Hedari v Minister for Immigration
[2019] FCCA 3347
•1 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEDARI v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3347 |
| Catchwords: MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: DZT18 v Minister for Home Affairs [2019] FCA 1639 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 |
| Applicant: | SYED ALAMSHAH HEDARI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 176 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 28 October 2019 |
| Date of Last Submission: | 28 October 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 1 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr McDonald-Norman |
| Solicitors for the Applicant: | MSM Legal |
| Counsel for the First Respondent: | Ms Heidenreich |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”
The Applications filed 19 May 2017, amended on 29 September 2017 and further amended on 8 October 2019 are dismissed.
The applicant do forthwith pay the first respondent’s costs fixed in the sum of SEVEN THOUSAND, FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7,467.00).
NOTATION:
A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.
B. Orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 176 of 2017
| SYED ALAMSHAH HEDARI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
On 26 April 2017 the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate of the Minister not to grant the visa applicant and her six children a partner visa. The review applicant, on 19 May 2017, filed an originating application in this Court asking this court to review that decision.
The background to this is that the visa applicant was born in Jaghori Ghazni in Afghanistan on 1 January 1957. The review applicant was also born in Jaghori Ghazni in Afghanistan on 31 December 1956. The review applicant arrived in Australia on 2 February 2010 as an unlawful maritime arrival.
The visa applicant and the review applicant are Hazara Shia Muslims. The review applicant was granted a protection visa on 16 June 2010 and was granted Australian Citizenship on 17 October 2014.
The visa applicant applied for a partner visa on 26 June 2013 for herself and the six children.
She claims, and so does the review applicant claim, that they married in Afghanistan on 20 February 1987. They say that they had no prior spousal relationships. They provided a marriage certificate which was translated in part as saying that the marriage was registered in 2013 by the Afghan Consulate in Quetta and it includes information that the parties were married on 20 February 1987.
The documentation includes Tazkiras, which are Afghan national identity documents. Those documents were issued purportedly by the Afghan Consulate in Quetta, Pakistan in 2012. The parties claim to have six children who are listed as the secondary visa applicants. It is claimed that none of those are married. The eldest child is said to have been born in 1993 while the youngest child was born in 1998. According to the Tazkiras, that were initially submitted to the Department of Immigration, the parties’ only daughter was born in March 1996. This was only six months after the birth of another child who was said to have been born in September 1995.
A signed, but undated, statement from the visa applicant, in English, states that she and the review applicant grew up in the same village and are relatives. Her statement says that they liked each other since they were teenagers and they promised to live together forever. And finally, in 1987 they got married according to their village customs. They migrated to Pakistan as war broke out in Afghanistan.
The Tazkiras that were given to the Department were examined by the Dubai Integrity Unit of the Department.
The report from that unit states that the first set of Tazkiras include full Gregorian dates of birth. The Integrity Unit reported that including those dates of birth was an anomaly as genuinely issued Tazkiras include a date of birth according to the Persian calendar, followed by a Gregorian date of birth that usually only contains the identity holder’s year of birth.
The visa applicant later submitted copies of a second set of Tazkiras that were issued. These Tazkiras were assessed by the Integrity Unit to be more likely to be genuine Tazkiras as the date of birth listed is the year of birth only.
The main issue for the AAT to decide was whether the visa applicant met Public Interest Criterion 4020. That criterion is expressed as a negative; that is, has she not given the Department a bogus document.
There is no doubt that the first set of Tazkiras were bogus documents. But that isn’t the end of the matter. That criterion can be waived if there are compelling or compassionate reasons that justify the grant of the visa.
There were two hearings held by the AAT. Both the review applicant and the visa applicant gave evidence to the Tribunal on both occasions. That evidence was closely examined.
The Tribunal said that the evidence given as to ages was inconsistent.
The visa applicant had said that the parties married in 1987 and their first child was born a year afterwards. But the documentation provided by the applicants disclosed that all six children were born between 1993 and 1998.
After those anomalies were noted at the first hearing, there was a more thorough examination of this aspect at the second hearing. At paragraphs [71] to [76] of the Tribunal’s reasons, the Tribunal noted that the visa applicant told the Tribunal that she procured the first Tazkiras and passports by paying a person whose name she does not know.
