do not know how my brother eventually got out of the prison, but it was about 7 months after me - maybe my boss who got me out had some connections. One day [Allan] just turned up home, it was a surprise to us - it was a very emotional time for our family.
[16] After this my brother and I decided enough is enough, we must get out of Kuwait. We met a man Abu Salom, and he charged $24,000 USD to get myself, my brother and my nephew to Australia.
[17] My father took the rest of the family went to Syria. I don’t know what is happening to them over there.
I note at this point that there is in evidence a letter which must be regarded as being dated 7 March 2012 (although actually erroneously dated 7 March 2011) from the Applicant’s registered migration agent which submitted on behalf of Allan to the Department of the Minister (Department) that Allan was also a refugee under the Refugees Convention criterion as a stateless Bidoon who had suffered serious discrimination amounting to persecution in Kuwait.
By a Protection Obligations Evaluation Outcome dated 11 April 2012 a Delegate of the Minister found that she was satisfied that Australia owed the Applicant protection obligations, finding substantively that he was a member of the particular social group “undocumented Bidoons in Kuwait” and that:
·[The Applicant] is stateless and is outside his country of former habitual residence;
·[The Applicant] has no other nationality and does not have a right to enter and reside in a third country;
·The cessation clauses in Article 1C of the Refugees Convention do not apply to [the Applicant];
·There is no information before me which indicates that [the Applicant] comes within one of the exclusion clauses in Articles 1D, 1E and 1F of the Refugees Convention;
·Article 33(2) of the Refugees Convention does not apply to [the Applicant];
·The harm that [the Applicant] fears is for a Refugees Convention reason;
·The harm that [the Applicant] fears amounts to persecution;
·That effective protection, pursuant to sections 36(3)-(5) of the Migration Act, is not available to [the Applicant];
·That internal relocation is not a reasonable option for [the Applicant]; and
·That having carefully considered [the Applicant]’s account in terms of detail, internal consistency and credibility and after having regard to country information, I am satisfied that [the Applicant]’s fear of being persecuted is well-founded.
(emphasis added)
On 27 June 2012 the Applicant lodged his Protection visa application (which included the Statement of Claims) and there gave details of his family unit members:
a)in Australia as being his brother Allan and nephew Shannon, affirming that they had both been born in Kuwait but were stateless; and
b)his wife, children, father and mother, stating that they had all been born in Kuwait but were also stateless and resident in Syria.
The Applicant was granted a Protection visa on 3 July 2012. On the same date his brother Allan was also granted a Protection visa on the basis of being a “stateless Bidoon who had no right to reside in any country and had been subject to torture and abuse over an 8 month period”. Allan, in his own Protection visa application form, had stated that the Applicant was his brother. It followed that relevantly the claims of the Applicant and Allan mirrored each other in that they were brothers of the same parents and each of them were stateless Bidoons.
On 11 July 2016 the Applicant lodged an application for Australian citizenship in which he stated that his children and mother were residents and citizens of Iraq and that he had travelled to Iraq from Australia between 11 October 2013 and 9 January 2014, being a period of 88 days, for the purpose of visiting his family in Iraq. His response to question 34 of the form disclaimed him as being in a spousal or de facto relationship.
By Notice of Intention to Consider Cancellation (NOICC) dated 9 December 2016, the Department notified the Applicant under s.107(1) of the Act that the Minister would consider cancelling his Protection visa under s.109 for non-compliance with s.101(b) of the Act with respect to his Protection visa application.
Relevant Criteria and Law Applicable to Protection Visa Cancellations
Section 109 of the Act empowers the Minister to cancel a visa if there has been non-compliance by the visa holder with ss.101, 102, 103, 104, 105 or 107(2). Before a visa is cancelled notice must be given to the relevant visa holder under s.107 to enable she or he to respond. The Minister must consider any response by the visa holder and decide whether there has been non-compliance by the visa holder.
Relevantly to this proceeding, ss.101, 107, 108 and 109 of the Act provide as follows:
101 Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
(emphasis added)
…
107 Notice of incorrect applications
(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, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non‑compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non‑compliance:
(A) give reasons for the non‑compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii) if the holder gives the Minister a written response within that period—when the response is given; or
(iii) otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
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.
109Cancellation of visa if information incorrect
(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 the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Sections 110 and 111 of the Act ought also to be noted, and provide:
110Cancellation provisions apply whatever source of knowledge of non‑compliance
To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non‑compliance because of information given by the holder.
111 Cancellation provisions apply whether or not non‑compliance deliberate
To avoid doubt, sections 107, 108 and 109 apply whether the non‑compliance was deliberate or inadvertent.
