Obeya v Minister for Immigration

[2013] FCCA 1444

FEDERAL CIRCUIT COURT OF AUSTRALIA

OBEYA v MINISTER FOR IMMIGRATION [2013] FCCA 1444

Catchwords:
ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act1977 (“Act”) – allegation that the decision-maker breached various provisions of s.5 of the Act.

Legislation:

Administrative Decisions (Judicial Review) Act1977, s.5

Australian Citizenship Act 2007, ss.3, 10, 37, 40

Applicant: JOHN GEORGE OBEYA

Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

File Number: SYG 2899 of 2012

Judgment of: Judge Cameron

Hearing date: 6 September 2013

Date of Last Submission: 6 September 2013

Delivered at: Sydney

Delivered on: 27 September 2013

REPRESENTATION

Solicitors for the Applicant: Niger Delta Lawyers & Maritime Services

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2899 of 2012

JOHN GEORGE OBEYA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 28 November 2011 the applicant, a naturalised Australian citizen, lodged an application with the Department of Immigration and Citizenship (“Department”) requesting evidence of his Australian citizenship. On 5 March 2012 a delegate of the respondent (“Minister”) refused the applicant’s application on the basis that she was not satisfied of his identity.  The applicant then sought an internal review of the 5 March 2012 decision and on 12 November 2012, a second ministerial delegate also refused to issue the applicant with evidence of his Australian citizenship on the basis that she was not satisfied of his identity.

2. On 7 December 2012 the applicant commenced these proceedings seeking relief, apparently under the Administrative Decisions (Judicial Review) Act1977 (“ADJR Act”), in respect of the second delegate’s decision. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. Section 37 of the Australian Citizenship Act 2007 (“Act”)  provides:

   37         Evidence of Australian citizenship

   (1)A person may make an application to the Minister for evidence of the person’s Australian citizenship.

   Notice

   (2)The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.

   …

   Identity

   (4)The Minister must not give the person such a notice unless the Minister is satisfied of the identity of the person. …

2. Section 40 of the Act provides:

   40         Request for personal identifiers

   (1)For the purposes of the Minister being satisfied of the identity of:

   (a)a person in relation to an application under this Part;

   …

   the following persons may request the person, in writing, to provide one or more specified personal identifiers:

   (c) the Minister;

   (d)     a person authorised under subsection (3);

   (e)a person who is included in a class of persons authorised under subsection (4).

3. Section 10 of the Act sets out what a “personal identifier” is. It relevantly provides:

   10         Personal identifiers

   (1)For the purposes of this Act, a personal identifier is any of the following (including any of the following in digital form):

   …

   (c)a photograph or other image of a person’s face and shoulders; …

4. Section 3 of the Act defines “identifying information” as:

   (a)     any personal identifier provided under Division 5 of Part 2;

   (b)any meaningful identifier derived from any such personal identifier;

   (c)any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier;

   (d)     any other information derived from:

   (i)     any such personal identifier; or

   (ii)any meaningful identifier derived from any such personal identifier; or

   (iii)    any record of a kind referred to in paragraph (c);

   that could be used to discover a particular person’s identity or to get information about a particular person.

5. Section 5(1) of the ADJR Act provides:

   5   Applications for review of decisions

   (1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

   (a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

   (b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;

   (c)that the person who purported to make the decision did not have jurisdiction to make the decision;

   (d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

   (e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

   (f)that the decision involved an error of law, whether or not the error appears on the record of the decision;

   (g)     that the decision was induced or affected by fraud;

   (h)that there was no evidence or other material to justify the making of the decision;

   (j)that the decision was otherwise contrary to law.

6. Section 5(2) details conduct which will amount to an improper exercise of power.

Background facts

1. The applicant, who was born in Nigeria, applied to the Department for a protection visa in December 2000.  He later withdrew that application and applied for a spouse visa.  On 23 February 2006 the applicant was granted Australian citizenship and issued with a citizenship certificate citing his date of birth as 5 May 1954.

