Ntokos v Minister for Immigration (No.2)
[2020] FCCA 321
•18 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NTOKOS v MINISTER FOR IMMIGRATION (No.2) | [2020] FCCA 321 |
| Catchwords: MIGRATION – Electronic Travel Authority (subclass 601) visa – five grounds of review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.101, 116(1)(d), 120 |
| Cases cited: AVQ15 v Minister for Immigration (2015) 361 ALR 227 |
| Applicant: | ALEXANDROS NTOKOS |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | MLG 241 of 2020 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 11 February 2020 |
| Date of Last Submission: | 11 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 18 February 2020 |
REPRESENTATION
| Counsel for the applicant: | Mr Maloney |
| Solicitors for the applicant: | Clothier Anderson & Associates |
| Advocate for the respondent: | Mr Brown |
| Solicitors for the respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application filed 22 January 2020 as amended on 4 February 2020 be dismissed.
Order 1 of the orders made on 24 January 2020 be discharged.
The applicant pay the respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 241 of 2020
| ALEXANDROS NTOKOS |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The court has before it an application for judicial review of a decision of a delegate of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”) to cancel the applicant’s Electronic Travel Authority (“ETA”) (subclass 601) visa.
Background
The factual issues in this matter are not significantly in dispute.
The applicant was born in Albania on 20 January 1992, named Aleksander Doko. He holds Albanian citizenship, and until 2019, held an Albanian passport.
The applicant moved to Athens with his parents when he was very young, and completed his schooling in Greece.
On 7 July 2011, at the age of 19 years, the applicant completed and signed an application for a Tourist (Class TR) (Subclass 676) visa, which was lodged with the Department's offices in Athens. A delegate of the Minister refused this visa on 28 July 2011. The applicant claims to have limited knowledge about this visa application.
The applicant became a citizen of Greece on 12 November 2019. He changed his name to 'Alexandros Ntokos' whilst making an application for a Greek passport, which was issued on 10 January 2020.
On 14 January 2020, the applicant applied for a Subclass 651 eVisitor visa (“the eVisitor visa application”). When completing the eVisitor visa application, he used his Greek passport details, and when asked whether he held any citizenship other than that detailed in the passport, he failed to declare his Albanian citizenship. Further, when completing the eVisitor visa application, he was asked whether he had ever been known by any other name, which could include an alias, or an alternative spelling to any of his names to which he answered "no".
The eVisitor visa application form contained the following question:
If you hold citizenship of any countries other than the country listed in your passport, provide details.
…
Are you currently, or have you ever been, known by any other names?
These may include:
·names before marriage;
·aliases or any alternative spelling in any of your names;
·patronymic name (if a Russian citizen)
·full spelling of initials of names included in your passport.
No answer appears to have been provided to the first question and the second question was answered ‘No’.[1]
[1] See annexure JDB-1 to the affidavit of John David Brown affirmed 24 January 2020, pages 36 and 37.
After a day or so, the applicant made enquiries with the Department about the processing of the eVisitor visa application, and was told the details of the application were being checked, and he would have to wait.
On 17 January 2020, the applicant gave his Greek passport to the travel agent for whom he had previously worked, and the travel agent applied for a Subclass 601 ETA visa on behalf of the applicant (“the ETA visa application”). The ETA visa application also failed to declare that the applicant held Albanian citizenship, and that he had formerly been known by an alias.[2]
[2] Annexure JDB-1 to the affidavit of John David Brown affirmed 24 January 2020, page 1.
On 20 January 2020, the applicant arrived at Melbourne (Tullamarine) Airport aboard Singapore Airlines flight SQ207. Upon arrival, the applicant was interviewed by an officer of the Australian Border Force (“the ABF”). Subsequent to that interview, the applicant was provided with a notice of intention to consider cancellation under section 116(1)(d) of the Migration Act 1958 (Cth) (“the Act”) (“the NOICC”).[3]
[3] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020.
The NOICC provided that the specifics of the ground for cancellation were as follows:
a)section 101 of the Act requires that a person applying for a visa must not provide incorrect answers;
b)the applicant had been asked in the ETA visa application if he had any other citizenship or had formerly been known by an alias, and the response to both of these questions was ‘no’;
c)in his interview with the ABF officer, the applicant was asked if he was known by any other names and had answered ‘no’, but later disclosed to the ABF officer that he had changed his name at or about the time he applied for Greek citizenship;
d)in his interview with the ABF officer, the applicant also advised that he was also an Albanian citizen; and
e)based on this information, it appeared that a ground for cancellation existed under section 116(1)(d), as the applicant had provided incorrect information in the ETA visa application form.
The applicant participated in a series of interviews with Border Force personnel between 8:52pm on 20 January 2020 and 2:13am on 21 January 2020. The applicant was provided with the assistance of an interpreter during these interviews. Importantly, the transcript of the Border Force interview[4] indicates that the applicant was provided with a copy of the NOICC at or about 11:33pm on the evening of 20 January 2020 and the terms of the NOICC were explained to him over the course of some 20 minutes. The applicant was then invited to consider the NOICC and to provide any comments regarding NOICC. The applicant was given approximately 16 minutes to provide any comments.[5]
[4] Annexure JDB-1 to the affidavit of John David Brown affirmed and filed 10 February 2020.
[5] Annexure JDB-1 to the affidavit of John David Brown affirmed and filed 10 February 2020, pages 19 to 20.
