Hijazi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 544
Federal Circuit and Family Court of Australia
(DIVISION 2)
Hijazi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 544
File number(s): SYG 3757 of 2017 Judgment of: JUDGE EGAN Date of judgment: 8 July 2022 Catchwords: MIGRATION – Whether Minister fell into jurisdictional error by failing to identify the best interests of the applicant’s children as a primary consideration when considering whether to revoke a visa cancellation decision or not – where no submission made to the Minister that the children of the applicant would be disadvantaged by the non-revocation of the cancellation decision – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 116(1)(e)(i), 128, 131, 501 and 501CA Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Sales v Minister for Immigration & Citizenship [2007] FCA 2094
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 7 July 2022 Date of hearing: 6 April 2022 Place: Brisbane Counsel for the Applicant:
Solicitor for the Applicant:
Mr AJ Munro
TCI Lawyers
Counsel for the Respondent:
Solicitor for the Respondent:
Mr T Liu
Australian Government Solicitor
ORDERS
SYG 3757 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZIAD TAREK HIJAZI
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
8 july 2022
THE COURT ORDERS THAT:
1.The name of the Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Further Amended Application for Review filed on 6 April 2022 be dismissed.
3.The Applicant pay the Respondent’s costs of and incidental to the application for review fixed in the amount of $7,853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant is a citizen of Lebanon whose Permanent Spouse (Subclass 100) Visa granted to him in 2001 was cancelled under the provisions of s. 128 of the Migration Act 1958 (Cth) (the Act). It was not in dispute at the hearing before the Court that the applicant was outside Australia at the time of the cancellation of his visa. Sections 116(1)(e)(i) and 128 of the Act relevantly provide as follows:
“Section 116
Power to Cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(e) the presence of its holder in Australia is or may be, or would be or might be, a risk to:
(i) The health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals
...
Section 128
Cancellation of visas of people outside of Australia
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen is outside of Australia
the Minister may, without notice to the holder of the visa, cancel the visa.”
In the decision record of the Minister’s delegate dated 25 August 2017 relating to the applicant’s visa cancellation, it was found as follows: [1]
[1] Exhibit 1 - Court Book (CB) – pp. 15-16.
“Evidence of grounds for cancellation:
The visa holder first arrived in Australia in 1998 as the holder of a Prospective Spouse (subclass 309) visa. He was granted a Permanent Spouse (subclass 100) visa on 19 February 2001. The visa holder has travelled frequently, last departing Australia on 12 August 2017.
The visa holder has a substantial criminal history in Australia with convictions in various states which include driving, fraud, drug and intimidation of police offences, and with various terms of imprisonment.
Specifically, the visa holder has the following convictions:
•In February 2010, the visa holder was convicted of IntimidatePolice Officer in Execution of Duty without Actual Bodily Harm and was sentenced to a six month term of imprisonment.
•In September 2011, the visa holder was convicted of Possessing Controlled Precursors and was sentenced to a 15 month term of imprisonment. This offence was in relation to the preparation of the manufacturing of drugs; 2.5kg Ephedrine to manufacture Methamphetamine.
Further, the visa holder is currently before the NSW Court for 39 offences of Dishonestly obtain property by deception and impersonating a police officer. It is noted that the victim of this offence lost/was set to lose approximately $AUD500,000. While these charges are yet to be proven in a court of law, NSW Police have determined that there was sufficient basis and evidence for the charges to be laid and to bring this case before the court.
In addition, the NSW Police have provided the following information to the Department:
•The visa holder is well known to NSW Police and to various organised task forces within the NSW Police department.
•The visa holder was charged with firearms and weapon possession offences in May 2013. While the visa holder was not convicted of these, NSW Police consider that unauthorised possession of weapons presents a clear risk to the community.
•From 2017, the visa holder has had access to firearms.
•The visa holder is known to have links with numerous persons involved in organised crime, including Rami CHARAMAND, Noureddine LAALAA and Moustaffa MARIAM and was previously involved in the "B4L Brothers for Life" organised crime gang.
•NSW Police believe the visa holder continues to be involved in fraud and criminal related activity and will continue to do so ifhe remains in Australia, which may result in more members of the public being put at risk.
The numerous offences that the visa holder has been charged and convicted of are considered serious and demonstrate the visa holder's disregard for Australian authorities in addition to his access to firearms, links to crime gangs and involvement in manufacturing of drugs. This coupled with the concerns of NSW Police leads me to find that the visa holder would or might be a risk to the safety of the Australian community.
