Singh v Minister for Immigration

[2020] FCCA 1323

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1323

Catchwords:
MIGRATION – Notice of Intention to Cancel Visa – alleged breach of s. 101 of Migration Act – findings of Tribunal about provision of incorrect answers to questions in visa application form not open on the evidence before the Tribunal – failure to conduct a proper review – failure to seek information – failure to make obvious inquiry about a critical fact – jurisdictional error established – decision of Tribunal quashed.

Legislation:

Migration Act 1958 (Cth), ss.100, 101(b), 109, 424, 501(6).

Migration Regulations 1994 (Cth), sch.4, cl.4001.

Federal Circuit Court of Australia Act 1999 (Cth), s.88F(1)(b)(i).

Cases cited:

Minister for Immigration, Citizenship, Migrant Services and Multicultural

AffairsvFOE17 [2020] FCAFC 73.

Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489.

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Applicant: MALKEET SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 633 of 2019

Judgment of: Judge Egan

Hearing date: 18 May 2020

Date of Last Submission: 18 May 2020

Delivered at: Brisbane

Delivered on: 28 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Steele

Solicitors for the Applicant: Denes Lawyers

Counsel for the First Respondent: Mr Psaltis

Solicitors for the First Respondent: Clayton Utz

Second Respondent: Submitting appearance save as to costs

ORDERS

1. Until further order, the “Confidential Annexure MW-1” to the affidavit of Menaka Wickramasinghe affirmed on 14 May 2020 shall be the subject of a suppression order pursuant to the provisions of s. 88F(1)(b)(i) of the Federal Circuit Court of Australia Act 1999 (Cth).

2. The Further Amended Application for review filed on 31 January 2020 be granted.

3. The decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 14 June 2019 be quashed.

4. A writ of mandamus issue directed to the Tribunal requiring it to determine, according to law, the Applicant’s application for review of the First Respondent’s decision, and that the matter be remitted to the Tribunal for rehearing.

5. For the purpose of the Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 14 June 2019.

6. The First Respondent pay the Applicant’s costs of and incidental to the Further Amended Application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 633 of 2019

MALKEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who first arrived in Australia in 2008 as the holder of a Subclass 572 Student visa. The applicant departed on 4 January 2010 and returned to Australia on 4 February 2010.

2. On 2 February 2010, an offence report was made to the Batala District Police in India which accused the applicant of the commission of the offence of rape on 1 February 2010.

3. Almost two (2) years later, on 2 January 2012, the applicant was declared a “proclaimed offender” by a court in Batala.

4. On 2 September 2016, the applicant lodged an application for a Subclass 887 (Skilled – Regional) visa. In that visa application, the applicant gave the following answers to the following questions:

   “has the applicant ever been the subject of an arrest warrant or Interpol notice” the applicant answered “no”; and

   “are you currently, or have you ever been, known by any other names (including names before marriage, aliases or any alternative spelling of your names)” the applicant answered “no”.”

5. On 21 November 2016, the applicant was granted the Subclass 887 visa.

6. On 23 August 2017, the Minister’s department sent a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa to the applicant pursuant to the provisions of s. 109 of the Migration Act 1958 (Cth) (‘the Act’). On page 3 of the NOICC, [1] it was recorded as follows:

   “On the basis of the above information, I therefore consider that you have not complied with section 101 (b) of the Act because in support of your application and in order to satisfy the legislative requirements for the grant of a visa, you provided incorrect information to the Department. Specifically I consider that you have provided incorrect information in the application form in the following manner:

   ·In the application form for a Regional Skilled (VB 887) visa where you were asked "Are you currently, or have you ever been, known by any other names (including names before marriage, aliases or any alternative spelling in any of your names)?" and you answered 'No'. This information is incorrect because it appears that you are also known as MALKIT SINGH.

   ·In the application form for a Regional Skilled (VB 887) visa where you were asked "Has any applicant ever been the subject of an arrest warrant or Interpol notice?" and you answered 'No'. This information is incorrect because it appears that you are wanted by Batala District Police as the subject of an arrest warrant.

   Consequently, I consider that you have not complied with section 101 of the Act as it appears that you have provided incorrect information to the above questions in the application form for a Regional Skilled (VB 887) visa.

   [1]        Court Book (CB) p. 14.

7. On 5 September 2017, Chand Lawyers asked, by an email of that date, for an extension of time to respond to the matters raised in the NOICC on behalf of the applicant. In its accompanying letter dated 4 September 2017, Chand Lawyers wrote as follows: [2]

   [2]        CB p. 29.

   “We refer to your letter dated 23 August 2017, where you refer to an “arrest warrant” purportedly issued by the Batala District Police. Our client has never been served with an arrest warrant nor has one been served on his family’s home. Obviously we are not in a position to respond to the notice of 23 August 2017 without seeing a copy of the purported arrest warrant.

   We therefore make formal request to be supplied with a copy of this purported arrest warrant.”

   (Emphasis added)

8. Notwithstanding that there were open lines of communication between the department and the Batala District Police in India, and further notwithstanding that the department had been provided with information by the Batala District Police concerning inquiries made by its officers concerning the applicant, [3] the applicant’s lawyers were never provided with a copy of the alleged arrest warrant referred to in the NOICC which was the subject of their request.

   [3]        CB p. 13.

9. By an email dated 13 November 2017, Chand Lawyers provided further information to the department on behalf of the applicant in respect of the NOICC. [4]

   [4]        CB pp. 36 – 64 inclusive.