The meeting with Border Force then reconvened at 12:10am on 21 January 2020 at which time the applicant provided his responses to the NOICC. After considering the applicant’s responses, the interview was reconvened at 2:01am on 21 January 2020 at which time the applicant was advised that a delegate of the Minister had decided to cancel his visa under section 116(1)(d) of the Act.
It is common ground that:
a)the interviews with the applicant all occurred at Melbourne (Tullamarine) Airport; and
b)the interviews were largely conducted via an interpreter.
On 22 January 2020, the applicant filed the present application for judicial review, seeking review of the delegate's decision to refuse the visa.
An amended application was filed on 4 February 2020 which is the subject of this proceeding. The applicant asserts five grounds of review in his amended application which are set out and considered below.
The delegate’s decision
The delegate’s reasons to cancel the applicant’s visa are set out in Part B of Form 1111.
The delegate was satisfied that her power under section 116(1)(d) of the Act was enlivened, as the applicant’s visa would have been liable for cancellation under Subdivision C, by virtue of breaching section 101 of the Act, which requires that 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.
This breach was put to the applicant in the NOICC.
The delegate noted that the applicant had argued that he did not understand the question in the eVisitor visa application and that he was under the impression he only needed to complete the form in accordance with his new passport’s details.
The delegate found that the applicant had two occasions on which to provide the information relating to his name, being the ETA visa application and the eVisitor visa application, and that the question regarding previous names was ‘clear and comprehensive’.[6]
[6] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 7.
The applicant was provided with some, albeit admittedly limited, time to consider the NOICC, and his response was recorded and taken into consideration by the delegate in making her decision.
Having weighed a set of considerations bearing on her exercise of the available discretion, the delegate decided to cancel the visa.
The applicant’s claims
The applicant claims that the delegate’s reasons for decision demonstrate errors in numerous respects. By his amended application filed 4 February 2020, the applicant raised five grounds of review.
Ground one
The first ground of review is:
The Delegate fell into jurisdictional error by making the cancellation decision unreasonably, and/or failing to consider the merits of the Applicant’s case, in that she did not take into consideration that the error in his visa application which gave rise to the cancellation decision was the product of an accidental misunderstanding on the Applicant’s part, and that he had been honest in his dealings with the Department.
Particulars
The Applicant explained in interview with the Delegate that he had not provided details of his former citizenship, including the former spelling of his name, because he believed he was required to provide only the particulars in his current passport.
The Delegate’s reasons in the Notice of Intention to Consider Cancellation indicate that she did not take the Applicant’s innocent inadvertence into account in exercising the discretion to cancel his visa. In particular, she did not consider that circumstance in the course of considering extenuating circumstances and whether the Applicant had been honest in his dealings with the Department.[7]
[7] Applicant’s amended application filed 4 February 2020, page 3 at paragraph 1.
In support of this ground, it was submitted that the delegate does not engage meaningfully with the applicant’s explanation for his failure to provide details of his name and citizenship prior to obtaining a Greek passport; namely that the applicant was under the mistaken belief that he was only required to provide details as per his Greek passport.
The applicant pointed to the fact that at the top of page 6 of the NOICC, in response to the heading ‘Client circumstances in which the ground for cancellation arose (whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing)’, the delegate said:
Mr NTOKOS commented on the circumstances in which the ground for cancellation arose, claiming that he had provided the details in his visa application according to his current passport.
Mr NTOKOS stated that he has all the documents available to prove his name change, however he has not made an attempt to provide the documents. In fact, when asked whether he had documents to prove his name change during interview, he stated he did not as it was done through the Greek police.
As such I give some weight in favour of visa cancellation.[8]
[8] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 9.
It was further submitted that the delegate did not give proper consideration to the applicant’s explanation for the reason why he failed to disclose his original name and his Albanian citizenship and that this was ‘not a product of any dishonesty on his part’[9], but rather a result of an honest misunderstanding on his part about what the question required.
[9] Applicant’s written submissions filed 4 February 2020 at paragraph 14.
It was submitted that the delegate’s failure to engage with the applicant’s innocent explanation for the oversight was illogical, or constituted a failure to consider the merits of the applicant’s case.
At the hearing before me, it was further submitted on behalf of the applicant that his consistent position was that he had inadvertently and innocently failed to disclose his previous name, and it was not his intention to mislead. So much, it was said, is clear from the transcript of the interviews with the applicant on 20 and 21 January 2020. It was argued that the delegate failed to understand this claim by the applicant.
In support of his submission, the applicant’s counsel pointed to the reasons identified at item 8 of Part B of Form 1111 which requires the delegate to set out a summary of the reasons the visa should not be cancelled.[10] It was submitted that nowhere in that list was reference to the explanation given by the applicant that he misunderstood the question asked of him regarding previous names and other citizenships.
[10] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 8.
Similarly, it was said that at item 9 which requires the delegate to set out their assessment of the reasons the visa should not be cancelled, there was no mention of the applicant’s explanation that he had misunderstood the questions asked of him for information about his previous name and other citizenship.[11]
[11] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 9.
The applicant conceded that reference was made to the circumstances in which he completed the visa application based on his current passport. However, it was submitted that this is no more than a high level recitation of the applicant’s claim.
It was submitted that the applicant’s explanation as to why he completed the application form incorrectly and did not provide details of his previous name and Albanian citizenship was central to his case for arguing his visa ought not be cancelled. In failing to engage with this issue, it was submitted that the delegate’s reasons disclose a jurisdictional error.
