Masih v Minister for Immigration
[2020] FCCA 1496
•10 June 2020
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 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 |
| 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 the Act. The Applicant presses three grounds of review in her application which the Court will consider in detail below.
Background
The Court had before it a Court Book numbering 204 pages. The Court has reviewed the material contained in the Court Book in detail.
The Court notes that the Minister’s written submissions filed on 18 July 2016 (Minister’s Submissions), at [13]-[26], accurately summarise the factual history of this matter. The Court adopts those submissions, with amendments, as its own. They provide relevantly as follows.
On 1 July 2011, the Applicant lodged a combination application form for Subclass 820 and 801 partner visas[1], together with “personal particulars”[2] (Partner Visa Application). In support of her Partner Visa Application, the Applicant also provided: an Indian passport, Australian Federal Police National Police Certificates, a Consulate General of India, Melbourne, Police Clearance Certificate, and a Victorian Driver’s licence, each bearing the name of “Arshad Masih” and with the date of birth being 12 July 1988[3].
[1] CB 1-33.
[2] CB 34-51.
[3] CB 72, at [19].
The then named Department of Immigration and Border Protection (Department) subsequently conducted integrity checks in relation to the information provided in the Partner Visa Application. As a result of those checks, on 4 February 2015, the delegate of the Minister (Delegate) sent the Applicant a Notice of Intention to Consider Cancellation of the Applicant’s Bridging Visa (NOICC)[4].
[4] CB 52-63.
The NOICC referred to the following information provided by the Applicant in her Partner Visa Application.
At question 10 of the Form 47SP you provided the following information:
Family name: Masih
Given names: Arshad
[…]
At question 14 of the Form 47SP where it asks ‘Other names you are, or have been, known by (including name at birth, previous marriage names, aliases)’ you did not provide a response. I note the question was crossed out to indicate it is not applicable.
At question 16 of the Form 47SP where it asks ‘Date of birth’ you stated ‘12/07/1988’.
[…]
At question 7 of the Form 80 where it asks ‘Have you ever been known by other names or spellings of your name?’ you indicated ‘No’.
At question 8 of the Form 80 where it asks ‘Have you ever had an alternative date of birth?’ you indicated ‘No’.[5]
[5] CB 53.
The NOICC explained that it had received information to the effect that[6]:
a)The Applicant’s name was in fact “Sonu Bhatti”, and not “Arshad Masih”.
b)The Applicant’s date of birth was a date different to that which she gave (i.e., not 12 July 1988).
c)Arshad Masih was the Applicant’s cousin.
d)Facial imaging comparisons by the Department on images of Arshad Masih and Sonu Bhatti confirm they are the same person.
[6] CB 54.
The NOICC also explained that the Delegate considered that there were grounds for cancelling the Bridging Visa pursuant to ss.101(a), 101(b) and 103 of the Act. The NOICC stated[7]:
In relation to the Form 47SP:
• I consider that the information provided at question 10 where you stated that your name is Arshad Masih, is incorrect as you are Sonu Bhatti.
• I consider that at question 14 you have failed to disclose that you are also known as Sonu Bhatti.
• I consider that the information provided at question 16 where you stated that your date of birth is 12 July 1988, is incorrect as your date of birth is 25 July 1979.
[7] CB 54.
In relation to the Form 80:
• I consider that the information provided at question 1 where you stated that you are Ashad Masih, date of birth 12 July 1988, is incorrect as you are Sonu Bhatti, date of birth 25 July 1979.
• I consider that the information provided at question 7 where you stated that you have not been known by any other names, is incorrect as you are Sonu Bhatti.
• I consider that the information provided at question 8 where you stated that you have not had an alternative date of birth, is incorrect as your date of birth is 25 July 1979.
The Delegate therefore considered that the Applicant had not complied with s.101(a) of the Act, because she had not completed the Partner Visa Application forms in such a way that all questions on the forms were answered. The Delegate also considered that the Applicant had not complied with s.101(b) of the Act, because she had provided incorrect answers to the questions on the Partner Visa Application forms.
