Kumar v Minister for Immigration
[2008] FMCA 1099
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION | [2008] FMCA 1099 |
| MIGRATION – Visa – Removal Pending Bridging Visa – removal from Australia – application for review of decision of the Respondent Minister that the applicant’s removal from Australia was reasonably practicable – where applicant arrived on an Indian passport – where applicant claimed a fear of persecution for reason of his political opinion – where applicant said he was a citizen of Bangladesh and not from India – whether the Minister failed to take relevant matters into account – natural justice – unreasonableness – Wednesbury unreasonableness – procedural fairness – privative clause – no jurisdictional error. |
| The Constitution s.75(v) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss.3, 6, 8 Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.48B, 195A, 198, 417, 474, 476 Migration Regulations 1994 (Cth) paragraph 070.511 Federal Magistrates Court Rules 2001 Rule 44.12 |
| Kumar v Minister for Immigration [2006] FMCA 1276 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 followed. Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 referred to. CCSU v Minister for the Civil Service [1985] AC 374 referred to. Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 referred to. NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 referred to. M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 referred to. Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368 referred to. Kioa v West (1985) 159 CLR 550 followed. |
| Applicant: | BINOD KUMAR |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2412 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 12 September, 16 October, 7 December 2007 |
| Date of Last Submission: | 7 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Prince appeared pro bono |
| Solicitors for the Applicant: | SBA Lawyers |
| Counsel for the Respondent: | Dr Stern |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the Respondent is changed to Minister for Immigration and Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs as agreed or taxed.
Pursuant to Rule 16.02 of the Federal Magistrates Court Rules 2001, the decision will take effect on 28 August 2008.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2412 of 2006
| BINOD KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Minister for Immigration and Citizenship (formerly the Minister for Immigration and Multicultural Affairs) notified to the Applicant on 15th August 2006 that the Minister was satisfied that his removal from Australia was reasonably practicable and the Applicant’s Return Pending Bridging Visa Subclass 070 was at and end and no longer valid.
The Applicant seeks the following orders:
a)A declaration that the decision of the Respondent was made in excess of jurisdiction and is null and void.
b)An order that a writ of certiorari be directed to the Respondent to quash the decision.
c)An order that a writ of prohibition be directed to the Respondent prohibiting the Respondent from acting upon or giving effect to or proceeding further upon the decision.
d)An order for costs.
The Applicant sought two interlocutory orders:
a)That the Respondent be restrained from taking any steps to remove the Applicant from the Migration Zone until the disposal of these proceedings or further order; and
b)An order restraining the Respondent from acting upon or giving effect to or proceeding further upon the decision until the disposal of these proceedings or until further order.
On 29th August 2006 Lloyd-Jones FM made the following orders inter alia:
(1) The Respondent be restrained from taking any steps to remove the applicant from the Migration zone until the disposal of these proceedings or further order.
(2) An order restraining the Respondent from acting upon or giving effect to or proceeding further upon the Minister’s Decision until the disposal of these proceedings or until further order.[1]
[1] Kumar v Minister for Immigration [2006] FMCA 1276
On 1st September 2006 his Honour added this order 2A:
The effect of the purported decision notified to the applicant on 15 August 2006 pursuant to paragraph 070.511(c)(i) of the Migration Regulations be stayed until further order or the determination of these proceedings.
The Minister filed a Response opposing the application on these grounds:
(1) In so far as the application seeks to invoke the Court’s jurisdiction pursuant to s.75(v) of the Constitution, s 39B of the Judiciary Act 1903 (Cth), and s.8 of the Administrative Decision (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), the Court lacks jurisdiction to hear the application.
(2) In so far as the application seeks to invoke the Court’s jurisdiction pursuant to s.476 of the (Migration) Act, the application has not raised an arguable case for the relief claimed [Rule 44.12(1)(a)].
Background
The background to this matter has been set out in some detail in a helpful chronology prepared by Mr Prince of counsel, who appeared for the Applicant. I have relied partly on that chronology as well as on documents contained in the Court Book.
The Applicant arrived in Australia in June 1998, apparently on 8th June, as a visitor on an Indian passport[2] in the name of Biplab Saha. On 21st July 1998 he applied for a Protection (Class AZ) visa, claiming a fear of persecution for reason of his political opinion if he were to return to India. On 14th August 1998 a delegate of the Minister refused his application for a visa.
[2] A copy of the Indian passport appears at pages 25 to 33 of the Court Book.
The Applicant then applied to the Refugee Review Tribunal for review of that decision on 7th September 1998. His migration agent, one Humayan Kabir of Continental Migration Services, forwarded a number of documents to the Tribunal on 12th July 2000.
The Applicant attended a hearing of the Tribunal on 18th October 2000 where he gave evidence with the assistance of an interpreter in the Bengali language. The Applicant provided to the Tribunal a statutory declaration in the name of Biplab Saha, dated 17th October 2000. That document claimed that he was a prominent political activist who had belonged to the Trinumul Congress Party in India.[3]
[3] A copy of the Statutory Declaration appears at pages 73 to 75 of the Court Book
The Refugee Review Tribunal handed down its decision on 1st May 2001. The Tribunal affirmed the decision not to grant a protection visa to the Applicant[4]
[4] A copy of the Tribunal Decision Record appears at pages 77 to 97 of the Court Book.
The Applicant then sought judicial review of the Tribunal decision in the Federal Court by means of an application filed on 22nd June 2001. He sought to discontinue that application by means of an undated letter forwarded to the Federal Court Registry.
On 2nd August 2001 Tamberlin J dismissed his application with costs.
On or shortly before 13th June 2003 the Applicant was apprehended by the NSW Police and was shortly thereafter taken into immigration detention as an unlawful non-citizen.[5]
[5] Court Book 109
He was interviewed by an officer of the Department of Immigration and Multicultural Affairs on 16th June 2003.[6] The officer commented on the interview form:
A/N refuses to go back to India due to the political situation he is in.[7]
[6] Court Book 110 - 117
[7] Court Book 116
On 25th June 2003, whilst in detention at the Immigration Detention Centre at Villawood, the Applicant commenced proceedings in the High Court, seeking the issue of injunctions and writs of mandamus and certiorari.
On 10th September 2003 an officer of the Department, by this stage the Department of Immigration and Multicultural and Indigenous Affairs, made an appointment for him to see the Indian Consul in Sydney.[8] The Applicant attended the appointment under escort. According to a Departmental file note, the Indian Consul stated that he believed that the Applicant was not Indian but Bangladeshi.[9]
[8] Court Book 123
[9] Court Book 126
One Debbi Stockhammer of the Department’s Compliance Branch then forwarded a copy of the Applicant’s passport to the Indian Consulate, with a fax saying, inter alia:
I hereby attach a copy of his Indian passport. Can you please check with your overseas Home Ministry as to whether this passport was fraudulently issued/obtained…
I appreciate any assistance in the confirmation that this passport was fraudulently obtained, so that I can pursue your statement that Mr Saha is of Bangladeshi origin.[10]
[10] Court Book 127
On 15th September 2003, the Applicant was interviewed by an officer of the Department and confirmed in that interview that the Indian passport was obtained fraudulently. He was asked to complete an application for a Bangladeshi travel document. He said that he wished to discuss the document with a lawyer before he signed it. He claimed that the original Indian passport had been in the possession of his former migration agent, Mr Kabir, who had died. He also claimed that the passport had been provided to him by a person called Robin Sen.[11]
[11] Court Book 128
The Applicant also claimed that he did not know his real name but had been raised under the name of “Binod”.