In support of this ground, the applicant relied upon Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (“Carrascalao”), AVQ15 v Minister for Immigration (2015) 361 ALR 227 and TicknervChapman [1995] FCA 1726 (“Tickner”).
The Full Court of the Federal Court in Carrascalao considered a similar argument that the Minister had failed to give proper, genuine and realistic consideration to the merits of the case in determining whether to cancel a visa under section 501(3) of the Act. The court said:
The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decision… The court acknowledges that an expression such as ‘proper, genuine and realistic consideration’ can, if taken out of context, encourage a ‘slide’ into an impermissible merits review… (emphasis in original)[12]
[12] Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [32].
The court went on to consider the origins of the phrase ‘proper, genuine and realistic consideration’ and noted that in determining whether such consideration had been given to the relevant matters, ‘limits of the judicial review function still need strictly to be observed.’[13]
[13] Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [33].
However, the court said that on the facts before it, the argument advanced was that, in determining whether to exercise his power under section 501(3), the Minister:
was under a legal obligation to consider the merits of their particular cases and that such consideration had to be meaningful, in the sense of being ‘proper, genuine and realistic’ …we consider that the evaluative judgment which the Court must undertake in assessing whether the Minister has properly considered the merits of the cases before him requires focus on the question of whether the applicants have established that the Minister did not engage in an active intellectual process in determining whether or not to exercise his power under s 501(3) of the Act.[14]
[14] Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [35].
The Court also had regard to a number of other cases in which the requirement to ‘consider’ certain matters was the subject of judicial consideration. In particular, for relevant purposes, the court had regard to the decision and reasoning in Tickner.[15]
[15] Another decision relied upon by the applicant in this case.
It is clear from these authorities that the obligation to ‘consider’ will depend on the statutory context in which the relevant decision is being made. However, as noted in Carrascalao:
44.As is evident from the extracts above, both Black CJ and Kiefel J took a similar view of the meaning of the word ‘consider’ in Tickner v Chapman. Although their Honours used different language in explaining the meaning of the word ‘consider’ in that context, the common denominator is that the decision-maker must engage in an active intellectual process in giving consideration to the relevant matters or criteria.
45.Subsequent cases have endorsed the principle that when a decision-maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed at that claim or criteria… This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised ‘minutely and finely with an eye keenly attuned to the perception of error’…[16]
[16] Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [44]-[45].
In response, it was submitted on behalf of the Minister that this ground seeks no more than impermissible merits review. The Minister submitted that the delegate did take into account the applicant’s explanation for having provided incorrect information in both his ETA visa application and eVisitor visa application, but ultimately did not accept that reason.
I am satisfied that on a fair reading of the delegate’s reasons as set out in Part B of Form 1111, when read as a whole, the delegate did have regard to, in the sense that she gave active intellectual consideration to, the applicant’s explanation of the reason for not having provided information about his previous name or his Albanian citizenship.
In particular:
a)on page 3 of the NOICC, the delegate recorded:
Mr Ntokos disputed the grounds for visa cancellation as he stated that he did not understand the question asked in the visa application, and was under the impression that he was required to complete the application form according to his new passport details.[17]
b)on page 4 at item 7, the delegate recorded:
In response to the Notice of Intention to Consider cancellation, Mr NTOKOS disputed the grounds for cancellation as he stated that he did not understand the question asked in the visa application, and was under the impression that he was required to complete the application form according to his new passport details.
I acknowledge that Mr NTOKOS is disputing the grounds for cancellation. However Mr NTOKOS had the opportunity to provide the information relating to his previous name on two occasions; his subclass 601 and a subclass 651 visa which was refused. I note that the question regarding previous names in the subclass 651 visa is clear and comprehensive with details of what constitutes ‘any other names’. Mr NTOKOS declared ‘NO’ to this question.[18]
[17] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 5 under the title ‘grounds for cancellation’.
[18] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 7.
Ground one – consideration
The applicant’s submission in relation to ground one relies on a particularly technical reading of the reasons for the delegate’s decisions in Part B of Form 1111. In essence, the argument relies on the absence of any reference to the applicant’s explanation that he did not properly understand the question asked regarding previous names and other citizenships in item 8 of Part B of Form 1111.
A fair reading of that document in its entirety makes it clear that the delegate did consider the applicant’s reasons for not disclosing his previous name and his Albanian citizenship. So much is clear from the analysis at item 7 of Part B. Moreover, it is evident from the delegate’s comments at item 7 that it had regard to the fact that the applicant disputed the grounds for cancellation on the basis of his misunderstanding of the question about previous names and citizenship. It is also clear that the delegate did not accept this as a reasonable explanation as the applicant had been given the opportunity to provide that information on two previous occasions and had failed to do so.
The findings made at item 7 are to be read in conjunction with the delegate’s findings elsewhere in Part B of Form 1111. It is an artificial reading of the delegate’s reasons to consider items 8 and 9 in isolation from the findings at item 7.
The applicant’s application under this ground rises no higher than seeking impermissible merits review. Ground one is therefore not made out.
Ground two
The second ground of review is:
The Delegate’s decision was unreasonable or illogical, and/or the Delegate failed to afford the Applicant procedural fairness, in that in the exercise of her discretion to cancel the Applicant’s visa, the Delegate afforded weight adverse to the Applicant to the fact that the Applicant did not have the material to prove that he had changed his name, and to the Delegate’s view that the Applicant had initially indicated that he did have such material. However, the Applicant made no such assurance, and nor was it reasonably open to expect him to have or present such material.