She claimed she was connected with the nameless person by another Hazara in Quetta. During the process, she and the six children went to the passport office but she does not know its name. A few days later their Tazkiras were delivered to their house.
The visa applicant said she could not explain how each of the visa applicants’ date of birth came to be stated on the Tazkiras. She said maybe the family’s complete dates of birth were stated on the Tazkiras because her son gave their agent the information which he obtained from the review applicant, or alternatively, the government officers may have invented their complete dates of birth.
With respect to the second set of Tazkiras, the visa applicant said that all the visa applicants travelled to Jaghori in a car with a driver. She said that the experience was very frightening.
In relation to the marriage certificate submitted by the visa applicant with the visa application, the visa applicant said she does not know how it was procured. She said she had no involvement with the four witnesses named on the marriage certificate. She then volunteered that two of the witnesses are relatives who have died.
The Tribunal asked the visa applicant to explain why the marriage certificate is dated 20 February 1987, and she answered that she does not know. She said she paid for the marriage certificate.
The Tribunal asked the visa applicant how long she has been married and she responded, “maybe more than 30 years”. The review applicant told the Tribunal in that second hearing that the person who received money in exchange for assistance with the Tazkiras must have created complete birth dates for the children because according to Hazara custom a child’s year of birth is all that is recorded.
At paragraph [81], the Tribunal put it to the review applicant that at the previous hearing he said he knew his children’s dates of birth. He responded that Afghan parents know the years their children are born and that his family have a book that records children’s dates of birth. His oldest son was born in 1993 and then every year thereafter the visa applicant had another child. The review applicant said that the second set of Tazkiras show the children’s year of birth correctly and that he provided his family with that information.
The Tribunal ended up finding that the visa applicant had given the Department bogus documents. Therefore, Public Interest Criterion 4020 was not fulfilled. The question then was should there be a waiver. The Tribunal found that there were not compelling and compassionate circumstances to give the waiver for these reasons:
a)The credibility of the review applicant and the visa applicant;
b)The provision of bogus documents even though the AAT found that there was no intention to defraud;
c)The submissions of the applicants regarding:
i)the review applicant’s mental health;
ii)the review applicant’s financial circumstances;
iii)the evidence that the review applicant had given;
iv)the separation of the review applicant from the visa applicant;
v)that the review applicant is a person who had been granted a protection visa,
were individually and cumulatively not sufficient to establish compelling and compassionate circumstances that would justify the waiving of the criterion and therefore the granting of the visas.
Having come to that decision, the Tribunal affirmed the original decision of the delegate.
A further amended application was filed on 8 October 2019. There were three grounds of that application that were argued before me. I will deal with those grounds in the order in which they were argued.
Ground 5 was that the second respondent, AAT, misconstrued and/or misunderstood the Department of Foreign Affairs and Trade travel advice in relation to Pakistan. This ground refers to the first point in paragraph [119] of the reasons of the AAT.
It is instructive to reproduce paragraphs [119] to [121] so that this point is put in context.
[119]. The tribunal has further considered the matter of the review applicant’s current separation from his children and the visa applicant. As things currently stand in order to be with his family the review applicant has to return to Quetta, Pakistan where they live. In relation to a visit by the review applicant to Pakistan, the tribunal takes into account the following matters: The Department of Foreign Affairs and Trade (DFAT) travel advice in relation to Pakistan currently advises Australians to “reconsider your need to travel” to Pakistan overall. Travellers are advised “not to travel” to some areas of Pakistan excluding Quetta. The review applicant travelled to Quetta and spent time with his family in late January 2016, and returned to Australia on 1 March 2016. The review applicant does not have the legal right to reside in Pakistan, but he is entitled to visit that country.
[120] The Tribunal acknowledges there are possible risks and comparative hardships associated with the review applicant visiting his family in Quetta, but it takes into account the history of his visit to his family in 2016, and DFATs current travel advice which, in relation to Quetta, is limited to “reconsider your need to travel” rather than “do not travel”.
[121] For the above reasons, the Tribunal considers it is open to the review applicant to visit his family in Quetta, thereby ending his physical separation from them.
The applicant filed, in these proceedings, an affidavit of Mitchell Travis Simmons that was sworn on 8 October 2019. At page 83 of that affidavit, the DFAT website advice regarding Pakistan as at April 2017 is reproduced. It has the following advice, when it talks of advice levels. Firstly:
Pakistan overall: reconsider your need to travel.