2. On 18 March 2010 the applicant applied to the Department for evidence of his Australian citizenship.  That application was refused on the grounds that the decision-maker was not satisfied of the applicant’s identity.

3. As already noted, on 28 November 2011 the applicant lodged another application for evidence of his Australian citizenship.  On that occasion he also requested that his date of birth be amended from 5 May 1954 to 5 May 1974. In support of his application the applicant provided a statutory declaration in which he claimed that:

   a)his correct date of birth was 5 May 1974 and the insertion of the wrong birth date on his previous citizenship certificate had been beyond his control;

   b)his Nigerian passport cited an incorrect date of birth.  He had obtained the passport when he was in hiding as a result of issues which related to the protection visa application he had lodged on arrival in Australia.  A friend of his had applied for the passport on his behalf and had submitted documents without giving him copies.  He had not furnished the passport office with an incorrect date of birth;

   c)at the time of his hurried departure from Nigeria, he had not known where his mother had been.  A friend told him that she had died; and

   d)after re-establishing contact with his mother he notified the department in 2006 that the date of birth he had supplied was incorrect.

4. The applicant also provided the following documents:

   a)a copy of his birth certificate issued on 3 March 2006, showing his date of birth as 5 May 1974;

   b)a copy of his NSW driver’s licence showing his date of birth as 5 May 1974;

   c)a copy of his medicare card and his membership card for the Hornsby RSL Club;

   d)birth certificates for two of his children born in 2009 indicating that he was born in 1974;

   e)an affidavit dated 5 September 2005 from the applicant’s mother stating that his date of birth had been wrongly quoted in his passport as 5 May 1954, instead of 5 May 1974; and

   f)an email dated 7 September 2011 announcing the death of his mother on 5 September 2011.

5. On 5 March 2012 the first delegate refused to issue the applicant with evidence of his Australian citizenship with a date of birth of 5 May 1974 because she was not convinced that the applicant’s identity, including his date of birth, was legitimate.  Relevantly, the first delegate found that the applicant’s mother’s affidavit and the applicant’s birth certificate were not reliable documents and she gave little weight to his children’s birth certificates as they had been issued after he had obtained his Australian citizenship.

6. The applicant sought internal review of the first delegate’s decision and on 12 November 2012 the second delegate also refused the application.  In reaching her decision, the second delegate noted that the Department file contained the following information about the applicant:

   a)an application for a bridging visa dated 8 May 2001, stating the applicant’s date of birth as 5 May 1954;

   b)documents submitted in support of the applicant’s spouse visa application which showed his date of birth as 5 May 1954, including a copy of his Nigerian passport and a statutory declaration dated 19 September 2001 made by the applicant stating that he had been born on 5 May 1954 and had misplaced his birth certificate;

   c)the applicant’s application for the grant of Australian citizenship showing that he was born on 5 May 1954.  The application included a copy of the applicant’s Nigerian passport issued in October 2001 with the date of birth of 5 May 1954;

   d)the applicant’s application for evidence of Australian citizenship dated 18 March 2010 showing his date of birth as 5 May 1954.  The application included a NSW driver’s licence which indicated that his date of birth was 5 May 1954; and

   e)documents produced by the applicant in support of his 28 November 2011 application for evidence of his citizenship which indicated that his date of birth was 5 May 1974.

