Khanam v Minister for Immigration
[2019] FCCA 372
•21 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHANAM v MINISTER FOR IMMIGRATION | [2019] FCCA 372 |
| Catchwords: MIGRATION – Cancellation of Aged Dependent Relative visa – whether delegate failed to make inquiry in a manner constituting jurisdictional error – whether the delegate took into account an irrelevant consideration or erred in consideration of evidence or otherwise fell into jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 116, 128, 129, 130, 131 |
| Cases cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 |
| Applicant: | KHALEDA KHANAM |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 39 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 18 April 2018 |
| Date of Last Submission: | 18 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Silva |
| Solicitors for the Applicant: | Bassan Lawyers and Associates |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 39 of 2015
| KHALEDA KHANAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Previous proceedings
This is an application for judicial review of a decision of a delegate of the Respondent to cancel an Other Family (Aged Dependent Relative) visa (“the visa”) under s.128 of the Migration Act 1958 (Cth) (“the Act”).
The visa had been granted to the Applicant on 29 August 2010. The Applicant was sponsored by her son, Mr Sharif (the sponsor). It was cancelled by a Senior Migration Officer (the delegate) on 2 July 2014 while the Applicant was outside Australia (the cancellation decision). The Applicant subsequently requested revocation of the cancellation. On or around 11 December 2014 the same decision-maker informed the Applicant of his decision not to revoke the visa cancellation (the revocation decision).
The Applicant sought judicial review of both decisions. The parties agreed that the Court should determine the application for review of the revocation decision first (see Khanam v Minister for Immigration [2017] FCCA 2983). That application was dismissed.
The time to challenge the cancellation decision was extended. The Applicant sought and was given the opportunity to file a further amended application. The parties filed further submissions. The Applicant now relies on grounds 3, 4 and 6 in a second further amended application filed on 26 February 2018.
It is not in dispute that the court has jurisdiction in relation to the cancellation decision.
The cancellation decision
By letter dated 2 July 2014 the delegate notified Ms Khanam that her visa had been cancelled under s.128 of the Act. She was informed that a review of her application after the visa was granted indicated that her visa would be liable to be cancelled under s.116(1)(d) of the Act and that the attached decision record specified the basis for the decision (that the delegate was satisfied she had presented incorrect information in her application form and at interview at the Australian High Commission, Dhaka).
Under the heading “Evidence of grounds for cancellation”, in the decision record, the delegate stated that it had come to the Department’s attention that Ms Khanam may have provided incorrect information on her 2009 Aged Dependent Relative visa application form. The delegate recorded that in this application Ms Khanam had indicated that she had three daughters and one son, Mr Sharif, who was her sponsor for the Aged Dependent Relative visa. The delegate referred to the fact that “anonymous information” provided to the Department in 2007 and in 2010 had “alluded” to Ms Khanam having another son, “Saleh Imam Al Razee 24/01/1979” and suggested that she had intentionally omitted her second son from her visa application and that he had the capacity to support her.
The decision record also referred to a “further allegation” in 2013 that Ms Khanam’s sponsor had forged the signature of his spouse on the Form 40 sponsorship form which was lodged with the Department in support of Ms Khanam’s visa application. It recorded that this was subsequently confirmed by the sponsor’s spouse in a digitally recorded interview with the Department.
The delegate stated that: “[t]he department initiated further inquiries and received from a reliable source that the sponsor, [Mr Sharif], has a brother by the of name Saleh Imam Al Razi (sic). This is consistent with the anonymous information received to the Department on two separate occasions” (errors in original).
The delegate also had regard to the fact that when interviewed at the Australian High Commission in Dhaka on 15 March 2010 Ms Khanam had indicated that she had four children (one son and three daughters) and had provided a diagrammatic family tree confirming this statement.
The delegate found that Ms Khanam had not provided correct information in her visa application form and had also misled the Department at the March 2010 interview by providing the family tree and statement.
Under the heading “Grounds for Cancellation” the delegate found that he was satisfied that there was a ground for cancelling the visa under s.128(a)(i) of the Act relying on s.116(1)(d) of the Act and that it was appropriate to cancel the visa (s.128(a)(ii)).
In relation to s.128(a)(i) the delegate referred to s.116(1)(d), and stated that Ms Khanam had been found to have provided incorrect information to the Department on three occasions, that two anonymous people had confirmed the existence of another son and that the Department had “confirmed from a reliable source that this is also in fact true”.
The delegate continued:
Form 40, ‘Sponsorship for migration in Australia’ form was not fully completed as per Regulation 1.20, as your son’s spouse has stated she did not sign the form.
Had this information been provided at time of application, the primary decision maker would most likely have concluded you had not met the definition of Aged Dependent Relative of the sponsor and the visa would not have been granted.
Under the heading “Subparagraph 128(a)(ii) of the Act” the delegate concluded that it was appropriate to cancel the visa in accordance with Subdivision F of the Act and stated:
The reasons I consider it appropriate to cancel without notice under section 128 are: the circumstances are such that if the visa holder attempted to enter Australia, it is likely that the visa would be cancelled utilising section 109 of the Act.
It was noted that departmental records showed that Ms Khanam was outside Australia.
The delegate continued:
I have placed significant weight on the findings above. I have considered that visa holders circumstances, including age and the fact she has not been in Australia for over nine months and spent a total of 13 months in Australia since 2011.
There has been misrepresentation of the facts over the course of the application and dealings with the department. Had the information provided been full and accurate the application would have resulted in a different outcome.
In view of the findings and assessment above, I have decided to cancel the visa holder’s visa.