The Delegate also considered that the documents provided by the Applicant in support of the Partner Visa Application were bogus. The Delegate considered that:[8]
a)The Indian passport and the Victorian Driver’s licence were obtained because of a false or misleading statement.
b)The Australian Federal Police, National Police Certificates and the Consulate General of India, Melbourne, Police Clearance Certificate purported to be, but were not, issued in respect of the Applicant.
[8] CB 55.
The Applicant was interviewed by a representative of the Department on 4 February 2015. A file note of the interview records that the Applicant admitted that she was Sonu Bhatti and that “her Uncle gave her permission to use her cousins name (sic.)” [9]. The Applicant also said that her family were poor, that her father was a drunk and that her Uncle ‘adopted’ her to take care of her[10]. The Applicant asked that her Bridging Visa not be cancelled, as she did not think that she had committed a “crime”[11].
[9] CB 64; 73, at [21].
[10] CB 73, at [21].
[11] CB 65; 73, at [22].
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].
The Tribunal’s Decision
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)
In relation to the Indian passport, the Australian and Indian police certificates and the Victorian Driver’s licence, the Tribunal was satisfied that these documents were not in fact issued in respect of Arshad Masih, but issued in respect of Sonu Bhatti. The Tribunal therefore found that the Applicant had also breached s.103 of the Act[21].
[21] CB 197, at [35]-[36].
In considering whether to exercise its discretion to cancel the Applicant’s Bridging Visa under s.109 of the Act, the Tribunal considered each of the prescribed circumstances in reg.2.41 of the Migration Regulations 1994 (Cth) (Regulations) and the Department’s Procedural Advice Manual PAM3[22].
[22] CB 197-200, at [38]-[54].
When considering the circumstances within which the non-compliance had occurred, the Tribunal expressed its “grave concerns” in relation to the truthfulness of the Applicant’s claims that she was known as Arshad Masih during her childhood. The Tribunal said[23]:
Her evidence was at times contradictory and at others implausible. A number of matters, such as her “adoption” ceremony and the existence of witness testimony in relation to that were only raised after the hearing but documents which pre-dated the hearing were provided in support of the contention.
In general, the Tribunal has serious concerns about the genuineness of any of the documents provide by the applicant following the hearing, including a reference from a former employer for Arshad Masih and others attesting to the applicant being known as Arshad Masih. The Tribunal also notes that the applicant has been unable to put forward a satisfactory explanation of why she changed her name to that of her cousin.
(Without alteration)
[23] 198, at [44]-[45].
When considering the subsequent behaviour of the Applicant, the Tribunal noted that the Applicant was unable[24]:
[…] to articulate any cogent reason, either before the delegate or the Tribunal, for why she went to considerable lengths including obtaining a forged birth certificate, to obtain identity documents and an Australian Visa in the name of Arshad Masih.
[24] CB 199, at [50].
In conclusion, the Tribunal stated that it had carefully considered all of the evidence provided. The Tribunal expressed particular concern that the Applicant, knowing that she had never legally changed her name to Arshad Masih, had gone to “extraordinary lengths” to establish her identity as Arshad Masih. The Tribunal expressed “serious concerns about the truthfulness” of the Applicant’s evidence in the proceeding. The Tribunal concluded that on balance the Bridging Visa should be cancelled and affirmed the Delegate’s Decision[25].
[25] CB 200, at [58]-[60].
Legislative Provisions
Section 101 of the Act provides 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.
Section 103 of the Act provides as follows:
A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.
Section 5 of the Act defines the expression “bogus document” as meaning:
[…] a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not make knowingly.
Section 98 of the Act provides as follows:
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
Section 107 of the Act provides that, if the Minister considers that a visa holder did not comply with ss.101 or 103, the Minister may give the holder a notice giving particulars of the possible non-compliance, stating that the holder may give the Minister a written response within a certain period, and certain other matters.
Section 108 of the Act provides that the Minister is to consider any response given by a visa holder in the way required by s.107(1)(b) of the Act, and decide whether there was non-compliance by the visa holder in the way described in the notice.
