Masih v Minister for Immigration - [2020] FCCA 1496

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASIH v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1496

Catchwords:
MIGRATION – Bridging C (Class WC) (Subclass 030) visa – visa cancellation – decision of the Administrative Appeals Tribunal – whether the Applicant was denied procedural fairness – whether the Tribunal misapplied law – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 98, 101, 107, 108, 109, 359A, 375A, 424A, 476

Migration Regulations 1994 (Cth), reg.2.41

Cases cited:

CHZ19 v Minister for Home Affairs [2019] FCA 914
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438

Minister for Immigration & Border Protection & Singh [2016] FCAFC 183; (2016) 244 FCR 305; (2016) 71 AAR 169

Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 421; (2019) 93 ALJR 252; (2019) 363 ALR 599; (2019) 75 AAR 75; (2019) 163 ALD 38
Minister for Immigration and Citizenship v Brar & Anor [2012] FCAFC 30
Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Re JLR; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Applicant:

ARSHAD MASIH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 704 of 2015

Judgment of:

Judge C. E. Kirton QC

Hearing date:

20 June 2018

Date of Last Submission:

20 June 2018

Delivered at:

Melbourne

Delivered on:

10 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Lowy

Solicitors for the Applicant:

D & M Lawyers

Counsel for the First Respondent:

Mr Wood

Solicitors for the First Respondent:

DLA Piper

Second Respondent:

Submitting appearance, save as to costs

ORDERS

Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth) the name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application for judicial review filed on 7 April 2015, as amended, be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 704 of 2015

ARSHAD MASIH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant seeks judicial review of a decision of the then Migration Review Tribunal (Tribunal), dated 9 March 2015 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate of the First Respondent, the then Minister for Immigration and Border Protection (Minister), to cancel the Applicant’s Bridging C (Class WC) (Subclass 030) visa (Bridging Visa) under s.109(1) of the Migration Act1958 (Cth) (Act).
The application is brought pursuant to s.476 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1496
Decision Date: 10 June 2020

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Arshad Masih, for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm the cancellation of her Bridging C (Class WC) (Subclass 030) visa. The cancellation was based on the Applicant providing incorrect information in her Partner visa application, specifically regarding her name and date of birth, in breach of section 101 of the Migration Act 1958 (Cth). The Applicant contended that the Tribunal denied her procedural fairness and misapplied the law.

The central legal issues before the court were whether the Tribunal had denied the Applicant procedural fairness and whether the Tribunal had committed jurisdictional error in its findings regarding the Applicant's name and date of birth. Specifically, the court had to consider whether the Applicant's explanation for the discrepancies in her personal details, including her non-English speaking background and reliance on a friend to complete her visa application, was adequately considered by the Tribunal. The court also had to determine if the Tribunal's findings that the Applicant had provided incorrect answers in her visa application were supported by the evidence and the applicable legal principles.

The court found that the Tribunal had not denied the Applicant procedural fairness. The Tribunal had considered the Applicant's statutory declaration and her oral evidence, including her explanations regarding her birth name, Sonu Bhatti, and the assistance she received in completing her visa application due to her limited English proficiency. The Tribunal also considered the conflicting evidence regarding her date of birth. The court adopted the Minister's submissions, which accurately summarised the Tribunal's decision, finding that the Tribunal was entitled to conclude, based on the evidence before it, that the Applicant had provided incorrect information regarding her name and date of birth. The Tribunal's reasoning, which highlighted inconsistencies in the Applicant's accounts and the implausibility of certain explanations, was found to be sound.

The court concluded that there was no jurisdictional error. The Tribunal's findings of fact were open to it on the evidence presented, and it applied the relevant provisions of the Migration Act correctly. Accordingly, the application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 4 February 2015, the Delegate decided to cancel the Bridging Visa under s.109 of the Act (Delegate’s Decision)[12]. [12] CB 66-76. On 5 February 2015, the Applicant applied to the Tribunal for review of the Delegate’s Decision. On 9 February 2015, the Applicant was invited to attend a hearing before the Tribunal on 13 February 2015, to give evidence and present arguments (Tribunal Hearing)[13]. The Applicant attended the Tribunal Hearing with the assistance of an interpreter in the Punjabi and English languages[14]. The Applicant’s current lawyers attended the Tribunal Hearing as the Applicant’s representative. The Applicant’s husband and various family members and friends also attended the Tribunal Hearing[15]. [13] CB 115-117.[14] CB 119-123.[15] CB 121. At the Tribunal Hearing, the Applicant gave evidence with respect to her name. The Applicant said that:a)Her birth name was Sonu Bhatti and that was the name that she was enrolled at school with. She was also known by the name Arshad Masih[16].b)She had a “nickname” when she was young, when people in her village would call her by the name Sonu Bhatti[17].c)She had never taken any legal steps to change her name to Arshad Bhatti[18]. [16] CB 194, at [16].[17] CB 194, at [19] and [20].[18] CB 195, at [26]. In a statutory declaration, dated 25 February 2015 (Statutory Declaration)[19] and provided to the Tribunal after the Tribunal Hearing, the Applicant stated:[19] CB150-154. 4.My biological parents named me Sonu Bhatti at birth.[…] 7.I was enrolled by my mother at school. As she could not read or write my name at school was registered as Sonu Bala.[…]22.I am a person from a Non-English Speaking Background and am unable to read and write English fluently. 23.[…] I was unable to understand and complete the Partner Visa Application.24.Accordingly one of my friends assisted me to complete the said application and all documents to be able to lodge the Application.25.I now understand that I have failed to state on Form 47SP question number 14 and Form 80 question number 7 my birth name. I have not provided this information as I did not understand the question. All information were completed by my friend and I provided her all needed information. I recall when completing the said sections my friend asked me whether I had any other name on an ID. As I did not have any other name on an ID. I said no. Accordingly the said questions were completed with no other name used by me. (Without alteration) At the Tribunal Hearing the Applicant gave evidence with respect to her date of birth. In relation to the Applicant’s evidence concerning her date of birth, the Tribunal said the following[20]:School records referred to by the department have the applicant’s name as Sonu Bhatti and her date of birth is 25 July 1979. At the hearing the applicant said her mother gave her that date of birth to the school but it is in fact her sister’s date of birth. She variously said that there is no record of her date of birth, that she was born on 12 July 1988, that her uncle gave her the birth date of 12 July 1988 and that she is a year older than her cousin (although she had told the department she was a few years older). She could not remember how old she was when she did her year 10 or 12 exams, although school records indicated she completed year 12 in 2000. When the Tribunal put to her that this would make it unlikely that her year of birth was 1988, she replied she was younger than the others when she did her exams.[20] CB 195, at [21].