Particulars
The Delegate gave adverse weight to the fact that the Applicant ‘stated that he has all the documents available to prove his name change’, but ‘has not made an attempt to provide the documents’, and ‘when asked whether he had the documents to prove his name change during interview, he stated he did not as it was done through the Greek police’. (See ‘Client circumstances in which the ground for cancellation arose (whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing’.)
However, the Applicant’s statement that ‘I’ve got all the documents required. Everything at your disposal’, in circumstances where he was detained at the airport and had not been previously aware of the discrepancy in his application, could not reasonably have been understood as indicating that he had the documents required to prove his name change in his possession at that time. (See page 20 of the transcript of the Applicant’s interview with the Delegate.)
Nor, in the circumstances—i.e., the interview taking place over night at Melbourne Airport, the Applicant being provided with ‘about ten minutes’ to comment on the Notice of Intention to Consider Cancellation, and the Applicant being prohibited from contacting his family members—could the Applicant have been reasonably expected to obtain or provide such evidence. (See pages 11 and 18 of the transcript of the Applicant’s interview with the Delegate.)[19]
[19] Applicant’s amended application filed 4 February 2020, pages 3 and 4 at paragraph 2.
This ground relies upon the argument that the delegate’s adverse finding was based partly on the fact that the applicant did not have documents which proved his change of name was unreasonable in the sense contemplated in Minister for Immigration v Li [2013] 249 CLR 332 (“Li”) sense, available to him at the time of interview. It was argued that this occurred in circumstances where the applicant had travelled to Australia on his Greek passport and had, until the interview was conducted, no reason to believe that he was required to carry such documents with him.
It was further submitted that the delegate’s conclusions in this regard were also unreasonable in circumstances where the delegate did not give the applicant any opportunity to obtain the documents. It is clear from the transcript that:
a)in the initial part of the interview, the applicant asked to call his family and this request was refused; and
b)the applicant was not advised that there was an apparent inconsistency between his statement that he had the documents available and his earlier statement that the Greek police had all the relevant documents relating to his name change.
It was submitted on behalf of the applicant that nothing in what the applicant said during his interview could properly be interpreted as meaning that he had the documents relating to his name change with him.
Furthermore, it was submitted that in circumstances where the interview with the applicant was conducted at Melbourne (Tullamarine) Airport late in the evening where the applicant was only provided with ‘about 10 minutes’ to comment on the NOICC, the delegate’s decision to place adverse weight on the applicant’s failure to produce the documents which evidence his change of name was patently unreasonable, illogical and failed to afford the applicant procedural fairness. It was argued that the applicant was given no opportunity to explain any apparent inconsistency between those two statements, even if it was accepted that a discrepancy existed.
It was therefore submitted on behalf of the applicant that the delegate’s decision constitutes a grave instance of irrational or unreasonable decision making and a denial of procedural fairness.
As noted in Li by Hayne, Kiefel and Bell JJ:
Unreasonableness is a conclusion which may be applied to a decision which may be applied to a decision which lacks an evident and intelligible basis.[20]
[20] Minister for Immigration v Li [2013] 249 CLR 332 at [76].
In relation to the procedural fairness argument, the applicant relied upon the decision of Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 (“Lam”) in which Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ said:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[21]
[21] Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37].
In Lam, the applicant had been notified of the Minister’s intention to cancel his visa and was invited to make submissions in response. In the course of making submissions, he stated that he had two young children who were Australian citizens and that their best interests would be damaged if his visa was cancelled. In support of this submission, he attached a letter from his children’s carer. The Department then asked for the contact details of the carer and indicated that they wished to contact the carer to assess the impact of the cancellation of the applicant’s visa on the children. Ultimately, no such contact was made and the applicant’s visa was cancelled.
The applicant in Lam challenged the cancellation on the basis that the Department did not ultimately contact the children’s carer when it indicated it would do so. It was argued in that case that the Department’s failure to follow a process as indicated resulted in unfairness to the applicant. The majority in Lam concluded:
No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention… And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant’s children.[22]
[22] Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [38].
The applicant also referred the court to the decision of the High Court in Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Miah [2001] HCA 22 (“Miah”) in which Gaudron J said:
The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her.[23]
[23] Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Miah [2001] HCA 22 at [99].
It was submitted that these comments ‘does no more than highlight the inadequacy of the opportunity given to the applicant to meet the case put against him.’
With respect, I do not accept that submission.
In Miah, the applicant’s application for a protection visa was denied by reference to events which occurred after the application was made, including the holding of elections and a change of government in Bangladesh. The applicant was not invited to make any submissions in relation to those further events. I refer to the following comments of Gaudron J:
In the present case, the delegate did not simply reject the claims made by Mr Miah. Indeed, he barely considered them. Rather, he had regard to the recent elections and change of government in Bangladesh and drew inferences from limited and, to some extent, equivocal information which he seemed to think rendered Mr Miah’s claims virtually irrelevant. A question, thus, arose whether… he should have been invited further information or submissions from Mr Miah to ensure procedural fairness.[24]
[24] Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Miah [2001] HCA 22 at [98].
Applying this to the present facts, the applicant was put on notice of the matters that he was to respond to when given the NOICC, which was explained to him. He was given an opportunity to consider the matters contained therein and provide responses to those matters, which he did. Those responses were taken into account by the delegate.
