Khanam v Minister for Immigration
[2017] FCCA 2983
•5 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHANAM v MINISTER FOR IMMIGRATION | [2017] FCCA 2983 |
| Catchwords: MIGRATION – Application to review a decision of a delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of an Aged Dependent Relative visa – whether delegate erred in considering whether he was not satisfied that there was a ground for the cancellation – whether legal unreasonableness. |
| Legislation: Migration Act 1958 (Cth), ss.101, 116, 128, 129, 131 Migration Regulations 1994 (Cth), reg.1.03 |
| Cases cited: F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 HCA 40 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 |
| Applicant: | KHALEDA KHANAM |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 39 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 9 August 2016 |
| Date of Last Submission: | 12 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Silva |
| Solicitors for the Applicant: | Kailash Lawyers |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The parties are directed to confer and to either submit agreed orders to give effect to these reasons for judgment or notify the Court of the absence of agreement by 4:00pm on 19 December 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 39 of 2015
| KHALEDA KHANAM |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (the Act) filed on 7 January 2015. The Applicant relies on a further amended application filed on 16 August 2016 (referred to for convenience as the application).
In the application the Applicant seeks review of two decisions made by an officer of the Department of Immigration and Border Protection. The first is a decision made on 2 July 2014 pursuant to s.128 of the Act to cancel the Applicant’s Subclass 114 Other Family (Aged Dependent Relative) visa (the cancellation decision). The second is the decision made by the same decision-maker on or around 11 December 2014 not to revoke the cancellation of the visa (the revocation decision).
The solicitor for the Minister proposed that the Court should determine the application for review of the revocation decision first. Counsel for the Applicant agreed. Accordingly, this judgment relates only to the revocation decision and the grounds of review that relate to that decision (grounds 1, 2 and 5 in the application).
It is not in dispute that the revocation decision is a migration decision in relation to which this court has jurisdiction.
The Applicant, Ms Khanam, is a citizen of Bangladesh. In December 2009 she applied for a Subclass 114 visa. She was sponsored by her son Mr Sharif (the sponsor). The visa was granted on 29 August 2010.
However on 2 July 2014 a delegate of the Minister decided to cancel the Applicant’s visa under s.128 of the Act. The delegate was satisfied that Ms Khanam had provided incorrect and misleading information in her visa application and also in an interview at the Australian High Commission in Dhaka, Bangladesh on 15 March 2010; that there was a ground for cancelling the visa under s.116(1)(d) of the Act as it then stood; and that it was appropriate to cancel the visa in accordance with Division 3, Subdivision F of Part 2 of the Act.
In the cancellation decision record, the decision-maker had regard to the fact that in her visa application signed on 20 December 2009 Ms Khanam had indicated that she had three daughters and one son. The delegate recorded that anonymous information provided to the Department in 2007 (sic) and also in 2010 had “alluded” to Ms Khanam having another son who had the capacity to support her (described in the cancellation decision as “Saleh Imam Al Razee 24/01/1979”) who was said to have been intentionally omitted from the visa application.
In addition, the delegate referred 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 decision record referred to a further allegation that Ms Khanam’s sponsor had forged the signature of his then spouse on the Form 40 sponsorship form lodged with the Department in support of Ms Khanam’s visa application. It recorded that the Department had “initiated further inquiries” and that it had received “from a reliable source” information that the sponsor (the Applicant’s son) “has a brother by the name of Saleh Imam Al Razi” (sic). The delegate found that this was “consistent” with and confirmed the earlier anonymous information received by the Department on two occasions that Ms Khanam had a second son.
The decision-maker also had regard to the fact that had it been known that the sponsorship form was not properly completed, as the sponsor’s ex-wife had stated at an interview that she did not sign the form, it was most likely the visa would not have been granted. The decision-maker also considered Ms Khanam’s circumstances in deciding that it was appropriate to cancel the visa.
By email letter 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.
Ms Khanam, who was in Bangladesh at the time her visa was cancelled, responded to the notice through her solicitor in Australia. She provided a written submission, a supporting “affidavit” and other information. In essence, she submitted that she had not provided incorrect information in her visa application form or at interview at the Australian High Commission as she had only one son, namely her sponsor Mr Sharif, and that she did not have another son as suggested in the anonymous allegations. She took issue with the fact that the delegate had had regard to an anonymous 2007 allegation, which she suggested was irrelevant. She claimed that she had given correct information in her 2009 visa application. She complained that the Department had not put the 2010 allegation to her. She also contended that the information said to have been obtained by the Department from a “reliable source” should have been put to her for comment before her visa was cancelled.
Ms Khanam claimed that “Saleh Imam Al Razee” born 24 January 1979 was the son of her brother, Saleh Imam Hasan Chowdhury, and his wife (Yasmin Ara Begum), that is, that he was her nephew, not her son. She claimed that her nephew lived at a specified address in Dhaka, Bangladesh. In support of this claim she provided copies of a birth certificate for Mr Al Razee (naming his parents) and a Secondary School Certificate (SSC) and Bangladesh National Identity Card in the name of Saleh Imam Al Razee born 24 January 1979. She also claimed that her son (the sponsor) had told her that he had always provided correct information to the Department about his family composition. She claimed that Mr Sharif was her only son and that he alone provided her with financial support.
The Applicant addressed the allegation about forgery of the signature of the sponsor’s spouse on the sponsorship form. She referred to an investigation undertaken by the Australian government department for which her son worked and the fact that an investigator had found that there was insufficient evidence to establish that her son had breached the Public Service Code of Conduct.
The Applicant also submitted that there were reasons her visa should not have been cancelled, including her personal circumstances, the time she had spent in Australia, her need for a full-time carer and the degree of hardship for Australian members of her family should the cancellation not be set aside.
In addition, Ms Khanam’s solicitor provided detailed written submissions in which issue was taken with the cancellation decision. It was submitted, inter alia, that the Applicant had not provided incorrect information in her application form, that she had provided plausible credible testimony as to why the ground for cancellation did not exist and well-explained reasons why her visa should not be cancelled.
In response to a subsequent request by the delegate, originals of the SSC and National ID Card in the name of Mr Al Razee were produced to the Australian High Commission, Dhaka by Saleh Imam Chowdhury (described as Mr Al Razee’s father) for verification on 4 September 2014. A departmental file note recorded that Mr Chowdhury told the departmental officer that his son worked and lived in Dhaka and that he had one other child (a daughter).
Another file note recorded a site visit by two departmental officers to the school in Bangladesh said to have been attended by Mr Al Razee. It recorded that the SSC certificate (which described Mr Al Razee as the son of Saleh Imam Hasan Chowdhury) was found to be authentic and that all Mr Al Razee’s details matched his school records. The file note also stated that the officers were not able to locate any record of Mr Al Razee’s mother at the school.
On 26 November 2014 the delegate informed the Applicant’s solicitor that the reference in the cancellation decision to obtaining information from a “reliable source” was a reference to information provided by the New Zealand Immigration Department, which had since given permission to the Department to release the information. The delegate provided a copy of a 7 June 1995 application by the Applicant’s son and sponsor, Mr Sharif, for New Zealand residence which, the delegate suggested, “clearly stat[ed] he has a brother”. The letter gave the Applicant the opportunity to comment on this “adverse information”.
Relevantly, in the spaces provided for details of family members in the 1995 New Zealand Immigration application form, Mr Sharif listed his late father, his mother (Ms Khanam), three named sisters, and also one “brother”, whose “full name” was said to be “Saleh Imam Al Razi”. This brother’s age was given as “17” and he was said to have the same home address in Barisal, Bangladesh as the sponsor’s mother and sisters. The form did not contain spaces for the dates of birth of family members.