Section 109 of the Act provides as follows:
(1) The Minister, after:
(a)deciding under this section 108 that there was non-compliance by the holder of a visa; and
(b)considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c)having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exists circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Regulation 2.41 of the Regulations provides the following prescribed circumstances to cancel a visa for the provision of incorrect information or a bogus document:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a)the correct information;
(b)the content of the genuine document (if any);
(c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d)the circumstances in which the non-compliance occurred;
(e)the present circumstances of the visa holder;
(f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)any other instances of non-compliance by the Visa holder known to the Minister;
(h)the time that has elapsed since the non-compliance;
(j)any breaches of the law since the non-compliance and the seriousness of those breaches;
(k)any contribution made by the holder to the community.
Proceedings before the Court
The Applicant filed an application for judicial review on 7 April 2015. At the time the Applicant filed the application she was without legal representation.
On 22 July 2016 the Applicant again became represented by her current lawyers[26]. The matter was listed for hearing on 25 July 2015 before another Judge of this Court. On that date the Court adjourned the proceeding, ordered the Applicant to file and serve an amended application and written submissions, and the Minister to file and serve further written submissions in response.
[26] Notice of Address for Service, filed 22.7.16.
On 29 September 2016, the Applicant filed an amended application. On 4 August 2016 the Applicant filed a Further Amended Application (Further Amended Application). The Further Amended Application contains 6 grounds of review as follows:
1.The interest of the Applicant is affected by the decision given by the Tribunal on 10 March 2015.
PARTICULARS
(a)By ignoring relevant meterial provided such as passports, requirements for name changes and how I obtained my passport that was presented to get a visa as well as to travel, police clearance certificates, my work rights were lost
2.The Tribunal acted without or in excess of jurisdiction and/or identified wrong issues, asked wrong questions, relied on irrelevant material or ignored relevant material.
PARTICULARS
(a)The Tribunal ignored the name change from SONU BHATTI to ARSHAD MASIH.
(b)The Tribunal ignored information provided in regards to date of births of me and my siblings on official documents, such as passports, prior to any commencement of issues.
(c)The Tribunal ignored that Indian official documents could carry one name only.
3.The applicant was denied natural justice.
PARTICULARS
(a)The Second Respondent made an adverse decision against the claims made by me affirming the decision made by DIBP without considering my visa was cancelled without any prior notice under section 424A(1) were given to me as required by legislation.
(b)The Respondents in particular the Second Respondent questioned me in a fashion that implying in regularly that I was not a credible witness and therefore preventing the Applicant inputting forward my case.
(c)The Second Respondent has given undue weight in finding the failing to provide that the I was known by the names SONU BHATTI than the reasons given to how the omission happen
4.The Second Respondent failed to review and consider the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.
PARTICULARS
(a)The Second Respondent failed to recognise and consider that on official documentation obtained prior to the issue I was one of three siblings that was born on the same year as my biological parents stated.
(b)The Second Respondent failed to recognise and consider that it was common practice to have one name only stated in official documents in India.
(c)The Second Respondent failed to recognise and consider that I had customarily and now officially change my name from SONU BHATTI to ARSHAD MASIH.
5.The Respondents erred in law by failing to exercise the discretion as to whether to cancel the Applicant’s Visa having regard to the prescribed circumstances set out in Regulation 2.41 and instead exercised the discretion by reference to the narrower question of whether the applicant had legally changed her name from Sonu Bhatti to Arshad Masih.
PARTICULARS
The Tribunal fettered its discretion as to whether to cancel the Applicant’s Visa by reference to its finding that the Applicant had provided documents and information which were false and/or misleading by virtue of her failure to legally change her name and documents relied upon by the Applicant consequently being issued with respect to Sonu Bhatti rather than Arshad Masih.
6.The Respondents erred in law by failing to take into account relevant matters in exercise the discretion as to whether to cancel the Applicant’s Visa
PARTICULARS
(a)Failing to consider the lack of reliable information as to the Applicant’s actual date of birth.
(b)Failing to consider dates of births of the Applicant and her siblings recorded on official documents, including the official date of birth of a sibling who attended the Tribunal hearing
(c)Failing to consider the consistency of the Applicant’s account of her likely date of birth with the days when she completed her secondary schooling
(d)Consequently, failing to consider alternative explanations, to lack of forthrightness by the Applicant, for the lack of reliable information as to the Applicant’s Date of Birth
(Without alteration)
As noted above at [5], the Court received the Minister’s Submissions. The Court also received the Applicant’s Contentions of Fact and Law, dated 17 August 2016 (Applicant’s Submissions) and the Minister’s Further Outline of Submissions, dated 19 September 2016 (Minister’s Further Submissions). These written submissions were supplemented by oral submissions at the hearing by Counsel for the Applicant and Counsel for the Minister. The Court has closely reviewed the transcript of the hearing that took place before the Court.