10. On 8 August 2018, a delegate of the Minister decided to cancel the applicant’s visa on the basis that the applicant had not complied with the provisions of s. 101(b) of the Act, which section required that no incorrect answers be given, or provided, in a visa application form. Section 100 of the Act provided that, for the purposes of the Subdivision, an answer to a question was incorrect, even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. The Court finds that the provisions of s. 100 of the Act did not apply, as later referred to in these reasons.

11. On 14 August 2018, the applicant made application for a review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’). The applicant appeared before the Tribunal on 13 March 2019 and 10 May 2019 with his representative. Further information and written submissions were provided to the Tribunal on behalf of the applicant. [5]

    [5]        CB pp. 144 – 185 inclusive.

12. On 14 June 2019, the Tribunal affirmed the decision of the delegate.

13. When arriving at its decision, the Tribunal made key findings, as set out in its reasons, as follows:

    “[30] There is no arrest warrant on the Department's file. Rather, the Department has relied upon verbal information and verbal confirmation from India that an arrest warrant has been issued.

    …

    [32] It is acknowledged in written submissions that the applicant has been declared a proclaimed offender and that the Indian Criminal Code contemplates that a person will only be declared a proclaimed offender after an arrest warrant has been issued (s.82 of the Indian Criminal Code). It is further contended that because the purported warrant is not an arrest warrant, an arrest warrant has not been issued, and the applicant being named a proclaimed offender is therefore an error.

    …

    [36] The applicant's representative also orally submitted at hearing on 10 May 2019 that the purported warrant is dated 18 October 2011 and the proclaimed offender declaration was made on 2 February 2012 which suggests that it is in fact the purported warrant that led to the proclaimed offender declaration being made and the purported warrant is not an arrest warrant. The Tribunal noted that another way of looking at the matter is that the purported warrant in October 2011 was some sort of notice for the applicant to appear in court and that when the applicant did not appear in court, an arrest warrant was then issued and when the arrest warrant was not able to be served, it was then that the proclaimed offender declaration issued. The applicant's representative acknowledged that that may also have been a possible scenario but indicated that he had no way of offering a view on that. The Tribunal accepts that neither the applicant's representative surmising as to the process nor the Tribunal's surmising as to the process is satisfactory given the lack of evidence before the Tribunal as to what process actually occurred. The Tribunal discussed with the applicant's representative that, rather, than place weight on any such suppositions, the Tribunal may instead prefer the uncontested evidence that the applicant has been declared a proclaimed offender and that the country information is that an arrest warrant precedes a proclaimed offender declaration.

    (Emphasis added) …

    [42] The Tribunal accepts the evidence before it that the applicant has received four police clearance certificates, issued 11 May 2012, 18 April 2013, 17 February 2014 and 30 June 20166 via the High Commission of India during his time in Australia. It is submitted on behalf of the applicant that each of these certificates was issued after October 2011, and that if an arrest warrant had been issued in (or before) October 2011, the Indian authorities would not have issued the certificates, thus proving that the applicant has not been the subject of an arrest warrant.

    [43] Notably the certificates all contain the following certification:

    This is to certify that as per the available records, there is nothing adverse against the name of the applicant whose details are stated here; so far as his/her stay in India is concerned, which would have rendered him/her ineligible for grant of travel facilities including visa/immigration/any other service for/in AUSTRALIA.

    [44] The Tribunal accepts that police clearance certificates were issued to the applicant in the name Malkeet Singh as is shown on the face of the certificates. As discussed with the applicant at the hearing on 10 May 2019, given the FIR report named the first accused as 'MALKIT SINGH ... S/0 NARINDER SINGH', that is utilising a different spelling of the name 'Malkeet/Malkit', the Tribunal cannot be satisfied that the subject of the certificates is the same subject of the arrest warrant such that the Tribunal places no weight on the certificates. The Tribunal is therefore not satisfied that the four police clearance certificates are conclusive of the applicant not having been the subject of an arrest warrant.

    [45] Further, as discussed with the applicant at hearing, while the Tribunal accepts the applicant's evidence at the 10 May 2019 hearing that, as part of the process of applying for the police certificates, he had to provide his family address in India and his parents' details which would have been another way of checking his records/the absence of any arrest warrant, no such details are stated on the face of the certificates. Further, notably it is not in dispute that the applicant has been declared a proclaimed offender, albeit the applicant submits, incorrectly. Clearly the new passport has been issued despite the proclaimed offender declaration, which is not disputed.

    [46] It was submitted on behalf of the applicant that the proclaimed offender declaration was erroneously made in breach of the Indian Criminal Code. The applicant's evidence at both hearings was that his father, on his behalf, had instructed lawyers in India to have the A proclaimed offender declaration quashed. At the first hearing on 10 March 2019, the applicant's W evidence was that there was to be a hearing in the High Court in India on 21 or 25 March 2019 in relation to those proceedings but that he did not have any documentation about those proceedings. At the second hearing, on 10 May 2019, the Tribunal queried the applicant in relation to an update in relation to those proceedings. The applicant told the Tribunal on 10 May 2019 that there had not yet been a hearing in relation to that and that he still did not have any paperwork.

    [47] Given the lack of any documentary evidence supporting that proceedings are being pursued in India for quashing of the proclaimed offender declaration, the Tribunal is unable to be satisfied as to the existence or status of those proceedings. Nonetheless, even if there are proceedings that are being pursued, and even if ultimately there is an order or judgment or the like quashing the proclaimed offender declaration, it does not change that for there to have been a proclaimed offender declaration, the Indian Criminal Code requires that such a declaration be preceded by an arrest warrant.