In response to this information, the Applicant’s solicitor provided an explanatory letter and a written submission. In the explanatory letter, Ms Khanam stated that she had not previously seen her son’s New Zealand visa application, that the “disclosures/contents” in that form were not known to her and that the information therein was provided by her son (the sponsor) and not by her. Nonetheless, she provided what she said was an explanation her son had given her. This explanation was to the effect that English was her sponsor’s second language, that at the time of completing the 1995 New Zealand visa application form he had not engaged a migration agent or sought legal assistance in completing the form, and that he told her that he recalled that when he attempted to complete the relevant question in the form he was confused because it referred to all brothers and sisters, including “full, half, step and adopted brothers and sisters”. According to Ms Khanam, her son had advised her that in 1995 he had limited understanding of the meaning of “half-brothers and sisters” and presumed that it meant “cousin brothers and sisters”, as first cousins were linked by blood and in Bangladeshi tradition a “cousin brother” was said to be called a “brother”. She claimed that her son told her that he had made an honest mistake in misunderstanding the question in the New Zealand Immigration form and that he had inadvertently provided particulars of his maternal first cousin (described in Ms Khanam’s letter as Mr Saleh Imam Al Razi) as a brother. Ms Khanam claimed that both she and her sponsor had always provided the Australian Department of Immigration with correct information relating to the family profile, specifically that her sponsor had no brother and that she had only one son.
In submissions to the delegate of 10 December 2014 issue was taken with the delegate’s statement in the cancellation decision that the Department had “confirmed” from a reliable source that the existence of another son was true. It was submitted that whether this was a “true fact” required further investigation by the New Zealand Immigration Department before it could be said that this information was confirmation that the sponsor had a brother. Ms Khanam’s solicitor also expressed concern that in the cancellation decision the delegate had taken anonymous allegations as “confirmation” that the Applicant had another son.
It was submitted to the delegate that the Bangladeshi birth certificate, SSC and National ID Card (in the name of Mr Al Razee) evidenced that Mr Al Razi (sic) was the son of Ms Khanam’s brother. It was also submitted that the Applicant had always been open and cooperated with the Department and that there was “no evidence to the contrary to suggest that the applicant has provided incorrect information”. It was pointed out that the concept of “misleading” information referred to in the cancellation decision had no connection with the (s.101) ground relied on by the delegate to cancel the visa.
The Revocation Decision
On 11 December 2014 the departmental officer who had made the cancellation decision decided not to revoke the visa cancellation (the revocation decision). In a letter described as “notification of decision not to revoke visa cancellation under s128 of Migration Act 1958”, the delegate advised the Applicant that, after considering her response, he had decided not to revoke the cancellation of her visa under s.131 of the Act. He stated that he had considered all of the information, including the circumstances surrounding the grant and cancellation of the visa, the information in the written response and the “timeline” of events post-cancellation (which he described) including the submission that Mr Al Razee was the Applicant’s nephew; the finalisation of the APS Code of Conduct investigation into the sponsor on the basis that there was insufficient evidence to find a breach; the provision of a birth certificate, SSC certificate and National ID Card for Mr Al Razee; and the oral indication by Mr Al Razee’s father, Saleh Chowdhury, that he had another child, a named daughter. The delegate also referred to the site visit to Mr Al Razee’s school and the fact that the SSC was found to be genuine, but that there was no recording of Mr Al Razee’s mother’s name.
He also stated that he had regard to the fact that on 26 November 2014 evidence of a “credible source” had been provided to the Applicant showing the listing of “Saleh Imam Al Razi” on Mr Sharif’s New Zealand visa application form as a brother who resided at a specified address in Barisal. The delegate stated that he had considered the Applicant’s response to this information that her son had misinterpreted the question on the New Zealand visa application form and had listed Mr Al Razi as his brother to mean “cousin brother”.
The delegate explained that he had not been privy to the result of the Public Service Code of Conduct breach decision, but found that given the information provided since the cancellation, he was satisfied that a ground for cancellation based on the opinion that the sponsor’s wife had not signed the sponsorship form in relation to Ms Khanam’s visa application no longer existed.
However, the delegate continued:
In assessment of the grounds that Ms Khanam provided misleading information in her application form and at interview, I am still satisfied there were grounds for cancellation. The reasoning put forward that Mr Sharif did not interpret the question, based on other facts of the case, is implausible and my reasoning is below:-
·Mr Chowdhury attended the High Commission and indicated he had another daughter [named], equating to Mr Sharif’s ‘cousin sister’. She was not listed in Mr Sharif’s application to New Zealand.
·Ms Khanam in her application form 47OF of December 2009 listed that she has seven brothers and four sisters. Assuming only half of these siblings also had offspring, this would then equate to a multitude of other ‘cousin brothers and sisters’ also not listed in Mr Sharif’s application to New Zealand.
·Mr Sharif had completed his SSC, HSC, Bachelors and Masters within Bangladesh, whereby a majority of this education is conducted in English.
·Mr Sharif listed Mr Al Razi on his New Zealand application form as living in Barisal yet his claimed cousin brother resided in Dhaka. If listing his ‘cousin brother’ then it would be plausible to also list his correct address.
Whilst documents have been produced to indicate Saleh Imam Al Razee of Dhaka, has a different father I cannot dismiss the fact that with a sound mind, applying to another country in 1995, Mr Sharif listed Mr Saleh Imam Al Razi as his ‘brother’ and all other siblings listed were correct in detail. This does not discount the existence of another person.
Therefore, I am not satisfied with the reasoning provided that the cancellation be revoked.
The legislative context
As indicated, three of the grounds in the application relate to the revocation decision. In considering these grounds it is relevant to have regard to the applicable provisions of the Migration Act.
The Applicant’s visa was cancelled under Subdivision F of Division 3 of Part 2 of the Act. By virtue of s.127A of the Act, that Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.
The cancellation decision relied on the existence of a ground under s.116(1)(d) of the Act, which relevantly provides that the Minister “may” cancel a visa if satisfied that the visa would be liable to be cancelled under Subdivision C of Division 3 of Part 2 of the Act (which relates to incorrect information given by a visa holder) if the holder had entered Australia and been immigration cleared. “Entered” includes “re-entered” (see s.5 of the Act). While the whereabouts of the Applicant was not considered in the revocation decision, in the cancellation decision the delegate had found that this provision applied to the Applicant (who was in Bangladesh at the time), as while she had previously entered Australia and had been immigration cleared, she had then left Australia. No issue is taken in relation to the revocation decision in this respect.
Similarly, in the revocation decision the delegate did not identify the particular section in Subdivision C of Division 3 of Part 2 of the Act that rendered the visa liable to be cancelled. However the cancellation notification and decision referred to the delegate’s satisfaction that Ms Khanam had provided “incorrect information” in her application form and at interview, albeit it was also stated in both decisions that she had provided misleading information. In response to the notification of cancellation, Ms Khanam’s solicitors had set out their understanding that the cancellation decision appeared to rely on s.101 of the Act to substantiate the exercise of the cancellation power. There is no reference in any provision in Subdivision C of Division 3 of the Part 2 of the Act to provision of “misleading information”. I note that there is no suggestion that s.103 (which relates to provision of a bogus document, which by s.5 includes a document obtained because of a false or misleading statement) was in issue. The grounds of review do not contend that the delegate misapplied or misunderstood the applicable law in this respect or that a provision other than s.101 was in issue.
Section 101 of the Act is as follows:
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
The operation of this section is extended by s.99 which provides:
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
As recorded in the revocation decision, Ms Khanam’s visa was cancelled under s.128 of the Act. It provides that if the Minister is satisfied that there is a ground for cancelling a visa under s.116 of the Act and that it is appropriate to cancel the visa in accordance with Subdivision F and the non-citizen is outside Australia, the Minister may, without notice to the holder of the visa, cancel the visa.
Under s.129 of the Act, if the Minister (or a delegate) cancels a visa under s.128, he or she must give the former visa holder notice of the cancellation and an invitation to show that the ground for cancellation “does not exist” or that “there is a reason why the visa should not have been cancelled” as follows:
(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non‑disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
(2) The notice is to be given in the prescribed way.
(3) Failure to give notification of a decision does not affect the validity of the decision.
It is apparent that each of the grounds of review considered below takes issue with the delegate’s consideration of whether he was “not satisfied that there was a ground for the cancellation” within s.131(1)(a) of the Act. Section 131 of the Act provides:
(1)Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:
(a)if not satisfied that there was a ground for the cancellation; or
(b)if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
(2)The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.
Whether failure to take into account relevant considerations or information
The first ground in the Further Amended Application is as follows:
(1)The delegate made jurisdictional error in not taking relevant considerations/information into account in the making of the decision not to revoke the cancellation of the visa (“revocation decision”).