By email dated 2 July 2014 the Applicant was given notice of this decision pursuant to s.129 of the Act. She was given the opportunity to show why she thought a ground for cancellation did not exist and/or to give reasons why her visa should not have been cancelled.
Prior to consideration of revocation of the cancellation, the Department informed Ms Khanam’s representative that the “reliable source” was the New Zealand Immigration Service which had provided a copy of the sponsor’s signed 1995 application for residence in New Zealand in which he had listed a brother (as well as his three sisters). The source of this information and the Applicant’s response to the cancellation decision formed part of the background to the revocation decision as discussed in Khanam.
The present proceedings
Before considering the grounds of review in relation to the cancellation decision it is convenient to refer to the statutory provisions relied on by the delegate.
At the time of the decision s.128 of the Act was relevantly as follows:
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 Australia
the Minister may, without notice to the holder of the visa, cancel the visa.
Section 116(1) relevantly provided:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) any circumstances which permitted the grant of the visa no longer exist; or
(b) its holder has not complied with a condition of the visa; or
(c) another person required to comply with a condition of the visa has not complied with that condition; or
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
…
As the delegate recorded, “entered” is defined in s.5(1) of the Act to include re-entered. It was not in dispute that this included visa holders who had entered Australia, been immigration cleared and had subsequently left Australia, as Ms Khanam had done.
As indicated, the Applicant relied on grounds 3, 4 and 6 in her second further amended application in relation to the cancellation decision.
Failure to inquire ground
Ground 3 is as follows (errors in original):
3. The delegate made jurisdictional error in failing to inquire into the outcome of the investigation on the authenticity of [SM] (sponsor’s spouse) on the application form 40 in making his decision to cancel the visa (‘cancellation decision’).
Particulars
a) The delegate made the decision to cancel the applicant’s visa on 2 July 2014.
b) The sponsor (applicant’s son) was investigated in respect of having breached the code of conduct at the Department of Immigration and Border Protection where he worked. This investigation related to the authenticity of the sponsor’s spouse signature on the form 40 application.
c) The department’s digitally recorded interview with the sponsor’s spouse was conducted in 26 February 2013 and 22 November 2013 which were for the purposes of this investigation.
d) On 6 February 2013 (sic) the sponsor provided a response and a decision was made in a letter dated 17 April 2014 into the code of conduct investigation that there was insufficient evidence to support a breach of the code of conduct.
e) In the delegate’s decision made 2 July 2014 he has taken into account that [the sponsor] had forged [SM]’s signature on form 40 application and that the form was not fully completed as [SM] had stated that she did not sign the form.
f) Had the delegate made the necessary inquiry he would have known that at the time of the delegate’s decision to cancel the applicant’s visa it was not a valid consideration.
In written submissions the Applicant contended that as at December 2013 the Principal Migration Officer (the PMO) at the Australian High Commission in Dhaka was aware of an investigation that had been put in place by the Respondent (which included a document examination) from an exchange of emails with an officer in the Workplace Relations and Conduct division of the Department. The officer had sent a copy of the documents examination report to the PMO. The Applicant submitted that the delegate who made the cancellation decision should have undertaken an inquiry into the outcome of this investigation before making the decision of 2 July 2014 to cancel Ms Khanam’s visa. This “investigation” was a consideration by the Department of whether Mr Sharif (a departmental employee) had breached the Australian Public Service Code of Conduct.
It was pointed out that when cancelling the visa, one of the reasons given by the delegate was that the signature of the sponsor’s spouse on sponsorship documents which had accompanied Ms Khanam’s visa application was not authentic. It was submitted that this reason had adversely impacted on the credibility of the sponsor. It was suggested that an adverse credibility finding in relation to the sponsor was one of the reasons the information in Ms Khanam’s visa application form about her children was not accepted by the decision-maker.
The Applicant submitted that the departmental inquiry into whether there was a breach by the sponsor of the APS Code of Conduct had concluded on 17 April 2014 that there was “not sufficient evidence to support whether the signature was of the sponsor’s spouse”. In fact the decision was not in these terms, but was that there was “insufficient evidence to support a breach of the Code of Conduct” by Mr Sharif.
The Applicant contended that in these circumstances there was no basis for an adverse credibility finding against the sponsor. It was contended that it had been “incumbent” upon the delegate to ascertain the outcome of this inquiry and suggested that had he contacted “the appropriate person” within the Department he would have known that there had been no adverse outcome. It was submitted that the delegate had failed to make an obvious inquiry into a critical fact as described in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALR 429 at [25].
The Applicant submitted that such an inquiry was an obvious inquiry because the delegate had relied on the sponsor’s spouse not having signed the Form 40 document as one of the grounds for cancellation. It was claimed that this finding implied that the sponsor was instrumental in the procurement of a fraudulent signature. The Applicant submitted that as the departmental inquiry was concluded prior to the delegate’s decision, there was an obvious need for the delegate to check the outcome of the inquiry before relying on the alleged fraudulent signature in making his decision.
This was said to be a “critical” fact because it was one of the reasons for cancellation of the visa given by the delegate (see Luu v Renevier [1989 FCA 804; (1989) 91 ALR 39, 50-51; Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153; (2009) 180 FCR 510 at [50]) and would have made a difference to the outcome. It was contended that there was no difference between the issues in the APS investigation and the issues before the delegate.
The Applicant also submitted that this information was easily ascertainable on the basis that information “as to the status of the investigation and any determination or decision made by the Department was all within the same Department”, that there would have been co-operation from other departmental officers and that a “mere telephone call or email” would have resulted in the information being provided to the delegate.