    [48] The Tribunal is not bound by the rules of evidence, including in relation to hearsay and the Tribunal acknowledges the applicant's concerns about the reliability of second, third or fourth- A hand verbal information obtained by the Department. However, it is not in dispute that the W applicant has been declared a proclaimed offender, a process that is preceded by the proclaimed offender having been the subject of an arrest warrant. The Tribunal has canvassed these matters at length and on balance, having had regard to all matters before it, the Tribunal is of the view that the applicant has been the subject of an arrest warrant.

    [49] The Tribunal therefore finds, that by stating 'no' in response to the question "Has any applicant ever been the subject of an arrest warrant or Interpol notice?”, the applicant gave an answer that was incorrect.

    …

    [69] While the delegate's decision is not evidence as such before the Tribunal, notably the delegate, an officer of the Department, expressed the view that had the delegate (deciding the visa application) known that the applicant was the subject of an arrest warrant, the visa would not have been granted.

    …

    [72] Having had regard to all matters, the Tribunal is of the view that had the Department been aware of the correct information, it is unlikely the visa would have been granted, whether after allowing further reasonable time or not to pursue quashing of a proclaimed offender declaration or otherwise in India.

    [73] It follows that the Tribunal concludes that the decision to grant the visa was based partly on incorrect information, and the Tribunal places significant weight on this factor as a reason for exercising the discretion to cancel the visa.”

14. On 15 July 2019, the applicant filed an Originating Application for Review of the decision of the Tribunal. At the hearing before this Court, the applicant relied upon a Further Amended Application for Review filed on 31 January 2020, the grounds of which were as follows:

    “Grounds of application

    Ground 1

    1. The Second Respondent erred when it decided that the Applicant has been the subject of an arrest warrant.

    2. The Second Respondent’s decision is contrary to evidence and is based on assumptions. The assumptions which the Second Respondent made were not open to it.

    Proclaimed offender

    3. The Second Respondent’s decision is based on a finding that the Applicant has been named a proclaimed offender in India. The Second Respondent found that in India, such a proclamation is to be preceded by the issuing of an arrest warrant. But the proclamation and the arrest warrant are not the same thing. Consequently, the underlying assumption made by the Second Respondent is that the legal process was actually followed before the Applicant was named a proclaimed offender. As detailed below, the Applicant relied on evidence, amongst others, documentary evidence, to prove that this assumption is not correct, that is, that the proclamation was erroneously made. The Second Respondent rejected this evidence by stating that the Applicant was named a proclaimed offender. In other words, evidence to the effect that legal process was not followed was rejected by the assumption that legal process was followed.

    4. The Second respondent made a further mistake in that it determined, in effect, that the assumption that legal process was actually followed before the Applicant was named proclaimed offender was non-rebuttable. In other words, the Second Respondent considered that no evidence would be capable of proving that the legal process was in practice not followed. This is clear from the following passage of the Second Respondent’s decision record (par 47):

    “Nevertheless, even if there are proceedings that are being pursued, and even if ultimately there is an order or judgement or the like quashing the proclaimed offender declaration, it does not change that for there to have been a proclaimed offender declaration, the Indian criminal code requires that such a declaration be preceded by an arrest warrant.”

    5. In effect, the Second Respondent stated that even if the proclamation was quashed on the basis that the legal process was not followed, that would still not be sufficient evidence that the process was not followed.

    Police Clearance Certificates

    6. The Applicant relied upon four Police Clearance Certificates as evidence that he has not been the subject of an arrest warrant. The Second Respondent stated that it placed no weight on these Certificates.

    7. The Second Respondent did not place weight on the Certificates for two reasons.

    8. Firstly, The Second respondent noted that the Applicant’s name is spelt differently in a First Information Report (i.e. as “Malkit Singh”) and then the Second Respondent went on to say that it “cannot be satisfied that the subject of the [Police Clearance Certificates] is the same subject of the arrest warrant such that the Tribunal places no weight on the certificates”.

    9. The assumption which the Second Respondent made is that the alleged arrest warrant describes the Applicant by a name which is spelt differently. However, there is no evidence as to by what name the subject of the alleged arrest warrant is described in the arrest warrant. The Second Respondent referred to the First Information Report, but that is not the same as an arrest warrant.

    10. By inference, the Second Respondent also assumed that in India, if a crime is reported and the person reporting the crime (or the police officer recording the report) misspells the alleged perpetrator’s name, then subsequently the authorities do not verify the legal name of the person against whom an arrest warrant is to be issued and they did not verify the legal name in this matter.

    11. The Second Respondent also assumed that when the alleged perpetrator applies for a Police Clearance Certificate, and provides their real name, date of birth, address and their parents’ name, the Indian authorities would not identify that the applicant for the Certificate is the same person against whom an arrest warrant is in place and they did not identify this in the present matter.

    12. The inevitable conclusion which follows from these assumptions is that an Indian Police Clearance Certificate is essentially worthless.

    13. None of these assumptions are supported by evidence. Notably there is no evidence that the Indian authorities have ever suggested to the Department that the Certificates are incorrect.

    14. Secondly, the Second Respondent’s other reason for rejecting the Certificates is that the Applicant has been named a proclaimed offender (see paragraph 45 of the reasons). By doing so, the Second Respondent rejected the Applicant’s evidence that the proclamation was erroneously made by the assumption that the proclamation was correctly made.