Particulars
(a)The delegate refused the applicant’s application on the basis that Saleh Imam Al Razee is the son of the applicant.
(b)The birth certificate of Saleh Imam Al Razee (CB142) shows that his mother is Yasmin Ara Begum and not the applicant. The applicant could not be the mother of Saleh Imam Al Razee.
(c)The birth certificate of Saleh Imam Al Razee (CB142) shows that Saleh Imam Al Razee’s father is Saleh Imam Hasan Chowdhury. The applicant could not be the mother of Saleh Imam Al Razee as Salem (sic) Imam Hasan Chowdhury is the applicant’s blood brother.
(d)The Secondary School Certificate of Saleh Imam Al Razee (CB143) shows that his father is Saleh Imam Hasan Chowdhury. So Saleh Imam Al Razee is the son of the applicant’s blood brother and could not be her son.
(e)The applicant’s late husband died in 1968 (CB41) and there is no record of further marriage or de facto relationship of the applicant (CB140, Affidavit of Neamul Haque Sharif). Saleh Imam Al Razee was born in 1979. So he could not have been the applicant’s son.
Insofar as particular (a) to this ground refers to the delegate having “refused” the application, counsel for the Applicant clarified that this ground was intended to take issue with the revocation decision. Particular (e) amounts to a submission.
This ground relates to the delegate’s consideration of whether he was not satisfied that there was a ground for the cancellation as provided for in s.131(1)(a) of the Act. The Applicant submitted that the “relevant considerations” that the delegate had failed to take into account in making the revocation decision were the birth certificate of and the SSC for Mr Al Razee and the implications flowing therefrom. It was contended that the Applicant’s visa was cancelled on the basis that Saleh Imam Al Razee was her son, but that the birth certificate for Mr Al Razee that was before the delegate named his mother as Yasmin Ara Begum and his father as Saleh Imam Hasan Chowdhury. There was also said to be evidence (in the Applicant’s response to the delegate) that Mr Chowdhury was the Applicant’s “blood brother”. It was submitted that in these circumstances Mr Al Razee could not be Ms Khanam’s son. It was pointed out that the SSC listed the same birth date for Mr Al Razee as the birth certificate and also described Mr Chowdhury as Mr Al Razee’s father.
Counsel for the Applicant acknowledged in oral submissions that the “relevant considerations” referred to in this ground were documents. However Mr Silva submitted that the birth certificate was in itself a “relevant consideration” as it would have helped to clarify whether the Applicant had a second son or not.
The Applicant referred to the remarks of Mason J in Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; [1986] HCA 40 at [15] suggesting that what is a relevant or irrelevant consideration is primarily to be determined by what considerations the statute expressly states should be considered, but that if the statute does not specifically refer to those matters, they must be determined by implication from the subject matter, scope and purpose of the relevant statute.
The Applicant submitted that in this case the Migration Act did not expressly state what considerations were to be taken into account, so that it was relevant to have regard to the subject matter, scope and purpose of the Act. In particular, it was contended that the relevant purpose was the purpose of determining whether the Applicant was dependent on her son, who was her sponsor. Counsel for the Applicant submitted that in this context a relevant consideration was whether the Applicant was dependent on any of her other children and that the question that flowed from this was “who are her children”. It was submitted that in circumstances where there was an allegation that a particular person (who was not the sponsor) was also the Applicant’s son, that person’s birth certificate would be a document that had to be considered, because the “purpose” of the statute was to determine if such a person was the Applicant’s child and the birth certificate could determine that matter conclusively.
The Applicant submitted that in this case the information in the birth certificate was fundamental to the decision not to revoke the visa cancellation on the basis that the question the decision-maker had to consider when making a decision as to whether the cancellation should be revoked was whether he was satisfied that Saleh Imam Al Razee was the Applicant’s son. On this basis it was contended that the delegate should have considered the birth certificate for Saleh Imam Al Razee, because the content of that birth certificate was capable of conclusively determining whether the delegate was so satisfied or not. This argument appeared to be put on the basis that if the delegate had accepted that Mr Al Razee’s birth certificate was a genuine document, he would have had to revoke the cancellation on the basis that he would then have been not satisfied that there was a ground for the cancellation.
The Applicant submitted that the fact that the delegate had identified the birth certificate as one of the documents before him did not necessarily mean he had taken it into account. The nature of the content of the document was said to be such that it had to be rejected explicitly for the delegate to make the decision he made. On this basis there was said to have been a failure by the decision-maker to take a relevant document and its contents into consideration.
It was suggested that it was also relevant that in the earlier cancellation decision the delegate had made a finding that there was consistency between anonymous information to the effect that the sponsor had a brother by the name of Saleh Imam Al Razee and the information received by the Department from a “reliable source”, despite the fact that the anonymous allegations referred to a Mr “Al Razee” while the New Zealand visa application listed “a brother” named Saleh Imam “Al Razi”. It was contended that as the delegate had found in his earlier cancellation decision that there was consistency between the anonymous information and this information, this impliedly accepted that Mr “Al Razee” and Mr “Al Razi” were the same person.
Reliance was also placed on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [69] per McHugh, Gummow and Hayne JJ. Counsel for the Applicant acknowledged that this decision dealt with s.430 of the Act, which required the Refugee Review Tribunal to set out the findings it made, but suggested that the discussion of principle in Yusuf could also be applied to the revocation decision, insofar as the Court could infer that any matter not mentioned was not considered by the decision-maker to be material and that the delegate’s “identification of what [he] considered to be the material questions of fact may demonstrate that [he] took into account some irrelevant consideration or did not take into account some relevant consideration”.
The Applicant submitted that while the delegate made a brief reference to Mr Al Razee’s birth certificate in the revocation decision record, he did so without considering its impact on his decision and that this meant that it was not considered to be material in circumstances where its content was such that it had to be considered. It was also pointed out that the delegate had not expressly stated anything about the identification of Mr Al Razee’s mother or the date of birth on the birth certificate and contended that these were also material considerations the delegate had not taken into account in circumstances where the primary issue was not who was the father of Mr Al Razee, but rather who was the mother.
The Applicant submitted that if the decision-maker had considered the birth certificate and its contents, he would have seen that the Applicant was not the mother of the Mr Al Razee who had the date of birth referred to in the anonymous sources.
It was submitted that while it may not be clear whether the delegate’s position in the revocation decision was that Mr Al Razee was the Applicant’s son or that Mr Al Razi was her son, the birth certificate made it clear that Mr Al Razee (who was referred to in the anonymous information) was not the son of the Applicant. In addition, it was suggested that if the delegate had taken into account these considerations this may have resulted in him not making a finding that he could not discount the existence of another person.
It was also pointed out that the SSC for Mr Al Razee showed Mr Chowdhury as his father, that this certificate had been found to be genuine after a site visit by departmental officers, and that there were documents (such as the Applicant’s family tree) before the delegate showing that Mr Chowdhury was the blood brother of the Applicant. It was contended that the Applicant could not have been Mr Al Razee’s mother, as she was the “blood sister” of Mr Chowdhury and that the improbability of Mr Al Razee being the son of Mr Chowdhury and also the son of Mr Chowdhury’s sister was so obvious that it should have alerted the decision-maker to the fact that Mr Al Razee could not have been the son of the Applicant. The delegate was said to have failed to give any consideration to these issues or to have regard to the implications which flowed from the SSC.
The Respondent submitted that this ground was misconceived insofar as it asserted a failure to take into account “relevant considerations” on the basis that such a contention is available only where the statutory regime requires a decision-maker to have regard to certain considerations (see Peko-Wallsend). There was said to be nothing identified in the particulars to ground 1 which could be regarded as a “relevant consideration” in the Peko-Wallsend sense.
In oral submissions the solicitor for the Minister conceded that this ground may also be seen as raising an issue as to whether there was a failure to have regard to evidence which was so fundamental as to render the decision beyond jurisdiction (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16).