The Court notes that at the hearing Counsel for the Applicant made some reference to the affidavit of the Applicant affirmed 6 April 2015 (Applicant’s Affidavit). The matters in the Applicant’s Affidavit largely appealed to the merits of the Tribunal’s Decision or are reflected in the materials already before the Court. Counsel for the Applicant noted that the Applicant’s Affidavit appeared to contain considerably more information that did not appear to have been put to the Tribunal. On that basis I accept Counsel for the Minister’s submission that the Applicant’s Affidavit is irrelevant and will not consider it.
Consideration
Grounds 1 and 2
At the commencement of the hearing Counsel for the Applicant advised the Court that Grounds One and Two of the Further Amended Application were abandoned[27].
[27] Transcript P3-4.
Grounds One and Two are dismissed.
Ground 3
Particular (a)
The Applicant’s Submissions did not address Ground Three. Counsel for the Applicant advanced a submission at the hearing, that Ground Three was based on Minister for Immigration & Border Protection & Singh [2016] FCAFC 183; (2016) 244 FCR 305; (2016) 71 AAR 169 (Singh). Counsel for the Applicant conceded that Ground Three had not been “pleaded as a Singh point”[28].
[28] Transcript P5, L11.
Counsel for the Applicant relied upon [43] of the Tribunal’s Decision, which stated:
The decision to grant the visa was based wholly on the fact that the applicant was Arshad Masih, born on 12 July 1988. The bogus documents and incorrect information were relied upon by the delegate in considering whether to grant the Bridging visa.
Counsel for the Applicant submitted that the documents referred to in [43] of the Tribunal’s Decision were the subject of a s.375A Certificate[29] (Certificate), which was not disclosed to the Applicant.
[29] CB 77.
Therefore, reference to s.424A(1) of the Act in Particular (a), is not relevant and the appropriate section of the Act is s.359A, as the Tribunal relied on additional documents which were subject of the Certificate.
In this proceeding the Minister filed the Affidavit of Chloe Anne Hillary, affirmed, 20 July 2016 (Hillary Affidavit)[30]. The Hillary Affidavit:
a)Identified the documents which the Minister contends constitute “non-disclosable” information as defined in s.5(1) of the Act, which was notified by way of the Certificate. These documents, apart from the Certificate, were not contained in the Court Book[31].
b)Annexed a copy of the documents supporting the Partner Visa Application, which are indexed in the Court Book, but are not reproduced in the Court Book[32].
[30] Affidavit of Chloe Anne Hillary, filed 20.7.16 (Exhibit R1).
[31] Hillary Affidavit, at [3].
[32] Hillary Affidavit, at [4], Annexure A to Annexure I; CB 2.
Counsel for the Applicant submitted that notwithstanding the assertions made in the Certificate, the documents disclosed in the Hillary Affidavit failed to disclose any public interest immunity. Counsel relied on MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (MZAFZ). Counsel argued that the information contained in the documents, the subject of the Certificate, was never put to the Applicant at the Tribunal Hearing, as it should have been. It was submitted that the Applicant was therefore denied procedural fairness, as she was not provided with the opportunity to address the material in the Certificate. Counsel submitted that the proceeding should therefore be remitted to the Tribunal so that these matters could be fairly addressed by the Applicant[33].
[33] Transcript P6:L1-P7:L17.
The Court does not agree with the submissions made on behalf of the Applicant for two reasons. The first reason is because the Tribunal was not obliged to put the information to the Applicant by reason of s.359A(4) of the Act. Section 359A of the Act provides as follows:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
[…]
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
[…]
In this case the Applicant accepted before the Tribunal that she was Sonu Bhatti and that she was not born as Arshad Masih. The Applicant also accepted that she was not born on 12 July 1988. When before the Delegate, the Applicant accepted that there had been incorrect information provided in the Partner Visa Application. The Delegate’s Decision stated[34]:
[34] Delegate’s Decision, at [21]-[22].