In oral submissions, counsel for the Applicant appeared to re-characterise ground 3 as raising an issue of the kind discussed in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 239 FCR 431 at [72]-[73] in that the delegate was said to have failed to “carry out core functions”. The Applicant contended that the delegate was under an obligation to use the most recent information available to him. It was submitted first (without reference to authority) that as the delegate was the “embodiment of the Department”, if “the Department has a particular information it is to be taken as the delegate having the same information”. The Applicant contended that information held by one section of the Department (such as the Workplace Relations and Conduct division) should be taken to be before the delegate in his position as a delegate of the Minister making a migration decision. On this basis it was submitted that the delegate had failed to have regard to information or evidence in the sense considered in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99.
At the same time it was contended the delegate was “on… notice that there was a decision by the document examiner” (relating to the authenticity of the sponsor’s spouse’s signature) and was therefore under a duty to “make sure that he has the latest information… to seek out the latest information before [making] the decision”.
The Applicant suggested that as the document examination report in relation to the sponsorship form (which was attached to the email to the PMO in Dhaka) had been addressed to an officer in the Workplace Relations and Conduct division of the Department, the delegate should have tried to find out why the Workplace Relations and Conduct division of the Department had obtained a document examination report.
Counsel for the Applicant explained that it was not suggested that the outcome of the Code of Conduct investigation was binding on the delegate, but rather that he had to take it into consideration.
The Respondent submitted that there was no basis for the proposition that a failure to inquire into the outcome of the departmental investigation or related evidence amounted to jurisdictional error.
The Respondent pointed out that the outcome of the APS Code of Conduct investigation into the sponsor was not binding on the delegate, and that the subject matter of that investigation was whether the sponsor himself was involved in forging his spouse’s signature, whereas the factual issue in question in this aspect of the cancellation decision was simply whether the sponsor’s spouse did or did not sign the form and that these issues were not identical.
It was submitted that the finding about incorrect information on the sponsorship form was not the only basis for the cancellation. Hence the outcome of the Code of Conduct investigation into the conduct of the sponsor could not have been determinative of the issues raised in the consideration of whether to cancel the Applicant’s visa.
The Respondent also submitted that while in both instances the decision-maker had to be satisfied of relevant matters on the balance of probabilities, as the Code of Conduct investigation was disciplinary in nature, the Briginshaw principle (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) would have required a higher degree of satisfaction in that context.
In oral submissions the Respondent rejected the general proposition that the delegate was to be taken to be on notice of the outcome of the investigation or that the nature and outcome of such a Code of Conduct investigation would be disclosed to other people in the Department.
In any event, it was also said to be incorrect to assert that it was apparent that the delegate had not taken the document examiner’s report into account. The examiner had been unable to determine, by examination, whether the signature on the sponsorship form and sample signatures provided by the sponsor’s spouse were dissimilar due to forgery or due to the sponsor’s spouse deliberately signing her name in a different manner. The First Respondent submitted that if this information was before the delegate, at best he gave it no particular weight.
It was reiterated that while the examiner’s findings may have been significant for the Code of Conduct investigation into the conduct of the sponsor, the examination and the result of the investigation were not determinative of the delegate’s consideration of whether a ground for cancellation of Ms Khanam’s visa was made out.
The Respondent also pointed out that under s.128 of the Act, advance notice of intention to cancel need not to be given to a visa holder and contended that therefore procedural fairness principles did not attach to the decision making at that point.
Consideration
Insofar as reliance was placed by the Applicant on the knowledge of the PMO at the Australian High Commission in Dhaka based on an email to her of 2 December 2013 (in the Court Book at p.111), that email, from the Assistant Director (Investigator) in the Workplace Relations and Conduct division of the Department, offered to return a file in relation to Ms Khanam and advised:
I have finalised my enquiries in respect of the allegation that the sponsor’s spouse did not sign item 58 of Form 40 in favour of sponsoring Ms Khaleda Khanam dob 15/3/1942 (currently offshore).
The sponsor’s spouse participated in a digitally recorded interview where she denies signing the form. I also requested a document examination which resulted in inconclusive finding (attached it for your information).
The sponsor (DIBP employee) has not confirmed the authenticity of the signature. He refused to commit to a response relating to item 58 of form 40 but was forthcoming in respect of every other aspect of my investigation. On the balance of probabilities, I am of the opinion the signature is not of his spouse.
The PMO responded that there was no hurry to return the file if the officer needed it further for her investigation. The officer replied on 4 March 2014 that she would return the file that day, but did not refer further to the investigation in relation to the sponsor.
This particular exchange of emails did not inform the PMO (who was not, in any event, the decision-maker) of an ongoing Code of Conduct investigation. The PMO stated that she had finalised her enquiries into whether the sponsor’s spouse had signed the sponsorship form.
Even if the email of 2 December 2013 and the document examination report were brought to the attention of the delegate (a Senior Migration Officer) who made the cancellation decision, the Applicant has not established that the delegate erred in a manner constituting jurisdictional error by failing to inquire into the outcome of an investigation into whether the sponsor had breached the APS Code of Conduct or by failing to have regard to recent information in the sense considered on MZYTS.
Insofar as this ground relied on principles considered in SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated at [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…
Their Honours found it unnecessary to explore these questions of principle in SZIAI because there was nothing to indicate that any further inquiry of the nature in question could have yielded a useful result and there was evidence that further inquiry would be futile.