The Respondent submitted, however, that there was no basis for any assertion to the effect that the delegate failed to have regard to the documents or “information” referred to in the particulars to ground 1 in a manner constituting jurisdictional error. It was pointed out that the delegate had expressly referred to the provision of the SSC, birth certificate and National ID Card for Mr Al Razee and to the fact that the SSC was found to be genuine and had also later acknowledged that “documents have been produced to indicate Saleh Imam Al Razee of Dhaka has a different father”. However the delegate was said to have reached a conclusion to the effect that even if Saleh Imam Al Razee of Dhaka was not the brother of the sponsor, that did not mean that the sponsor did not have a brother called Saleh Imam Al Razi as he had disclosed in his New Zealand visa application form in circumstances where the delegate did not accept the explanation for this disclosure proffered by the Applicant.
In effect, the delegate was said to be of the view that the significance of the evidentiary material from the New Zealand visa application was such that the evidence relating to the existence of a cousin of the sponsor (Mr Al Razee) did not satisfy him that the sponsor did not have a brother as disclosed by him in his New Zealand visa application who had not been disclosed by his mother in connection with her visa application. In these circumstances, it was submitted that the information consisting of the birth certificate and/or SSC of Mr Al Razee was not evidence which was so fundamental as to render the delegate’s decision beyond jurisdiction (cf SZRKT per Robertson J) in the absence of further express consideration by the decision-maker.
It was also submitted that even if a different decision-maker may have reached a different conclusion, that was not to the point and that this ground otherwise invited the Court to review the decision on the merits.
Consideration
First, there is no basis for the contention that the delegate failed to have regard to a relevant consideration in the Peko-Wallsend sense. It has not been established that the birth certificate of Mr Al Razee, the SSC or the information therein amounted to a relevant consideration which the decision-maker was required to take into account under the statutory regime in considering whether to revoke the Applicant’s visa cancellation under s.131 of the Act (cf. Peko-Wallsend). There is otherwise nothing identified in the particulars or in submissions for the Applicant which could be regarded as a “relevant consideration” in the strict Peko-Wallsend sense.
More generally, I have borne in mind that, as stated in SZRKT at [111] (and as considered in SZSRS), in considering whether a failure to have regard to evidence constitutes or leads to a jurisdictional error, the fundamental question is the importance of the material in question to the exercise of the decision-maker’s function and the seriousness of any error. However, whether ground 1 is seen as a contention that the delegate failed to take into account relevant considerations consisting of the birth certificate and/or the SSC or the implications therefrom or as a claim that he failed to take into account such evidence, it involves a misconception as to the basis for the revocation decision and the delegate’s findings as revealed in the decision record.
It is relevant to have regard to the circumstances of the case, in particular the issue for determination by the decision-maker, the nature of the documents in issue (see Robertson J in SZKRT at [112], albeit in relation to a Tribunal decision) and the reasons for decision.
Contrary to the Applicant’s contention, what was in issue in the context of this visa cancellation and revocation was not whether the Applicant met the definition of an aged dependent relative of her sponsor (see reg.1.03 of the Migration Regulations 1994 (Cth)) as required by the criteria for a Subclass 114 visa or whether there were other children on whom she was dependent. Rather, the subject matter of the part of the Act in issue was whether the cancellation of the visa under s.128 of the Act on the basis that the Applicant had provided “incorrect information” in connection with her visa application should be revoked under s.131 of the Act.
Relevantly, what was in issue under s.131(1)(a) was whether the delegate was not satisfied that there was a ground for cancellation. The delegate found that he was “still satisfied there were grounds for cancellation”. He did not identify any ground for cancellation other than that considered in the cancellation decision and referred to in the notification of the cancellation to the Applicant. This related to whether the Applicant had provided incorrect information in connection with her visa application (see ss.99 and 101 of the Act), in particular as to whether she had only one son.
The documents in question related to a Mr Al Razee of Dhaka and were produced in support of the claim that the person referred to in the New Zealand visa application was Ms Khanam’s nephew. Mr Al Razee was said to be the cousin of the sponsor and nephew of the Applicant.
The delegate expressly referred to the submission that Mr Al Razee was Ms Khanam’s nephew and to the documents produced in relation to Mr Al Razee, including his SSC and birth certificate. It was not a jurisdictional error in the manner contended for in this ground for the delegate to fail to refer expressly to the identification of the parents of Mr Al Razee in the birth certificate or the SCC or to the implications from those documents in the context in which he made his findings.
Contrary to particular (a) there is no refusal of a visa application in issue in these proceedings, whether on the basis that Saleh Imam Al Razee was the son of the Applicant or otherwise. It is apparent however that this is intended to be a reference to the revocation decision. It is clear that in the revocation decision the delegate proceeded on the basis that the father of Mr Al Razee of Dhaka was Mr Chowdhury (as shown in the “genuine” SSC) and that he was not Ms Khanam’s son. However the delegate did not accept that the information about the claimed “cousin brother” of the sponsor called Mr Al Razee was such as to overcome what he saw as credible evidence from the sponsor’s New Zealand visa application in which he disclosed a brother called Mr Al Razi living in Barisal.
Whether the delegate asked the correct question under s.131(1)(a) of the Act on the basis of this opinion is not raised by ground 1 as pleaded, but it is notable that this provision requires the decision-maker to be “not satisfied that there was a ground for the cancellation”. There was no suggestion that the issues raised in ground 1 were of relevance in the context of s.131(1)(b) of the Act.
The delegate acknowledged and expressly referred to the SSC, the birth certificate and National ID Card of Mr Al Razee and noted that the SSC certificate was found to be genuine in the site visit in which he participated. He did observe that the SSC did not record Mr Al Razee’s mother’s name, but when the reasons are read as a whole it is clear that the delegate was not implying that Mr Al Razee’s mother was the Applicant.
The delegate understood that documentary information had been provided about a Mr Al Razee of Dhaka, the son of Mr Chowdhury (the Applicant’s brother), but his finding that this did not discount the existence of another person was based on the evidence from the New Zealand visa application in which the Applicant’s son had listed as his brother a Mr Al Razi, residing at the same address as the Applicant’s family in Barisal. In that context the delegate considered, but for reasons which he gave, did not accept the explanation that the sponsor had misinterpreted the question on the application form and had listed his cousin as his brother. The delegate provided reasons for his lack of satisfaction with the explanation provided by the Applicant in considering whether he was not satisfied that there was a ground for the cancellation as provided for in s.131(1)(a) of the Act.
The delegate had regard to the fact that the Applicant’s son had listed a Mr Al Razi who lived in Barisal, Bangladesh on his New Zealand visa application form as his brother, as well as to the fact that his claimed “cousin brother” (Mr Al Razee) was said to reside in Dhaka. The delegate was of the view that if the Applicant’s son had listed his “cousin brother” in his visa application, then it would have been plausible for him to also list that person’s correct address. The delegate addressed the Applicant’s submission about the sponsor’s claimed confusion and misunderstanding of the New Zealand visa application form, but had regard to the fact that the sponsor had completed his SSC, HSC and Bachelor’s and Master’s degrees in Bangladesh where a majority of the education was conducted in English. He also took into account the fact that Mr Chowdhury had indicated that he had another child, a daughter. It is apparent that the delegate was of the view that if the explanation for the sponsor’s inclusion of a “cousin brother” in his New Zealand visa application was correct, he would also have listed this “cousin sister” on his New Zealand application form. The delegate had regard to the fact that no such person was listed in the sponsor’s New Zealand visa application and nor were any other “cousin brothers” or “cousin sisters”, as the delegate would have expected, given the number of the Applicant’s siblings and their likely offspring.
As the Respondent submitted, the delegate was clearly of the view that the significance of the evidentiary material from New Zealand was such that the information about Mr Al Razee and the Applicant’s explanation for why her son identified a person named Mr Al Razi of Barisal as his brother in his 1995 New Zealand visa application was not such as to overcome the fact that her son had disclosed the existence of such a brother in that application who had not been disclosed by the Applicant in her visa application.
It was on this basis that the delegate determined that this was not a case in which the s.131 prerequisites for revocation of the cancellation of the visa were made out.
As indicated, the delegate expressly acknowledged that documents (which must be a reference to the birth certificate and SSC referred to earlier in his reasons) had been produced to indicate that Mr Al Razee of Dhaka had a different father to the sponsor. Having regard to the approach taken by the delegate, he did not fail to have regard to such documents or the information therein in a manner giving rise to jurisdictional error, in finding that, despite this, he was of the view that he could not dismiss the fact that, with a “sound mind” applying for a visa to another country in 1995, the Applicant’s son had listed a Mr Al Razi as his “brother” in circumstances where the details he provided of his other siblings were correct.