Finally, the applicant relied upon paragraphs [26] to [28] of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133. It was submitted that the Full Court’s reasoning in these paragraphs exalts decision makers to ‘avoid careless or casual imputations of inconsistency’. Here, it was submitted that the circumstances in which the applicant’s evidence was given, the timing of the evidence and the fact that evidence was given through an interpreter all count against a finding that there was any inconsistency in the evidence given by the applicant.
In response, it was said on behalf of the Minister that the delegate’s summary at item 9 of Part B of Form 1111, was reasonably open to her and disclosed no practical injustice to the applicant. It was further submitted that the delegate’s comments were simply a reflection of the information provided by the applicant in the course of the interview.
The transcript of the interview(s) conducted with the applicant on 20 and 21 January 2020 reveals that just prior to the end of the first part of the interview at about 9:45pm, the following exchange occurred:
BFO:Can I ask you, your name it doesn’t sound Albanian, I’m just going to be very honest. Your name.
App:I had Doko Aleksander, I had it in Albanian passport.
Interp:That was the name he had in the Albanian passport, the one he just said.
…
BFO:How did you come up with this name, why did to (sic) change it to this?
Interp:Because I was Greek and I didn’t like that name, so I made it Alexandros.
BFO:But how do you get from that to this? That’s a completely different person. Where’s your certificate to say you’ve changed your name?
Interp:It would be with the Greek Police that change, that’s where it would be, in the passport as well.
BFO:I’m going to have to suspend the interview. OK.[25]
[25] Annexure JDB-1 to the affidavit of John David Brown affirmed and filed 10 February 2020, page 13.
The only other reference to this issue up until this point of the interview was the opening exchange in the following terms at the very commencement of the interview:
BFO:Have you been known by any other names?
Interp:No, just the old passport I had.[26]
[26] Annexure JDB-1 to the affidavit of John David Brown affirmed and filed 10 February 2020, page 2.
In the second interview which occurred at 10:11pm, the following exchange occurred in relation to the issue of the applicant’s name:
BFO:You know in your visa application that was refused, there is a question that actually asks you have you ever been known by any other name, including if your name is spelt differently? Why did you not provide the Department with your previous Albanian name?
Interp:What is that you are talking about, the fact that I’m saying I can’t remember?
BFO:No I’m asking you… Aleksander Doko that’s very different to you being Alexandros Ntokos. In your application that you lodged yourself…
App:Now?
BFO:Yes, now. You had a question that said, have you ever had a different name or different spelling of your name or different variation of your name?
App:In which …
BFOThe one that you said you called the embassy and there was no answer and then you applied for the other visa. Your first visa.
App:Now, before one week.
BFO:You did not provide the Department with your previous name.
App:Because it’s finished.
BFO:Yes, but that doesn’t mean you never existed under this name?
App:I didn’t know this.[27]
[27] Annexure JDB-1 to the affidavit of John David Brown affirmed and filed 10 February 2020, page 15.
The interview then continued and the applicant said that he was not trying to hide anything and had proof of his Albanian passport.
In the third interview which commenced at 11:33pm, the applicant was handed the NOICC and its contents were explained to him. In the course of that explanation, the Border Force Officer said, among other things:
BFO:During a formal interview with an ABF officer you were asked whether you had ever been known by any other names. You initially stated ‘no’.
However, you later provided the following information when questioned again if you had previously been known by any other names…[28]
[28] Annexure JDB-1 to the affidavit of John David Brown affirmed and filed 10 February 2020, pages 17 to 18.
When asked if he had any questions, the applicant said:
Interp:I can’t understand when you say I’ve got false details, in regards if I had another name, because I had this recent passport – my old one had expired – and I used the details from the current passport, and gave you the answers when asked. That’s what I can’t understand.[29]
[29] Annexure JDB-1 to the affidavit of John David Brown affirmed and filed 10 February 2020, page 19.
The third interview was suspended at 11:54pm.
It was against this context that the applicant said in the fourth interview, in the course of providing his response to the NOICC:
Inter:I’m not here to trick you, in regards to the name I did not understand the question. I’ve got all the documents required. Everything at your disposal.[30]
[30] Annexure JDB-1 to the affidavit of John David Brown affirmed and filed 10 February 2020, page 20.
Having regard to the transcript of the interview in its entirety, the findings contained in Part B of Form 1111 do not disclose any unreasonableness or denial of procedural fairness as claimed. Having regard to the responses provided by the applicant, through an interpreter, it was open to the delegate to give some weight to the explanation given by the applicant for his failure to correctly provide details of his previous name and Albanian citizenship in favour of cancellation.
I am satisfied that the delegate’s findings at item 9 on page 6 of Form 1111 that:
Mr NTOKOS stated that he has all the documents available to prove his name change, however he has not made an attempt to provide the documents. In fact, when asked whether he had documents to prove his name change during the interview, he stated he did not as it was done through the Greek police.[31]
was reasonably open to the delegate on the basis of the information provided to her by the applicant over the course of the various interviews outlined above. Moreover, the delegate’s conclusion that some weight ought to be given in favour of the cancellation of the visa by reference to the fact that the applicant had not provided any documentation was not unreasonable in all the circumstances. Nor did it evidence any practical injustice to the applicant. The applicant had numerous opportunities throughout the interview to put forward any information that he wanted to have taken into account.
[31] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 9.
Whilst it is true that the applicant asked to contact his family, he did so during the first interview with the aim of notifying them as to where he was so they would not worry. At no stage did the applicant ask to contact his family to provide any further documentation regarding the change of name issue.