The Department applied to the Bangladeshi High Commission on 3rd October 2003 for a travel document for the Applicant. The High Commission advised that the application was incomplete. The Department arranged for the Applicant to be interviewed at the Bangladeshi Consulate on 19th December 2003.
A departmental file note dated 19th December 2003 stated:
Interviewed by BDES HC. Advd that client may be a ‘displaced person’ as no information provided except first name. Does not remember surname or where he went to school or village/town he lived in. BDES HC believes that he does know but without this information there is little that can be done to arrange TDOC.[12]
[12] Court Book 134
The Department wrote again to the Bangladeshi High Commission on 18th February 2004, seeking further information about the Applicant.
On 19th February 2004 the Applicant told an officer of the Department that his name was Binod Kumar and that he came from the island of Bhola in the Bay of Bengal.
The Department wrote to the Bangladeshi High Commission on 18th March 2004, seeking further assistance in establishing the Applicant’s identity. The Department’s letter said that the Applicant was Binod Kumar who claimed to be from the village of Bhola, now on the mainland of Bangladesh.
The Applicant signed a declaration on 29th July 2004, in which he admitted that his name was Binod Kumar and claimed that he was born in Bangladesh. He claimed that his parents were killed in the war in Bangladesh and he was brought up by a Muslim couple. He claimed to have escaped from the couple with aid of a neighbour in about 1985. He lived and worked in tea shop near the Indian border until 1998. He claimed to have met Rabin Sen who arranged for him to cross into India, where he stayed for a couple of days. He paid Rabin Sen the equivalent of $A4,000.00. Sen obtained an Indian passport for him in another name and arranged for him to fly to Melbourne, accompanied by another man, who gave him the bus fare for Sydney.
The Applicant claimed that he was met by an acquaintance of the man who had accompanied him to Melbourne. He obtained work as a kitchen hand. When he applied for a protection visa he was able to get a tax file number because he had a bridging visa. This visa expired on 29th May 2001. He was detained on 13th June 2003.
The Applicant stated:
The migration Agent, Humayan Kabir, advised me to stick with the Indian identity as in the false passport and made up a story for me. Kabir became ill while my case was being considered and later passed away.
I declare that the above information is true. I ask for consideration given the situation I have lived in all my life. I followed instructions that Rabin Sen gave me and later I was badly advised by the Migration Agent.[13]
[13] Court Book 147
The Applicant was interviewed by a Departmental officer on 11Th August 2004. The file note states:
Interviewed detainee – has not made any attempt to obtain ID documents, however he has filled in biodata form. Advd that his BVE was refused. FC appeal was due for 6 Aug, however it was cancelled and no date has been allocated. Advd that the Dept is working with the Court to have a new hearing date allocated.
Introduced the concept of Baxter – as VIDC is now a short term facility.
· all detainees will be assessed for this transfer
· Baxter – Sth Aust and 4 hrs from Adelaide
· All detainees are being advised of this change[14]
[14] Court Book 148
The Applicant was interviewed by a new case officer on 3rd September 2004. He was informed that his case in the Federal Court had been decided against him on 23rd August. He was recorded that he wanted to make another application to the Court.
The Applicant wrote to the Minister on 6th September 2004, seeking the exercise of the Minister’s discretion under s.417 of the Act.[15]
[15] Court Book 149-50
The Department’s Ministerial Intervention Unit commenced examining the Applicant’s request on 7th October 2004.
On 19th October the Ministerial Intervention Unit recommended that the Minister should not consider the exercise of the power under s.417, saying:
Case does not meet the guidelines and the circumstances are neither exceptional nor unique.[16]
[16] Court Book 175
The Minister decided on 9th November 2004 not to consider exercising her power under section 417 of the Migration Act.
On 20th November 2004 the Department took possession of an Indian passport Q944404 in the name of Biplab Saha.[17]
[17] Court Book 177
On 24th November 2004 the Applicant met his new case officer, Michelle Leedham.
On 15th December 2004 the Applicant signed an application for an Indian passport in the name of Biplab Saha[18].
[18] Court Book 178-182.
The Department’s Document Examination Unit wrote to Ms Leedham on 21st January 2005, advising her that:
The base document is a genuine Republic of India passport of this series.[19]
[19] Court Book 183
Ms Leedham then wrote to the Indian Consul on 4th February 2005, enclosing the Applicant’s expired Indian passport and his completed travel document application form. She requested the issue of a travel document for the Applicant.
The Department’s file notes show that the Applicant was now claiming to be Indian:
Has lodged TDOC application with Consulates – Indian and BDES (uncertain of true nationality)
Now claims to be Indian – has presented ppt, tdoc application to be sent to Indian Consulate, DEU examined ppt – genuine…
24/11/04 – follow up visit – informed Mr Saha that while his case officer was away I would be handling his case – gave contact details.
Mr Saha stated that he did not want to be transferred to Baxter and would be cooperative with departing Australia. Stated that he would complete TDOC application form. Preferred destination Calcutta. M.LEEDHAM
16/12/04 – follow up visit – Mr Saha completed tdoc application. Stated that he was an Indian national and not a Bangladeshi as he claimed to have been before. He stated that he wanted to depart A/a and go back home to India.[20]
[20] Court Book 186-187
The Departmental file notes show that Ms Leedham records she spoke to the Indian Vice consul Mr Baweja on 7th March. He expressed the opinion that the Applicant was not Indian but Bangladeshi, even though the Indian passport had been deemed to be genuine by the document Examination Unit.
The notes show that Ms Leedham spoke to the Applicant on 8th March:
08/03/05 – follow up visit – I told Mr Saha I had sent a letter to the Indian Consulate along with his ppt, completed tdoc application and photos. I told him that the Consulate had received the letter but were waiting on info from India. Mr Saha got very frustrated stating that he just wanted to go home.[21]
[21] Court Book 187
Ms Leedham wrote to the Indian Consul on 16th March, enclosing copies of a birth certificate in the Applicant’s name and various school documents. The copies of those documents were said to be in the Applicant’s personal property at Villawood.
The Applicant applied for a Bridging Visa E. He wrote to the Department on 26th April 2005 requesting a speedy response to his application for a Bridging visa. He said in the letter:
For nearly two years I have been confined in the Detention Centre without giving staff any cause for complaint. I have no legal case under way. I am trying to leave the country…
Therefore I request a speedy response to my request for a Bridging visa E, until my travel documents may be ready, at which point I will leave the country.[22]
[22] Court Book 201
His application for a Bridging visa was refused on 28th April 2005.
The Applicant’s new case officer, Gurmit Singh, continued to contact the Indian consul about the issue of a travel document for the Applicant.
On 27th July 2005 the Minister wrote to the Applicant advising him that she was considering using her power under s.195A of the Migration Act to grant him a Removal Pending Bridging Visa (RPBV)[23]. The Applicant signed the appropriate documents for the issue of the visa.