Next:
Bolochistan. Federally administered tribal areas, do not travel. We advise against all travel here due to the very high risk. If you do travel, you should typically seek professional security advice. Be aware that regular travel insurance policies will be void, and that the Australian government is unlikely to be able to provide consular assistance.
Bolochistan is a province in Pakistan. Quetta is the capital of Bolochistan. There is no advice, on the information that is reproduced in the affidavit, which would exclude Quetta from that advice. Therefore, if one accepts the information in the affidavit of Mr Simmons, the AAT were wrong in paragraph 119 and 120 when they said that the advice of not to travel excluded Quetta.
This does seem to have been an integral part of the reasoning for the conclusion in paragraph 121. The applicant submits that this means that the AAT “failed to give real, genuine and proper consideration to a relevant consideration or to substantial and consequential material before it”.
The applicant says that this is a situation that is similar to that that was found in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50. In that case, the applicant expressed fear of persecution in Kyrgyzstan, because he was a Jew. The Tribunal in that case commented on country information, and it said this:
The Tribunal notes the country information above and remarks on the absence of any mention of either an event or an attitude that would support the applicant’s claim that he was and would be persecuted as a Jew in Kyrgyzstan.
But in that report, there was actually a statement that said this:
In March 2002, members of the country’s Jewish cultural society reported that they had heard calls for violence against Jews issued in Russian and Kyrgyz from a loudspeaker at a mosque in central Bishkek. According to the Israeli embassy in Almaty, the government is investigating.
The Full Court described what the Tribunal had done in that case as failing to take into account relevant material. The question is whether this is a jurisdictional error.
In DZT18 v Minister for Home Affairs [2019] FCA 1639, Davies J said, at paragraph 24, when talking about country information:
In my view, such country information bore upon and was relevant to the question of whether, in sending a person to prison, Lebanese authorities intend to inflict the requisite degree of pain or suffering, or humiliation to constitute significant harm for the purposes of the Act. To constitute jurisdictional error, the appellant did not mean to show that this country information is likely to change the outcome, but only that the failure to consider it denied him a possibility of a successful outcome, or could realistically have resulted in a different decision.
It is clear then, that the error must be material. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, the High Court said at paragraph 48:
The question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. The Court must be careful not to intrude into the fact finding function of the Tribunal, yet the Court must be alive to the potential for a document or information objectively evaluated to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.
In this case, the Tribunal was not considering the safety or risk to the review applicant visiting Quetta as a fundamental aspect. It was considering whether there were compelling or compassionate reasons to waive PIC 4020. One of these matters submitted to the Tribunal, as constituting such reasons, was the separation of the review applicant from the visa applicant.
It was one of five submissions considered, which were balanced against the credibility of the applicants and the fact that they had provided bogus documents. If the AAT had considered the correct information, it would seem to me it would then have had to consider what the DFAT warning was a year earlier, when the applicant did actually visit Quetta.
It seems to me that the possibility that this information could have changed the decision of the Tribunal is not realistic. The information may only have been capable of changing one aspect but it still could not have overcome the issues of credibility, or the provision of the bogus document consideration.
If there was an error, it did not amount to a jurisdictional error. Therefore ground five fails.
Ground eight was that the second respondent, the AAT, did not grant procedural fairness to the applicant. The applicant submits that the applicant was not told that a finding that he could visit his family in Quetta, or that his previous visit to Quetta, could be a reason as to why the AAT could affirm the decision.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, the High Court said at paragraph 29:
No submission was made on behalf of either the appellant or the Minister that existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded for the most part by reference to what had been said by the Full Court of the Federal Court in LFO army.
The High Court said at paragraph 36:
Where the exercise of the statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker, in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information and comment by way of submission upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected, any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at, which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment, before making the decision in question.
The High Court then, in looking at all the issues said at paragraph 37:
That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose, as was the case here, the delegate concludes that the applicant for a protection visa is a national of a particular country near Iran. Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant’s nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with section 425(1) and the applicant would not have been accorded procedural fairness.