Does these visa holder agree that there was non-compliance? Yes
[21] The visa holder was interviewed at DIBP Melbourne Office level 15, 2, Lonsdale Street on 4 February 2015. During the interview the visa holder acknowledged that she is Sonu Bhatti. The visa holder also offered to provide a letter from her uncle to support her claims. The visa holder stated that her family is poor and her father is a drunk and so her uncle ‘adopted’ her to take care of her.
[22]In a written statement provided by the visa holder she stated that while there was non-compliance she requests that her visa not be cancelled. The visa holder stated that she does not think what she has done is a crime or that it is incorrect. She wants to keep her Australian visa. The visa holder stated that she had not broken the law. The visa holder also stated that she regularly goes to church.
[…]
[27]The visa holder has stated that she is Sonu Bhatti and that she has been using the identity of her cousin, Arshad Masih. The visa holder stated that she does not consider her actions to be a serious matter as she was given permission to use her cousin’s identity by her uncle. The visa holder stated that she has not been in trouble with the law and that she goes to church regularly.
The Applicant’s Statutory Declaration admits the non-compliance and explains the circumstances in which the non-compliance occurred. Again, the Applicant accepts that when she was born she was named Sonu Bhatti[35], that she was not born on 12 July 1988[36] and acknowledges that her cousin is Arshad Masih and that she has acquired her cousin’s name[37].
[35] Statutory Declaration, at [4].
[36] Statutory Declaration, at [3], [5], [7], [11] and [12].
[37] Statutory Declaration, at [10]-[11].
The Tribunal was therefore not required or obliged to put this information to the Applicant because it was not information that undermined or was adverse to the claims that the Applicant made to the Tribunal.
Further, pursuant to s.359A(4)(b) of the Act, the information was information that the Applicant gave for the purpose of the application for review. In Minister for Immigration and Citizenship v Brar & Anor [2012] FCAFC 30 the Full Court was required to consider whether the Tribunal had “given” an applicant information for the purposes of s.359A(a) of the Act. In that case the delegate’s reasons were given by the applicant to the Tribunal. The Full Court said[38]:
We would decide the submission in the appellant’s favour because it seems to us that the information in the Tribunal’s letter is substantially the same as that in the Delegate’s record of decision and, following the decision of Sundberg J Minister for Immigration and Citizenship v Chamnam Yu [2008] FCA 241, the information given to the Tribunal need not be information and applicant relies on. In those circumstances the exception in s 359A(4)(b) applied.
[38] [2012] FCAFC 30, at [74].
Therefore, the fact that that an applicant gives information, regardless of whether they are claiming that the information is true or not, means that information falls within s.359A(4)(b). In this case, the Applicant gave the Tribunal not only the Delegate’s Decision but also the Delegate’s procedural fairness letter, dated 4 February 2015[39] (Delegate’s February 2015 Letter). The Delegate’s February 2015 Letter stated[40]:
The department has information which indicates that you may have entered Australia using another person’s passport and assumed to their identity. You have provided a passport claiming to be Arshad Masih, Date of Birth 12 July 1988. However, investigations undertaken by the Department have led me to conclude that your true identity is Sanu Bhatti (also spelt Sonu) (25/07/1979). The department has found that you have provided a falsified baptism document under the false identity of Arshad Masih from St Mary’s Cathedral church. This document has been confirmed as fraudulent by the church’s parish priest. Records and photos from ‘Government Girls High School, Model Town’, Jalandhar matched the photographs you have provided the department and the identity of Sonu Bala/ Sonu Bhatti on school records. Neighbours and Villagers in [town] also identified you as Sonu Bala/ Sonu Bhatti from photos and passport copies, which you have provided to the Department under the identity of Arshad Masih.
[39] CB 110-113.
[40] CB 110-111.
The Delegate’s February 2015 Letter referred to the information that is referred to at [13] of the Tribunal’s Decision. The Delegate’s February 2015 Letter and the Delegate’s Decision were given to the Tribunal by the Applicant. The Tribunal was therefore not required to give this information back to the Applicant by reason of s.359A(4)(b) of the Act.
The Court now turns to the second reason that it does not agree with Counsel for the Applicant’s submission.