Part C: Grounds for Cancellation
Assessment
I am satisfied that:
•There is a ground for cancelling the visa under section 116 of the Migration Act (Section 128(a)(i));
•It is appropriate to cancel in accordance with Subdivision F of the Migration Act (section 128(a)(ii); and
Departmental records show that the visa holder is outside Australia (paragraph 128(b)).
Section 128(a)(i) of the Migration Act
I am satisfied that there are grounds for cancellation of this visa under section 128 of the Migration Act, relying on the grounds at Section 116(1)(e)(i) because as evidenced in the Evidence of grounds for cancellation section, I consider that the visa holder's presence in Australia would or might pose arisk to the safety of the Australian community.
Based on the information above, I find there is evidence before me to support the visa holder has a disregard for Australian authorities, access to firearms, links to crime gangs, and manufacturing of drugs. This coupled with the concerns ofNSW Police leads me to find that the visa holder would or might be a risk to the safety of the Australian community.
Section 128{a)(ii) of the Migration Act
Having full regard to all of the circumstances of the case, I am satisfied it is appropriate to cancel the visa in accordance with Subdivision F of the Migration Act.
The reasons I consider it appropriate to cancel without notice under section 128 of the Migration Act are the visa holder is likely to travel to Australia if given notice of an intention to consider cancellation of his visa.
Section 128(b) of the Migration Act
I find that the visa holder is outside Australia. This is based on departmental records available to me.”
Notice of the decision was given to the applicant by letter from the department dated 25 August 2017. [2]
[2] Exhibit 1 – CB – pp. 12-13.
The applicant gave a response to the s. 129 notice of cancellation by letter from his lawyers dated 26 September 2017. Such response did not, in any respect, refer to the fact that the applicant was the father of children living in Australia at the time of the cancellation of the applicant’s visa, nor that the interests of the children would be adversely affected should the cancellation decision not be revoked. It is to be inferred that the best interests of the applicant’s children was clearly was not a factor uppermost in the mind of the applicant at the time he gave instructions to his lawyers to respond to the cancellation decision.
On 31 October 2017, pursuant to the provisions of s. 131 of the Act, a delegate of the Minister, in the exercise of their discretion, decided not to revoke the cancellation decision (the non-revocation decision).
Grounds of Review
On 4 December 2017, the applicant’s lawyers filed an Originating Application for Review of the decision of the Minister. At the time of the hearing before the Court, the applicant relied upon a Further Amended Application for Review filed on 6 April 2022, the grounds of which were as follows:
1.“The decision was legally unreasonable, in that the decision maker did not have regard to a relevant consideration, concerning the best interests of the Applicant's children.
PARTICULARS
(a) The Respondent failed to treat the best interests of the Applicant's children as a Primary Consideration. within the meaning of the Convention on the Rights of the Child 1990:
(i)The Respondent failed to identify what the best interests of the Applicant's children were; and
(ii)The Respondent failed to properly consider the best interests of the Applicant's children and assess them as a primary consideration; and
(iii)The Respondent failed to identify the best interests of the Applicant's children as a primary consideration and then assess whether the force of any other consideration, or the cumulative effect of other considerations outweighed it.
(b)The Respondent treated all considerations, including the best interests of the Applicant's children, as egual considerations, and in doing so failed to treat the best interests of the Applicant's children as a Primary Consideration:
(i)The Respondent placed all considerations. including the best interests of the Applicant's children, into the 'melting pot' in order to form an ultimate conclusion.
(c)The written reasons of the Respondent are sparse, in that the decision maker failed to identify how, why, or whether other considerations, or the cumulative effect of other considerations outweighed the best interests of the Applicant's children.
2.The decision was vitiated by jurisdictional error, in that the Respondent failed to make an obvious enquiry about a critical fact, the existence of which was easily ascertained.
PARTICULARS
(a) The Respondent had actual, or in the alternative constructive. Knowledge that the applicant had minor children who were Australian citizens:
(i)The Respondent's Decision Record dated 25 August 2017 noted the decision maker had 'departmental records' available;
(ii)The Respondent's Decision Record dated 25 August 2017 noted there was 'evidence before the Department' that the Applicant had a number of children:
(iii)The Respondent's Decision Record dated 25 August 2017 noted that some of the Applicant's children made minors and are potential Australian citizens
(iv)The Respondent's Decision Record dated 31 October 2017 noted there was 'evidence before the Department' that the Applicant had a number of children;
(v)The Respondent's Decision Record dated 31 October 2017 noted that some of the Applicant's children may be minors. and are potentially Australian citizens;
(b)The Respondent was required. within the meaning of the Convention on the Rights of the Child 1990. to treat the best interests of the Applicant's children as a Prima1y Consideration;
(c)The critical fact was that at the time of the decision. the Applicant had five children. all of whom were Australian citizens, and three of whom were under 18 years of age:
(d)The existence of the critical fact was easily ascertained by the Respondent checking its departmental records;
(e)The failure to make the obvious enquiry was material, in that had the Respondent ascertained that critical fact, it could have yielded a different result:
(f)Had the Respondent:
(i)Made the obvious enquiry;
(ii)Ascertained the critical fact;
(iii)Identified the best interests of the Applicant's children as a primary consideration;
(iv)Assessed whether the force of any other consideration, or the cumulative effect of other considerations outweighed the best interests of the Applicant's children as a primary consideration; then.