When regard is had to the overall process adopted by the delegate in this matter, there is no evidence of a denial of procedural fairness. The applicant was interviewed, had the benefit of an interpreter, was given the opportunity to consider the NOICC, was invited to and did provide his reasons as to why his visa ought not be cancelled. He was given 16 minutes to consider the NOICC and respond, not 10 minutes as alleged. In the context of the nature of the considerations identified in the NOICC as reasons for the potential cancellation, this was not an unreasonable period of time.
It was open to the delegate to form an opinion about the information provided by the applicant over the course of the various interviews with him and draw the conclusions outlined at item 9 set out above.
For each of these reasons, ground two is not made out.
Ground three
The third ground of review is:
The Delegate’s decision was legally unreasonable or else the Delegate failed to consider the merits of the Applicant’s case in that, in exercising her discretion unfavourably to the Applicant, the Delegate relied in part on her understanding that the Applicant had initially denied previously being known by a differently spelled name, but later acknowledging that fact. In fact, the Applicant made no such denial.
Particulars
At page 1 of the Notice of Intention to Consider Cancellation, under ‘Include the specifics (particulars) of the ground and the information because of which the ground appears to exist’, the Delegate notes that the Applicant ‘initially stated no’ when asked if he had been known by any other names, but later gave a different answer.
At page 2 of the transcript of the Applicant’s interview with the Delegate, the Applicant is asked if he had been known by any other names, and replies ‘No, just the old passport I had’. This was a reference to the Applicant’s Albanian passport which contained a previous spelling of his name. Accordingly, the Applicant did not deny but in fact alluded to the previous spelling of his name at the first opportunity.[32]
[32] Applicant’s amended application filed 4 February 2020 page 4 at paragraph 3.
In essence, the applicant asserted that the delegate relied upon an apparent inconsistency in the applicant’s evidence; namely, that the applicant initially denied using a different name but subsequently admitted it, and asserts that there was no proper basis for this.
In support of this submission, the applicant referred to item 6 of Part A of Form 1111 in which the delegate noted:
In your subclass 601 ETA application, you were asked the following questions:
- Other citizenships? You declared NO
- Alias? You declared NO
During formal interview with an Australian Border Force Officer, you were asked whether you had been known by any other names. You initially stated no.
However you later provided the following information when questioned again if you had previously been known by any other names:
-You became a Greek citizen on 12/11/2019
-You stated prior to your Greek citizenship, you were an Albanian citizen and were known as ‘ALEKSANDER DOKO’
-You changed your name to ‘ALEXANDROS NTOKOS’ during your passport application for Greece.[33]
[33] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 6 page 1.
It was submitted that in addition to this, the delegate also raised this alleged discrepancy in the course of the interview with the applicant.
It was further submitted that any suggestion of inconsistency, dishonesty or concealment on the part of the applicant is baseless in light of the following exchange with the applicant in the interview:
BFO:Have you been known by any other names?
Interp:No, just the old passport I had.[34]
[34] Applicant’s written submissions filed 4 February 2020 at paragraph 19.
It was submitted that the applicant’s reference to the ‘old passport’ was a reference to the applicant’s former name as evidenced in his old passport, which is evidence of the fact that the applicant was not seeking to conceal the fact that he was known by a former name. The court was invited to conclude that the applicant had not given inconsistent information.
Therefore, the applicant submitted that the delegate’s reliance on the alleged inconsistency as evidence in support of the decision to cancel the visa was unreasonable, or alternatively, in placing reliance on this factor, the delegate failed to properly consider the merits of the applicant’s case.
The difficulty with this submission is that whilst the delegate recorded the fact that the applicant initially responded ‘no’ to a question about whether he was known by any other name in the NOICC and then subsequently disclosed that in fact he had been known by another name, this was not a ground upon which the cancellation proceeded.
For the respondent, it was submitted that in determining whether or not the delegate ought to exercise its discretion to cancel the applicant’s visa, no weight was placed on the fact that the applicant initially responded ‘no’ to questions about whether he had previously been known by another name. Consequently, it was submitted that the applicant’s contention is without foundation and this ground lacks merit. There is much force to the respondent’s submission in this regard.
A fair reading of the information in item 6 of Part A of Form 1111 makes it clear that the grounds for cancellation existed by virtue of the fact that the applicant had not disclosed his previous name and his Albanian citizenship in his visa application which prima facie constituted a breach of section 101 of the Act. So much is clear from the following statement in item 6 of the NOICC:
Based on the above information, it appears that grounds for cancellation of your visa exist because if its holder has not entered Australia or has so entered but has not been immigration cleared – it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared: s101 – Incorrect information on the application form (emphasis added).[35]
[35] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 6 page 1.
There is no reference to the inconsistency of information being provided during the formal interview as a basis for the visa cancellation. Indeed, when the statement at item 9 of Part B of Form 1111 is read in the context of the statement in the NOICC set out above, it is clear.
For these reasons, ground three is not made out.
Ground four
The fourth ground of review is:
The Delegate failed to comply with s 120 of the Act and/or afford the Applicant procedural fairness in that she did not provide the Applicant with information which would be the reason or part of the reason for cancelling his visa, being:
- The written formulation of the question put to the Applicant to which he gave an incorrect answer; and
- The Applicant’s 2011 application for a visitor visa, which was refused; the decision record, or any other information relating to that application.
Particulars
Section 120 of the Act required the Delegate to provide information which would be the reason, or part of the reason, for cancelling a visa; and to ensure as far as reasonably practicable that the Applicant understood why that information was relevant to the cancellation, and invite comment on it.