7. The second delegate concluded that the applicant was not eligible to be given a notice stating that he was an Australian citizen with a date of birth of 5 May 1974 because she was not satisfied that the applicant’s identity meant that he was born on that date.  In this connection:

   a)the second delegate found that from the time the applicant had arrived in Australia in 2001 he had stated on his visa and citizenship forms that his date of birth was 5 May 1954.  She placed weight on the fact that the applicant had signed a declaration on each of the forms to the effect that the information he had provided had been “complete, true and correct in every detail”;

   b)the second delegate noted that in support of his spouse visa application, the applicant had signed a statutory declaration stating that he had been born on 5 May 1954;

   c)whilst accepting that the Nigerian authorities might have mistakably recorded in the applicant’s passport a date of birth of 5 May 1954, the second delegate found that between 2001 and 2011 the applicant had consistently advised the “Australian Government” that his date of birth was 5 May 1954.  The second delegate found that it would have been reasonable, despite the claimed error in the passport, for the applicant to have been aware of his date of birth and to have completed his migration and citizenship application forms accordingly; and

   d)whilst noting the documentation provided by the applicant indicating that he had been born in 1974, including his driver’s licence and his children’s birth certificates, the second delegate placed greater weight on the fact that the applicant had consistently provided information to the Department which said that his date of birth was 5 May 1954. 

Proceedings in this Court

1. In the application commencing these proceedings, under the heading “Details of claim”, the applicant alleged:

   The applicant is aggrieved by the decision because:

   1.It failed to correct the typographic error made by the Nigerian Passport Office to the applicant’s Date of Birth of 05/05/54 instead of 05/05/74.

   2.     Restricted the applicant’s legal rights to enter and go outside the country, that is, constrained the applicant’s movement outside of Australia.

2. Under the heading “Grounds of application” the applicant alleged:

   1.Breached the rules of natural justice in connection with being ‘satisfied’ under s. 37(4) of the Australian Citizenship Act in the making of the decision;

   In particular,

   the decision maker’s lack of satisfaction of the applicant’s identity was contrary to recent evidence of his drivers’ licence and birth certificates of his children, which record the 1974 birth date.

   2.The procedure that were required by law to be followed and/or observed in connection with the making of the decision were not observed;

   In particular,

   The decision maker was selective in placing greater weight on irrelevant considerations of the wrong date of birth being 05/05/1954, in spite of the applicant’s mother’s Statutory Declaration stating the right and proper date of birth being 05/05/1974. As well as disregarded information provided in the applicant’s protection visa, about his hurried departure from his native country and the lack of knowledge of the whereabouts of his mother at point of his departure.

   3.That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

   In particular,

   a)By taking an irrelevant consideration into account in the exercise of a power;

   b)Failing to take a relevant consideration into account in the exercise of a power; and

   c)Failing to consider the 2006 Freedom of Information application made by the applicant, to inform the Department of Immigration and Citizenship, after the discovery of the whereabouts of the applicant’s mother and submission of Statutory Declaration from her, attesting to the correct date of birth of the applicant being 05/05/1974.

Applicant’s submissions

1. The applicant’s central submission was that the copy of his driver’s licence which he submitted had been ignored or, if it had not been, it should have been decisive and led the second delegate to be satisfied of his identity.  This claim was supported by the further allegation that the second delegate had given too much weight to the fact that the applicant had cited the wrong date of birth in a number of government documents which, in any event, could have been explained if the second delegate had considered the evidence before her and invited him to give an explanation of his behaviour.  Additionally, the second delegate had not given proper, genuine and realistic consideration to his case.

2. In summary, the applicant submitted that:

   a)the combined effect of ss.37(4), 40 and 10 of the Act was that the second delegate was required to consider personal identifiers, which in his case was his driver’s licence, and she did not do so. The second delegate misconstrued “personal identifier” and wrongly relied only on non-photographic personal identifiers in circumstances where the Act expressly stated “photograph or other images”;

   b)the second delegate should have advised him that she would not observe the Act’s requirement that a photo identifier be taken into account when deciding his request;

   c)the Act required the second delegate to give decisive weight to his driver’s licence because it was the only personal identifier before her;

   d)the second delegate should have advised him that she would not give decisive weight to the driver’s licence;

   e)the second delegate had not made the investigations which might have justified her placing greater weight on the incorrect date of birth than on the personal identifier he had supplied. In that regard he submitted that the Act’s definition of “personal identifier” made no reference to details of age and he had provided a photographic image of himself. He submitted that as he had provided all relevant officially-issued documents that the Act described as personal identifiers, the second delegate’s refusal to give him evidence of citizenship based on the error in his birth date was contrary to the Act and amounted to an improper exercise of power;

   f)in the third paragraph of the final page of her reasons for decision the second delegate said:

   I note Mr Obeya’s claim (and that of his late mother) that the Nigerian authorities mistakenly recorded his date of birth on the passport as 5 May 1954 instead of 5 May 1974.  While this error may have occurred, I note that between 2001 and 2011, Mr Obeya consistently advised the Australian Government that his date of birth was 5 May 1954.  To my mind, it would be reasonable, despite the claimed error in the passport, for Mr Obeya to have been aware of his correct date of birth and have completed his migration and citizenship application forms accordingly.

   The second delegate’s reference to “Australian Government” included State governments and was therefore incorrect because his driver’s licence and the birth certificates of his children, in which his correct date of birth had been cited, had all been issued by State governments.  The applicant argued that as those documents cited that date, the second delegate’s statement was unsupported by fact and manifestly unreasonable;

   g)if the second delegate had made an enquiry she would have known this.  The relevant material was readily available to her.  Her failure to make that enquiry was a denial of procedural fairness and an unreasonable exercise of power;

   h)the second delegate denied the applicant natural justice by not inviting him or giving him an opportunity to explain why he had given the incorrect date in certain forms; and

   i)in light of the evidence he had provided, it was not open to the second delegate to not be satisfied of his identity. The applicant submitted that the second delegate had failed to give proper, genuine and realistic consideration to his case.

Consideration

1. Before authorising the issuing to the applicant of evidence of Australian citizenship, the second delegate was required to be satisfied of his identity.  The summary of the second delegate’s reasons for decision set out earlier demonstrates that she understood that the matter which had to be determined was whether she was satisfied on that question.

Matters addressed in submissions

1. Contrary to the applicant’s submission, the Act did not require the second delegate to take his driver’s licence into account when deciding whether to issue him with evidence of Australian citizenship. Section 37 requires that such evidence is not to be issued unless the Minister is satisfied of the identity of the person in question but it does not direct the Minister to consider evidence of a particular sort or to give greater or lesser weight to evidence of a particular sort. Section 40 of the Act empowers the Minister to request, when considering a s.37 application, an applicant to provide one or more specified personal identifiers but does not require him to make such a request or to give such personal identifiers as may be supplied any particular weight.

2. In any event, the second delegate did take account of the applicant’s driver’s licence, as reflected by her discussion of it on the final page of her reasons, and the weight she accorded it was a matter for her. Further, the fact that the driver’s licence was not given decisive weight could not be said to have led to a decision on the review that was manifestly unreasonable. Although the driver’s licence did tend to identify the applicant, it did not necessarily identify him as the person to whom the citizenship in question attached.

3. As I have concluded that the second delegate did take the driver’s licence into account, the allegation that she should have advised the applicant that she would not do so need not be considered. Further, natural justice did not oblige the second delegate to advise the applicant that she would not give decisive weight to the driver’s licence. Neither the Act nor the common law required her to disclose her thought processes and it could not be said that the conclusion that she ultimately reached on the review was not obviously open on the known material.

1. Contrary to the applicant’s submission, the second delegate was not obliged to make enquiries in order to justify her decision to give particular weight to certain evidence.  Her task was to determine the application on the evidence before her and she had no general duty to make enquiries.  To the extent that the applicant submitted that the second delegate should have enquired into the evidence she already had, which I infer to be a submission that she should have taken that evidence into account, I find that she did do.  The evidence in question was the applicant’s driver’s licence and his children’s birth certificates.  They were expressly referred to by the second delegate in her discussion on the final page of her reasons.