[23] Court Book 205
The Department reported to the Ombudsman about the Applicant on 19th October 2005, saying:
Following character and security checks currently being undertaken, Mr Saha will be considered for the grant of a Removal pending Bridging Visa (RPBV[24]).
[24] Court Book 217
The report noted that the Applicant had been placed under Suicide and Self harm observation when he reportedly commenced voluntary starvation on 16 February 2005 until 19 February 2005.[25]
[25] Court Book 218
The Department wrote to the Indian Vice Consul on 20th October 2005, seeking to expedite the issue of a travel document for the Applicant.
On 27th October 2005 the Applicant’s case officer, Gurmit Singh, requested the Department’s Documentation Examination Unit to examine the authenticity of the Applicant’s school and university certificates.
The Department made a submission to the Minister on 26th October 2005, recommending that she agree to issue a Removal Pending Bridging Visa to the Applicant. The attached briefing note said, inter alia:
Alias: Nil…
Identity/Nationality Issues: Mr Saha has no known identity or nationality issues.[26]
[26] Court Book 225
The visa was granted on 3rd November 2005.
On 15th November 2005 the Ministerial Intervention Unit prepared a Minute to the Minister about whether or not the Minister should exercise her power under s.48B of the Migration Act to lift the bar under that section so that the Applicant could make a further application for a protection visa. The Minute said:
Mr Saha’s initial PV application was based on claims that he is an Indian national who fears persecution for reason of his political opinion. However, subsequent to the review decision, Mr Saha has claimed to be a Bangladeshi national who fears persecution because of his Hindu belief (Attachment A).
Mr Saha’s identity is being investigated by the National Identity Verification and Advice (NIVA) Section.[27]
[27] Court Book 229
The Australian High Commission in New Delhi made inquiries about the authenticity of the Applicant’s various documents.
A Departmental email from one Eve El-Zahoui date 29th November 2005 stated that the Indian Vice Consul, Mr Baweja, intended to issue travel documents to the Applicant subject to the provision of a travel itinerary.[28]
[28] Court Book 244
On 7th December 2005, Matthew Scott of the Department’s National Identity Verification and Advice Section sent an email to various officers querying the Applicant’s national identity:
I’ve just spoken with Colin Chong, who advises that the information below is what caused him to seek further information from NIVA. He explained that there was an initial consensus between the Indian and Bangladeshi authorities that Mr. Saha was a Bangladeshi national.
Eva,
Did the Indian consul advise on what basis he determined that Mr Saha was in fact an Indian national?...[29]
[29] Court Book 250
Ms El-Zahoui replied:
Mathew – Consul Sunnil Baweja did not advise me on what basis he made the decision to issue Mr Saha with an Indian passport…
The notes made regarding discussions with the Indian Consulate dating back to 2003, indicate that the Indian consulate at the time suspected that Mr Saha is a Bangladeshi and may have entered India illegally. Also assistance was sought at the time from the Bangladeshi Consulate, however they requested a completed passport application.[30]
[30] Court Book 249
Mr Scott replied to that email, saying:
There is some strong evidence supporting the Indian Government’s decision to issue the client with a travel document under the name of Biplab Saha…
…The concerns about identity arose when the Indian Government expressed belief that the client was a Bangladeshi national (which was Binod Kumar’s claimed identity)…
…It is not clear what checks the Indian authorities conducted between 16 March and the time when they resolved their concerns regarding his identity. I would recommend contacting Mr Baweja at the Indian consulate and asking how they reached their conclusion.
One note of caution: NIVA currently has another case where an Indian national entered Australia on a genuinely issued, fraudulently obtained Indian travel document. DEU confirmed that the passport is genuine, but the client has provided a range of documents supporting his claims to have a different identity. I understand that it is possible to obtain genuine Indian travel documents under a false identity without much trouble. If the Indian Government in Mr. Saha’s case has only confirmed the genuineness of the travel document, there may be cause for concern.
That said, given the chronology outlined in point number 3 above, I suspect that the client fabricated the identity Binod Kumar in an effort to remain longer in Australia. This suspicion is further supported by the fact that the client now maintains he is Indian and is prepared to return to India (so why does he have a 48B pending if he is prepared to return to India?).
Would you be able to seek further clarification from Mr Baweja regarding the steps taken to establish the client’s identity. I think it would be important for our records given previous experience of inappropriately removing someone on the strength of a travel document alone.[31]
[31] Court Book 248
On 16th December 2005 Ms El-Zahoui replied:
Matt – I have discussed this matter with Frank, and have considered the sensitivity of this case and the relationship we have with the Indian Consulate and thought it may be inappropriate for me to approach the Consulate with this delicate question. Do you have any suggestions in how best to address this matter.[32]
[32] Court Book 247
On 22nd December 2005 the Applicant’s request for Ministerial intervention under section 48B of the Act was rejected as not falling within the guidelines.[33]
[33] Court Book 253-256
On 16th January 2006 the Department received a letter from the Kolkata Municipal Corporation advising that the Applicant’s purported Birth Certificate had not been issued by the Corporation and was, therefore, not a genuine document.[34]
[34] Court Book 257
On 1st February 2006 one Karen Dix of the Department sent an email to various officers about the proposed arrangements for the Applicant’s removal from Australia:
…These are the possible options which we could use if a travel document is obtained.
1. Cancel Mr Saha’s removal pending visa, call him in for an interview, detain him at interview and remove.
2. Cancel Mr Saha’s visa, call Mr Saha in for an interview and inform him that we have a travel document for him and an itinerary for departure. Grant him a BE which expires the day before his departure, so that he can be removed on 13 March 06. On the day of his removal he would either be picked up by GSL from his residence after detention by a DIMIA officer or present at lee St with his belongings and be detained and taken to the airport for removal.
3. Call Mr Saha in for an interview and inform him that we have a travel document for him and an itinerary for departure. Notify him that his visa will be cancelled and a short term BVE will be granted for departure. Give him the option of buying a ticket to depart himself or being removed on the flight which has been organised…
4. Call Mr Saha in for interview and inform him that we have a travel document for him and an itinerary for departure…
Our preferred option is number 2 as we would have more control of the removal process. If Mr Saha came to an interview and was very uncooperative then we would be in a position to detain if necessary. Also the Indian Consulate in the past has been very difficult to deal with. They have made the offer in this instance to provide a travel document and we should be seen to be well organised and cooperative in returning their national. How we handle this case may impact on future cooperation with the Indian authorities.[35]
[35] Court Book 251-252
On 3rd February 2006 the Indian Vice Consul issued an emergency travel document for the Applicant which was valid for travel to India via countries en route. The certificate was due to expire on 2nd September 2006.[36]
[36] Court Book 258-259
The Applicant remained living in the community and was required to report quarterly.