Further, when considering whether to cancel a visa the Minister is required to have regard to the circumstances prescribed in reg.2.41 to the Migration Regulations1994 (Cth) (Regulations), which provides as follows:
2.41 Whether to cancel visa—incorrect information or bogus document (Act, s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non‑compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
Contents of the NOICC
In short, the NOICC particularised the Applicant’s possible non-compliance with s.101(b) of the Act as being that he had claimed in his Protection visa application to be a stateless Bidoon without the right to enter or reside in any country, but that his brother Allan on 19 December 2012 had lodged a sponsorship application for a Partner visa offshore for his own wife and four children and in support had provided to the Department the following documents:
a)Allan’s Iraqi personal identity card (listing his place of birth as Basrah, Iraq);
b)Allan’s four children’s Iraqi personal identity cards, listing their place of birth as Basrah, Iraq;
c)Allan’s four children’s Iraqi citizenship certificates; and
d)Iraqi passports for the Allan’s wife and four children.
The NOICC then went on to state and reason verbatim as follows:
13.Departmental records also shows that on 13 October 2013 you returned to Iraq and stayed there until 09 January 2014.
14.Country information advises that an Iraqi National Identity card is only issued to Iraqi citizens. According to Article 18 of the Iraqi Constitution “Iraqi citizenship is a right for every Iraqi and is the basis of his nationality. Anyone who is born to an Iraqi father or to an Iraqi mother shall be considered an Iraqi.” Therefore, having considered that your brother Allan holds an Iraqi Personal Identification Card, together with his four children’s Iraqi Personal Identifications and official Iraqi Citizenship certificates which all list Allan as their father, it strongly suggests that all his children would have gain their Iraqi citizenships by decent as Allan is an Iraqi citizen This, in turn, would have suggested that you would be an Iraqi citizen too by birth from either your father and/or mother who are also listed on Allan’s Iraqi Personal Identification Card.
15.In light of above information and evidence, it appears that you are not stateless and were not stateless at the time of your Protection visa application. It is apparent that you are an Iraqi citizen and were so at the time of your Protection visa application.
16.Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugees Convention. You have consistently maintained that you are stateless and not entitled to citizenship in any country. This claim was fundamental to the determination that you are a person to whom Australia has protection obligations. As the incorrect information provided was material to this determination it appears you may not have engaged Australia’s protection obligations.
17.Therefore I consider that you have not complied with section 101(b) of the Act as you have provided incorrect answers to the following questions in your Protection visa application:
·In response to question 20 - “Your citizenship at birth” you stated “stateless”. This is incorrect because as per your brother, Allan’s Iraqi Identification card which is only issued to Iraqi citizens, I consider that you also are an Iraqi citizen.
·In response to question 22 - “Do you hold any other citizenship or are you a national of any other country?” You ticked “No”. This is incorrect as per Allan’s Iraqi National Identity card, it appears that you are an Iraqi citizen.
·In response to question 23 - “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?” you ticked “No”. This is incorrect because given the above information, I consider that you are an Iraqi citizen. Therefore, you do have right to enter or reside in Iraq. Departmental record also shows that you have travelled to Iraq in 2013.
·In response to question 43 - “Why did you leave that country?” you stated that you “took part in a peaceful rally with other stateless Bidoon people … the aim of this rally was to be permitted to have citizenship.” You further stated that as a stateless Bidoon, you have no civil rights. As now I have considered that you are an Iraqi citizen and not a stateless person, you do have the same rights as bestowed to all Iraqi nationals. It further undermines your adverse profile claims in your Protection visa application. As such I consider your response to question 43 contains incorrect answers.
The NOICC invited the Applicant to provide a response in writing within 14 days. The Applicant’s newly appointed solicitor and migration agent (solicitor) did so by an email submission dated 24 December 2016, which reiterated that the Applicant, his sister and his parents were all stateless people and that the uncle of his brother’s wife had paid someone in the Iraqi National ID Directorate to obtain the Iraqi Personal Identification Cards and the Iraqi Citizenship Certificates for Allan’s family. The submission further stated that the Applicant had visited Iraq only because his wife was extremely sick at that time and that he spent all the time there in Iraq hiding. The solicitor enclosed with his submission a number of purported official documents from Kuwait, including birth certificates, marriage certificates and the Applicant’s father’s Kuwaiti military ID, passport and in particular a Certificate of Retirement from the Kuwait Police Force recording the father’s employment from 1971 to 1988 as a Kuwait border guard.