The question here is, was this applicant afforded procedural fairness. It seems to me, on a review of the materials, that the Tribunal’s invitation to the applicant to attend the two hearings, complied with the requirements imposed by s.360 and s.360A of the Act.
In the first of those invitations, the Tribunal noted the following:
The focus of the hearing will be Public Interest Criterion 4020, and the waiver provision in PIC 4020 (4). Please provide any new material relating to PIC 4020 and the waiver clause at least seven days prior to the hearing.
It seems to me that the applicant was on notice, from the delegate’s decision and from that first invitation letter, as well as the Tribunal’s questioning at the first hearing about whether the waiver power in 4020 (4) should be exercised, would be the determinative issue on review. The exchange that occurred between the Tribunal and the applicant during the hearing, which is reproduced in the transcript that is annexed to the affidavit of Mr Simmons that I have previously referred to, shows that the Tribunal explicitly raised with the applicant and engaged him in a dialogue about the living conditions in Quetta and how all members of his family were able to visit him during the time that he was there in Quetta.
The applicant also gave a post-hearing submission, which is reproduced at pages 527 and 528 of the court book. At paragraph 7 of that submission, it is written by the migration agent:
It is unreasonable to expect the review applicant to be separated from his family for an indefinite period, given the duration of their separation already.
Paragraph 8:
The review applicant is unable to relocate and live with his family in Afghanistan or Pakistan, for the reasons which granted him a protection visa, and will have no choice but to frequently travel to Afghanistan and/or Pakistan to visit his family. Each time he travels his life will be at risk of harm as a person of Hazara ethnicity and Shia faith, but also as an Australian citizen.
And then it talks of the security provisions. The applicant had not said that he could not visit his family. He simply submitted that it was difficult but nevertheless he would do it, notwithstanding that he felt it was unfair or unreasonable for him to be expected to do it.
That is the evidence that he has given to the Tribunal and that is what was contained also in the post-hearing submissions. It seems to me that the applicant was obviously put on notice, and aware, that this aspect was a matter that was alive in the mind of the Tribunal.
But, also for the same reasons that I have already given in ground 5, I am of the view that this aspect had no realistic possibility of changing the decision, even if it were to be said that the applicant had been denied a chance to talk of the issue that the Tribunal was talking about, which I have already found he had not. For those reasons ground 8 fails.
Ground 2 was not actually argued before me; the applicant and the respondent were both content to rely on their written submissions.
The ground, as it was left to me, was that the AAT fell into jurisdictional error by failing, pursuant to subsection 4, to waive the requirement of the Public Interest Criterion 4020 because the second respondent constructively failed to exercise its jurisdiction by failing to take into account the relevant consideration when exercising its discretion, in that they had failed to consider the review applicant’s ability to visit his family was extremely limited by financial constraints.
That is, that the applicant submits that his financial situation was not taken into consideration as to whether he could afford to keep flying to Quetta and back. The applicant’s financial situation, generally, was considered. The Tribunal said this, at paragraph 110:
110. The Tribunal has considered whether the review applicant’s financial circumstances should be treated as a compelling or compassionate circumstance. He claims that he owes over $30,000 in relation to this visa process. While no evidence of the level of the review applicant’s indebtedness or current financial standing has been provided, the Tribunal has formed the view that it was the review applicant’s decision to borrow funds for the visa process, and for that reason his indebtedness does not incite the Tribunal’s pity or compel it to waive the criterion PIC 4020(1).
111. For the above reasons the Tribunal fails to be satisfied at the time of the decision that the review applicant’s financial situation is a compelling and compassionate circumstance.
As to the aspect of the applicant visiting his family in Quetta, as I have already noted, at paragraph 120, the Tribunal said:
The Tribunal acknowledges there are possible risks and comparative hardships associated with the review applicant visiting his family in Quetta.
When one looks at what is said then in paragraphs 110, 111 and 120, it would seem to me that it shows that this aspect was actually considered by the Tribunal.
The post-hearing submissions, again, did not say that the applicant would not or could not visit because he could not afford it. The submissions say that, despite those hardships, he would still go.
It seems to me, again, that there has been no jurisdictional error illustrated by ground 2, and so therefore it also fails.
I have not found that there is any jurisdictional error that has been illustrated. I dismiss the application, with costs in the scheduled amount.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Vasta.
Date: 20 November 2019
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