On 10th March 2006 the Document Examination Section in Sydney sent a Minute to the Applicant’s Case officer, Gurmit Singh, concerning its examination of the 11 documents provided by the Applicant. The Minute advised that three documents, a reference purporting to be from the Taj Club India, the purported Birth Certificate, and an employment reference from the Hotel Shradhyanjali, were “non-genuine”. The other 8 documents, from the University of Calcutta and the West Bengal Board of Secondary Education, were all said to have been verified as genuine.[37]
[37] Court Book 264-268
On 26th July 2006 a Minute was sent from Gary Fleming, Assistant Secretary, to the Minister seeking her views on the possible cessation of the Removal Pending Bridging Visa for the Applicant.[38] The Minister agreed that the visa should cease and made a decision that day, in which she stated:
[38] Court Book 269
1. On 3 November 2005 the holder was granted a Bridging (Removal Pending) Visa Subclass 070 with conditions.
2. I am now satisfied that the holder’s removal from Australia is reasonably practicable as:
a. travel documents have been issued by the Republic of India valid until September 2006;
b. these travel documents enable the holder to be removed from Australia; and
3. I have therefore decided to act in accordance with paragraph 070.511(c)(i) of the Regulations and give the holder a notice in writing that I am satisfied that the holder’s removal from Australia is reasonably practicable.[39]
[39] Court Book 271
The Minister gave written notice to the Applicant (undated, but presumably 26th July 2006) advising him that she was satisfied that his removal from Australia was reasonably practicable and that his RPBY would cease at the end of the day on which he was taken to have received the notice.[40]
[40] Court Book 272
The Applicant was granted a Bridging Visa E which was to expire on 23rd August 2006. The Department arranged for him to depart from Sydney on 30th August and he was granted a further Bridging Visa E until 29th August.
Application for Judicial Review
The Applicant commenced proceedings on 29th August 2006, seeking the issue of constitutional writs. In his application he claims that the Minister made the following errors:
a)erred in law in arriving at the decision by an improper exercise of power by failing to take relevant matters into account in the exercise of the power;
b)exceeded jurisdiction in arriving at the decision as a breach of the rules of natural justice occurred in connection with the making of the decision;
c)exceeded jurisdiction in that the exercise of power was so unreasonable that no reasonable person could have so exercised the power; and
d)for the purpose of s.6(1) of the Administrative Decisions (Judicial Review) Act 1977, the responded engaged in the following conduct for the purposes of making the decision:
i)a breach of the rules of natural justice; and
ii)The procedures required by law in respect of obtaining foreign travel documents were not observed.
In respect of the first three grounds, the Applicant has provided various particulars.
For ground (a) the Applicant claims the Minister failed to take relevant matters into account:
i)The Applicant’s statutory declaration that he is not a citizen of India nor entitled to Indian citizenship;
ii)The view expressed by the Applicant in an interview with the Indian Consulate in 1993 that they were of the opinion that he was not an Indian citizen;
iii)The fact that the Applicant has claimed to be a citizen of Bangladesh since 2003;
iv)The fact that the Applicant is not a citizen of India nor entitled to be a citizen of India;
v)The fact that the travel documents issued by the Republic of India in respect of the Applicant must have been obtained by deception by persons other than the Applicant; and
vi)The fact that the travel documents issued by the Republic of India were not issued at the request or with the consent of the Applicant.
As to Ground (b), the Applicant claims that a breach of the rules of natural justice occurred in connection with the making of the decision:
i)The Respondent failed to advise the Applicant prior to the decision being made that she was contemplating the decision or invite the Applicant comment on that information;
ii)The Respondent failed to advise the Applicant prior to the decision that travel documents had been issued by the Republic of India in respect of the Applicant or invite the Applicant to comment on that information;
iii)The Respondent failed to advise the Applicant prior to the decision that she intended to rely upon the issue of travel documents by the Republic of India to make the decision or invite the Applicant to comment on that information;
iv)The Respondent failed to provide the Applicant prior to the decision with the travel documents issued by the Republic of India upon which she relied to make the decision or invite the Applicant to comment on that information; and
v)The Respondent failed to provide the Applicant prior to the decision with any applications made on behalf of the Applicant to the Republic of India seeking the issue of travel documents or invite the Applicant to comment on that information.
As to Ground (c) the Applicant claims that the Minister exceeded jurisdiction in that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power:
i)The power was exercised on a false premise that the Republic of India had issued valid travel papers to a person whom the Respondent knew to not be an Indian citizen or a person entitled to Indian citizenship.
ii)The power was exercised on a false premise that the Applicant is a citizen of the Republic of India or entitled to be a citizen of the Republic of India.
iii)The power was exercised in circumstances where the Respondent or her officers had procured travel documents from the Republic of India in respect of the Applicant notwithstanding that they knew the Applicant to assert that he was not entitled to citizenship or to apply for citizenship of the Republic of India since 2003.
Evidence
The Applicant relied on an affidavit affirmed on 29th August 2006, in which he deposed that he arrived in Australia on false Indian passport and in a different name, Biplab Saha. He claimed that he was not an Indian citizen. After he was taken into detention in 2003 he was taken to the Indian Consulate to see if Indian travel papers could be obtained for him.
After his interview at the Indian consulate, the Applicant deposed that he told his case officer that he was in fact Bangladeshi and had followed the advice of his migration agent and lied about being Indian.
The Applicant said that he was refused Bangladeshi travel documents because he was unable to provide evidence of his identity.
The Applicant deposed that he applied to the Minister to seek the exercise of her discretion under s.417 of the Migration Act. He stated:
On 18 October 2004, I responded to the Minister’s request for further details on my Bangladeshi nationality and the circumstances in which my former immigration adviser, Mr. Humayun Kabir, had taken my false passport. I also advised the Minister that I do not have any documentation to prove that I am a national of Bangladesh because I was born in 1971 the year of the war leading to the establishment of Bangladesh, I was an orphan taken in by a Muslim family. I have never had a birth certificate and to my knowledge I was never registered as a national of Bangladesh.[41]
[41] Applicant’s affidavit 29 August 2006 at [14]
The Applicant conceded that he was invited to apply for a Removal Pending Bridging Visa and that he did so apply.
The Applicant also stated that he attended the office of the Department of Immigration on 15th August 2006 where he was given a copy of the notice that the Minister was satisfied that his removal from Australia was reasonably practicable. He was also given a Bridging visa E. The Applicant claimed that:
I was never informed prior to 15 August 2006 (with the exception of the instance in mid 2003 referred to above), that travel documents would be obtained on my behalf from the Republic of India. I was not given any notification of what was said or provided to the Indian Government to obtain the travel papers.[42]
[42] Applicant’s affidavit at [22]
The Applicant maintained his claim to be a citizen of Bangladesh. He stated:
I was born in Bangladesh to Bangladeshi parents. I did not know my parents and believe that they were killed in the war in Bangladesh. I am a citizen of Bangladesh by birth. I am not a citizen of India, and do not hold an Indian passport.[43]
[43] Applicant’s affidavit at [24]
He claimed that he did not apply for Indian travel documents because he is not an Indian citizen and said:
Since I revealed that I am Bangladeshi to the Department in 2003, I have never told any person at the Department that I am an Indian citizen or entitled to Indian citizenship.[44]
[44] Applicant’s affidavit at [25]
The Applicant deposed that at the offices of the Department on 23rd August he refused to sign a consent document to be removed to India.