    Absence of a copy of the arrest warrant

    15. The alleged arrest warrant was not in evidence. The Applicant submitted that the absence of the arrest warrant on file and the fact that an arrest warrant could not be located is evidence that an arrest warrant does not exist and therefore that legal process was not followed when the Applicant was declared a proclaimed offender.

    16. The Second Respondent noted that the Applicant has been named a proclaimed offender, a declaration which is preceded by the issue of an arrest warrant. Thus, in rejecting the Applicant’s evidence, the Second Respondent again assumed that the legal procedure in India was followed.

    17. Further, the Second Respondent stated “there may well be a reason for the absence of the document.” This is mere speculation. It contradicts the evidence which the Second Respondent otherwise accepted, namely:

    a. the Department conducted investigations in India twice, the second time after the Applicant specifically made a request that the arrest warrant be produced, and yet the arrest warrant was not on the Department’s file;

    b. the Applicant, through his own enquiries, attempted to locate the arrest warrant but was unable to find such a document;

    c. the Department did not state any reasons why the alleged arrest warrant was not on file and was not obtained, despite the Applicant’s request that it be produced;

    d. The Department did not state that it was informed by Indian authorities that the Applicant was the subject of an arrest warrant. Rather, the Indian authorities are said to have verbally informed Departmental officers that the Applicant is named as a proclaimed offender;

    e. A previous Tribunal decision, which was given to the Second Respondent, proves that there is no impediment in obtaining a copy of an arrest warrant from the Indian Government, if one exists.

    Passport

    18. The Applicant presented to the Second Respondent his Indian passport issued in 2016. The passport itself contains the Applicant’s parents’ names. Therefore, the Indian authorities were in possession of this information when they issued the new passport. It is inconsistent with the existence of an arrest warrant that a passport is issued by the authorities. The Second Respondent did not explain the basis on which it did not place weight on this evidence, other than to say “clearly the new passport has been issued despite the proclaimed offender declaration, which is not disputed.”

    19. Again, the Second Respondent rejected the Applicant’s evidence that an arrest warrant does not exist and that the proclamation was made erroneously by relying on the assumption that the proclamation was made in accordance with the required legal process.

    Further contradiction in reasoning

    20. The Second Respondent’s decision is based on the assumption that when the Applicant was made a proclaimed offender, proper process was actually followed, namely, it was preceded by an arrest warrant being issued against the Applicant. In other words, the Second Respondent assumed that no mistake was made when the Applicant was declared a proclaimed offender.

    21. However, the Second Respondent’s rejection of the Applicant’s documentary evidence is premised on the Indian authorities having made repeated mistakes over a number of years, which at the very least included:

    a. Four separate Police Clearance Certificates being issued over four years. The Second Respondent has in effect concluded that these Certificates mistakenly certify the matters stated in them;

    b. A new passport being issued to the Applicant in 2016 even though it is highly unlikely that a passport would be issued to someone who is the subject of an arrest warrant;

    c. The alleged arrest warrant being issued in the wrong name.

    22. It was illogical and unreasonable for the Second Respondent to find that there is an arrest warrant on the basis that no mistake was made when the Applicant was named a proclaimed offender, but at the same time to assume that several mistakes were made and as a result the documents issued by the Indian authorities contradicting the existence of an arrest warrant cannot be accepted as evidence.

    Summary in relation to ground 1

    23. For the above reasons, the Second Respondent failed to take into account and give proper weight to relevant evidence, its decision is based on assumptions, its reasoning is illogical and not based on facts and logical inferences, and its decision is unreasonable as no reasonable decision maker could have made the same decision. As such, the Second Respondent’s decision is affected by jurisdictional error. 24. The first respondent also erred in finding that the Applicant has been the subject of an arrest warrant, because the first respondent failed to take into account relevant evidence, namely the content of Police Clearance Certificates and the fact that the arrest warrant has never been produced.

    Ground 1A

    24A. The second respondent erred in failing to: take any steps to obtain a copy of any alleged arrest warrant from India relating to the applicant; or conduct any enquiries with authorities in India to determine if an arrest warrant had been issued in respect of the applicant: or make any further enquiries to determine if an arrest warrant had been issued in respect of the applicant; in circumstances where:

    (a) the applicant had provided to the second respondent four police clearance certificates indicating he was not the subject of an arrest warrant in India;

    (b) the applicant submitted to the second respondent that in at least one other matter, Indian authorities had been willing to provide a copy of the arrest warrant to the first respondent;

    (c) the first and second respondents had not been provided with a copy of any arrest warrant relating to the applicant;

    (d) the second respondent did not take any steps to ascertain what was the nature of the alleged information provided to the Department that the applicant was the subject of an arrest warrant in Batala Gurdaspur;

    (e) the second respondent did not identify, or provide a copy to the applicant of, the alleged country information referred to at paragraph 36 of the second respondent’s reasons for decision.

    24B. In failing to take any of the steps referred to in paragraph 24A, the second respondent:

    (a) failed to exercise its jurisdiction properly to conduct a review of the first respondent’s decision; and

    (b) acted unreasonably in the conduct of the review.

    24C. In the circumstances set out in paragraphs 24A and 24B the second respondent’s decision to affirm the decision of the first respondent was unreasonable, illogical or irrational.

