Prasad v Minister for Immigration
[2020] FCCA 2131
•4 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRASAD v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2131 |
| Catchwords: MIGRATION – Application for Partner visa – failure by applicant to produce documents relevant to a consideration as to whether character test criteria had been satisfied or not – no jurisdictional error on the part of the Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s. 234 Migration Regulations 1994 (Cth), rr. 2.03AA, 2.03AA(2)(a), Sch. 2. cl 100.222, Sch. 4. cl. 4001 |
| Cases cited: Kholi v Minister for Immigration and Border Protection [2018] FCA 540 |
| Applicant: | VINESH PRASAD |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 15 of 2020 |
| Judgment of: | Judge Egan |
| Hearing date: | 31 July 2020 |
| Date of Last Submission: | 31 July 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 4 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jones |
| Solicitors for the Applicant: | Cornerstone Law Offices |
| Counsel for the First Respondent: | Mr Psaltis |
| Solicitors for the First Respondent: | Clayton Utz |
| Second Respondent: | Submitting appearance save as to costs |
ORDERS
The Further Amended Application for review filed on 30 April 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 15 of 2020
| VINESH PRASAD |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of Fiji who applied for a Partner (Migrant) (Class BC) Subclass 100 visa on 16 May 2011 on the basis of his relationship with his sponsor.
Before a decision was made on the applicant’s visa application by a delegate of the Minister, a letter dated 21 August 2017 [1] was sent by the department to the applicant, an attachment to which requested certain details from the applicant. That letter relevantly contained the following:
[1] Court Book (CB) pp. 262 – 270.
“Request Detail
Character requirements – Australian Federal Police (AFP) National Police Check
Information before the Department indicates that the National Police Certificate from the Australian Federal Police which you have submitted has not been applied for in all names you have used. Kindly therefore arrange for a new ‘Full Disclosure’ National Police Certificate application with the Australian Federal Police immediately in all names used and known by (including the names listed in your passport).”
It was conceded by Counsel for the applicant that the applicant had failed to provide the requested details to the department relating to whether or not the applicant had a criminal history. [2]
[2] CB p. 318.
On 5 December 2017, a delegate of the Minister refused to grant the visa to the applicant on the ground that the applicant had not satisfied the prescribed criterion in r. 2.03AA of the Migration Regulations 1994 (Cth) (‘the Regulations’). That regulation provided as follows:
“Regulation 2.03AA – Criteria applicable to character tests and security assessments
(1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.
(2) If the Minister has requested the following documents or information, the person has provided the documents or information:
(a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;
(b) a completed approved form 80.
Note: For paragraph (a), an example of an appropriate authority is a police force.
(3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.”
Relevantly, PIC 4001 of Schedule 4 to the Regulations provided as follows:
“Part 1 – Public interest criteria
4001 Either:
(a) the person satisfies the Minister that the person passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.”
On 21 December 2017, the applicant made application to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
By letter dated 4 October 2019, [3] the Tribunal invited the applicant to provide further information as follows:
[3] CB pp. 390 – 391.
“Dear Mr Prasad
INVITATION TO PROVIDE INFORMATION – MR VINESH PRASAD
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Migrant) (Class BC) visa.
You are invited to provide the following information in writing:
· Information demonstrating whether or not you have a criminal history in any countries in which you have resided for 12 months or longer, over the last 10 years. Please provide this information for all of the names, birthdates and identities you have used or been known by.
The information should be received by 30 October 2019. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.”
It was conceded by Counsel for the applicant that the applicant had failed to provide any documentation to the Tribunal as invited.
No application was ever made by the applicant for a waiver of the requirement for him to produce the requested documentation, either to the department or to the Tribunal.
The Tribunal addressed the question of non-provision of relevant information to the Tribunal at [9] – [13] of its reasons as follows:
“[9] At the hearing the Tribunal provided the applicant with a copy of a s.376 certificate and a s.375 certificate. The Tribunal advised the applicant that it had determined the certificates to be valid for the public interest reasons that the documents contained information about third parties and could reveal confidential investigative methods used by the Department. The Tribunal invited the applicant to comment on the validity of the certificates. The Tribunal advised the applicant that he could seek additional time and consider his response before providing any comments. The applicant did not seek additional time to comment on the validity of the certificates.
[10] The Tribunal provided the applicant with the gist of the information in the material covered by the certificates. The information was that he had used a large number of identities when he travelled to and lived in Australia. The Tribunal advised the applicant that the information was relevant because it indicated that he had not provided police certificates in all of the names he had used or been known under.
[11] The Tribunal provided the applicant with a list extracted from the information covered by the certificates of 25 of the names and aliases used by the applicant when he travelled to Australia. The Tribunal advised the applicant that as he had not provided police certificates in all of the names and aliases he is known to have used, the Tribunal might find that he did not satisfy PIC 4001 and therefore did not meet cl.100.222.
[12] The applicant was advised that he could seek additional time to consider his response to the information. The applicant did not seek an adjournment. His response to the information is considered below.
[13] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.”
At [18] of its reasons, the Tribunal recorded that at the hearing the applicant acknowledged that he had travelled to Australia on three (3) passports obtained under three (3) false identities. The applicant had provided to the department an earlier statutory declaration made in Fiji on 20 December 2011 whereby, apologising for having done so, he admitted that he had used different names to enter Australia. [4]
[4] CB p. 121.
At [24] of its reasons, the Tribunal found that the applicant had failed to meet the relevant criteria as set out in r. 2.03AA(2)(a) of the Regulations, and that accordingly, the applicant had failed to meet the PIC 4001 criteria for the purposes of cl. 100.222 of Schedule 2 to the Regulations.