The Certificate was issued pursuant to s.375A of the Act. Section 375A of the Act provides as follows:
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2)If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
The Certificate was issued on the basis that the folios contained information that would be “contrary to the public interest” because[41]:
a)They contained “evidence of departmental avenues of enquiry, the release of which could hamper the department in its lawful investigation of possible breaches of Migration law”.
b)They contained “evidence of departmental avenues of enquiry, also information relating to third parties and some information given in confidence, the release of which could hamper the department in its lawful investigation of possible breaches of Migration law”.
[41] CB 77.
The Certificate also included a requirement that the Tribunal:
[…] must do all things necessary to ensure that the document or information is not disclosed to any person other than to a member of the Tribunal as constituted for the purposes of this particular review, pursuant to s.375A(2)(b) of the Migration Act 1958.
As noted at [46] above, Counsel for the Applicant submitted that notwithstanding the Certificate and the Hilary Affidavit, the documents disclosed did not disclose any public interest immunity. Counsel for the Applicant relied on MZAFZ, in support of this submission.
The Court relies on the decision in CHZ19 v Minister for Home Affairs [2019] FCA 914, where Colvin J said[42]:
[42] CHZ19 v Minister for Home Affairs [2019] FCA 914, at [4].
46.Section 375A applies to a document or information if the Minister has certified that disclosure of any matter in the document would be contrary to the public interest ‘for any reason specified in the certificate’ and has stated that the document or information must only be disclosed to the Tribunal. In such a case the Secretary must notify the Tribunal that s 375A applies to the document or information and the Tribunal must ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the particular review.
47.In this case the reason specified in the s 375A certificate as notified to the Tribunal by the Secretary was:
[the documents] contain departmental investigative methods, disclosure of which would be prejudicial to future investigations.
48.The appellant relied upon the decision in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [37] to support the claim that the certificate was ‘ex facie invalid’. MZAFZ concerned a certificate issued under s 438. Although s 438 has some similarities to the certificate process under s 375A, there are important differences. Section 438 provides that it applies if the Minister has certified non‑disclosure ‘for any reason specified in the certificate … that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed’. The reference to a claim in judicial proceedings was an important part of the basis for a conclusion by Beach J that the language required a claim to be made in terms that would support a proper claim to public interest immunity. In MZAFZ the reason specified was ‘contains internal working documents’.
49.However, s 375A refers to disclosure being ‘contrary to the public interest for any reason specified in the certificate’. No argument was advanced as to why the description referring to investigative methods and prejudice to future investigations was not a sufficiently specific reason as to why disclosure was contrary to the public interest. Even assuming that MZAFZ applied, the present case is not analogous. Disclosure of investigative methods is a proper basis to claim public interest immunity. As that was the only contention advanced to support the ground as being arguable, the proposed appeal ground lacks merit insofar as it alleges that the s 375A certificate was invalid.
The Certificate included the matters noted at [57] and [58]. No argument was advanced by Counsel for the Applicant as to why the description of the matters in [57] and [58] was not a sufficiently specific reason as to why disclosure was contrary to the public interest. The Court finds that MZAFZ is not relevant insofar it concerns the Certificate. The Court finds the Certificate to have satisfied s.375A(1)(a) and (b) of the Act.
The Certificate was not however disclosed to the Applicant in the course of the Tribunal’s review. In 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, it was stated at [2]-[4]:
2.The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
3.The Full Court was also correct to take the view that an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome.
4.Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof. The Full Court was correct to hold in CQZ15 that evidence of the content of notified information can be relevant to the determination of materiality and can on that basis be admissible in such an application. The Full Court was also correct to find on the evidence adduced in BEG15 that the undisclosed and incorrect notification in that case was immaterial. The undisclosed and incorrect notification in SZMTA was similarly immaterial and did not result in jurisdictional error.
The breach of procedural fairness by the Tribunal in failing to disclose the Certificate to the Applicant prevented the Applicant from arguing that the Certificate was invalid. The Applicant has however made no challenge to the validity of the Certificate before the Court or sought discovery of the underlying documents. The Applicant became aware of the Certificate from at least the time the Court Book was filed. Orders made on 22 July 2015 Ordered that the Court Book to be filed by 5 August 2015.