    Ground 2

    25. The Second Respondent erred in the exercise of its discretion because, in considering whether to cancel the Applicant’s visa:

    a. it placed insufficient weight on the lack of knowledge of the Applicant about the existence of the alleged arrest warrant, even though:

    i. there is no evidence to support a finding that the Applicant knew about the alleged warrant;

    ii. the Second Respondent accepted (see par 74) that “the Applicant could understandably have accepted police clearance certificates being issued to mean that he did not have any continuing issues with the authorities in India.”;

    b. in considering whether the visa grant decision was based wholly or partly on incorrect information, the Second Respondent misconstrued section 501 of the Migration Act 1958, because it formed the view that a mere arrest warrant could, without more, amount to a failure of the character test and, for that reason fell into error in performing the assessment and thereby in exercising its discretion.

    Ground 3

    26. The First and Second Respondents fell into error by finding that the Applicant had provided an incorrect answer to the question about whether he is or has been “known by” any other name. They both misunderstood the meaning of the term “known by”, that is, merely because some other person, entirely outside the Applicant’s knowledge, uses the wrong name or a different name to describe him, cannot mean that the Applicant is “known by” that name within the meaning of the question which the Applicant answered in his visa application form.

    27. The Second Respondent fell into error by finding that the Applicant had provided an incorrect answer to the question “Are you currently, or have you ever been, known by any other names (including names before marriage, aliases or any alternative spelling in any of your names)?”. The Second Respondent misunderstood the meaning of the question and equated the meaning of “alternative spelling” and “misspelling”. The Second Respondent found that the Applicant’s name was misspelled in an official Indian document (see paragraph 52 of the decision). The Second Respondent found that this meant the Applicant’s name was “alternatively spelled” (see paragraph 53). However, the meaning of “misspell” is to spell a word (or name) wrongly. The term “alternative” means there are 2 or more possibilities. However, a wrongly spelled name (i.e. one that is misspelled) is not “alternatively spelled”. The question in the visa application does not ask a visa applicant whether they are or have been known by wrongly spelled names. There was no evidence before the Second Respondent to conclude that the Applicant’s name had ever been alternatively spelled, as opposed to simply misspelled. Therefore it was not open to the Second Respondent to reach the conclusion in paragraph 55 of the decision.”

Grounds for Review

Ground 1 and 1A

1. Ground 1 is an assertion that the Tribunal erred in finding that the applicant had been the subject of an arrest warrant at the time that he completed the visa application form. It was further asserted that it was not open to the Tribunal to make such findings based upon assumptions which were submitted to be untenable.

2. It is clear that the Tribunal was never provided with a copy of any warrant for the arrest of the applicant. It is also clear that the lawyers for the applicant had submitted documents to the Tribunal which, on their face, purported to evidence the withdrawal/cancellation of police investigations into any allegations made against the applicant. [6] Though the department had later concluded that the police investigation had not been finalised, no attempt was made to establish whether a warrant of arrest had or had not been issued. The approach taken by the Tribunal in finding that a warrant for the arrest of the applicant had been issued was, at best, speculative. So much is clear from its analysis of the conflicting evidence before it, when, at [36] of its reasons, it said:

   “…The Tribunal noted that another way of looking at the matter is that the purported warrant in October 2011 was some sort of notice for the applicant to appear in court and that when the applicant did not appear in court, an arrest warrant was then issued and when the arrest warrant was not able to be served, it was then that the proclaimed offender declaration issued.”  

   [6]        CB p. 72 – Record of documents provided by Chand Lawyers on 13 November 2017.

3. When so finding, the Tribunal had arguably proceeded on an erroneous factual basis. The “ … purported warrant in October 2011 … ”, [7] so referred to by the Tribunal, was, on its face, clearly not a document which one would usually associate with criminal proceedings. It was as follows:

   [7]        Annexure A document to applicant’s submissions – CB p. 145.

   “In the Court of Sh. Rachhpal Singh

   P.C.S. Civil Judge (Jr.Div.-Cum-

   J.M.I.C., BATALA.

   State Vs     Malkiat Singh

   FIR No. 10/10

   U / s 376, 363, 34 IPC

   P.S.Qila Lal Singh

   N/B/W(2) Malkiat Singh S/ o Narinder Singh

   Caste Ghurniar resident of QilaLal Singh.

   You are hereby directed to appear in this Court on 3-11-11 the date fixed for your appearance at 10 A.M. in the above noted case, failing which Ex-Parte proceedings would be initiated against you.

   Sd/ -in English

   Judicial Magistrate 1st Class

   Batala.

   Countersignatures 18/10/11

   HC Sukhdev Singh

   To affect the Service of The Warrant.

   Sd/ - in Punjabi

   Narinder Singh SI

   SHO/QLS

   24/10/11”

4. A number of issues arose from a reading of such document, namely:

   a)The document recorded in its heading that it was issued in the Court of Sh Rachpal Singh, who was a “Civil Judge”. Why would a Civil Judge issue a summons in a criminal proceeding?

   b)The reference to “Ex-Parte proceedings” being initiated against the named defendant in the event of their non-appearance on 3-11-11, was likely a reference to civil proceedings.

   c)It is beyond question that as at the date listed for the applicant to make an appearance pursuant to such summons – namely by 3/11/11 – the applicant was in Australia. If the summons was in respect of criminal proceedings, and if it had proceeded ex parte, then presumably the applicant would have been convicted, and sentenced, in absentia, by reason of his non-appearance by the return date on the summons. There is no evidence that that occurred.

   d)Though the document is in the nature of a summons, nowhere on its face does it purport to relate to criminal proceedings, whether then current or contemplated.

   e)The use of the word “Warrant” in the document was contextually meaningless.