The Applicant expressed a fear about what would happen to him if were to be sent to India:
If I am sent to India in these circumstances I am concerned that I may be detained or arrested or commit an offence under Indian law for travelling on a travel document obtained by deception. I am also concerned that I will be left in a country where I have no connection, support or family.[45]
[45] Applicant’s affidavit at [33]
The Applicant also relied on a supplementary affidavit affirmed on 4th October 2006. In that affidavit he deposed that he travelled to Australia in June 1998 on an Indian passport that he obtained from the man Rabin Sen. He gave him about $A4000.00 and received the passport and a number of other documents, including school and university certificates.
The Applicant was held in the Villawood immigration Detention Centre between June 2003 and November 2005. He deposed that around October 2004 he asked a friend to drop of some of his clothes and other belongings to him at Villawood. The friend brought the clothes in a bag which contained the documents and the passport. The documents were removed from him by GSL officers.
The Applicant claimed that he was interviewed by his then case officer, Michelle Leedham who asked him about the documents. He denied that his name was Biplab Saha and he claimed that she said to him:
If you don’t have any documents, we can’t give you a visa. You can’t apply for a visa without a passport. These are the rules. If you don’t sign the documents you will have to go to Baxter Detention Centre because it is a long term facility. Villawood is only short term accommodation.[46]
[46] Applicant’s affidavit 4 October 2006 at [16]
He deposed that he then signed the application for an Indian travel document in the name of Biplab Saha. He claimed that he only signed it to be able to leave Villawood. He claims that he never told Ms Leedham that he was Biplab Saha.
The Applicant also deposed that in early 2005 he was interviewed by his new case officer. He agreed that he had signed an application for an Indian travel document but the name which he signed was not his own name. He was told to telephone the Indian Consulate and spoke to Sunil Baweja. He asked how long the travel document would take and Mr Baweja said “it could be tomorrow or it could be 4 years”[47].
[47] Applicant’s affidavit at [26]
The Applicant explained that his earlier affidavit had been prepared by his counsel, Mr Prince, on the basis of what he had then told him. He explained:
I did not tell him the above matters because I was frightened. I didn’t know what would happen if I did tell him.[48]
[48] Affidavit at [27]
The Applicant gave evidence and was cross-examined on 12th September 2007. He denied that he had had his passport in his possession at all time whilst he was in Australia and said that at one time it was with his former migration agent, Humayun Kabir. He did not when Mr Kabir returned it to him. He agreed that he had said in an interview in June 2003 that he did not know where his passport was. He said he did not remember when he received the passport back from Mr Kabir.
The Applicant denied that he knew the passport was with his belongings when he went into detention in June 2003.
The Applicant identified his signature on the application for an Indian travel document[49] which he had signed in the name of Biplab Saha. He said that his case officer helped him to write the application and he knew it was an application for an Indian travel document. He said that he was told that if he did not sign it he would not be entitled to apply for anything else.
[49] Court Book at 178
Dr Stern, who appeared or the Minister, asked the Applicant about a handwritten document dated 14th April 2005 which recorded an interview with a departmental officer called Irene Capra. In that document the Applicant is recorded as saying:
POI said he is very stressed, can’t think clearly, & he can’t sleep. Wants to go home asap.[50]
[50] Court book 197
He conceded that he signed the document, which was signed “Biplab Saha”. He said:
I was asked to sign, I signed. I didn’t know what was written there.[51]
[51] Transcript 12/9/07 page 33
The Applicant denied that he told the case officer Ms Leedham in November 2004 that he wanted to be returned to India. He said he completed the travel document application form because he said that there was no alternative:
I had to get out of there. How long would I be there? Two years, three years? How long?[52]
[52] Transcript 12/9/07 page 36
The Applicant denied that he knew that the officers of the Department were liaising with the Indian Consulate to try to obtain an Indian travel document for him.
The Applicant was asked whether he told his later case officer, Gurmit Singh, that he was Biplab Saha, an Indian national. He said he had signed the application but that was not his name.
The Applicant was shown the handwritten letter dated 26th April 2005 addressed to the DIMIA office, asking for a speedy response to his request for a Bridging Visa E[53]. He said that he signed it but did not write it. When asked if he knew what the letter said he replied:
I’m just saying the signature is mine[54].
[53] Court Book 201
[54] Transcript 12/9/07 page 46
The letter bears the signature “Biplab Saha”. Over the course of his cross-examination the Applicant reiterated that he only signed the documents put to him by the Department in order to secure his release from detention.
The Applicant’s cross-examination continued on 16th October 2007. He was asked about his interview with officers of the Bangladeshi High commission and said that he could not remember what he said to them[55]. He said that he could not remember whether he provided a thumbprint to the Department or to the Bangladeshi High Commission.
[55] Transcript 16/10/07 page 5
The Applicant maintained that he did not say to the immigration officers that he was not from India when there was discussion about his being removed from Australia because:
If I had said anything at the time they would have straight away sent me back to detention[56].
[56] Transcript 16/10/07 page 23
There were no other witnesses for the Applicant.
The Minister relied on the affidavits of Michelle Christine Leedham, affirmed 11th October 2006, and Gurmit Singh, also affirmed on 11th October 2006.
Ms Leedham deposed that she recalled having several conversations with the Applicant where he said words to the effect of:
I am Indian. My name is Biplab Saha. I want to return to India as soon as possible.[57]
[57] Affidavit of M.C. Leedham 11.10.06 at [16]
She deposed that it was her usual practice to tell detainees who said that they wished to return to their country of origin:
You need to complete a Travel Document application form in order to receive a Travel Document to facilitate your removal.[58]
[58] M.C Leedham at [17]
Ms Leedham deposed that she gave the Applicant an Indian Travel Document application form on or about 15th December 2004. She denied telling him that it was an application for a Bridging Visa E or any other visa.
She deposed that it was her usual practice to inform detainees who told her that they wished to be released that:
If you wish to be released you need to make a formal application for a Bridging Visa E.[59]
[59] M.C. Leedham at [19]
Ms Leedham gave oral evidence and was cross-examined by the Applicant’s counsel, Mr Prince, on 12th September 2007. He asked her about her file note that the Applicant was “introduced to the concept of Baxter”. She said the Applicant was concerned about being transferred there but did not appear distressed. He was clear that he wanted to get out of Villawood.
Ms Leedham said that the Applicant was “adamant” that he wanted to leave Australia and go back to India[60]. She said that there was never any doubt that the Applicant was anything other than an Indian national.
[60] Transcript 12/9/07 page 68
Ms Leedham agreed that the Applicant said that he did not want to go to Baxter and that at one stage the Applicant was placed on suicide watch. She also said that she knew from having reviewed the Applicant’s file that he was not going to get a Bangladeshi travel document so his only option was to get an Indian travel document.
Gurmit Singh deposed in his affidavit that he was a Removals officer with the Department. He managed the Applicant’s case at Villawood Immigration Detention Centre from April 2005 until the Applicant was granted his visa on 3rd November 2005.