The Court finds that there has not been a material breach of procedural fairness constituting jurisdictional error by reason of the Tribunal failing to disclose the Certificate.
Particular (b)
The Applicant’s Submissions did not address the allegation made in Ground 3, Particular (b). Counsel for the Applicant made no submission to the Court in relation to the allegation. The Applicant has not submitted any evidence to the Court as to the manner in which the Tribunal “questioned” the Applicant.
An apprehension of bias is to be determined objectively by the Court and must be “firmly established”, distinctly made and clearly proved: Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 (Hot Holdings) at [68] (Mc Hugh J); Re JLR; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J); SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (SZRUI) at [22] (Flick J). Further, “robust and vigorous questioning” by a decision-maker will not on its own sustain a finding of apprehended bias: SZRUI, [4] (Allsop CJ) at [32]-[33] (Flick J) and [87] (Robertson J).
In this case, the Tribunal’s hearing was in the context of an inquisitorial decision-making regime under the Act. It follows that it can be expected that the Tribunal:
a)Would not accept the Applicants’ evidence uncritically (a matter known by the hypothetical observer): Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, 254 at [134] (Kenny J).
b)Would test the evidence given by the Applicant, even robustly, to determine the weight that should be given to it: Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312 at [14] (Sundberg J); SZRUI at [4] (Allsop CJ) at [24]-[33] (Flick J) and [87] (Robertson J).
c)Would confront the Applicant with matters that brought her account into question: Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425, 435 at [30]-[31].
d)Would ask the questions about matters that are troubling the Tribunal and express doubt about the Applicant’s evidence: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [19].
In the absence of a clearly articulated claim of bias made against the Tribunal Member (Hot Holdings) the Court finds no jurisdictional error made out in relation to this allegation.
Particular (c)
The Applicant’s Submissions did not address the allegation made in Ground 3, Particular (c). Counsel for the Applicant made no submission to the Court in relation to the allegation.
The Court is unable to understand this allegation. The Tribunal was entitled to place weight on evidence that the Applicant had provided incorrect information in deciding whether there were non-compliances that attracted the operation of s.109 of the Act. Further, the Tribunal considered all of the prescribed circumstances in exercising its discretion under s.109. The Court refers to [73]-[80] below. The Court finds no jurisdictional error made out in relation to this allegation.
Accordingly, Ground Three is dismissed.
Ground 4
At the commencement of the hearing, Counsel for the Applicant advised the Court that Ground Four of the Further Amended Application was also abandoned[43].
[43] Transcript P3-4.
Ground 4 is dismissed.
Ground 5
The Applicant contends in Ground 5 that the:
Respondents erred in law by failing to exercise the discretion as to whether to cancel the Applicant’s Visa having regard to the prescribed circumstances set out in Regulation 2.41 […]
The Court does not have jurisdiction to review the Delegate’s Decision. Insofar as the Applicant purports to seek to review the Delegate’s Decision, that decision is a “primary decision” within the meaning of s.476(4) of the Act, in relation to which the Court does not have jurisdiction pursuant to s.476(2)(a) of the Act.
The Court disagrees with the Applicant’s contention that the Tribunal failed to have regard to the prescribed circumstances set out in reg.2.41, and instead focused upon the question of whether the Applicant had legally changed her name from Sonu Bhatti to Arshad Masih when exercising its discretion.
The Tribunal identified the relevant regulation and summarised the prescribed circumstances[44]. It then referred to each of the prescribed circumstances and considered them in [41] to [54] of the Tribunal’s Decision.
[44] CB 197, at [39].
The Court has considered the Applicant’s Submissions in relation to this Ground, in which it is contended that [26], [28], [41] and [58] of the Tribunal’s Decision disclose jurisdictional error[45].
[45] Applicant’s Submissions, at [6].
The reliance upon [26] and [28] of the Tribunal’s Decision is misplaced. These paragraphs are located in that part of the Tribunal’s Decision which addresses the anterior question of whether the Applicant provided an “incorrect” answer to a question in the Partner Visa Application form for the purposes of s.103 of the Act. It was appropriate for the Tribunal to have regard in these paragraphs to evidence of the Applicant’s legal name of Sonu Bhatti in this context. That evidence demonstrated that the Applicant had in fact answered a question on the Partner Visa Application form incorrectly, when she said that her name was Arshad Masih.