Then by an International Treaties Obligations Assessment Report dated 10 February 2017 it was found by two assessors of the Department that the Applicant was not a refugee and Australia did not have non-refoulement obligations to him, and that if he was removed from Australia to Iraq there was not a real risk that he would suffer significant harm. It found that the Applicant had resided in Iraq at least for some time prior to his first arrival in Australia and in support of that finding noted that in his application for Australian citizenship the Applicant had stated that his children and mother were Iraqi citizens. It also took into account his period of return to Iraq of some 88 days as indicating that there was not a real chance that he would be persecuted for any reason under the Refugees Convention criterion if he returned to Iraq.
Decision of Delegate
The Delegate decided to cancel the Protection visa of the Applicant under s.109 of the Act for breach of s.101(b), substantially on the basis and reasoning previously set out in the NOICC. At [23] of his Decision Record the Delegate dealt with the purported Kuwaiti official documents and certificates, verbatim as follows:
[23]However, I find these copies of Kuwait documents have contradicted to his “Statement of Claims” which the visa holder stated that “In Kuwait we are deprived of our civil rights. Bidoons do not have the right to work, no right to attend university, no drivers’ license, no marriage certificates”. Holding so many Kuwaiti documentation would strongly suggest that visa holder was not stateless as per country info cited below. Further, it is implausible that a stateless Bidoon living in Kuwait would work as his father did in the Government as a ‘border guard’ from 1971 through to 1988 as attested to in the retirement document provided by the visa holder because a stateless and undocumented Bidoon would not hold a position of authority in the Government. This factor raises serious concerns regarding the claims he has made in relation to his statelessness.
At [31] of his Decision Record the Delegate expressed his view that the Applicant, like Allan, was an Iraqi national and had been so at the time of the making of his Protection visa application.
Decision of Tribunal
The Applicant lodged an application for merits review of the decision of the Delegate with the Tribunal through his solicitor on 14 March 2017 and gave a copy of the Decision Record of the Delegate at that same time.
I note that the Protection visa granted to Allan had also been cancelled around this time (see [48] of the Decision Record of the Tribunal), and by email dated 26 April 2017 the Applicant’s solicitor confirmed the Applicant’s agreement to the Tribunal hearing his review application together with the review application of Allan which was before the Tribunal. The decision of the Tribunal in relation to Allan is not in evidence before me.
The Applicant appeared at a hearing before the Tribunal on 1 May 2017 to give evidence and present arguments together with his solicitor and an interpreter in the Arabic and English languages.
From [8] – [10] of its Decision Record the Tribunal considered and found that the NOICC complied with the relevant statutory requirements and was valid.
From [11] – [40] of its Decision Record the Tribunal recorded, considered and analysed the evidence and circumstances before it, and in short concluded that the Applicant was an Iraqi citizen and that he had fabricated his claimed statelessness. The Tribunal was satisfied that the Applicant had provided false information and given false answers to questions 20, 22, 23 and 43 of his Protection visa application form and that there had been non-compliance with s.101(b) of the Act as described in the NOICC.
Then from [41] – [60] of its Decision Record the Tribunal turned to consider whether in its discretion it should cancel the Protection visa and had regard to the matters prescribed by reg.2.41 of the Regulations (see [14] above).
In the result the Tribunal concluded that in the circumstances the Protection visa should be cancelled and accordingly it affirmed the Delegate’s decision to cancel the Protection visa.
Grounds of Extension Application
The Applicant’s Grounds for extension are verbatim as follows:
1. The applicant maintains that he was under severe depression after the cancellation of his visa was affirmed by the Administrative Appeals Tribunal, the applicant maintains that he was unable to cope with fact that his visa was cancelled.
2. The applicant maintains that he was unable to afford any expenses associated with going to the free legal centres or lawyers, he was under severe financial hardship that delayed the lodgement of an application for judicial review.
3. That it is in the interest of the administration of justice to grant the applicant an extension of time as per the ground mentioned below.
In his affidavit dated 15 December 2017 the Applicant merely stated in support of his extension application as follows:
[1]That I did not lodge the application for judicial review in time as I did not have the financial capacity to afford the costs of an application to the Federal Circuit Court, I suffer from Severe Psychological problems that I stated to the AAT.
In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success, I ought not to travel beyond an examination of the proposed substantive grounds on a “reasonably impressionistic level”. In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 Mortimer J said at 597 – 598 [62] – [63], with respect to applications for an extension of time under s.477(2) of the Act, as follows:
[62] As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[63] The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
The delay of nearly four and a half months is, in my view, considerable. Although there has been no real or actual prejudice to the Minister resulting from it, that fact does not in itself militate in favour of an extension.