He deposed that he had sent a follow-up request to the Indian Consulate on 15th April 2005. He also stated that he had a conversation with the Applicant that day and made this file note:
15/4/05 Mr. Saha claimed that his original identity is – SAHA, Biplab DOB 08/06/71 – Nationality INDIAN. He stated that he changed his identity to Mr. KUMAR, Binod DOB 08/06/71 BANGLADESH National because he was misled by his friends. He stated that he is suffering from his mistake and wants to go back. I advised him to contact Indian Consulate re his ppt appn [passport application]. Also, I told him about follow up letter sent to the Indian Consulate.[61]
[61] Affidavit of Gurmit Singh 11.10.06 at [7]
Gurmit Singh gave evidence on 16th October 2007. He said that he actually spoke to Mr Baweja of the Indian consulate on the telephone on 15th April 2005. He said that he had on other occasions facilitated a phone call from the Applicant to the Indian consulate. He agreed that he had made inquiries from the consulate about the Applicant’s case and said that the Applicant had claimed to be an Indian national.
There were no other witnesses for the Minister
Submissions
Counsel for the Applicant submitted that the decision of the Minister is one made under clause 070.511(c)(i) of the Migration Regulations 1994. He submitted that it is not a decision as described by s.474(3) of the Migration Act. A privative provision such as s.474 should be read strictly (Plaintiff S157/2002 v Commonwealth of Australia[62]). Thus, it is a decision for the purposes of the Administrative Decisions (Judicial Review) Act.
[62] (2003) 211 CLR 476 at [72] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ
Further, it is submitted that s.474 of the Migration Act would not apply if the decision were affected by jurisdictional error.
Mr Prince submitted that there was a denial of procedural fairness, because the Applicant could have raised concerns about the basis upon which the Indian travel document had been granted, its possible continuing validity in those circumstances and the impact of those factors on the reasonable practicability of the Applicant’s removal. The failure by the Minister to take the matters into account gives rise to jurisdictional error.
Further, it is submitted that the Minister misunderstood the nature of the statutory power conferred on her in that the submissions (from officers of the Department) invited the Minister to cease the visa rather than to make her own determination as to whether she was satisfied that it was reasonably practicable for the Applicant to be removed from Australia. This involves a constructive failure to exercise jurisdiction and therefore a jurisdictional error (Dranichnikov v Minister for Immigration and Multicultural Affairs[63]).
[63] (2003) 197 ALR 389
Mr Prince submitted that the anterior process to the decision and what he described as “the conscious decision not to make proper disclosure to the Indian Government in obtaining the travel document” and also to exclude the Applicant from the decision-making process reveals an unreasonable approach to the exercise of power (CCSU v Minister for the Civil Service[64] ).
[64] [1985] AC 374
In an oral submission, Mr Prince conceded that the Applicant had “chopped and changed” his story in a way which was quite clearly motivated by his fear of remaining in detention and being sent to Baxter Immigration Detention Centre. The question was not whether the Applicant had told inconsistencies or untruths in the past but whether he was telling the truth to the Court.
Mr Prince submitted that the Department of Immigration and Citizenship had also “chopped and changed” its approach to whether it would or not it would assist the Applicant to obtain a travel document from the Indian Consulate or the Bangladeshi High Commission. He criticised the Department for not disclosing to each government what dealings it had with the other, nor did it disclose to the Indian Government that it had doubts about the Applicant’s identity.
Mr Prince submitted that Gurmit Singh and, for that matter, Michelle Leedham, were prepared to accept on “blind faith” from the Applicant, a man who had changed his story whilst under obligation to tell the truth, that in fact he was Indian rather than Bangladeshi. This, he submitted, was because the mission of the Department was to remove the Applicant from Australia. They should have gone further and conducted investigations to satisfy themselves that any document that was going to be obtained by the Indian Government would be one which was fir for travel and made it reasonably practicable for the Applicant to return.
It was further submitted that there were anomalies or incorrect statements in the briefing note to the Minister for the issue of a Removal Pending Bridging visa submitted on 2nd November 2005. In that document, which refers to the Applicant as Biplab Saha, there appear the words “Alias: Nil” and the statement:
Identity/Nationality Issues: Mr Saha has no known identity or nationality issues.[65]
[65] Court Book 225
The note to the Minister was, at best, misleading. Mr Prince submitted that the Minute from the Acting Director of the Department’s International Obligations & Intervention Section, the wonderfully-named Phoenix Mundy, refers to the Applicant as:
Biplab Saha (08/06/1971) aka Binod Kumar[66]
[66] Court Book 253
The Minute went on to refer to “Identity Issues” and set out that the compliance removals team had been working with the Applicant to help resolve his identity, noting that:
· The process has been hindered by lack of evidence to support Mr Saha’s identity claims.
· He has been unwilling to provide biographical data and refused to sign or provide a thumb print for his travel document application form.[67]
[67] Court Book 254
Mr Prince also submitted that Departmental officer Matthew Scott asked the “awkward question” about why the Indian Consul determined that the Applicant was in fact an Indian national.[68] He also pointed out that some of the Applicant’s documents, the birth certificate and the two work references had been found to be non-genuine.
[68] Court Book 250
Counsel for the Applicant submitted that there was, in the Department’s actions, no concern for whether or not the Applicant was, in truth, an Indian national, but rather a rush to take advantage of an offer made by the Indian Government. That translated into the advice given to the Minister in dealing with the cessation of the Removal Pending Bridging visa. If that visa did not cease, the Applicant could not be forcibly removed from Australia because he would remain in possession of a valid visa and not be an unlawful non-citizen, so s.198 of the Migration Act could not operate to facilitate the Applicant’s removal.
Mr Prince drew the Court’s attention to the bundle of documents tendered which included an email from Matt Moroney, the Director of the Department’s Detention Legal Framework Section, where he raised this concern:
However, I am concerned about the option to be put to the Minister referring to giving the visa holder a notice of intention to have the visa cease to be in effect. The decision to cease the visa is not a decision to cancel a visa in which there usually needs to be formal processes undertaken prior to a decision to cancel. If it is intended to put the option of the service of a notice of intention to cease at some time in the future it should, in my view, be referred to Legal opinions for formal advice prior to putting that option to the Minister.[69]
[69] Exhibit 2 – Email dated 08/03/2006 from Matt Moroney
This has been described by Mr Prince as a clear decision not to put before the Minister any option of according the Applicant procedural fairness by giving him notice of the intention to cease the operation of the visa. Counsel for the Applicant submitted that what was to be given to the Applicant was the notice of a pre-determined decision.
It was further submitted that one of the critical factors for the Minister was that travel documents had been issued by the Republic of India. It would be superficial for the mere fact of the existence of a document from the Republic of India to form the basis of a decision when the Act requires a consideration of whether or not it is reasonably practicable to remove a person from Australia. To rely upon a document which was obtained by a deception which the Department knew about is not to take into account a relevant factor. The question to be asked is whether the Minister would have reached the same decision had she been advised of the relevant consideration.
Mr Prince conceded that, in the case of the Applicant, a failure to tell the truth on an occasion when there was an obligation to tell it would in normal circumstances adversely affect credibility, but here that does not necessarily follow because the Applicant has disclosed all the events of the past and all the statements that he made that he was an Indian when he was not. He submitted that the evidence that the Applicant gave was fundamentally consistent with the documentation and the contemporaneous notes. Nor, he submitted, was the Applicant’s evidence undercut or challenged in any substantive way by the evidence of either Ms Leedham of Mr Singh. In matters of credit, the incontrovertible and contemporaneous documentation is of importance.