The Code of Conduct investigation into the sponsor was disciplinary in nature. It related to whether the sponsor himself was involved in forging his wife’s signature. The outcome of such a Code of Conduct inquiry would not be determinative as to whether there was incorrect information that the sponsor’s spouse signed the sponsorship form. More pertinently, such investigation was not relevant to whether Ms Khanam had given incorrect information about her family composition. I am not satisfied that the result of the inquiry was a “critical fact” for the purposes of the delegate’s decision.
Insofar as it was asserted that the delegate had not taken into account information consisting of the document examiner’s report (assuming for present purposes that he was made aware of it), this report was inconclusive. The examiner was unable to determine whether the differences between the signature on the form and sample signature of the sponsor’s spouse (who had told the Department it was not her signature) were because of forgery or the sponsor’s spouse deliberately signing the form in a different manner. The fact that the delegate failed to refer to that evidence is not such as to establish that he ignored or overlooked or failed to consider recent cogent, significant material centrally relevant to the cancellation decision such as to have failed to perform his statutory task (see SZRKT and MZYTS).
I do not accept that the delegate was taken to be on notice of information held by the Department in connection with an inquiry by the Workplace Relations and Conduct division into the conduct of Mr Sharif (such as the result of the investigation) simply on the basis that information before one division or officer of the Department should be taken to be before any other officer of the Department.
The delegate’s failure to refer to the result of the Code of Conduct investigation is not such as to establish that he failed to carry out his statutory task in considering whether there were grounds to cancel Ms Khanam’s visa as considered in MZYTS. Unlike the situation in MZYTS (which related to recent country information about the situation in a protection visa applicant’s home country which had been given to the Tribunal), there is no evidence that the result of the Code of Conduct investigation into Mr Sharif was before the delegate.
Nor am I satisfied on the Applicant’s submissions (and given the distinction between the focus of the Code of Conduct investigation and the issue before the delegate) that the principles in SZIAI or MZYTS would extend to imposing an obligation on the delegate to “seek out” the “latest” information (about whether the sponsor was found to have breached the APS Code of Conduct) before making a migration decision about cancellation of his mother’s visa application. That is particularly so, given that the sponsorship form issue was not the sole basis on which Ms Khanam was found to have provided incorrect information (see Subdivision C of Division 3 of the Act).
I also note that the delegate was under no obligation to notify the Applicant in advance of any intention to cancel her visa in these circumstances and it has not been established that that there was a breach of the requirements of procedural fairness.
Ground 3 is not made out.
Irrelevant consideration ground
Ground 4 is as follows:
The delegate made jurisdictional error in taking an irrelevant consideration into account in making his decision to cancel the visa (cancellation decision).
Particulars
I. Same as ground 3(a) – (f).
The Applicant submitted that the delegate took into account “adversely against the sponsor” the fact that there was an investigation against him on foot in December 2013. While the Applicant acknowledged that the investigator had informed the PMO in Dhaka that “[o]n the balance of probabilities I am of the opinion the signature is not of [the sponsor’s] spouse”, it was submitted that the Code of Conduct investigation was in progress at that time, but that it was ultimately completed in April 2014 without any finding of fault against the sponsor. The Applicant again alleged that it was incumbent upon the delegate to ascertain the outcome of the Department of APS Code of Conduct inquiry in relation to the sponsor, and that therefore the fact of the investigation as it stood in December 2013 was not a “valid consideration” to be taken into account in relation to the cancellation.
The Applicant submitted that the cancellation “took place because false information was alleged to be provided”, and that “[i]f his [the sponsor’s] credibility was accepted it would not have been false information anymore.” It was contended that the issue was whether truthful information was provided or not and that this depended on the credibility of the sponsor, and that this was the way the delegate had approached it. The Applicant submitted that the inquiry was “taken adversely” to the credibility of the sponsor.
The Applicant referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 in support of the proposition that what are relevant or irrelevant considerations is primarily to be determined by what considerations the statute expressly states are required to be considered, and that if the statute does not specifically refer to those matters then this must be determined by implication from the subject matter, scope and purpose of the relevant statute. It was submitted that, as the legislation required the Applicant to be dependent on the sponsor “almost exclusively”, the credibility of the sponsor was important in relation to whether the delegate accepted the information the Applicant had given about other family members on whom she might be dependent.
The Applicant submitted that if the sponsor had been accepted as a credible person, then the information he had provided would have been accepted and there would have been no “need” for cancellation of the Applicant’s visa. The existence of the investigation was said to be one of the “reasons to form an adverse credibility against the sponsor” when it should not have been, because the issue had been resolved without any adverse findings made against the sponsor.
As the Respondent submitted in relation to ground 3, insofar as this ground reflects an assumption that the outcome of the Code of Conduct investigation was binding on the delegate, that is not correct.
Further, to the extent that the Applicant alleges that the delegate erred in having regard to evidence that the sponsor’s spouse did not sign the relevant form, this did not amount to taking into account an irrelevant consideration. There was evidence to this effect from the departmental interview with the sponsor’s spouse.
The Applicant’s submissions suggested that the complaint was that the delegate “took into account adversely against the sponsor the fact there was an investigation against him”. As the Respondent pointed out this was not, in fact, the basis for ground 4 as pleaded, but in any event there is nothing in the decision record to substantiate the factual assertion underlying this allegation. Moreover the delegate relied in part on the sponsor’s claim that he had a brother in finding that Ms Khanam had provided incorrect information about her family composition.