The delegate’s opinion that “this does not discount the existence of another person” clearly related to the fact that while documents indicated that there was a Mr Al Razee of Dhaka who had a father other than the father of the sponsor, the delegate was nonetheless not satisfied that the Applicant did not have a second son (Mr Al Razi) as had been disclosed in the sponsor’s New Zealand visa application form. On this basis the delegate was not satisfied the Applicant had not given incorrect evidence about her family composition in her visa application form and at interview in claiming she had only one son (her sponsor). As the Respondent submitted, even if a different decision-maker may have reached a different conclusion as to whether he or she was not satisfied that there was a ground (incorrect information) for the cancellation, that does not in itself establish jurisdictional error.
In these circumstances, the particular “information” about Mr Al Razee in the documents particularised in ground 1 was not so fundamental to the question to be considered by the delegate when making the revocation decision that it had to be considered further by the decision-maker in the manner contended by the Applicant. It has not been established that the manner in which the delegate considered the birth certificate and SSC of Mr Al Razee involved a failure to have regard to relevant considerations or to evidence in a manner constituting jurisdictional error.
Ground 1 is not made out.
Whether failure to inquire
Ground 2 in the Further Amended Application is as follows:
The delegate made jurisdictional error in failing to inquire from the Bangladesh Government Authorities about the authenticity of the document (Birth certificate of Saleh Imam Al Razee) before making the decision not to revoke the cancellation of the visa (revocation decision).
Particulars
(a)The birth certificate of Saleh Imam Al Razee (CB142) shows that Saleh Imam Al Razee’s mother is Yasmin Ara Begum and not the applicant.
(b)The delegate could not point to any issue of authenticity of the birth certificate.
(c)The birth certificate of Saleh Imam Al Razee (CB142) shows that Saleh Imam Al Razee’s father is Salem (sic) Imam Hasan Chowdhury. The applicant could not be the father (sic) of Saleh Imam Al Razee as Salem (sic) Imam Hasan Chowdhury is the applicant’s blood brother.
(d)The applicant’s late husband died in 1968 and there is no record of further marriage or de facto relationship of the applicant (CB140, Affidavit of Neamul Haque Sharif). Saleh Imam Al Razee was born in 1979. So he could not have been the applicant’s son.
Counsel for the Applicant reiterated the submission that the question the delegate had to consider when making a decision as to whether the visa cancellation should be revoked was whether he was satisfied that Saleh Imam Al Razee was the son of the Applicant. In oral submissions Mr Silva acknowledged the Respondent’s submission that the delegate was of the view that even if it was established that Mr Al Razee was not the brother of the sponsor (that is, the son of the Applicant), that did not discount the existence of such a son as disclosed in the sponsor’s New Zealand visa application. The Applicant nonetheless submitted that the question of whether Mr Al Razee was the son of the Applicant was the fundamental question that needed to be resolved by the delegate and also that, even if that was not so, it was still a critical fact that would have made a difference to the outcome.
On this basis it was submitted that the issue of whether Mr Al Razee’s birth certificate was genuine was a critical fact (the existence of which was easily ascertained) for the purposes of the revocation decision. This contention was put on the basis that if the birth certificate was genuine that would provide evidence of the date of birth of Mr Al Razee which was consistent with the dates of birth provided in the anonymous information and would also confirm that the Applicant was not Mr Al Razee’s mother. These matters were said to be critical considerations that had to be taken into account by the delegate in the revocation decision as they may have led him to the view that he could discount the existence of another person.
Reliance was placed on the decision of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25], in which it was stated that the duty imposed upon the Refugee Review Tribunal by the Migration Act was a duty to review and that:
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.
On the basis that such principle was applicable to the delegate’s decision whether to revoke a visa cancellation, the Applicant submitted that an inquiry of the Bangladeshi authorities as to the authenticity of the birth certificate was an obvious inquiry in circumstances where there was said to be uncertainty about whether Saleh Imam Al Razee was the Applicant’s son, as there was information from anonymous sources indicating that he was, whereas the Applicant’s case was that Mr Al Razee was not her son. It was submitted that an inquiry of the authorities would have confirmed the content of the birth certificate, in particular that Yasmin Ara Begum (not the Applicant) was Mr Al Razee’s mother. This critical fact was said to be easily ascertainable by the delegate in Bangladesh. It was pointed out that the Department had carried out a site visit to the secondary school Mr Al Razee attended to check the genuineness of his SSC document.
Mr Silva acknowledged that the suggestion in particular (c) to ground 2 that the Applicant could not be the “father” of Mr Al Razee (which was clearly intended to be a contention that the Applicant could not be the “mother” of Mr Al Razee) was a submission, as was particular (d) which addressed whether, given that the Applicant’s late husband was said to have died in 1968, the Mr Al Razee born in 1979 could have been her son.
Consideration
As the Respondent submitted, and as discussed in relation to ground 1, this ground is also based on a misconstruction of the delegate’s findings. Insofar as the authenticity of Mr Al Razee’s birth certificate was said to be a “critical fact”, such an argument depends on reasoning other than that adopted by the delegate in the revocation decision. The delegate made it clear for the purposes of the revocation decision that even if it was accepted that Mr Al Razee was not the brother of the sponsor, that “does not discount the existence of another person”. He did not base the decision on finding or accepting that Mr Al Razee was the Applicant’s son. Hence, whether the birth certificate of Mr Al Razee was or was not genuine was not a critical fact for the purposes of this decision. The question of whether the birth certificate for Mr Al Razee was genuine was not determinative. Ground two is not made out.
Unreasonableness
At the hearing Counsel for the Applicant sought leave to rely on a Further Amended Application incorporating an additional ground in relation to the revocation decision, ground 5. In support of this ground he proposed to rely on a further outline of submissions and an amended list of authorities. I granted leave. The Respondent addressed ground 5 orally and was also given leave to file post-hearing written submissions. The Applicant was given leave to file written submissions in reply.
Ground 5 is as follows (errors in original):
The Delegate made jurisdictional error in making a finding: (i) unreasonably; and/or (ii) based on speculation that he can not rule out the possibility of existence of another person whose name (impliedly) is “Saleh Imam Al Razi” as different from “Saleh Imam Al Razee” who could be the applicant’s son in the making of the decision not to revoke the cancellation of the visa (revocation decision).
Particulars
(a)The Delegate made the finding that there could be another person with the name “Saleh Imam Al Razi” as different from “Saleh Imam Al Razee” and this was based on the fact that the last name was spelt differently in the New Zealand application of the sponsor. That is instead of “Razee”, it was spelt “Razi”.
(b)There were 4 parts to the name, the first three parts were exactly the same, the last name there was difference in the last syllable, instead of “ee”, “i” was used.
(c)By use of the finding, “This does not discount another person” the Delegate is making a finding that no other decision maker would find. This is because there is no other evidence to support such a proposition.
(d)Even the people who sent adverse information referred to the other person as “Saleh Imam Al Razee” (CB101).
(e)The name and date of birth provided on the two sources of anonymous information to the Department was consistent with the name and date of birth on Saleh Imam Al Razee’s birth certificate.
(f)For the Delegate to create such a fiction was both speculative and manifestly unreasonable.
In the outline of submissions in relation to this ground, the Applicant referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [84] which was subsequently explained as intended to be a reference to the remarks of Crennan and Bell JJ at [130] and [135] where their Honours stated:
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.
135. … 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.