Counsel for the Applicant submitted that there was a consistency between the Applicant’s account and Ms Leedham’s evidence in that she agreed that the only option for the Applicant to get out of detention was to get an Indian travel document, because she knew he was not going to get a Bangladeshi travel document.[70] The Applicant completed the application for the Indian travel document simply in an effort to get out of Australia. He did not have any genuine desire to go to India. His real concern was to make sure that he did not go to the Baxter Detention Centre and that he was released from detention in whatever way it could occur.
[70] Transcript 12/09/07 page 85
It was further submitted that the Applicant’s motivation was irrelevant. In any event, that circumstance did not absolve the Department of its responsibility to ensure that a person in such a vulnerable situation which they knew existed to take steps to draw the Minister’s attention to the real potential for a miscarriage of justice.
Counsel for the Minister submitted the decision is a privative clause decision with the meaning of s.474(2) of the Migration Act. The decision record signed by the Minister makes it clear that the Minister had formed the requisite opinion under subclause 070.511(c)(i) and by the time the determination was made the position of the Applicant’s identity had been resolved. There was no basis for suggesting that there was any failure to disclose doubts about the Applicant’s identity when it was the Indian Consulate that had raised those doubts in the first place. She further submitted that the decision was not otherwise unreasonable and, at its highest, procedural fairness only required disclosure to the Applicant of adverse material relevant to the determination that the visa holder’s removal is reasonably practicable. There was no such material.
Counsel for the Minister submitted that the determination by the Minister is a privative clause decision under s.474(2) and does fall within the descriptions in s.474(3) of the Act. Subclause 070.511(c) contemplates two steps:
i)the formation of an opinion of the requisite character; and
ii)the giving of a notice.
The act of giving a notice falls within either or both of subsection 474(3)(b) – “giving…a certificate” – and sub-section 474(3)(g) – “doing…any other act or thing”. The formation of the opinion involves engaging in “conduct preparatory to the making of a decision” (sub-section 474(3)(h)).
It was further submitted that even if the decision did not fall within sub-section 474(3) it could not fall within the concept of a decision for the purposes of the Administrative Decisions (Judicial Review) Act 1977, because the definition of a “decision” under s.3 of that act is narrower than the examples given in sub-section 474(3).
Further, the Minister’s determination could only be reviewed under s.6 of the ADJR Act if it constituted “conduct for the purpose of making a decision to which this Act applies”. The determination could not have that character as it was not made for the purpose of making a “decision” to which the ADJR act applies.
Thus, the Applicant is left to invoke the jurisdiction conferred by s.476(1) of the Migration Act and to obtain relief under s.75(v) would need to demonstrate jurisdictional error (Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham[71]).
[71] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [29] to [31]
The opinion required to be formed by the Minister was that the visa holder’s removal was “reasonably practicable”. The test is directed toward the removal of a person from Australia. Subsection 198(6) requires that an officer of the Department “must remove as soon as reasonably practicable an unlawful non-citizen” if certain conditions are satisfied. An assessment of whether a person’s removal is reasonably practicable extends beyond an assessment of merely physical matters affecting their removal to a willingness of a country to accept them (NATB v Minister for Immigration and Multicultural and Indigenous Affairs[72]; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[73]; Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre[74]).
[72] (2003) 133 FCR 506 at [52]-[53]
[73] (2003) 131 FCR 146
[74] [2006] FCA 1368
Counsel for the Minister submitted that the Minister signed the Ministerial Direction on 26th July 2006 that she was satisfied that the Applicant’s removal was reasonably practicable because:
a)The Republic Of India had issued a valid travel document; and
b)That document enabled the Applicant to be removed from Australia.
Thus, it was submitted, the Minister had formed the requisite opinion.
Further, the Minister had neither misunderstood the nature of the statutory power nor had there been any unreasonableness in making a conscious decision not to make proper disclosure to the Indian Government or to exclude the Applicant from the decision-making process. There was no jurisdictional error.
A Removal Pending Bridging visa ceases when the Minister gives notice in writing to the visa holder stating that the Minister is satisfied that the holder’s removal from Australia is reasonably practicable. The Minute to the Minister[75] identified the effect of giving notice to the Applicant cannot be construed as an indication that the Minister misunderstood the statutory power conferred on her. In any event, the terms of the Ministerial Decision make it clear that there was no misunderstanding of that statutory power.
[75] Court Book at 269
It was also submitted that it was the Indian Government that had first raised doubts in relation to the Applicant’s nationality. That question had been resolved by 15th December 2004 by the Applicant’s action in applying for an Indian travel document.
In summary, in her closing submissions, Dr Stern, who appeared for the Minister, submitted that:
a)There was no procedural unfairness. The content of the obligation of procedural fairness depends on the precise circumstances of the case and the legislative background (Kioa v West[76]). There was no obligation on the Minister to seek representations from the Applicant prior to deciding that she was satisfied that his removal to India was reasonably practicable.
[76] (1985) 159 CLR 550
b)Statements by Departmental officers as to what procedural steps were required are irrelevant to the question of what was required by way of procedural fairness.
c)The only question for the Minister was whether or not the Applicant’s removal was reasonably practicable. If she was satisfied that there was a travel document that would allow the Applicant to leave Australia, that was the end of the inquiry.
d)There is no evidence that the Indian travel document was invalid. That is a matter of Indian law.
e)The Applicant’s difficulties over his identification had been caused by his own dissembling but:
i)His identity is irrelevant; what mattered is that he was the holder of a valid travel document entitling him to leave Australia.
ii)The Indian Consul was aware of the earlier doubts about the Applicant’s identity, since those doubts were raised by the Indian Consulate.
iii)By the time of the Minister’s decision both the National Identity Verification and Advice Section and the International Obligations and Intervention Section were satisfied that the Applicant had been identified.
f)Whilst the Applicant’s birth certificate was described as non-genuine:
i)There is no evidence of fraud on the Indian Consulate.
ii)The Indian authorities were provided with a copy of the purported birth certificate to make their own examinations.
iii)There were no representations ever made by the Minister or by representatives of the Department as to whether or not the document was genuine.
iv)There can be no duty upon the Department to communicate the results of its own inquiries to the Indian Consulate.
v)There can be no suggestion that the issue of the travel document was vitiated by the fact that the Department’s own inquiries suggested that the document was not genuine.
g)As to the alleged failure to consider requests made by the Applicant under ss.417 or 48B of the Act:
i)The Request to the Minister to consider exercising her discretion under s.417 was refused on 12th November 2004[77]; and
ii)The request under s.48B was refused on 22nd December 2005[78].
h)The Applicant’s motive in applying for an Indian travel document is of no relevance.
i)Any statements made by Departmental officers that the Applicant would have to apply for a travel document in order to obtain a Bridging visa are not relevant.
j)The Applicant was well aware that he had applied for a travel document to travel to India. He had communicated with the Indian Consulate and the Department about the progress of that document and did not at any time tell the Indian Consulate that the travel document should not be issued.
k)The Applicant’s own evidence was evasive and unreliable.
l)Ms Leedham and Mr Singh gave clear, honest and reliable accounts of their involvement in the Applicant’s case. Their evidence and the written documentation should be preferred to the Applicant’s evidence when there is a conflict.