Insofar as this complaint conflates the cancellation decision and the revocation decision (in which the delegate did not accept the sponsor’s explanation for claiming in his 1995 New Zealand visa application form that he had a brother who lived at the same address in Bangladesh with his mother) that is not such as to establish jurisdictional error in relation to the cancellation decision.
Ground 4 is not made out.
The source of information and failure to inquire ground
Ground 6 is as follows (errors in original):
In cancelling the visa of the applicant, the Delegate made jurisdictional error in that the Delegate either failed to exercise his jurisdiction or exceeded his jurisdiction in relations (sic) to his consideration of the impact of the relationship or inconsistency between the information he received from New Zealand and the information the Department received from two anonymous sources.
Particulars
(a) The Delegate implied that the source of the NZ information stated that the sponsor has (sic) brother.
(b) The Delegate made a finding that the NZ information was consistent with the information received to the Department on two separate occasions and this finding was not open since the family name of the person indicated in the Sponsor’s NZ visa application was “Razi” whereas the anonymous information gave the name as “Razee” on both occasions.
(c) The delegate also failed to explicitly deal with an issue in that the person sending anonymous information especially the second one had personal enmity with the visa holder thus the credibility of that letter was in question.
(d) The Delegate failed to ask whether it was possible that the sponsor spelled his alleged only brother’s name as “Razi” instead of “Razee” in the NZ visa application.
(e) The Delegate failed to make inquiries (from whom ever he wants including possibly the sponsor) to resolve the “obscurity” (See SZIAI) that arose from the inconsistency in the name. The Delegate failed to inquire from the Sponsor about “Razi” or ask for the birth certificate of “Razi” or for any explanation. The Delegate also failed to inquire from the Government of Bangladesh about the existence of a person called “Saleh Imam Al Razi” with DOB 24/01/1979 and the name of the mother.
(f) The Delegate failed inquire into the files containing earlier Australian visa application by the Sponsor and the visitor visa applications of the visa holder which would have clarified the fact that the visa holder had three daughters and one son.
In oral submissions, the Applicant submitted that the particulars to this ground were alternatives and that if any of the contentions therein were made out this would be sufficient to establish jurisdictional error. In addition, it was submitted that even if each of the particulars was not in itself an error of such serious nature, the particularised errors would cumulatively result in error sufficient to reach the level of jurisdictional error.
It was submitted generally that the delegate made a jurisdictional error by either failing to exercise his jurisdiction or by exceeding his jurisdiction in relation to consideration of the relationship between information he received from New Zealand Immigration and the information the Department had received from two anonymous sources.
The Applicant referred to the delegate’s finding that:
The department initiated further inquiries and received from a reliable source that the sponsor… has a brother by the of (sic) name Saleh Imam Al Razi. This is consistent with the anonymous information received to [sic] the Department on two separate occasions.
The Applicant contended that there was no support for the delegate’s finding that there was consistent information in this respect.
First, in relation to particular (a), it was claimed that the “reliable source”, later identified as New Zealand Immigration, had not told the delegate that the sponsor had a brother or expressed an opinion that the sponsor had a brother. Rather, New Zealand Immigration had provided a copy of requested information (later identified as the sponsor’s 1995 New Zealand visa application form) that led the delegate to form the impression that the sponsor claimed he had a brother. It appeared to be submitted that it was not open to the delegate to make a finding to the effect that the information received from a reliable source “stated” that the sponsor had a brother.
In relation to particular (b), the Applicant contended that it was not open to the delegate to find that the information from a reliable source (New Zealand Immigration) provided to the Department was consistent with anonymous information received on two separate occasions, since the family name of the alleged brother indicated in the New Zealand visa application form was “Razi”, whereas the anonymous information gave the family name as “Razee” on both occasions.
The Applicant also claimed (see particular (c)) that while the source of the first anonymous letter was not certain, the second anonymous letter was either from the sponsor’s spouse or sent with her full support and co-operation. This was put on the basis of the tone and content of the letter. It was said that it was clear that the writer had a direct personal involvement in the family and was revealing confidential grievances. The Applicant suggested that the writer had knowledge of the family and that it was “unlikely” that the name of the alleged brother would have been “given wrong”. The Applicant also contended that the delegate had failed to deal with the “fact” that the author of this letter had “personal enmity” in relation to the Applicant such that the credibility of the letter would be in question.
The Applicant also claimed (see particular (d)) that the delegate had erred in failing to ask whether it was possible that the sponsor spelled his alleged only brother’s name on the New Zealand visa application form as “Razi”, instead of “Razee”.
The Applicant pointed to the remarks of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135] that:
…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 inferences or conclusions drawn.
It was submitted that any decision maker would have come to the conclusion that there was a fundamental inconsistency between the anonymous information and the information from the reliable source and would not have based the ultimate decision on the finding that the information was consistent.
It was also asserted that the delegate failed to consider critical evidence. Counsel for the Applicant referred to the revocation decision (Khanam at [52]) and contended that “information” regarding the credibility of the anonymous information and whether it was possible that the sponsor would have misspelt a brother’s name, was evidence so fundamental to the delegate’s decision to cancel the visa as to render the decision beyond jurisdiction.
In addition, the delegate was said to be under a duty to inquire into the inconsistency in the recorded name of the claimed second son. The Applicant suggested that there were various inquiries the delegate could have made which, it was suggested, would have resolved what was said to be the “obscurity” arising from the inconsistency in the name of the person said to be the Applicant’s second son. It appeared to be suggested that the delegate had erred in failing to make inquiries of the sponsor about the person called “Razi” in the information from the reliable source, or in failing to ask for the birth certificate of such person or in failing to seek an explanation from the Bangladeshi government about the existence of a Saleh Imam Al Razi DOB 24/01/1979 (particular (e)).