Reliance was also placed by the Applicant on the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44] as follows:
In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225 ; [2013] HCA 18 at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 22 ; [2013] HCA 18 at [105]):
“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47]. (emphasis added by Applicant)
The Applicant referred to the fact that in the anonymous information received by the Department in 2007 and 2010 the person said to be the Applicant’s son was described as “RAZEE Saleh, DOB: 24/01/1979” and as “Saleh Imam Al Razee DOB: 24.01.1979”. These details were said to be the same as those in the birth certificate for Saleh Imam Al Razee. It was pointed out that in the cancellation decision the delegate had suggested that information from a reliable source (later identified as the New Zealand Department of Immigration) that the sponsor had a brother by the name of Mr “Al Razi” was “consistent” with the anonymous information received by the Department on two separate occasions, notwithstanding that this anonymous information referred to a Mr “Al Razee”. It appears that it was intended to be suggested that a decision-maker could only have decided that the Applicant’s nephew and the brother disclosed by her sponsor were the same person. The Applicant submitted that the similarity in the names Saleh Imam Al Razee and Saleh Imam Al Razi was so overwhelming that it would be “extremely” rare for another person to have had the same name in these circumstances, although insofar as Counsel for the Applicant sought to address the origin and pronunciation of these names in submissions, there is no evidence before the Court in support of any such contentions.
In any event, it was submitted that no reasonable decision-maker would have “conjured up” the image of another person whose name, translated into English, was such a similar name and who also (according to the anonymous information) shared the birth date of 24 January 1979 shown on Mr Al Razee’s birth certificate. The Applicant submitted that in these circumstances, the delegate’s finding in the revocation decision was an extreme finding, because it was a very remote possibility that such another person existed.
It was also contended that the revocation decision was unreasonable because there was “no room” for a logical or rational person to reach such a decision on the material before the decision-maker. It was submitted that there was “only one conclusion” open on the evidence before the decision-maker and that it was “not open” on that evidence to suggest that there could be “another person”, other than the Applicant’s nephew Mr Al Razee.
Counsel for the Applicant submitted that it was relevant that the delegate had suggested the Applicant had provided “misleading” information, whereas the ground for cancellation had been the provision of incorrect information or answers. He did not elaborate on how this rendered the decision illogical, irrational or legally unreasonable.
The Applicant also contended that the delegate’s finding was based on speculation. Part of the delegate’s reasoning was said to be that the sponsor’s application related to another country (New Zealand) and was made in 1995. It was submitted that the delegate had not explained the relevance of the reference to “another country” and “1995” to the decision not to revoke the cancellation of the Applicant’s visa and that: “this is speculation and conjecture on the part of the decision-maker in finding that he could not discount the existence of another person”.
In oral submissions the Respondent pointed out that s.131 of the Act required the delegate to turn his mind to the question of whether he was not satisfied that there was a ground for the cancellation. The Respondent submitted that what was in issue under ground 5 as pleaded was whether, in this context, the delegate’s approach in finding the significance of the evidentiary material from the sponsor’s New Zealand visa application was such that the evidence relating to a nephew of the Applicant was not such as to satisfy him that there was not another person who was the brother of the sponsor and also the son of the Applicant was illogical or legally unreasonable in a relevant sense.
It was pointed out that the question was not whether the Court would have come to the same view or whether it was the preferable finding, but rather whether the finding was reasonably open or not. The Respondent contended that such an approach or finding was reasonably open to the delegate on the material before him whether considered in terms of the decision-making process or on an outcome focused basis.
The Respondent also submitted that, as expressed, ground 5 did not accurately reflect the findings of the delegate. In particular, it was contended that, contrary to particular (a), it was clear that in the revocation decision the delegate did not make his findings based on the difference in the spelling of “Razi” in the New Zealand application form and “Razee”. It was said to be significant that it was apparent that the delegate gave great weight to the fact that, in making his application for a New Zealand visa in 1995, the sponsor had listed a person he identified as Saleh Imam Al Razi as his brother. It was also said to be apparent that the delegate had considered the explanation offered by the sponsor (through his mother) for listing a brother (that is, that he misinterpreted the question and meant that this person was his “cousin brother”), but rejected this explanation for reasons that included findings about the sponsor’s English language skills, the fact that other cousins were not listed on the visa application form, the fact that the address details for the “cousin” did not correspond with those the sponsor provided for his “brother” and the fact that the details for all other siblings identified by the sponsor on the New Zealand visa application form were correct.
It was reiterated that the delegate considered the evidence provided that tended to indicate that Mr Al Razee of Dhaka had a different father, but concluded that even if that was correct, that would not preclude the existence of another person.
The Respondent submitted that applying principles in relation to legal unreasonableness considered in the decisions of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11; and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 to the present case, it could not be said that the revocation decision involved legal unreasonableness. Particular reference was made to the summary of legal principles in Eden at [54]-[65] as follows:
54. Before addressing the specific appeal grounds and contentions, it is necessary to say something briefly concerning the relevant principles in relation to “legal unreasonableness” as a ground of judicial review. It is possible to be brief for two reasons.
55. First, there was no substantial disagreement between the parties in relation to the relevant principles. The main points of contention involved whether the primary judge applied, or correctly applied, those principles.
56. Second, the relevant principles were the subject of detailed analysis, in a relevantly similar context, in the recent decision of this Court in Stretton. Like this matter, Stretton concerned the question whether the Minister’s exercise of power under s 501(2) of the Act to cancel a visa was legally unreasonable. In that context, both the judgments of Allsop CJ and Griffiths J (with whom Wigney J agreed) distilled a number of statements of principle concerning legal unreasonableness derived, for the most part, from the decision of the High Court in Li and the decision of this Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh).
57. For the purposes of this appeal, it is sufficient to reduce the relevant principles into a few short propositions. This short summary is not intended to supplant or derogate from the detailed analysis and explication of the relevant principles in Li, Singh and Stretton.
58. First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at 350 [26] and 351 [29] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ) and 370 [88] (Gageler J); Singh at 445 [43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).
59. Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363 [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363 [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197at 203 [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
60. Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at 350 [27]–351 [28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).
61. This appeal is primarily concerned with whether the outcome of the Minister’s exercise of power was legally unreasonable. That said, some of the primary judge’s reasons for concluding that the decision was unreasonable, and some of the appeal grounds and submissions, are directed at the Minister’s reasons and alleged errors in the decision-making process.
62. Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at 351 [29] (French CJ), 363 [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at 363 [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at 375 [105] (Gageler J); Stretton at [11] (Allsop CJ).
63. Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at 349 [24] (French CJ), 363 [67]–364 [67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 44 5[42].
64. Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at 446 [45]–447 [47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at 367 [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).
65. Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at 445 [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
As to the asserted unreasonableness in the decision-making process, the Respondent submitted that no “recognised species of jurisdictional error” had been demonstrated in relation to the revocation decision.
It was also submitted that the Applicant was not assisted by an “outcome-focused” approach to the revocation decision. The Respondent submitted that the decision not to revoke the cancellation of the Applicant’s visa on the basis of the earlier finding that she had provided misleading (sic) information in her application form and at interview was “well within” the area of “decisional freedom” within which the delegate could lawfully exercise the power vested in him under s.131 of the Act. It was suggested that there was nothing inherently illogical in the delegate’s reasoning, in the sense that the reasons provided an evident and intelligible justification for the decision.
The Respondent stressed that whether or not the Court would reach the same conclusion on the evidence before it was not the issue and that the Court’s task in determining whether a decision was vitiated for legal unreasonableness was “strictly supervisory” and, as stated in Eden at [59], “does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness or the Court substituting its own view as to how the decision [making power] should be exercised for that of the decision maker”.
In response to the Respondent’s post-hearing written submissions which drew attention to the consideration of the concept of “legal unreasonableness” in Stretton and Eden, the Applicant filed further “supplementary” submissions, citing Eden at [60] as set out above at [94].
The Applicant contended that the decision-maker had made a jurisdictional error by way of unreasonableness in the decision-making process and also in an “outcome-focused” manner and referred, in that context, to the remarks of Allsop CJ, Griffiths and Wigney JJ in Eden at [65] to the effect that “the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions” and that the concept of legal unreasonableness “is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J)”.
The Applicant submitted that while it was not necessary to apply particular definitions or verbal descriptions, the sort of descriptive expressions referred to in Eden at [65] were apposite in relation to the revocation decision. In particular it was submitted that it could be described as: “arbitrary”, “fictional”, “purely speculative”, “abandons common sense” and “not something a reasonable decision-maker would come out with”.