[77] Court Book 176
[78] Court book 256
Conclusions
I will make it clear at the outset that the Applicant has not made out his case. Whilst there is a tortuous history to this matter, I am satisfied that there is no jurisdictional error. In particular, I am not satisfied that:
a)there was any failure to take relevant matters into account;
b)there was any breach of the rules of natural justice or any failure to provide procedural fairness; or
c)that there was any unreasonableness in the exercise of the power conferred on the Minister that no reasonable person could have so exercised that power.
I am also satisfied that this is not a matter that falls within the operation of the Administrative Decisions (Judicial Review) Act 1977. For the reasons submitted by counsel for the Minister, I am of the view that a determination of the Minister under subclause 050.511(c) of the Migration Regulations does not fall within the definition of a decision in s.3 of the ADJR Act.
The determination by the Minister under subclause 070.511(c) is a privative clause decision under s.474 of the Migration Act. Giving a notice clearly comes under the description in sub-section 474(3)(b) and (g). Accordingly, for the Applicant so succeed he must show jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia[79]). In my view, he has not done so.
[79] supra
I did not find the Applicant to be a credible witness. I observed his demeanour in the witness box and considered his evidence. I accept there are difficulties where a person gives evidence through an interpreter rather than directly, but this is a situation that occurs frequently in the Federal Magistrates Court and in other courts. The interpreter in the Bengali language holds the appropriate NAATI qualification and was present on each day of the hearing. The Applicant made no complaints about the quality of the interpreting, quite the reverse, in fact. At the conclusion of the evidence on 12th September 2007, when I was making arrangements to order a transcript of the day’s proceedings and to order an interpreter in the Bengali language, Mr Prince, counsel for the Applicant made a request for the same interpreter to be made available:
Strongly preferred, your Honour.[80]
[80] Transcript 12/09/07 page 87
It is true, as Mr Prince conceded, that a party who has previously not told the truth faces a hurdle in having his or credibility accepted when he or she is, in effect, saying “I was not telling the truth before but I am now”. However, that person’s evidence must be considered at its face value; the fact that the Applicant has not told the truth before does not mean that his evidence must be automatically discounted as unreliable. If that were so, there would be no point in his giving evidence at all and there would be a denial of procedural fairness to him.
I have considered the Applicant’s evidence as he gave it, observing his demeanour and making noted of his answers. I formed the view that he was reluctant to reveal too much and keen to portray himself as no more than a hapless victim of the Department. As he said in cross-examination:
I don’t know. I was asked to sign. I don’t know what I signed. I signed.[81]
[81] Transcript 12/09/07 page 33
His explanation of his signing the application for an Indian travel document was that he was just signing whatever document he was asked to sign, without knowing what was in it, in order to avoid being sent to the Baxter Immigration Detention Centre and eventually to secure his release from detention.
The Applicant’s entire evidence, and indeed his entire case, contains instances of his only disclosing information about himself when he was confronted with evidence suggesting that his account was not truthful. It was not until the Indian consulate raised doubts that he was Indian and suggested that he might well be Bangladeshi that he made any disclosures there, and even then he released information a little at a time. The fact that he refused to provide a thumb print to aid in his identification is an indication of his failure to be candid with the Department about his real identity.
By comparison, although the two Departmental officers, Michelle Leedham and Gurmit Singh were cross-examined at some length and in some detail by counsel for the Applicant, neither was shaken in cross-examination. I observed their demeanour in the witness box and formed the view that each one was endeavouring to give an honest account, notwithstanding that Ms Leedham in particular did not have a particular recollection of some of the events relating to the Applicant. She gave evidence as to what her usual practice would have been in the circumstances. I formed the view that where she said she did not have a specific recollection she was in fact telling the truth. Where there was a conflict between their evidence and that of the Applicant I would prefer their evidence.
There is no procedural unfairness shown in the evidence before me. As Mason J said in Kioa v West[82]:
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with the procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations…
[82] supra at 585
Mason J further held:
It would be going too far to say that fairness requires that in all cases in which a deportation is to be made notice should be given to the prohibited immigrant of the intention to make such an order and of the grounds upon which it is to be made.[83]
[83] Kioa 159 CLR 550 at 586
The decision in this case does not relate to any factors personal to the Applicant, such as his health. There was no material adverse to the Applicant relied upon by the Minister which might have led to a requirement that the Applicant should have a right to be heard[84]. As counsel for the Minister submitted, there is a clear justification in the legislative scheme for not informing a visa holder prior to the cessation of the visa. The Applicant had no right to remain in Australia and no legitimate expectation of being able to do so. He had already been informed that the Department was intending to remove him to India.
[84] Kioa 159 CLR 550 at 587 per Mason J and at 628 per Brennan J
There was no failure to provide procedural fairness.
As counsel for the Minister submitted, the only question for the Minister was whether or not removal was reasonably practicable. The Minister was satisfied that there was an Indian travel document available for the Applicant upon which he could leave Australia and travel to India. That was the end of the inquiry.
There is no suggestion that the Indian travel document was not a valid document. It was a document issued by the Indian Consulate and there is no evidence that the document was not validly issued. In any event, the validity of the issue of an Indian travel document and the circumstances in which the Indian Consulate chose to issue it are not matters for this Court but are matters to be decided under the law of India.
It is not the case that the Department was acting in some way duplicitously in procuring the issue of the travel document by deceiving the Indian Government in some way. It was the Indian Consulate that first expressed doubts about the Applicant’s identity and suggested that the Applicant may be a citizen of Bangladesh. It was the actions of the Indian Consul, Mr Baweja, in informing the Department on 29th November 2005 that he proposed to issue travel documents to the Applicant[85] that led to the decision to remove the Applicant from Australia to be taken. The Department was satisfied by that time that the Applicant was in fact an Indian citizen named Biplab Saha:
Given the circumstances surrounding his change of identity (summarised at point 3 of my e-mail of 8.12 below), his claims to be Biplab Saha support the Indian authorities’ conclusion that he is indeed Biplab Saha.[86]
[85] Court Book 244
[86] Court Book 247
The fact that some of the Applicant’s documents were found to be “non-genuine” does not support the proposition that the Department was perpetrating some sort of fraud on the Indian Government. On 10th March 2006, the Department’s Document Examinations Section sent a Minute to Gurmit Singh advising that three of the Applicant’s documents were non-genuine but the other eight were genuine.[87] The Applicant’s Indian passport was found to be genuine.[88] Copies of all the Applicant’s documents, including the purported birth certificate, were forwarded to the Indian consulate on 16th March 2005.[89]
[87] Court Book 266-268
[88] Court Book 183
[89] Court Book 188
There was no fraud on the Indian Government. There was no failure to take relevant matters into account. There was no unreasonableness.
There is no jurisdictional error.
The decision is a privative clause decision. Under s.474 there is no basis for the relief sought in the way of declaration, certiorari or prohibition.
The application will be dismissed with costs.
The Court notes that Mr Prince of counsel undertook this matter on behalf of the Applicant on a pro bono basis and records its appreciation of the considerable amount of time and effort he has devoted to this matter. The Applicant’s interests have been well represented by his legal advisers.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 31 July 2008