(v)The different result may have been that Respondent decided to revoke the cancellation of the Applicant's visa in consideration of the best interests of the Applicant's children.”
As to Ground 1, it was asserted that the Minister’s decision not to revoke the cancellation of the applicant’s visa was unreasonable because the Minister had failed to have regard to a relevant consideration concerning the best interests of the applicant’s children. It was claimed that the Minister failed to treat the best interests of the applicant’s children as a primary consideration within the meaning of the Convention on the Rights of the Child 1990. There is no merit to such claim.
The test for a finding of legal unreasonableness is a stringent one. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] explained that:
“[10]In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”
First, it was the responsibility of the applicant to put before the Minister all relevant matters which were claimed to be of relevance for the purpose of the exercise of discretion as to whether the cancellation decision ought to be revoked or not. In Sales v Minister for Immigration & Citizenship [2007] FCA 2094 (21 December 2007) at [25] – [27] inclusive, Flick J held as follows:
“[25] It generally remains, however, the responsibility of those making submissions to make out the facts and circumstances which they want taken into account. In some circumstances, the facts and circumstances advanced before the Minister or his Department may warrant further inquiries to be undertaken: cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; Luu v Renevier (1989) 91 ALR 39. See also Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20, 183 CLR 273.
[26]Notwithstanding the difficulties confronting Mr Sales, and even those supporting him, it is considered in the present case that such passing references as may have been made in the various letters supporting Mr Sales’ case were not sufficient to put the Minister in the position where he was “bound” to take into account those considerations as now set forth in the Amended Application. It is considered that the Minister took into account those matters placed before him and that he was not under any obligation or requirement to do anything beyond that.
[27]It is, for example, unsustainable to contend that such references as were made to Mr Sales’ knee injury were such that the Minister or those advising him should necessarily thereafter have referred to and addressed such issues as may possibly have arisen pursuant to the Disability Discrimination Act 1992 (Cth), let alone the International Convention on the Rights of Persons with Disabilities. The letter from Mr Sales’ mother referred to the fact that “he cannot work owing to his crippling arthritis in his knee”. The “Ministerial Minute” referred to the fact that Mr Sales had been “placed on a waiting list to have knee surgery” and further made observations as to his access to suitable treatment should he be removed to the United Kingdom. The Minister’s “Statement of Reasons”, it is considered, adequately addressed the issue presented by stating:
22.I have noted that Mr Sales requires knee surgery and has arranged to have that treatment in Australia, but that there is no evidence that he would be unable to obtain similar treatment in the United Kingdom.
There is no support for a contention that the Minister was obliged to go on to consider either the terms of the 1992 Act or the terms of any potentially applicable Convention. To impose any such obligation upon the Minister is manifestly unwarranted by the terms of the discretion conferred by s 501. Nor would any such consideration of any such provisions be warranted by the materials advanced on behalf of Mr Sales to the Department. “
The applicant was not a self-represented litigant for whom some latitude might be afforded. Other than to the extent to which the Minister did address the possible consequences of the applicant not being able to live with his spouse and children in Australia, there was no reason for the Minister to further exercise his mind about the best interests of the applicant’s children, simply because the applicant did not cause it to be mentioned on his behalf in the response to the cancellation notice. There are sound public policy reasons why discretionary decision makers ought not be required to go down unidentified burrows for no identified reason.
Secondly, and consistently with the submissions of the applicant (which submissions were largely based upon non-revocation of visa cancellations under s. 501 and s. 501CA of the Act), the Minister did consider the consequence upon the applicant’s children of the cancellation decision not being revoked. Under the heading “Australia’s International Obligations”, the delegate to the Minister decided as follows: [3]
[3] CB – p. 59.
•“Australia’s international obligations
In considering Australia's international obligations I am mindful of Article 3 of the United Nations Convention on the Rights of the Child, to which Australia is a party. It states:
'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.'