Finally, the Applicant took issue (particular (f)) with the delegate’s failure “to inquire into the file containing earlier Australian visa application by the sponsor and the visitor visa applications” of the Applicant which, it was contended, “would have clarified the fact that” the Applicant had three daughters and one son.
It was submitted that as these applications were made earlier in time, the information disclosed therein was more likely to be truthful, as “nothing would have been achieved by” providing wrong information at that stage. In any event, it was suggested that such inquiry would have given the delegate information he would have considered in assessing the truth of the information provided by the Applicant about her family composition. Reference was made to the remarks of Toohey J in Videto & Anor v Minister for Immigration and Ethnic Affairs [1985] FCA 449; (1985) 8 FCR 167 at 178 that:
In such a case [potential deportation] it may be that the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made.
While the present case does not involve a deportation, it was submitted that this principle was applicable as the impact of the cancellation decision was to prevent the Applicant returning to Australia “to defend the allegations” and that there was an “obvious omission or obscurity” that needed to be resolved before the visa was cancelled.
The Applicant submitted that the failure to make any inquiries to resolve this obscurity could be categorised as a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained in the sense considered in SZIAI or a failure by the delegate to carry out his statutory task or legal unreasonableness.
The Applicant submitted that the need to make inquiries was obvious, having regard to the “issues” as addressed in her submissions, that such inquiries concerned a critical fact the existence of which was easily ascertained (being whether there was a person called Saleh Imam Al Razi and if so whether he was the Applicant’s son), and that this would supply “a sufficient link to the outcome” in that it would resolve the issue one way or the other.
The Applicant acknowledged that the circumstances in which a failure to inquire would render the ensuing decision unreasonable were “rare and exceptional” (Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60] per Kenny J), but suggested that such a failure may nonetheless constitute a failure to undertake a statutory duty or otherwise be so unreasonable as to support a finding that the decision-maker’s decision was infected by jurisdictional error (SZIAI at [26], Dhanoa at [46]-[51] per Jagot and Foster JJ; SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403; (2009) 112 ALD 475 at [30] per Bennett J). It was, however, conceded that the fact that it may have been reasonable for a decision-maker to make a certain inquiry would not elevate a lack of inquiry to a jurisdictional error.
In oral submissions, counsel for Ms Khanam pointed out that she had been granted a visitor visa before the Aged Dependent Relative visa. The Applicant contended that the Department “always [has] access to the previous applications and then they use that to check the integrity of the next application”. It was suggested that the delegate would be aware of this, that a prior visa application was “the only sure source of information… available to the department” and that had the delegate checked for and found the prior application “it would have very much gone in favour of the applicant because all the written information seems to be in agreement” with the information the Applicant provided in her application for the visa in question and “there was no reason for the applicant to put [false] information at that early stage”.
The Applicant also pointed to the fact that the 2010 information provided anonymously (which she believed came from her son’s former spouse) was contradicted by information provided in affidavits relied on in these proceedings. This was said to support the proposition that the delegate should have made the inquiries suggested in particular (f) to ground 6.
The Respondent submitted that ground 6 failed to identify any jurisdictional error. It was submitted that the nature of the actual jurisdictional error alleged was “entirely obscure” and that there were fundamental difficulties with the ground. It was also pointed out that the Applicant would have to establish jurisdictional error in respect of both bases on which the Applicant was found to have provided incorrect information in the cancellation decision in order to be entitled to relief.
There was said to be no basis for the proposition that, as a matter of law, the delegate was bound to have considered “the impact” of an inconsistency between the information obtained from New Zealand Immigration and the unsolicited information provided to the Department. It was pointed out that the substance of the relevant part of the anonymous information was to the effect that the Applicant had another son living in Bangladesh whose existence the Applicant and the sponsor were seeking to hide. It was acknowledged that in the anonymous information this other son was referred to as “RAZEE Saleh” or “Saleh Imam Al Razee” respectively, whereas the sponsor had listed a person identified as “Saleh Imam Al Razi” as his brother in Bangladesh. However, the substance of the information from New Zealand was to the effect that in his 1995 application for New Zealand residence the sponsor had listed a brother. It was contended that the fact that there was a slight difference in the spelling of the name of the person who was said to be the sponsor’s brother in these sources of information could hardly have detracted from the significance of the information received from New Zealand which, having originated from the sponsor himself, was strongly confirmatory of the unsolicited information received by the Department.
The Respondent submitted that in these circumstances there was no error, let alone any error going to jurisdiction, in the delegate being of the view that the information from New Zealand was “consistent” with the anonymous information, especially as the delegate was clearly conscious of the slight difference in the spelling of the name of the second son disclosed in the anonymous information and in the information from New Zealand (as recorded in the decision). The delegate was said not to be under any duty to focus on and investigate the reasons for that slight difference in name.
It was also submitted that on the material before the delegate at the time, it was clearly open to him to form a view that a ground for cancelling the Applicant’s visa existed under s.116(1)(d) of the Act.
The Respondent contended that to the extent it was suggested in the particulars to ground 6 that the cancellation decision was affected by jurisdictional error because the delegate had suggested that the reliable source had “stated” to the delegate the sponsor had a brother, or was of that opinion, this suggestion was without merit. It was pointed out that the information contained in the New Zealand Immigration document was to the effect that the sponsor had a brother and that this information had originated from the sponsor himself, who had stated in his 1995 visa application form that he had a brother.