The Delegate’s reasons, in particular at pages 1 and 4 of the Notice of Intention to Consider Cancellation indicate that in deciding to cancel the Applicant’s visa, she had regard to the fact that the Applicant’s failure to disclose the alternate spelling of his name initially prevented the Department from reviewing a previous 2011 visitor visa application, which may have affected the decision to grant him a visitor visa in January of 2020. The Delegate further had regard to the precise formulation of the question to which the Applicant gave an incorrect answer, which in effect asked him to provide any other names by which he was or had been known. The Delegate was required, in those circumstances, to provide the Applicant with the part of the application form displaying this question, and with the 2011 application materials, including the application form, the decision record and any other relevant documents.[36]
[36] Applicant’s amended application filed 4 February 2020, pages 4 and 5 at paragraph 4.
Section 120 of the Act relevantly provides:
(1)In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or part of the reason, for cancelling a visa; and
(b)is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c)was not given by the holder; and
(d)was not disclosed to the holder in the notification under s119.
(2)The Minister must:
(a)give particulars of the relevant information to the holder; and
(b)ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and
(c)invite the holder to comment on it.
(3)The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.
It was submitted on behalf of the applicant that in this case, the delegate relied on two pieces of information, namely:
a)the formulation of the question to which the applicant gave an incorrect answer as contained in the ETA visa application form; and
b)the applicant’s 2011 application for a Class TR (Subclass 676) Tourist visa (“2011 visa application”) which was refused.
It was submitted that in failing to provide either of these pieces of information to the applicant, the delegate breached the obligations in section 120 of the Act.
Moreover, it was submitted that the delegate also failed to make clear the significance of the 2011 visa application and its refusal to the applicant. The applicant relied on the fact that the 2011 visa application was refused because on that occasion, the delegate formed the view that the applicant was not intending to come to Australia on a temporary basis as a visa. It was argued that the delegate failed to provide the applicant with the 2011 application form, the decision record or any other material in relation to that matter and importantly, failed to foreshadow the significance of the information to the delegate’s decision.
Attached to the affidavit of John David Brown affirmed 10 February 2020, at Annexure JDB-2 is a copy of documents relating to the applicant’s 2011 visa application, including:
a)the applicant’s application;
b)the applicant’s uncle’s statutory declaration made 24 May 2011; and
c)correspondence attaching the decision record relating to the refusal of the applicant’s visa application dated 28 July 2011.
It was submitted on behalf of the Minister that this ground was misconceived on two bases:
a)the 2011 visa application information was provided by the applicant and therefore does not fall within the definition of ‘relevant information’ for the purposes of section 120; and
b)there was no denial of procedural fairness in circumstances where the applicant:
i)was given a summary of the requirements of section 101;
ii)was told the alleged breach of that section;
iii)gave evidence in the course of the interview; and
iv)was given an opportunity to respond to the conclusion reached in relation to the cancellation of his visa.
Having considered the submissions and the terms of Form 1111, there is no proper basis upon which to find that the delegate’s decision to cancel the visa was in any part based on the fact that the 2011 visa application was rejected.
The reference at item 7 of Part B of Form 1111 to the 2011 visa is in the following terms:
Particularly, by Mr NTOKOS not providing his previous alias name, the department was unable to consider previous visa refusal history, namely, the visa refusal under his previous Albanian name which occurred in July 2011…[37]
[37] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 7.
It was submitted on behalf of the applicant that the delegate clearly relied on the formulation of the question and material on the 2011 visa application form in determining that it was appropriate to cancel the applicant’s visa. It was further submitted that it can be inferred from the delegate’s reasons that the fact that the 2011 visa application had been refused were part of the delegate’s reasons for cancelling the visa. Section 120 of the Act required the delegate to provide that information to the applicant and to explain its significance and that did not happen.
It was conceded that the applicant was given some indication of the relevance of the significance of the incorrect response on the 2011 visa application form, albeit in an indirect way; however, it was submitted that he was given no indication of the significance of the refusal of the 2011 visa application, nor was he given the formulation of the question on the application. Counsel for the applicant submitted that all of this information was in the delegate’s possession and/or accessible to the delegate.
The essence of this ground is an argument that the delegate took into account the 2011 visa application and the fact that the applicant previously provided incorrect information in response to questions about any previous names and other citizenships held by the applicant in that application.
It is common ground that the applicant was not provided with the 2011 visa application or related refusal documentation. Nor was the applicant provided with the actual questions about former names and other citizenships held contained in the 2011 visa application completed by the applicant. However, it is clear from the transcript that the delegate raised both of these matters with the applicant in the course of the interviews on 20 and 21 January 2020.
The applicant was asked about the 2011 visa application in the second interview. The first interview was suspended at 9:45pm. At 10:11pm, the second interview commenced and the following exchange occurred:
BFO:Did you apply for a visa to Australia prior?
Interp:What do you mean, in the past?
BFO:Yeah, like years ago. Have you ever applied for a visa previously to come here?
Interp:I vaguely remember, maybe, I don’t know why, but I was young, so maybe someone else did it for me, I’m not sure.
…[38]
[38] Annexure JDB-1 to the affidavit of John David Brown affirmed and filed 10 February 2020, page 14.
Similarly in relation to the issue of the 2011 visa, the following exchange occurred:
BFO You know in your visa application that was refused, there is a question that actually asks you have you ever been known by any other name, including if your name is spelt differently? Why did you not provide the Department with your previous Albanian name?