2. I do not accept that the applicant’s submission that the “Australian Government” extends beyond the federal government and includes the governments of the States.  Some years ago, the federal government adopted the words “Australian Government” to describe itself in place of terms such as Commonwealth Government or Federal Government.  The second delegate’s use of capitalisation in the paragraph above at [19(f)] satisfies me that she was using those words in that sense.  This conclusion is reinforced by the way the second delegate used those words in the first paragraph of the last page of her reasons, where she referred to the applicant’s visa and citizenship application forms.  I do not accept that the second delegate intended to, or should be inferred to have, included State governments in the term “Australian Government”.  That being so, I also do not accept the applicant’s submission that the second delegate’s statement was factually incorrect on the basis that it was contradicted by his driver’s licence and the birth certificates of his children.  For the same reasons, there was no related duty to enquire as the applicant suggested.

3. Additionally, there is no basis to find that by not inviting the applicant to explain why he had given an incorrect date of birth on certain documents, the second delegate denied him natural justice.  The documents in question had been cited by the first delegate in her reasons for refusing the applicant’s request for evidence of citizenship.  The applicant’s opportunity to address those matters arose when he sought internal review of that decision.  He lodged a three page document making submissions, to which he attached various documents, and there is no basis to conclude that any failure to address the issues identified by the first delegate arose out of anything done or not done by the second delegate.  Further in this connection, the applicant had no right to an oral hearing before the second delegate.

4. The final matters raised by the applicant in submissions were his assertions that the second delegate had not given proper, genuine and realistic consideration to his case and that it had not been open to her to not be satisfied of his identity. Those submissions invite merits review rather than judicial review although they also imply that the second delegate’s decision was so unreasonable that no reasonable person could have reached it. Merits review is not available under s.5 of the ADJR Act and, for the reasons already given, I am not satisfied that the second delegate’s decision on the review application met the standard of unreasonableness found in s.5(2)(g) of the ADJR Act or was unreasonable at all.

Other matters raised in application

1. The first ground of the application alleged that the second delegate’s lack of satisfaction as to the applicant’s identity breached the rules of natural justice because it was contrary to the evidence. This allegation invites the Court to reach a conclusion on the facts different to the one reached by the second delegate. That course is not open in judicial review or, specifically, under s.5 of the ADJR Act. In any event, the allegation did not identify how the behaviour complained of amounted to a denial of natural justice.

2. The second ground of the application alleged that the second delegate failed to observe procedures that were required by law to be observed in connection with the making of the decision, a reference to s.5(1)(b) of the ADJR Act. In the particulars of this allegation the applicant stated that the second delegate had placed undue weight on certain evidence and disregarded other evidence, specifically information he provided in his protection visa application. As noted earlier in these reasons, the weight which the second delegate gave to information before her was a matter for her and, in any event, it was not a “procedure”. The evidence in question was said to be information provided in the applicant’s protection visa “about his hurried departure from his native country and the lack of knowledge of the whereabouts of his mother at the point of his departure”. However, on the second page of her reasons the second delegate made specific reference to the applicant’s protection visa application file being amongst the material on which her assessment was based. In the circumstances, I am not persuaded that she did not take the information in question into account.

3. The third ground of the application alleged an improper exercise of power. In part, this allegation was particularised by reference to claims that the second delegate took irrelevant considerations into account and failed to take relevant considerations into account. The applicant did not identify what those considerations might have been other than in the third particular of the allegation where he referred to an alleged failure to consider a freedom of information (“FOI”) request which he made of the Minister’s department in 2006 and the statutory declaration provided by his mother. As the Minister submitted, nothing in the Act explicitly or implicitly made that FOI application a consideration that the second delegate was obliged to take into account. Also, in the discussion on the final page of her reasons the second delegate’s decision made specific reference to the statutory declaration by the applicant’s mother and I find that it was, in fact, considered.

Conclusion

1. The applicant has not made out an entitlement to relief based on any of the grounds found in s.5 of the ADJR Act.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  27 September 2013