The Respondent also submitted that even if the delegate’s language in this respect was regarded as slightly imprecise, looseness of language did not disclose, or even suggest, jurisdictional error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) FCR 280 at 287).
In oral submissions the Respondent pointed to the fact that particular (f) did not assert error of the nature pleaded in ground 6, but was really an allegation of a different kind of jurisdictional error. In any event, the Respondent submitted that it was misconceived to suggest that the Applicant’s 2006 Tourist Visa application form or the sponsor’s earlier Australian visa application form would be “clear evidence” of the fact that she did not have a second son. It was submitted that all such an application would be evidence of would be that the Applicant and sponsor had not, in those documents, identified a second son or a brother.
It was submitted that, in any event, the relevance of what was disclosed in the Applicant’s 2006 visa application form was very significantly reduced when regard was had to the 2007 allegation to the Department. The information in the Applicant’s 2006 tourist visa application was provided “fairly close in time” to the first anonymous allegation of 2007 which was recorded as follows:
The informant reported that sponsor Sharif is trying to get her (sic) mother into Australia on the tourist visa and then to apply (sic) permanent residence for her. That’s either on parent migration or aged dependent relative. Informant claimed that sponsor Sharif will be writing on the application that he is the only son to look after his mother, but informants reported that the fact is that one sister was married and is in the USA and the other two are married in Bangladesh, but he has another real brother named Razee Saleh date of birth 24 January 1979 with whom his mother is staying. Informant further claimed that Sharif’s plan is to hide from immigration about his real brother in Bangladesh, so immigration will give a permanent visa to his mother thinking that the sponsor Sharif is the only son to support her.
In these circumstances the Respondent submitted that it could not be said that the suggested inquiries, including access to the 2006 Visitor Visa application, would have meaningfully assisted, let alone conclusively determined, how the allegations were to be dealt with by the delegate such as to enliven a duty to inquire. The Respondent also suggested that there was no evidence that the delegate did not attempt to look for the 2006 application (especially given that in 2015 the file could not be readily located).
Finally, it was submitted that the proposition that later information about Ms Khanam’s family composition such as that provided in affidavits filed in these proceedings, would necessarily have been given weight had inquiries been made of the sponsor by the delegate was also misconceived. It was pointed out that the sponsor was the person who was alleged to have provided the 1995 information that he had a brother.
Consideration
For the reasons that follow, none of the assertions of jurisdictional error in ground 6 are made out.
First, the manner in which the delegate referred to information from “a reliable source” is not indicative of jurisdictional error. The delegate stated:
The department initiated further inquiries and received from a reliable source that the sponsor, Neamul Sharif Haque, has a brother by the name of Saleh Imam Al Razi. This is consistent with the anonymous information received to the Department on two separate occasions.
Read fairly, in this context the delegate was referring to information received from a reliable source and did not find that this source “stated” that the sponsor had a brother. Further, the information provided (a copy of the sponsor’s 1995 New Zealand visa application form) did indicate that the sponsor had a brother. In any event, even if the delegate’s language in this part of his reasoning was not as clear as it might have been, it was no more than looseness of language which did not disclose jurisdictional error (see Wu Shan Liang).
The essence of the 2007 allegation was described in a departmental note as an allegation that the sponsor intended to bring his mother to Australia on a tourist visa and apply for permanent residence for her on a parent or Aged Dependent Relative visa and that he would claim he was the only son when “informant reported that the fact is… [the sponsor] has another real brother named RAZEE Saleh, DOB: 24/01/1979, with whom his mother is staying” and that it was claimed the sponsor’s plan was “to hide from immigration about his real brother in Bangladesh, so Immigration will give a permanent visa to his mother, thinking that sponsor… is the only son to support her”.This focused on the crux of the allegation that Ms Khanam had another son who could support her.
The 2010 allegation took the form of a letter to the Department. It explained in some detail that in April 2007 the sponsor (named and identified by date of birth) had sponsored his mother (whose date of birth was also provided) on a 3 month visitor visa and continued:
In [the Applicant’s] visitor’s application she intentionally omits the name of her fifth and youngest child – (Saleh Imam Al Razee DOB: 24.01.1979) in her application because she intends to show that she is the only remaining relative of Mr Sharif living in Bangladesh and wholly dependant [sic] on Mr Sharif whereas in actual fact [the Applicant] has two sons and three daughters. One of the three daughters lives in USA with her family. Even when Mr Sharif Applied for a Migration visa at New Zealand he included his brother’s name too.
(emphasis added)
The letter went on to complain about the Applicant’s relationship with and, treatment of, the sponsor’s spouse and the impact on the spouse.
Consistent with the claim about the existence of a second son, and also with the 2010 allegation that the sponsor had included his brother in his application to migrate to New Zealand, the information from New Zealand Immigration referred to by the delegate as a “reliable source” in fact revealed that in the section of the sponsor’s 1995 New Zealand visa application form, headed “Other Family Members” (in which applicants were asked to “list the full names of your father, mother, and all brothers and sisters, (married or unmarried)”) the sponsor had listed his late father, his mother, three sisters (two of whom were said to have the same home address as his mother) and also, relevantly, (as his youngest sibling) a “Saleh Imam Al Razi”, aged 17, whose relationship to the sponsor he described as “brother” and who was said to have the same home address as the sponsor’s mother.
Contrary to the Applicant’s contention, it was open to the delegate to find that the “reliable source” information was “consistent” with the two allegations made to the Department, having regard to the fact that what was in issue was whether the Applicant had a second son and that in that respect both the anonymous allegations and the information from a reliable source (subsequently identified as New Zealand Immigration) was that the Applicant did have a second son (in addition to the sponsor). As the Respondent submitted, the delegate was clearly conscious of the slight difference in the spelling of the family name as referred to in the reasons.