5. It was not surprising, therefore, that the Tribunal found that the state of the evidence concerning criminal procedures relative to the issue of an arrest warrant, in the circumstances before it, was wanting. That was no doubt why, at paragraph [36] of its reasons, the Tribunal found as follows:

   “[36] … The Tribunal accepts that neither the applicant's representative surmising as to the process nor the Tribunal's surmising as to the process is satisfactory given the lack of evidence before the Tribunal as to what process actually occurred. …”

6. The Court finds that there was no reasonable basis for the Tribunal finding that the Annexure A document was a summons issued in respect of criminal proceedings involving the applicant. The reference to FIR 10/10 in the body of the document – that being a reference to a First Information Report in respect of the alleged rape incident on 1 /2/2010 – was also contextually meaningless. [8] The possibility that the proceedings were civil but founded upon the making of a criminal complaint was never explored, and the question was left unanswered.

   [8]        Exhibit 3. P. 22

7. The uncertainty surrounding the legal effect of the Annexure A document was part of the missing factual matrix before the Tribunal. The need for the clarification of critical facts, by the making of obvious inquiries, was therefore of fundamental importance before any adverse finding was made against the applicant.   

8. In circumstances where there was no evidence that the applicant had been convicted in absentia, where there was evidence that the department was unable to confirm whether or not an arrest warrant had been issued or not, and where there was no physical evidence of any arrest warrant before the Tribunal, the Tribunal could have sought information relevant to that very issue pursuant to the provisions of s. 424 of the Act. The existence of an arrest warrant was critical to a determination of the applicant’s rights in this proceeding. Because departmental officers had had direct dealings with Indian police personnel allegedly concerning the applicant’s status, the Court infers that it would have been a relatively simple matter for a copy of any arrest warrant to be obtained, if it existed. The lines of communication were clearly open. There was nothing in the material before the Tribunal to suggest that a simple request for a copy of an arrest warrant would either not be forthcoming, or would be rejected as being overly burdensome.

9. The facts of this matter were distinguishable from those in Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsvFOE17 [2020] FCAFC 73. They more closely accorded with those the Court considered in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 where at [51] Nettle J said as follows:

   “51. Hence, one obvious way of ensuring, or at least being more certain, that the plaintiff had ceased to be enrolled was to make a telephone inquiry of the University, the direct and authoritative source of confirmation of the plaintiff's enrolment, just as the delegate had done on 20 February 2014 to check the plaintiff's address. Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so – by picking up the telephone and requesting the University to check whether the plaintiff's enrolment status as shown in PRISMS was in fact correct – and the clear link between the delegate's failure to make that inquiry and the delegate's determination to cancel the visa, I consider this to be a case in which the delegate's failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.”

10. Though the Tribunal could have easily picked up the phone to request the Batala Police to email/fax/post a copy of any arrest warrant, it could have just as easily called in aid the officers of the High Commission in India, for such purpose, on its behalf. Either way, the existence or otherwise of an arrest warrant could have been easily ascertained by requesting a copy of it through existing clear channels of communication.

11. The failure of the Tribunal to make what was, in the circumstances, an obvious inquiry about such a critical fact – one which could have easily been ascertained – constituted jurisdictional error. [9] It could have made an appropriate inquiry in any number of ways. [10]

    [9]        Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] per French CJ,

    [10]      Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at [45] – [47] inclusive

12. Such failure was material, in that it could realistically have resulted in the Tribunal arriving at a different decision. As was said in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] – [46] per Bell, Gageler and Keane JJ:

    “[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

    [46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”

13. Ground 1A of the Further Amended Application has been made out. The Tribunal had failed to properly conduct a review of the first respondent’s decision, and had thereby acted unreasonably in the conduct of the review.

14. The Tribunal also fell into jurisdictional error by misconstruing the evidence before it which firstly went to the question as to whether there was uncontested evidence before the Tribunal that the applicant was a proclaimed offender, and which secondly went to the question as to whether there was evidence before the Tribunal in the nature of country information which confirmed that the making of a proclaimed offender declaration was contingent upon the prior issue of an arrest warrant.

15. At [36] of its reasons, the Tribunal said as follows:

    “[36] … The Tribunal discussed with the applicant's representative that, rather, than place weight on any such suppositions, the Tribunal may instead prefer the uncontested evidence that the applicant has been declared a proclaimed offender and that the country information is that an arrest warrant precedes a proclaimed offender declaration.”

    There are two propositions which have been articulated in the above passage.

16. The first proposition related to what was held by the Tribunal to be “uncontested evidence” that the applicant had been declared a proclaimed offender. There was no such uncontested evidence. Paragraph [17] of the applicant’s submissions confirmed that not only was the applicant contesting that an arrest warrant had ever been issued, he was also contesting that any declaration of his being a proclaimed offender was valid. Paragraph [17] provided as follows: [11]

    “[17] Sixth, even though the applicant has been declared a proclaimed offender, and even though s 82 of the Code contemplates that a person will be declared a proclaimed offender after an arrest warrant had been issued, in actual fact, despite the Code's requirements, an arrest warrant had not been issued in the present case. (The purported warrant is not an arrest warrant.) What follows from the fact that the applicant has been declared a proclaimed offender is not that an arrest warrant had been issued, but rather, that the declaration was erroneously made, in breach of the Code. It should also be noted that the Code contemplates that a declaration is to be made only if someone absconds or is concealing himself. Given the applicant left India almost 2 years before the purported warrant was issued, and given he never tried to conceal himself (as demonstrated by the 4 police clearance certificates) it is difficult to see how the legislative requirements of a declaration under s 82 of the Code have been met. This is another circumstance which shows that the applicant was wrongly declared a "proclaimed offender'.”