The High Court has held that there is a legitimate expectation that administrative decision makers will act in conformity with Article 3 of the Convention and that failure to do so would be a breach of the requirements of procedural fairness unless the person affected is given notice that the decision-maker proposes to make such a decision and the affected person is provided a reasonable opportunity to present a case against the taking of such a course.
A number of decisions by the Federal Court have emphasised the importance of clearly identifying how the best interests of children would be affected by a decision to cancel a visa. The decision-maker must confront the question of what the best interests of the (affected) children require with respect to the exercise of the discretion to cancel and then assess whether the strength of any other considerations outweigh the consideration of the best interests of the children understood as a primary consideration. The weighing of other considerations is in recognition of the fact that the best interests of any affected children are a primary, not the only, or the only primary, consideration.
Having regard to the information available, I consider the cancellation of Mr Hijazi's visa might cause his minor children and spouse some emotional, financial and psychological hardship. It may be in the best interests of the visa holder's children to revoke the cancellation of his visa in order to allow them to continue to have a direct and personal relationship with their father in Australia and for the visa holder to be able to provide his children with direct emotional, financial and psychological support and care.
I give this consideration some weight in the visa holder's favour.”
The Minister appropriately had regard to not only the applicant’s criminal history, but also to the fact that he associated with persons involved in organised crime. In such circumstances it was clearly open for the Minister to consider that the applicant’s presence in Australia may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.
Further, there is no merit to the claim that the Minister failed to treat the best interests of the applicant’s children as a primary consideration. The Minister specifically referred to Article 3 of the United Nations Convention of the Rights of the Child, and also quoted that article in the body of the non-revocation decision. Reference was then appropriately made to what Mason CJ and Deane J said at 291-292 in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, namely:
“The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door. And that, as we have already said, is what Lee and Carr JJ seem to have done because the obligation to initiate inquiries and reports appears to stem from a view that the Minister's delegate was bound to apply Art.3.1.
But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated.”
The applicant’s claim that the written reasons of the Minister were sparse is also without merit. The applicant’s criminal history and dubious criminal associations were each considered by the Minister and addressed in the reasons. There was nothing further which was required to be analysed by the Minister than that which was obviously already before him concerning the applicant’s undesirability for re-entry into Australia. That was done in circumstances where it was acknowledged by the Minister that the existence of children had been given some weight in the applicant’s favour.
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Minister. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Ground 1 is without merit.
Ground 2 was a claim that the Minister failed to make an obvious enquiry about a critical fact, the existence of which was easily ascertained. Again, the onus was on the applicant and not the Minister to identify whether or not it was the applicant’s claim that the applicant’s children would be adversely affected by the non-revocation decision. The only evidence before the Court about the children was an affidavit sworn by the applicant’s wife and filed on 22 October 2021. That affidavit did no more than identify the existence of five children. The applicant’s wife gave no evidence to the effect that either she or the children would be in any way disadvantaged by the non-revocation decision. It is trite to say that not all children benefit from living with their biological parents. Had the applicant’s wife sought to assist the applicant in his review application, one would have expected that had she believed that the cancellation decision would have adversely affected the children, she would have so deposed. It is of significance that she did not.
The critical fact was not whether the applicant had five children or not. The critical fact was whether or not the children would be disadvantaged or not by reason of the non-revocation decision. About that, there was no evidence or clearly articulated argument before the relevant discretionary decision maker. It was not for the Minister to unilaterally delve into each and every piece of information which was in the possession or control of the department concerning the applicant’s children without there being a reason to do so. It was for the applicant to identify why the existence of his children was relevant.
The Minister ought not to have been required to question why neither the applicant nor his wife failed to put any material before the Minister suggestive of the applicant’s children being disadvantaged as a result of the non-revocation decision. The fact is that neither of them did so. In such circumstances, there was no obvious inquiry that the Minister could or should have made; nor could it be said that even if an inquiry of departmental records had been made, such inquiry would have enabled the Minister to easily ascertain whether or not the children would have been disadvantaged as a result of the non-revocation decision. In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27] it was said per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ as follows:
“[25]Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is 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[4]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26]The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the Tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer's letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error.
[27]No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer's letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer's letter was by way of information that the Tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
[4] See authorities collected in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 453 [189], n 214; [2001] HCA 51.
The failure to make any inquiry was in any event immaterial. The Minister’s delegate conducted a weighing up exercise and found that, on balance, the cancellation decision ought not to be revoked. Another reasonable and fair minded decision maker could have arrived at the same decision. Ground 2 is without merit.
The applicant has failed to establish jurisdictional error on the part of the Minister.
The Further Amended Application for Review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 8 July 2022
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