Ratio Decidendi

Legal Principle Established

In a statutory declaration, dated 25 February 2015 (Statutory Declaration)[19] and provided to the Tribunal after the Tribunal Hearing, the Applicant stated:[19] CB150-154. 4.My biological parents named me Sonu Bhatti at birth.[…] 7.I was enrolled by my mother at school. As she could not read or write my name at school was registered as Sonu Bala.[…]22.I am a person from a Non-English Speaking Background and am unable to read and write English fluently. 23.[…] I was unable to understand and complete the Partner Visa Application.24.Accordingly one of my friends assisted me to complete the said application and all documents to be able to lodge the Application.25.I now understand that I have failed to state on Form 47SP question number 14 and Form 80 question number 7 my birth name. I have not provided this information as I did not understand the question. All information were completed by my friend and I provided her all needed information. I recall when completing the said sections my friend asked me whether I had any other name on an ID. As I did not have any other name on an ID. I said no. Accordingly the said questions were completed with no other name used by me. (Without alteration) At the Tribunal Hearing the Applicant gave evidence with respect to her date of birth. In relation to the Applicant’s evidence concerning her date of birth, the Tribunal said the following[20]:School records referred to by the department have the applicant’s name as Sonu Bhatti and her date of birth is 25 July 1979. At the hearing the applicant said her mother gave her that date of birth to the school but it is in fact her sister’s date of birth. She variously said that there is no record of her date of birth, that she was born on 12 July 1988, that her uncle gave her the birth date of 12 July 1988 and that she is a year older than her cousin (although she had told the department she was a few years older). She could not remember how old she was when she did her year 10 or 12 exams, although school records indicated she completed year 12 in 2000. When the Tribunal put to her that this would make it unlikely that her year of birth was 1988, she replied she was younger than the others when she did her exams.[20] CB 195, at [21]. The Tribunal’s Decision appears at pages 191-200 of the Court Book. The Minister’s Submissions, at [27]-[30], accurately summarise the Tribunal’s Decision. The Court adopts those submissions, with amendments, as its own. They provide relevantly as follows. The Tribunal found that there was non-compliance by the Applicant in the manner specified in the NOICC. The Tribunal stated as follows:28.The Tribunal has taken into account the oral and documentary evidence provided by the applicant. By the applicant’s own admissions she was born Sonu Bhatti and has never changed her name legally to Arshad Masih. The Tribunal finds that she was enrolled at school as Sonu Batti and was known in her village as Sonu Batti. The Tribunal leaves to one side for the moment if the applicant was also noted in her village as Arshad Masih. At some time before her departure for Australia in 2008 she obtained several documents in the name of Arshad Masih. This, however, does not override the fact that her legal name was and remains Sonu Bhatti.29.Accordingly, the Tribunal finds that the applicant answered incorrectly in her Partner visa application when she stated her name was Arshad Masih. I also find that the applicant failed to disclose that she is also known by the name of Sonu Bhatti.30.In her visa application the applicant stated that her date of birth is 12 July 1988. Although the applicant has provided different evidence about her date of birth at different times, the Tribunal is comfortable in finding that her date of birth was not 12 July 1988 and that she answered incorrectly in her visa application when she stated her date of birth as 12 July 1988. This finding is based on her own evidence at various times that it was not that date and that she is older than her cousin. The Tribunal makes no finding about her actual date of birth but considers it unlikely that her mother would make an error of nine years in her daughter’s date of birth when she enrolled her at school. It is also implausible that the school would not notice that a girl with a birth date of 25 July 1979 was in fact nine years younger. The Tribunal notes that the birth certificate the applicant provided in support of her Visitor visa application has been found to be fraudulent.31.The Tribunal therefore finds that the applicant gave or provided incorrect answers with her visa application in breach of s.101 of the Act. (Without alteration)