    [11]      CB pp. 178 – 179.

17. Uncontested evidence must relevantly be the subject of unqualified acceptance. Here it wasn’t. The applicant’s representatives asserted that even though there existed a declaration that the applicant was a proclaimed offender, it was asserted that such declaration had been erroneously made because there had never been an arrest warrant issued. For the Tribunal to have proceeded on the basis that there was uncontested evidence that the applicant was a proclaimed offender was a misconception of, or misunderstanding of, the content of submissions made by the applicant as to the validity of the declaration. More evidence of a conclusive nature was needed for the Tribunal to find that an arrest warrant must have been in existence before the declaration was made, particularly in the light of the Tribunal’s findings that there was uncertainty surrounding the procedures associated with the issuing of arrest warrants in India.

18. The second proposition which had erroneously been adopted by the Tribunal, was that country information had been put before the Tribunal, and that such country information confirmed that a proclaimed offender declaration could only be made if an arrest warrant had firstly been issued. There was no basis for the finding by the Tribunal that it had been assisted by country information when arriving at its decision. There was no country information upon which it could have relied. The Tribunal made no reference in its reasons to any commonly understood country information such as a DFAT report, or another report prepared by some other reputable human rights agency or governmental body. The Court rejects the submission advanced on behalf of the first respondent that information obtained by departmental officers, as a result of inquiries made by them to their counterparts in the Australian High Commission in India, undocumented and informal as it was, constituted, relevantly, ‘country information’ upon which reliance could be placed by the Tribunal. Alternatively, other information which was provided by departmental officers, suppressed as it was by order of this Court, did not fall into the category of country information, as such information has come to be known and accepted in migration proceedings conducted in this Court.

19. Ground 1 of the further amended application for review has been made out.    

Ground 2

1. At [74] of its reasons, when discussing the applicant’s alleged provision of incorrect answers in the visa application form, the Tribunal said as follows:

   “[74] As already noted, the Tribunal has been unable to be satisfied as to the applicant's knowledge of being the subject of an arrest warrant at the time of the visa application. Although the Tribunal has found the issuing of the police clearance certificates does not definitively rule out that the applicant was the subject of an arrest warrant, the Tribunal accepts that the applicant could understandably have accepted police clearance certificates being issued to mean that he did not have any continuing issues with the authorities in India.”

2. At [79] – [83] inclusive of its reasons, the Tribunal acknowledged that the applicant had appropriately responded to the NOICC, and that there was no evidence that he had provided any bogus documents when responding to it. The Tribunal further acknowledged that “ … it may well be that there are explanations for the discrepancies identified in the reports …”, namely the reports provided by the applicant’s lawyers in response to the NOICC about the cancellation of the criminal investigation concerning the applicant, and other reports obtained by staff at the Australian High Commission in India concerning the status of any such criminal investigation.

3. It was submitted on behalf of the applicant that the Tribunal had fallen into jurisdictional error in finding that the applicant had not satisfied the relevant Public Interest Criterion (PIC), being cl. 4001 of Schedule 4 to the Migration Regulations 1994 (Cth) (‘the Regulations’). It had been asserted that the applicant had supplied incorrect information to the department relating to the applicant’s knowledge of the existence of an arrest warrant. PIC 4001 relevantly provided as follows:

   “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.

4. For the reasons as found in respect of Grounds 1 and 1A, the Court is not satisfied that the Tribunal ought to have determined that a warrant for the applicant’s arrest had ever been issued. In such circumstances, there was nothing before the Tribunal which ought to have given rise to a basis for the Tribunal finding that the character test had not been satisfied. The term “character test” is as set out in s. 501(6) of the Act as follows:

   “Section 501 – Refusal or cancellation of visa on character grounds

   …

   (6) For the purposes of this section, a person does not pass the character test if:

   (a)  the person has a substantial criminal record (as defined by subsection (7)); or

   (aa)  the person has been convicted of an offence that was committed:

   (i)  while the person was in immigration detention; or

   (ii)  during an escape by the person from immigration detention; or

   (iii)  after the person escaped from immigration detention but before the person was taken into immigration detention again; or

   (ab)  the person has been convicted of an offence against section 197A; or

   (b)  the Minister reasonably suspects:

   (i)  that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

   (ii)  that the group, organisation or person has been or is involved in criminal conduct; or

   (ba)  the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

   (i)  an offence under one or more of sections 233A to 234A (people smuggling);

   (ii)  an offence of trafficking in persons;

   (iii)  the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

   whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

   (c)  having regard to either or both of the following:

   (i)  the person’s past and present criminal conduct;

   (ii)  the person’s past and present general conduct;

   the person is not of good character; or

   (d)  in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

   (i)  engage in criminal conduct in Australia; or

   (ii)  harass, molest, intimidate or stalk another person in Australia; or

   (iii)  vilify a segment of the Australian community; or

   (iv)  incite discord in the Australian community or in a segment of that community; or

   (v)  represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

   (e)  a court in Australia or a foreign country has:

   (i)  convicted the person of one or more sexually based offences involving a child; or

   (ii)  found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

   (f)  the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

   (i)  the crime of genocide;

   (ii)  a crime against humanity;

   (iii)  a war crime;

   (iv)  a crime involving torture or slavery;

   (v)  a crime that is otherwise of serious international concern; or

   (g) the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

   (h)  an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

   Otherwise, the person passes the character test.”