On 9 December 2019 the Tribunal affirmed the decision of the delegate to refuse to grant the visa to the applicant.
On 13 January 2020, the applicant filed an Originating Application for review of the decision of the Tribunal. At the hearing of the application for review before this Court, the applicant relied upon a Further Amended Application for review filed on 30 April 2020, the sole ground of which was as follows:
“Grounds of application
1. The decision of the Administrative Appeals Tribunal (‘AAT’), made on 9 December 2019 is based upon an error at law. The error at law materially affected the AAT’s decision, resulting in the decision to be affected by jurisdictional error.
Particulars
(a) The Applicant is a citizen of the Republic of the Fiji Islands.
(b) He married a permanent resident of Australia on 10 August 1996. The ceremony was performed in Australia, in accordance with Hindi religious requirements, by an authorised Australian marriage celebrant.
(c) The Applicant’s wife became an Australian citizen on 11 May 2009.
(d) He applied for an off-shore provisional partner visa to enable him to live in Australia.
(e) The provisional partner visa was issued by the Department of Immigration and Border Protection (‘the Department’).
(f) The Department, as a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) cancelled the provisional partner visa.
(g) The Department’s reason for the refusal was the Applicant had failed to meet the statutory requirements of Clause 100.222 of Schedule 2 to the Migration Regulations, 1994 (‘the Regulations’), specifically the Public Interest Criterion 4001, in that he had failed to provide relevant Police certificates, issued by the Fijian Police, for each name he had allegedly used to enter Australia, when he was required to do so by the Department, contrary to Reg. 2.03AA(2) of the Regulations.
(h) The AAT found the Applicant was under a statutory requirement, in accordance with Reg. 2.03AA(2) of the Regulations, to provide the requested material to the Department.
(i) The AAT affirmed the Department’s decision.
(j) The Applicant is alleged to have entered Australia, from Fiji, on multiple occasions on falsified travel documents using different names.
(k) The Department, by requiring the Applicant to provide Police certificates for each name he is alleged to have used, is requiring the Applicant to admit to conduct, contrary to section 234 of the Migration Act, 1958 (‘the Act’).
(l) Section 234 of the Act is a criminal offence, as if found guilty of having contravened the section, the individual could be imprisoned for a maximum penalty of ten years or 1,000 penalty units, or both.
(m) At no time, in requiring the Applicant to provide this material did either the Department or the AAT, during its hearing caution the Applicant he had a privilege against self-incrimination.
(n) The AAT, in reviewing the decision of the Department assumes the role, functions and powers of the Minister.
(o) Under Reg. 2.03AA(3) of the Regulations, the AAT, exercising its ministerial power should have, under the circumstances, waived the requirement on the Applicant to provide these documents, as to do so, would have been unreasonable, given the Applicant’s privilege against self-incrimination.
(p) Having not waived the requirement to produce documents, the AAT fell into an error at law and in turn engaged in jurisdictional error’.”
It was submitted on behalf of the applicant that the hearing before the Tribunal miscarried because the Tribunal did not waive, pursuant to r. 2.03AA of the Regulations, the requirement for the applicant to provide documentation which had been requested of him by each of the department and the Tribunal. It was submitted that the Tribunal had fallen into error at the hearing by not cautioning the applicant that he had a right to exercise a privilege against self-incrimination in the face of the Tribunal’s requirement for the applicant to produce the requested documentation. It was submitted that the applicant would necessarily admit to his having contravened the provisions of s. 234 of the Migration Act 1958 (Cth) (‘the Act’) if he was to provide such documentation in circumstances where that provision provided for a penal term of imprisonment of up to 10 years upon conviction. Section 234 of the Act provided as follows:
“False documents and false or misleading information etc. relating to no-citizens
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or
(b) where the person has reason to suspect that the document may be so used.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.”
The Court was referred by Counsel for the applicant to Kholi v Minister for Immigration and Border Protection [2018] FCA 540 at [31] – [33] inclusive for the proposition that a Tribunal may deny an unrepresented party procedural fairness in circumstances where it failed to advise a party of their right to invoke the privilege against self - incrimination.
The Court accepts the submission made by Counsel for the first respondent that by providing to the Department the statutory declaration made by the applicant on 20 December 2011, the applicant had waived any privilege against self-incrimination. By so submitting the statutory declaration, the applicant had already admitted that he had provided incriminating details of that which he was statutorily required to divulge. It is impermissible for an applicant to both approbate and reprobate in such circumstances.
The Court further accepts the submission made on behalf of the first respondent that there was no duty on the part of the Tribunal to consider whether or not the requirement for production of documentation for character test purposes ought to have been waived or not. The question of waiver was one which was never before the Tribunal as a relevant matter for its consideration. It had not been the subject of any clearly articulated argument advanced on behalf of the applicant. A Tribunal is only required to consider clearly articulated argument and claims which clearly emerged from the evidence. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:
“[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
·The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”
It is trite that it is no part of the duty of the Tribunal to make out the applicant’s case for him. [5]
[5] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at [170].
The applicant also failed to put before the Tribunal any persuasive evidence as to why it would have been unreasonable for him to provide the requested documentation. There are sound public policy reasons why the department requests documentation for the purpose of assessing whether an applicant for a visa relevantly meets character test criteria. Whether or not an applicant puts himself or herself in the position of qualifying for the grant of a visa is very much in his or her own hands. If an applicant fails to relevantly engage with the laws of the Commonwealth governing a right to enter and remain in Australia – such as by failing to provide requested information about any relevant past criminal history on their part – then they must accept the consequences of their failure to do so.
The Tribunal carefully considered all of the applicant’s claims and the material before it. No claim was made that it acted illogically or irrationally.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 4 August 2020
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