In my view, the Applicant has not provided a reasonable or adequate explanation for the delay of four and a half months. There is no evidence at all in relation to the Applicant’s financial position or capacity one way or the other and there is no evidence before the Court supporting his claim of suffering from severe psychological problems. His solicitor filed his Application in this Court and continued acting for him until May 2019 and there is no explanation why he could afford to retain his solicitor at the time of the filing of his Application in this Court and after, but not in the period between 35 days after the decision of the Tribunal and the filing of the Application.
However, I now turn to the most important issue, being whether or not there is any arguable basis for the Applicant’s proposed substantive Grounds.
Proposed Substantive Grounds
The proposed substantive Grounds relied upon by the Applicant are verbatim as follows:
1. The Tribunal erred in considering s 107 Notice as a “valid notice” although the alleged non-compliance was in relation to the applicant’s brother’s adverse information and not that of the applicant, therefore the issuance of s 107 was not sufficiently particularised because it does not relate to the applicant himself but rather to the applicant’s brother.
2. The authority’s decision was not based on evidence.
Consideration
Proposed Ground 1
This Ground attacks the validity of the NOICC, seemingly on the basis that the information given in the NOICC related to Allan rather than to the Applicant himself.
First, in this connection I note that s.110 of the Act makes ss.107 – 109 applicable whether or not information indicating non-compliance came from the Applicant himself or a third party source.
Second, it is sufficient for present purposes to refer to the explication of the statutory requirements for a valid NOICC under s.107 of the Act in the judgment of the Full Court of the Federal Court of Australia comprised of North, Greenwood and Besanko JJ in Minister for Immigration and Citizenship v Brar (2012) 201 FCR 420 (Brar), summarised as follows:
a)the giving of a NOICC under s.107 of the Act is a condition of the power of the Minister to cancel a visa under s.109: Brar at 252 – 253 [44];
b)if the NOICC under s.107 of the Act “does not describe the noncompliance, or if the minister decides that there has been noncompliance in a way not described in the notice, then the minister has exceeded the power given in ss 108 and 109”: Brar at 253 [45];
c)a NOICC under s.107 of the Act is not a criminal charge or a pleading in a civil action, and whilst it must give particulars of possible non-compliance, the level of particularity is not specified but must serve the statutory purpose of fairly informing the visa holder of the basis upon which cancellation is being considered, so that he or she may make such submissions in answer as may be open to be made: Brar at 256 [56] – [57]; and
d)the requirements of s.107 of the Act are not inviolable restraints conditioning the Tribunal’s jurisdiction to conduct and decide a review and any departure from its requirements does not result in invalidity without consideration of the extent and consequences of the departure: Brar at 256 – 257 [59] – [61].
In my view this Ground is not reasonably arguable and would not be made out. The Delegate affirmatively stated in the NOICC, for the purposes of s.107 of the Act, that he considered that there had been non-compliance by the Applicant and then proceeded to give with appropriate detail and definition particulars of the nature of the asserted non-compliance, which were quite sufficient to give the Applicant the opportunity of making submissions in response and answer, as was in fact done by the Applicant’s solicitor on his behalf. Further, the NOICC contained a statement of the matters required by s.107(1)(b) – (f). Further, the Applicant has not attempted to show that any failure of the NOICC to comply with s.107 was material and operated to deny or deprive him of procedural fairness, or that any breach of s.107 caused practical injustice to him.
Insofar as this Ground could be interpreted as attacking the legal reasonableness of the NOICC’s reasoning from Allan’s position vis a vis Iraq to the Applicant’s position, this Ground would still not be made out. The information and particulars given about Allan in the NOICC gave an intelligible justification for regarding Allan as an Iraqi citizen. The protection claims of Allan and the Applicant mirrored each other and placed each other in like plight, and if Allan was found in truth to be an Iraqi citizen and not a stateless Bidoon, there was an intelligible justification and it was not legally unreasonable to find that the Applicant likewise was an Iraqi citizen and not a stateless Bidoon, as asserted in the NOICC and as subsequently found by the Tribunal.
Accordingly the attack on the NOICC made by this Ground, whether regarded as an attack on its form or substance, would not be made out.
Proposed Ground 2
This proposed Ground is generalised and unparticularised and does not identify how or in what way the decision of the Tribunal “was not based on evidence”. In different language it most likely repeats Ground 1, but in any event would not be made out.
Conclusion
Accordingly, in my view, the proposed substantive Grounds which would be relied upon by the Applicant are not reasonably arguable, do not have reasonable prospects of success and would not provide a basis for a finding of jurisdictional error on the part of the Tribunal.
I accordingly conclude that it is not in the interests of the administration of justice to extend the time to bring this proceeding, and the application for an extension of time within which to do so will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 21 July 2020
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