While the Applicant acknowledged that there was an area of “decisional freedom” within which a decision-maker had a genuinely free discretion (as discussed in Eden at [62]), it was submitted that regard must be had to the scope and purpose of the “relevant” statutory power. It was said to be relevant that the criterion in cl.114.211 in Schedule 2 of the Migration Regulations for an Aged Dependent Relative visa (the class of visa that was cancelled) required consideration of the definition of aged dependent relative in reg.1.03 of the Migration Regulations which included the requirement that the relative of an Australian citizen sponsor “has been dependent on [the sponsor] for a reasonable period, and remains so dependent”. It was contended that:
In applying the scope and purpose, whether the applicant is dependent on the sponsor and this being for a reasonable time and remains so dependent is of most relevance to this discussion. It is a long bow to draw by the delegate to reach a finding ‘this does not discount the existence of another person’ being a fictional person, no evidence is before the delegate to substantiate this alleged possible person, nor is any evaluation of the dependency between this alleged person and the applicant even possible (errors in original).
In reply, it was also submitted that the finding in the revocation decision was “contradictory” in that in the cancellation decision the delegate was said to have found a consistency between the names of Saleh Imam Al Razi (referred to in the information from “a reliable source” later identified as New Zealand Immigration) and Saleh Imam Al Razee (referred to in the anonymous information).
The Applicant acknowledged that, as pointed out in Singh at [42] and Eden at [63], an evaluation as to whether or not a decision was legally unreasonable was likely to be fact dependent and to require careful attention to the evidence. It was submitted, however, that “[f]or the delegate to say there may have been another person with the spelling Razi or Razee, there is no evidential support before the delegate that there could have possibly been another person.”
It was submitted that the delegate could not rely on a finding that was “a remote possibility and/or speculative”, but rather that he had to base his decision on a foundation with an evidentiary basis. It was contended that the delegate’s finding that he could not discount the existence of another person was not a finding within his “decisional freedom”. The delegate was said to have relied on the fact that the sponsor had referred to a person by the name Al Razi in the New Zealand application. It was acknowledged that if this information had not been undermined in any other way, then the decision-maker would have been entitled to rely on it and would have had the decisional freedom to use it as he did. However, the Applicant submitted that the delegate had “undermined” this information in the cancellation decision by making a finding of consistency between the anonymous information and the information in the New Zealand visa application. In these circumstances, it was said to be outside the delegate’s decisional freedom to rely on the reference to a Mr Al Razi in the sponsor’s New Zealand application form in making the finding he made and to use it adversely against the Applicant.
The Applicant further submitted that none of the reasons in the revocation decision provided an “evident and intelligible basis” for the finding that the delegate could not discount the existence of another person or for the decision. It was submitted that the justification in the delegate’s reasons was not sufficient to outweigh the inference that the decision was otherwise outside the bounds of reasonableness or the range of possible lawful outcomes (see Eden at [64]).
In post-hearing submissions the Applicant submitted that there was also a recognised species of jurisdictional error in the decision-making process in the sense considered in Eden at [60]. It was suggested that such an error was apparent if either of the errors alleged in ground 1 (a failure to take into account a relevant consideration) or ground 2 (a failure to inquire) was made out. In the alternative, it was submitted (for the first time) that there was a lack of procedural fairness in the sense explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63.
This was the first occasion on which a denial of procedural fairness constituting jurisdictional error in the SZBEL sense was asserted by the Applicant. It was not pleaded as a ground of review. Mr Silva submitted that although SZBEL had not been specifically referred to in his earlier submissions, it could nevertheless be “covered” under the “brick” (sic, but presumably intended to state “rubric”) of unreasonableness because once unreasonableness was advanced as a basis for a remedy, then any form of unreasonableness could be relied on to substantiate the ground. Mr Silva relied on Eden at [60] in this context, but did not explain how this justified raising an additional claim of jurisdictional error in submissions in reply without seeking leave to do so. It was submitted, without further explanation, that in this case a contention of a failure to provide procedural fairness as described in SZBEL could be advanced in this way.
It was submitted that the delegate had failed to inform the Applicant of his “belief” as to the existence of “another” person (other than the Applicant’s nephew) by the “same” name and hence that the revocation decision was “mired” with procedural unfairness. The asserted lack of procedural fairness was said to be highlighted when consideration was given to documentation provided to the delegate after the cancellation decision, including a response to the notice of cancellation and documentation in relation to Mr Al Razee, and to the production of the original SSC and National ID Card for Mr Al Razee in response to the delegate’s request. It was also pointed out that a site visit to Mr Al Razee’s school had been undertaken and that the SSC was found to be genuine.
It was suggested, however, that at no point in the decision-making process had the delegate raised the possible existence of another person who could be the son of the Applicant and that it was not until the Applicant received the revocation decision that she could have become aware of the delegate’s “thinking” that another person (apart from her nephew) could exist “by the same name”.
The Applicant contended that as the delegate had failed to inform her that there was a possibility of an existence of “another person” prior to the making of the decision not to revoke the visa cancellation, she was not given an opportunity to respond to that “contention”. It was submitted that if this “information” had been brought to the attention of the Applicant before the revocation decision, she may have been able to obtain further information and documentation to satisfy the delegate, such as documentation from government departments as to the “non-existence” of a Mr Al Razee or Al Razi in Dhaka or Barisal or, in the case of the existence of one or more such persons, information about such persons having different parents or siblings or other information which may have indicated that no such person could be the son of the Applicant. It was contended that the delegate had not afforded the Applicant procedural fairness in that he had not provided her with a sufficient opportunity to “give evidence, or make submissions” about what turned out to be a determinative issue in relation to the decision under review. This was said to be “in parallel” with the failure to provide procedural fairness considered in SZBEL at [47] to [49]. It was contended that the Applicant could not have foreseen or imagined that such an “issue” existed or would be relied on by the delegate, as it was such a remote basis on which to base a decision.
Consideration
SZMDS relevantly concerned the scope of the concept of illogicality and irrationality in the context of a decision of the Refugee Review Tribunal in relation to the state of satisfaction required under s.65 of the Act.
In this case the decision-maker, a delegate of the Respondent, was considering the state of mind required in relation to a decision under s.131 of the Act (relevantly whether under s.131(1)(a) he was “not satisfied that there was a ground for the cancellation”). Nonetheless the remarks of Crennan and Bell JJ in SZMDS at [130] and [135] are in point. However these remarks do not assist the Applicant.
As their Honours pointed out in SZMDS at [135]:
… 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.
First, as expressed, the particulars to ground 5 do not accurately reflect the delegate’s findings. As the Respondent submitted (and contrary to particular (a)) the delegate did not make a finding or the decision based on the difference in the spelling of Al Razi and Al Razee. Nor did the decision-maker “create… a fiction” as asserted in particular (f) or find that Mr Al Razee of Dhaka was the Applicant’s son. Rather, while having regard to the evidence about Mr Al Razee of Dhaka, he gave weight to the evidence of the New Zealand visa application made by the Applicant’s son and sponsor in which he claimed to have a brother.
In this case the delegate had not only the evidence available to him at the time of the cancellation decision but also the evidence provided in response to the s.129 notice. I note that there is no suggestion that the delegate failed to comply with the requirements of s.129 or that he failed to consider Ms Khanam’s response.
There was evidence before the decision-maker, such as the SSC certificate, birth certificate and National ID Card for Mr Al Razee and as to the result of a site visit to his school. However there was also evidence to support the decision-maker’s findings about the relevance of the inclusion in the sponsor’s 1995 New Zealand visa application of a 17-year-old brother (named as a Mr Al Razi) and his lack of satisfaction with the Applicant’s explanation that in that application her son had listed as a brother a person who was his cousin. I note that the delegate placed no weight on the anonymous information and did not find that the person disclosed in the sponsor’s 1995 application (which did not contain details of the birth dates of family members) had the same birth date as Mr Al Razee.
The delegate’s process of reasoning involved a finding that the significance of the evidentiary material from the sponsor’s New Zealand visa application was such that the evidence relating to a claimed nephew of the Applicant was not such as to satisfy him that there was not another person (other than the nephew) who was the second son of the Applicant. Given this lack of satisfaction, the decision-maker was not satisfied that the cancellation should be revoked. In other words, he was not able to reach the state of not being satisfied that Ms Khanam had given incorrect information (the ground for cancellation) in disclosing only one son in connection with her visa application.