Interp:What is that you are talking about, the fact that I’m saying I can’t’ remember?
BFO:No I’m asking you… Aleksander Doko that’s very different to you being Alexandros Ntokos. In your application you lodged yourself…
Interp:Now?
BFO:Yes, now. You had a question that said, have you ever had a different name, or different spelling of your name or different variation of your name?
App:In which…[39]
[39] Annexure JDB-1 to the affidavit of John David Brown affirmed and filed 10 February 2020, page 15.
It is clear from this extract that the applicant was referred to the nature of the question in his 2011 visa application. The applicant completed this application himself. In those circumstances, there has been no breach of section 120 of the Act as alleged.
Moreover, I am not satisfied that the premise upon which this ground is based is made out; namely that the delegate had regard to the 2011 visa application as a basis on which to refuse this visa, such that the obligation in section 120 arises in any event.
When read in context and consistent with the principles of Wu Shan Liang, the reference to the 2011 visa application simply points to an actual rather than hypothetical consequence of the applicant’s failure to comply with the obligation to answer questions honestly. Put differently, as a result of the applicant’s failure to notify the delegate of his former name, the Department was not able to properly assess his application for a visa. The fact that he had previously been refused a visa was only one of the factors which, had it been known by the delegate, could have been taken into account.
There is no evidence to suggest that the delegate had regard to the substance of the 2011 visa application and refusal decision.
This ground is therefore not made out.
Ground five
The fifth ground of review is:
The Delegate afforded weight adverse to the Applicant to the fact that he would face adverse mandatory legal consequences if his visa was cancelled. Its decision was thereby legally unreasonable or irrational.
Particulars
The relevant reasons of the Delegate are at section 10 on page 5 of the Notice of Intention to Consider Cancellation.[40]
[40] Applicant’s amended application filed 4 February 2020, page 5 at paragraph 5.
It is not disputed that at item 10 of Part 2 of Form 1111, under the heading ‘Other relevant reasons (including mandatory legal consequences)’, the delegate stated:
I have also considered the legal consequences of a decision to cancel Mr NTOKOS’ visa and note that if the visa is cancelled he:
-will be subject to a s48 bar on applying for certain visas
-will be affected by a risk factor under Public Interest Criteria 4013 which may affect the eligibility for other visas in future
-may be liable to detention and removal from Australia
Whilst these issues may cause him some inconvenience I do not consider that inconvenience to be excessive in light of his circumstances
I therefore lend limited weight in favor of (sic) visa cancellation in relation to this factor (emphasis added).[41]
[41] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 10.
The words in bold form the basis of this ground. For the applicant, it was said that these factors could not possibly weigh in favour of cancellation and therefore, by having regard to them in such a manner and in support of a decision to cancel the applicant’s visa, the delegate’s decision is unreasonable or illogical in the legal sense. It was submitted that as there was no proper basis for the delegate to afford adverse weight to the applicant as a result of these factors, the reason given by the delegate is clearly unreasonable.
In reply, the Minister submitted that the only sensible way in which item 10 can be read is that the delegate made an accidental slip and that the reasons ought to have stated that ‘limited weight’ should be given against the cancellation. This occurs not only because the factors as stated could not weigh in favour of cancellation but also in light of the word ‘therefore’ in the penultimate paragraph.
Counsel for the Minister was unable to direct the court to any authority in which this argument had been considered, other than Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (“Wu Shan Liang”), which requires that ‘reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’[42]
[42] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [272].
Before turning to that decision, it is instructive to see how the delegate dealt with other factors in Part B of Form 1111; for instance:
a)at item 9, the delegate considered:
i)the reasons put forward by the applicant as to why the visa ought not be cancelled and concluded:
As such, I afford this factor limited weight in favour of not cancelling the visa.[43]
ii)the extent of the applicant’s compliance with visa conditions and concluded with:
As such, I give some weight in his favour against visa cancellation.[44]
iii)the degree of hardship which may result to the applicant and family members, among others, if the visa was cancelled, and concluded with:
Based on the above, I give some weight in favour of Mr NTOKOS against the cancellation of his visa…[45]
iv)the circumstances in which the ground for cancellation arose and concluded with:
[43] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 9.
[44] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 9.
[45] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 9.
As such, I give some weight in favour of visa cancellation.[46]
v)the applicant’s behaviour in relation to the Department, and said:
Mr Ntokos has been compliant during interview therefore I have given limited weight in his favour in consideration of this criteria against visa cancellation.[47]
[46] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 9.
[47] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 9.
When viewed in context and particularly in light of the nature of the legal consequences identified in item 10, all of which are negative consequences for the applicant, together with the penultimate sentence by the delegate:
Whilst these issues may cause him some inconvenience, I do not consider that inconvenience to be excessive in light of his circumstances.[48]
[48] Annexure SV-1 to the affidavit of Sanmati Verma affirmed and filed 22 January 2020, paragraph 10.
Applying the reasoning in Wu Shan Liang, it is clear that there was an accidental slip in the wording of the last sentence in item 10 of Part B of Form 1111 such that it ought to be read as:
I therefore lend limited weight in favour of the applicant against cancellation in relation to this factor.
It is evident from the penultimate sentence in item 10 that the delegate understood the negative impact of these matters on the applicant.
A proper reading of item 10 of Part B of Form 1111 therefore does not disclose any unreasonableness or illogicality.
This ground is therefore not made out.
Conclusion
As none of the grounds of review are made out, the applicant’s application, as amended, ought to be dismissed with costs.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 18 February 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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