1. The Court accepts the submissions made on behalf of the applicant that none of the disqualifying factors as set out in s. 501(6) of the Act had been satisfied. In the absence of compelling evidence of the involvement of the applicant in criminal conduct, and in circumstances where an arrest warrant has not been produced, there was no basis for the Tribunal to find that the applicant had been, or was, involved in criminal conduct under the provisions of s. 501(6)(b)(ii) or (c) of the Act.

2. Further, the Tribunal was not entitled to proceed on the false premise that had the department been aware of the:

   “ … correct information, it is unlikely the visa would have been granted, whether after allowing further reasonable time or not to pursue quashing of a proclaimed offender declaration or otherwise in India”. [12]

   [12]      Paragraphs [69] – [73] of reasons at CB pp. 232 – 233.

3. The Tribunal did not properly understand the way in which it ought to have properly applied the character test criteria in the circumstances of the matter. It ought not to have proceeded hypothetically upon the basis of what might or might not have been decided by a delegate of the Minister had different evidence – namely conclusive evidence of the existence of an arrest warrant – been provided to the delegate. That was particularly so in circumstances where such claim was neither confirmed, nor irrefutable. It was legally unreasonable for the Tribunal to have proceeded on such basis, because to do so lacked an evident and intelligible justification. [13]

   [13]      Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76].

4. The Tribunal’s findings were not open on the evidence before it.

Ground 3

1. This ground relates to the finding by the Tribunal that the applicant had incorrectly answered the question, “Are you currently, or have you ever been known by any other names (including names before marriage, aliases or any alternative spelling in any of your names)”, in the negative.

2. The Tribunal set out its basis for so finding at [50] – [55] of its reasons as follows:

   “[50] The s.107 notice also contends non-compliance on the basis that the applicant has been known by other names and incorrectly answers a question in that regard in his visa application.

   [51] The applicant denies that he has been known by any other names and that he has never used another name other than the one which appears on his passport and was provided to the Department in his visa applications. Further, the applicant's position is that he has never authorised anyone to spell his name differently. The applicant does not dispute that his name was spelt differently in the FIR but does not know why that was the case and maintains that he has never used any aliases, as is supported by a number of official documents provided to the Tribunal. It was submitted on his behalf that the fact that other people, without the applicant's authorisation or knowledge, inserted his name into documents and misspelt his name does not mean that the applicant is known by other names.

   [52] The evidence before the Tribunal is that the FIR report contained the applicant's name by reference also to his father's name and his address in India, but that the name was misspelt.

   [53] The Tribunal accepts that the applicant did not authorise or instruct the use of his name, or the misspelling of his name in the FIR. However, it is clear that he is the person referred to in the FIR, the first accused, is the applicant, given the reference to his father's name and his address. It follows that, albeit without the applicant's knowledge, he has been known by another name, specifically an alternatively spelled version of his name.

   [54] The Tribunal therefore finds that by stating 'no' in response to the question "Are you currently, or have you ever been, known by any other names (including names before marriage, aliases or any alternative spelling in any of your names?", the applicant gave an answer that was incorrect.
   
   (emphasis added)

   Conclusion

   [55] As the Tribunal has found that the applicant gave an answer that was incorrect in relation to the arrest warrant, and an answer that was in correct in relation to his name, there has been noncompliance in the way described in the s.107 notice.”

3. The Court accepts the applicant’s submission that there was no evidence before the Tribunal which enabled it to make the finding at [55] of its reasons. It was illogical and irrational for the Tribunal to have so found, particularly where, at [53], it found  that:

   “[53] The Tribunal accepts that the applicant did not authorise or instruct the use of his name, or the misspelling of his name in the FIR”.

   There was no evidence before the Tribunal that the applicant had been known by an alias, or that he had otherwise allowed or perpetuated the use of his name spelt differently. The mere fact that a third party had misspelt the applicant’s name in what appears to be some internal police document, or in the Annexure A document, does not relevantly  constitute an error on the part of the applicant in the filling out of his answer to the relevant question in the visa application form. To so find constituted extreme illogicality in the context of what the Tribunal was required to decide. The Court adopts what was said by Wigney J in SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 at [52] and [55] as follows:

   “[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

   [55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal:  SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”

4. There was necessarily a subjective element to the answering of the question in the application for visa form, as was clearly explained in the applicant’s submissions. [14] The evidence before the Tribunal was that the applicant first came to know of the allegation that a warrant had been issued for his arrest when he received the NOICC in August 2017, which was well after the applicant applied for the visa on 2 September 2016. A typing error on the part of a third party was an administrative error for which the applicant had no responsibility.

   [14]      Paragraphs 18 – 22 of submissions at CB pp. 179-180.

5. The decision of the Tribunal was not open on the evidence before it, and there was no logical connection between what evidence there was, and the finding as made by the Tribunal on that issue.

6. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] as follows:

   “[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.”

7. In so finding, the Tribunal fell into jurisdictional error.

8. The decision of the Tribunal is quashed.

9. The Court will hear the parties as to costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 28 May 2020

CORRECTION: 29 May 2020

1. Paragraph [30] has been amended to show ‘valid’ in lieu of ‘invalid.

         Gummow, Hayne, Crennan, Kiefel and Bell JJ where it was said:

“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.”

         per French CJ, Heydon, Crennan, Kiefel and Bell JJ