The reliance upon [41] of the Tribunal’s Decision is also misplaced. At [41], the Tribunal addresses one of the circumstances prescribed by reg.2.41, being “the correct information”. Again, it was appropriate for the Tribunal to have regard in this paragraph to evidence regarding the Applicant’s legal name. That was because the “correct” answer to the question in the Partner Visa Application form asking the Applicant to identify her name was, clearly, her legal name.
The Tribunal’s finding at [58] had a firm evidentiary foundation. The Applicant admitted that she “was born Sonu Bhatti and has never legally changed her name legally to Arshad Mashi”[46]. The evidence demonstrated that, despite the fact that the Applicant knew that her legal name was Sonu Bhatti, the Applicant procured various official documents in the name of Arshad Masih before coming to Australia in 2008[47]. The Tribunal was entitled to be concerned by this behaviour and to take it into account when deciding whether to exercise its discretion whether to cancel the Applicant’s Bridging Visa.
[46] CB 196, at [28].
[47] CB 53, 71, 196, at [28].
The Applicant has also asserted that the Tribunal “failed to properly address relevance of her contentions as to consistency of the best information available to her as to her date of birth with official schooling records, in the context of lack of more reliable information due to factors beyond her control”. The Applicant refers to paragraphs [17], [21] and [22] of the Tribunal’s Decision[48]. These paragraphs are also located in that part of the Tribunal’s Decision which addresses the anterior question of whether the Applicant provided an “incorrect” answer to a question in the Partner Visa Application form for the purposes of s.103 of the Act.
[48] Applicant’s Submissions, at [9].
In the Partner Visa Application, the Applicant stated her date of birth to be 12 July 1988. However the Applicant admitted to the Tribunal that 12 July 1988 was not her date of birth and that she was older than her cousin Arshad Masih[49]. The Tribunal expressly made no finding about what the Applicant’s date of birth was. It did not need to. Having regard to the Applicant’s admission that 12 July 1988 was not her date of birth, it was open to the Tribunal to conclude that the Applicant had therefore incorrectly answered the relevant question in the Partner Visa Application form.
[49] CB 196, at [30].
In the part of the Tribunal’s Decision which addresses the ultimate question of whether to exercise its discretion to cancel the Applicant’s Bridging Visa, the Tribunal did not focus on the issue of the Applicant’s date of birth. The Tribunal noted the Applicant’s claim not to know her date of birth[50]. However, the Tribunal was “particularly concerned” that the Applicant had, despite knowing that she had never legally changed her name from Sonu Bhatti to Arshad Masih, “gone to extraordinary lengths to establish her identity as Arshad Masih”[51]. The Tribunal also had “serious concerns” about the truthfulness of the Applicant’s evidence[52].
[50] CB 200, at [58].
[51] CB 200, at [58].
[52] CB 200, at [58].
The Applicant has failed to identify any jurisdictional error made by the Tribunal arising from Ground 5. Ground 5 is dismissed.
Ground 6
Particulars (a) to (c)
Ground 6 overlaps with part of Ground 5, addressed at [82] to [84] above.
For the reasons addressed above, as a result of the Tribunal’s Decision, it was not necessary for the Tribunal to engage in an examination to determine the precise date of the Applicant’s birth. The Applicant’s contention that the Tribunal’s Decision at [30] “impermissibly foreclosed reasonable speculation on truthfulness of the Applicant’s claims as to the date of her birth, in the absence of any evidence of more reliable information” is misconceived[53].
[53] Applicant’s Submissions, at [11].
Contrary to the Applicant’s allegation in Particular (a) that the Tribunal failed to consider “the lack of reliable information as to the Applicant’s date of birth”, the Tribunal clearly accepted this evidence and did not make a finding as to the Applicant’s precise date of birth[54].
[54] CB 196, at [30].
The Applicant has failed to identify any jurisdictional error made by the Tribunal arising from Ground 6. Ground 6 is dismissed.
Conclusion
The judicial review application has not identified any jurisdictional error.
The Further Amended Application is dismissed.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 10 June 2020
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