Khakpour v Minister for Immigration and Anor (No.2)

[2020] FCCA 1114

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAKPOUR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 1114

Catchwords:
MIGRATION – Application by applicant to rely upon affidavit evidence not before Tribunal relating to offshore visa processing delay times – whether admissible before FCCA in application for review hearing – where applicant put on notice as to processing delay consequences if untruthful in application process – whether Tribunal ought to have made an inquiry said to be obvious about a critical fact – affidavits inadmissible – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), Sch.4 cl.4020.

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

SZMJM v Minister for Immigration and Citizenship [2010] FCA 309.

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261

FCR 503.

Applicant: MOHAMMAD ALI KHAKPOUR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 796 of 2019

Judgment of: Judge Egan

Hearing date: 6 May 2020

Date of Last Submission: 6 May 2020

Delivered at: Brisbane

Delivered on: 12 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: AJ Torbey & Associates

Solicitors for the First Respondent: Ms Allen, Solicitor of Sparke Helmore

Second Respondent Submitting appearance save as to costs

ORDERS

1. The application of the applicant to rely upon the affidavit of Ermenegilda Boccabella filed on 3 March 2020 and the affidavit of Lorenzo Boccabella filed on 18 March 2020 is dismissed.

2. The costs of and incidental to the Applicant’s application to rely upon the affidavit of Ermenegilda Boccabella filed on 3 March 2020 and the affidavit of Lorenzo Boccabella filed on 18 March 2020 be the First Respondent’s costs in the cause to be agreed, and failing agreement, to be taxed pursuant to Rule 21.11 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 796 of 2019

MOHAMMAD ALI KHAKPOUR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was last before the Court on 19 March 2020. At that time, the applicant was granted leave to further amend the Amended Application for review. That order was made in response to submissions made on behalf of the applicant that the Court should have regard to the contents of two (2) affidavits which had been filed in the proceeding.

2. The two (2) affidavits referred to, respectively, were:

   a)An affidavit of Ermenegilda Boccabella filed on 3 March 2020; and

   b)An affidavit of Lorenzo Boccabella filed on 18 March 2020.

   Each of those affidavits sought to depose as to the time which it took for the processing offshore of a visa of the type applied for by the applicant – namely a Partner (Temporary) (Class UK) visa.

3. The affidavits were sought to be relied upon by the applicant in support of the argument that in making its decision to cancel the applicant’s visa, the Administrative Appeals Tribunal (‘the Tribunal’) did not attempt to assess how long the separation between the applicant and his sponsor would be if he was again required to make application for a visa offshore. It was submitted that the Tribunal had failed to appreciate that, because the applicant’s visa was refused due to noncompliance with cl. 4020 of Schedule 4 to the Migration Regulations 1994 (Cth) (‘the Regulations’), the applicant could not reapply for a visa until after 18 October 2020 – that being the expiration date for the three (3) year exclusion period applicable to cl. 4020 infractions. [1]

   [1]        Paragraphs [23] – [27] inclusive of the applicant’s consolidated submissions filed on 24 April

4. It was further submitted on behalf of the applicant that:

   a)the only inference which could be drawn from a reading of passages at 283 – 284 inclusive of the transcript of the hearing [2] before the Tribunal was that the applicant “ … could simply go offshore and apply immediately for the offshore version of the partner visa”; [3]

   b)the Tribunal had failed to carry out its statutory duty by failing to appreciate, and thereafter have regard to, as part of its considerations, the likely length of the separation between the applicant and his sponsor by reference to the time that it would take to have another visa application processed offshore;

   c)this Court should have regard to the contents of the affidavits for the purpose of assisting it in its consideration as to whether or not the Tribunal had erred in cancelling the applicant’s visa.

   [2]        Page 15 of annexure RW-1 to the affidavit of Rebecca Woodrow filed on 23 December 2019.

   [3]        Paragraph [28] of applicant’s consolidated submissions filed on 24 April 2020.

5. Ms Allen, on behalf of the first respondent, opposed the Court granting leave to the applicant to rely upon each of the above affidavits at the final hearing of the Further Amended Application for review. It was submitted that the Tribunal’s duty was to review, and not to investigate.

6. The Court does not find that there was, in this case, a failure on the part of the Tribunal to exercise jurisdiction by failing to make an obvious inquiry about what was said to be a critical fact. As was said by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [26]:

   “[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. 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.

   (Emphasis added)

7. Further, it was submitted on behalf of the first respondent that a failure on the part of the Tribunal to make the inquiry as submitted by the applicant did not amount to jurisdictional error. [4]

   [4]        SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] per Bennett J.

8. A search of the Court Book revealed that the question of processing times for the grant of a Partner (Temporary) (Class UK) (Subclass 820) visa had twice been discussed in a letter dated 14 July 2016 sent by the Department to the applicant. The relevant parts of such letter were as follows: [5]

   [5]        Court Book (CB) pp. 52 – 53.

   “Processing Times

   In order to ensure a fair and equitable outcome for all our clients we process applications in the order in which they are received. The average processing time for a Partner (Temporary) visa is currently between 9 and 12 months however this should be treated as a guide only. When applications are more complex, or where relevant documents are not provided in a timely manner, applications may take longer to finalise. Information on other factors affecting processing times is available at questions-and-answers

   …

   If you provide us with fraudulent documents or claims, this may result in processing delays and possibly your application being refused.

   (Emphasis added)

9. The contents of the second paragraph referred to above clearly put the applicant on notice as to the possible processing delays that could occur in respect of any visa application made by him should he not be truthful in the making of any such visa application.

10. This is a case where the applicant had admitted that he had provided false documents in support of his visa application. It is also the case that the applicant admitted that what he did was wrong. [6] In those circumstances, it could not be said that the applicant could not reasonably have expected delays in processing times for the grant to him of another visa should he not be truthful during the visa application process. No issue going to lack of procedural fairness therefore arose.

    [6]        Page 10 at 174 of annexure RW-1 to the affidavit of Rebecca Woodrow filed on 23 December

11. That the Tribunal did not refer to off-shore visa processing times in its reasons was unremarkable having regard to the overt warning given to applicant in the 14 July 2016 letter. Just as it was said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [34] (per Gaudron J) that a Tribunal was only required to set out its findings on what it considered were material questions of fact, the obligation to make an inquiry only arises in respect of a critical fact which was unknown. Here, the fact of visa processing delay in the event of dishonesty on the part of the applicant during the application process was well appreciated, or ought to have been well appreciated.

12. Further, the Tribunal was only required to consider the claims and issues arising from the material before it. Nowhere in the submissions made on behalf of the applicant – either pre-hearing or at the time of the hearing – was the question of the time delay in the processing of a visa application made offshore relevantly addressed in a clearly articulated way. In those circumstances, that was not a live issue required to be considered and addressed by the Tribunal.

13. A Tribunal is only required to consider clearly articulated argument and claims which emerged from the evidence before it. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:

    “[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

    ·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

    ·The Tribunal is only required to consider such claims where they are either:

    (a) the subject of substantial clearly articulated argument, relying on established facts; or

    (b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

    ·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

    … A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

    (Emphasis added.)

    ·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

    (a) such a finding is not to be made lightly (NABE at [68]);

    (b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

    (c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

    37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

    38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

    (d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and

    (e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”

14. In view of the above, the Court finds that the two (2) affidavits sought to be relied upon by the applicant are irrelevant for the purposes of this Court’s review of the decision of the Tribunal, and therefore inadmissible in these proceedings.

15. The application of the applicant to rely upon the two (2) affidavits is dismissed.

16. The Court will hear the parties as to costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 12 May 2020

         2020.         2019.