Contrary to the Applicant’s contention, the relevant statutory power was not a criterion for the grant of a visa of the class cancelled (or the issue of dependence). The statutory context was a revocation decision under s.131 of the Act. While reasonable minds may have differed on the probative evidence before the delegate, a logical or rational decision-maker could have come to the same conclusion. This is not a case in which only one conclusion was open on the evidence or the decision was not open on the evidence. Nor is it a case in which there is no logical connection between the evidence and the inferences and conclusions drawn by the decision-maker in carrying out his statutory task and applying the test under s.131(1)(a) of the Act. As Crennan and Bell JJ stated in relation to the Tribunal decision under consideration in SZMDS (at [135]), “[i]t 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”.
Moreover, there was probative evidence (in the New Zealand visa application form) contradicting the Applicant’s claims that she had only one son. It was not illogical or irrational for the delegate to give great weight to the New Zealand evidence. Seen in that context, and in light of the evidence before the decision-maker, the process of reasoning was reasonably open to the delegate. That decision was not “undermined” by the approach taken in the cancellation decision in the manner suggested by the Applicant such as to establish illogicality or irrationality or otherwise legal unreasonableness. As required by s.131 of the Act the delegate considered any response to the s.129 notice. He did not rely on the anonymous information in the revocation decision. He considered the new information about Mr Al Razee of Dhaka who was said to be the Applicant’s nephew. The delegate accepted that these documents tended to indicate that a Mr Al Razee of Dhaka was the Applicant’s nephew. However his finding that this did not discount the existence of another person was not based on “no evidence”. Rather, there was evidence of the disclosure of a brother by the Applicant’s son and sponsor in his 1995 visa application.
Moreover, to the extent to which issue is taken with the rationality or logicality of the delegate’s reasoning, as Rares J pointed out in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [15]:
The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.
I am not satisfied that the decision to which the decision-maker came in relation to the state of mind required under s.131(1)(a) of the Act was one at which no rational or logical decision-maker could arrive on the same evidence. Insofar as irrationality or illogicality sufficient to give rise to jurisdictional error is relied on as the basis for ground 5 it is not made out.
On its face ground 5 involves an assertion that the delegate made a finding unreasonably. However in submissions the Applicant also asserted that the outcome was such as to be legally unreasonable.
Legal unreasonableness is not made out, either as pleaded or as elaborated on in submissions. As the Respondent submitted, what was in issue for the delegate in considering whether to revoke the cancellation was, relevantly, “if [he was] not satisfied that there was a ground for the cancellation” (see s.131(1)(a) of the Act) in circumstances where the visa had been cancelled on the basis (relevantly) that the Applicant had provided incorrect information in her visa application and at interview as to her family composition, in particular as to whether she had a son other than her sponsor.
As discussed above, seen in that context, it is clear from the revocation decision that ultimately the delegate found the fact that in his 1995 New Zealand visa application form, the sponsor had listed a brother (living in Barisal where his mother and sisters lived) to be of such significance that, notwithstanding the evidence provided by the Applicant relating to her claimed nephew (Mr Al Razee), the delegate could not be satisfied that there was not a person (apart from the Applicant’s nephew) who was the son of the Applicant. In making these findings the delegate acknowledged the evidence that Mr Al Razee of Dhaka had a different father. It is apparent that the logic of the delegate was that the evidence relating to the New Zealand application was so significant (and was not plausibly explained by the claim that the sponsor misinterpreted the question on the form) that he was (in substance) satisfied that the Applicant had a second son. Hence he was not satisfied as to the “correctness” of the information the Applicant had provided in connection with her visa application to the effect that she only had one son. In these circumstances the delegate did not have the state of mind required under s.131(1)(a) of the Act of being “not satisfied that there was a ground for the cancellation” (emphasis added).
As indicated, the delegate’s reasoning was not inherently illogical. His reasons provided an evident and intelligible justification. He acknowledged the evidence about a nephew, Mr Al Razee, but he did not accept as plausible the Applicant’s claim that her son and sponsor had listed his cousin as his brother on the New Zealand visa application form (given his failure to list any other cousins; the fact he gave a Barisal address for his brother, yet his claimed cousin resided in Dhaka; the fact all his other siblings were correct in detail and his standard of education in English). Such matters provided an evidentiary basis for this aspect of the decision.
Again, insofar as the Applicant relied on an asserted inconsistency of approach between the reasoning in the cancellation decision and the revocation decision as to whether Mr Al Razi and Mr Al Razee were the same person, that does not “undermine” the New Zealand information such as to establish that the revocation decision (which was made having regard to the further information and submissions provided by the Applicant) was legally unreasonable. In considering whether to revoke the cancellation the delegate was addressing whether he was not satisfied that there was a ground for the cancellation in light of all the information then before him, including the response to the s.129 notice. He was not bound by findings made in the cancellation decision.
The Applicant submitted that there was unreasonableness in the decision-making process after the identification of a recognised species of jurisdictional error (see Eden at [60]). Insofar as the asserted “error” was said (in the Applicant’s submissions in reply) to be one of the errors pleaded in ground 1 or 2, for the reasons set out above, neither of those grounds is made out.
The Applicant did not seek leave to rely on the unpleaded suggestion of a lack of procedural fairness. It was made only in submissions in reply and without explanation for the time at which it was raised. I would not grant leave were it sought.
In any event, the Applicant’s submission about procedural fairness did not address the fact that SZBEL was concerned with the obligations of the former Refugee Review Tribunal under s.425 of the Act to identify “the issues arising in relation to the decision under review” in a Tribunal hearing (see SZBEL at [33]-[35] and [47]). This submission also overlooked the fact that, as referred to with approval in SZBEL at [48], as Lord Diplock stated in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:
…the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision.
As Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ observed in SZBEL at [48]:
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Moreover in this case (consistent with the applicable provisions of the Act), after the cancellation decision the Applicant was made aware of the decision and the reasons for cancellation, including the central issue of whether she had more than one son. She was given the opportunity to show why she thought the ground for cancellation did not exist. She took this opportunity. She was also, critically, given a copy of the sponsor’s New Zealand visa application form (the previously described “reliable source” which “clearly stat[ed] he has a brother”) for comment. The delegate considered her explanation. The Applicant has not established unreasonableness in the decision-making process on this basis.
Further, for the reasons given, it has not been established that the outcome of the revocation decision was legally unreasonable. The decision not to revoke the cancellation of the Applicant’s visa (which had been on the ground that she had provided incorrect information in her application form and at interview) was within the area of “decisional freedom” within which the delegate had a genuinely free discretion (see Li at [29] and Eden at [62] and s.131 of the Act). While reasonable minds may differ as to the correct decision, in the context of s.131(1)(a) the decision fell within the range of possible lawful outcomes of the exercise of the power to revoke a cancellation of a visa on the basis of the provision of incorrect information about a matter of significance having regard to the nature of the visa in issue (see Li at [24] and [67], Stretton at [55] and [62] and Eden at [63]).
Ground 5 also asserts that the delegate made a jurisdictional error by making a finding “based on speculation”, apparently on the basis that the delegate did not explain the relevance of the fact that it was in “another country” and in “1995” and that the sponsor (with a sound mind, applying for a visa) listed Mr Al Razi as his brother and also all other siblings, who were correct in detail. It is however clear that the delegate was not speculating about the country to which or year in which the sponsor applied for a visa. Whether this assertion is intended to identify a different species of jurisdictional error or is relied on in support of the ground of legal unreasonableness (see Eden at [65]), the delegate did not engage in “speculation” to “create … a fiction” in relation to the 1995 application or, more generally, in relation to the question of whether Ms Khanam had a second son, in circumstances where her son and sponsor, Mr Sharif, had disclosed such a person in his New Zealand visa application. The fact that the delegate did not accept the Applicant’s explanation in this respect does not render the delegate’s approach speculative such as to give rise to legal unreasonableness.
Legal unreasonableness has not been established on any basis contended for by the Applicant.
None of the grounds in relation to the revocation decision relied on by the Applicant has been established. Given the nature of these proceedings, the parties are to confer and either submit agreed orders to give effect to these reasons or to notify the Court of the absence of agreement.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 5 December 2017
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