The delegate did not fall into jurisdictional error in finding consistency in this information in any of the ways contended for by the Applicant.
In these circumstances, the fact that the delegate did not deal explicitly with whether personal enmity was the motivation for the 2010 allegation or whether it emanated from the sponsor’s spouse is not indicative of jurisdictional error. On the material before him (including, notably, the significant information from New Zealand which was from the sponsor himself), it was open to the delegate to form the view that a ground for cancelling the Applicant’s visa existed under s.116 of the Act as required under s.128(a)(i) of the Act.
The indications in the 2010 allegation of close familial knowledge and dislike for the Applicant, possibly from the perspective of an unhappy daughter in-law (and the slight differences in spelling of the name of the asserted second son), are not such as to establish irrationality or illogicality. Whatever the motivation or identity of the person who made the 2010 allegation, a reasonable decision-maker could have come to the same conclusion on the evidence as to whether there was incorrect information. It cannot be said that this decision was not open on the evidence before the delegate (particularly given the evidence of the sponsor’s claim in 1995 that he had a brother).
Nor can it be said that there was no logical connection between the evidence in this respect and the conclusion drawn by the delegate (see SZMDS at [130]-[135]). The requisite “extreme” illogicality (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60] to [61]; SZRKT at [148] and SZMDS at [124]) has not been made out. I do not accept that the matters raised in this respect in relation to the evidence about a second son reveal such a fundamental inconsistency as to establish illogicality, irrationality or legal unreasonableness.
The reference to the principle cited in Khanam at [52] in relation to a failure to have regard to evidence which is so fundamental as to render the decision beyond jurisdiction (see SZRKT and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67) does not assist the Applicant. This was not a case in which the delegate failed to have regard to central information critically relevant to the decision in question.
The same may be said in relation to the assertion in particular (d) that the delegate erred in failing to ask “whether it was possible that the sponsor spelled his alleged only brother’s name as “Razi” instead of “Razee” in the NZ visa application”. This was not a critical issue that the delegate had to resolve before concluding that the Applicant had provided incorrect information (insofar as she claimed she had only one son) having regard to all the evidence before him (including the fact that in his 1995 New Zealand visa application form the sponsor disclosed that he had a brother).
Particulars (a) to (d) of ground 6 do not establish jurisdictional error.
Particulars (e) and (f) both assert a failure to make an obvious inquiry about a critical fact the existence of which is easily ascertained as considered in SZIAI at [25] (as set out at [49] above).
As indicated, the delegate’s decision was made under s.128 of the Act on the basis that the delegate was satisfied there was a ground for cancelling the visa under s.116 (relevantly s.116(1)(d) of the Act). Where s.128 applies, a visa may be cancelled without notice to the holder of the visa, as occurred in this case. I note that in these circumstances the Applicant had the opportunity to raise issues of concern (or further evidence) in responding to the invitation (in the cancellation notification letter) to show why she thought the ground for cancellation did not exist and/or to give reasons why her visa should not have been cancelled (and see ss.129-131 of the Act).
In any event, I am not satisfied that the delegate was under an obligation to make any of the suggested inquiries before cancelling Ms Khanam’s visa under s.128 of the Act.
It has not been established that an inquiry of the sponsor (who was the person who claimed in his 1995 New Zealand visa application to have a brother) and/or the Bangladeshi government would be an “obvious inquiry about a critical fact the existence of which could be easily ascertained”.
The mere fact of the minor spelling difference in the name of the person said to be a second son of Ms Khanam referred to in the anonymous information and in the sponsor’s New Zealand visa application form was not an obvious omission or obscurity that needed to be resolved before the visa was cancelled. It was not such as to alert the delegate to a need to make the suggested inquiries (in particular an inquiry of the sponsor). The correct spelling of the asserted brother’s name was not a “critical fact”. An inquiry of the sponsor would not have been determinative. Nor was this minor spelling discrepancy or the other information before the delegate such as to give rise to any obligation on the delegate to make any inquiries of the Bangladeshi government. It has not been established that the issue of whether Ms Khanam had a second son would have been easily ascertained by the suggested inquiries. Nor has it been established that the delegate’s obligation in the context of a cancellation decision under s.128 of the Act extended to conducting an inquiry or inquiries of the nature contended for by the Applicant before cancelling the visa on the evidence before him, based on two different kinds of incorrect information.
Similarly, as the Respondent submitted, no obligation to inquire into the files containing any earlier Australian visa application by the sponsor or the visitor visa application of Ms Khanam arose in this context. The results of such inquiries would not have determined whether Ms Khanam in fact had a second son, but only whether she (or the sponsor) had claimed to have such a family member at that time. As to Ms Khanam’s visa application I also note that, as set out above at [96], the informant in the 2007 anonymous allegation appeared to claim that Ms Khanam’s alleged second son would not be disclosed in her Australian tourist visa application. As to the sponsor’s past visa application, on the approach suggested by the Applicant, the much earlier 1995 New Zealand visa application by the sponsor would have been more persuasive that the later Australian application.
The general assertion of legal unreasonableness is not made out based on the delegate’s failure to inquire before making the decision to cancel Ms Khanam’s visa under s.128 of the Act.
Ground 6 is not made out on any of the bases contended for by the Applicant.
As none of the grounds relied on has been established, the application must be dismissed.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 21 February 2019
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