Yang v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 830
Federal Circuit and Family Court of Australia
(DIVISION 2)
Yang v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 830
File number(s): SYG 2626 of 2018 Judgment of: JUDGE LAING Date of judgment: 13 October 2022 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming decision not to grant a Partner (Residence) (Class BS) (Subclass 801) visa – where applicant not provided with original documents used by Department’s forensic examiner – where applicant not provided with entire forensic examination report – whether the Tribunal unreasonably failed to disclose materials – whether the Tribunal unreasonably failed to obtain a further forensic examination report – application dismissed. Legislation: Migration Act 1958 (Cth) ss 357A, 359A, 376, 424AA, 424A, 425, 427, 438
Migration Regulations 1994 (Cth) Schedule 2, cl 801.226; Schedule 4, cl 4020
Cases cited: Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225
Minister for Immigration and Citizenship v Maman [2012] FCAFC 13; (2012) 200 FCR 30
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
WAFV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 240; (2003) 132 FCR 280
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 14 September 2022 Place: Sydney Counsel for the Applicant Dr S Tully, of Counsel, appeared in person Solicitor for the Applicant Brightstone Legal Counsel for the First Respondent Mr T Reilly, of Counsel, appeared in person Solicitor for the First Respondent Australian Government Solicitor Counsel for the Second Respondent Submitting appearance, save as to costs ORDERS
SYG2626 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAN YANG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
13 October 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Partner (Residence) (Class BS) (Subclass 801) visa (Permanent Partner Visa).
background
The applicant is a national of China. She arrived in Australia in October 2008 as the holder of a Student Visa. She was granted a Partner (Temporary) (Class UK) (Subclass 820) visa on 9 December 2014. This visa was granted on the basis of the applicant’s relationship with an Australian permanent resident (Sponsor).
By letter dated 6 October 2015, the Department received an anonymous letter stating that the applicant and the Sponsor had separated. The letter also stated that the applicant had requested the writer to provide a Form 888 (statutory declaration in support of a partner visa application) in respect of her visa application.
On 12 October 2015, the applicant provided various documents in support of the permanent stage processing of her visa application. This included a statutory declaration, that was purportedly made and signed by the Sponsor, dated 9 October 2015 (Statutory Declaration).
On 14 March 2016, the Sponsor notified the Department that he wished to withdraw his sponsorship of the applicant’s visa application.
On 5 April 2016, the Department sent the applicant an invitation to comment on information that the relationship with the Sponsor had ceased and the sponsorship had been withdrawn. In response, by letter dated 20 April 2016, the applicant claimed to have suffered family violence.
On 21 June 2016, the Department sent the applicant a further invitation to comment on adverse information, which indicated that she had submitted false or misleading documents in support of her Permanent Partner Visa application including the Statutory Declaration.
The applicant responded, denying that she had provided false or misleading documents.
On 22 November 2016, the Delegate refused to grant the applicant a Permanent Partner Visa. The Delegate was not satisfied that the applicant met Public Interest Criterion 4020(1) (PIC 4020), noting (inter alia):
A forensic examination of the statutory declaration which you claim was executed by your sponsor was conducted by a specialist departmental forensic document examiner and it was found that there was very strong support for the proposition that the document you provided, namely, the statutory declaration written and signed by your sponsor, was found to have been written and signed by a person that was not your sponsor.
The questioned signature was unnaturally written displaying lack of fluency and numerous dissimilarities when compared to signatures of the sponsor. Given the differences in the sequence of strokes and complexity of the Chinese character formations observed between the document you provided and the sponsor’s handwriting and signature, it was found that the statutory declaration which you purported to have been written and executed by your sponsor was executed by a different person who was not your sponsor.
The applicant sought review by the Tribunal.
On 20 April 2018, the applicant attended a hearing before the Tribunal with her migration agent and her own forensic expert, Ms Michelle Novotny.
On 14 August 2018, the Tribunal affirmed the Delegate’s decision refusing to grant a Permanent Partner Visa, finding that the applicant did not satisfy PIC 4020.
relevant legislation
PIC 4020(1) relevantly provided:
4020
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
the tribunal’s decision
The Tribunal identified the issue in the review as being whether the applicant satisfied PIC 4020, and specifically, whether she had provided the Department with a false or misleading document by providing the Statutory Declaration (at [1]-[12]).
Ms Novotny’s expert evidence and the s 359A letter
A key issue related to the ability of the applicant’s experts, Ms Novotny and Dr Stach, to produce forensic reports in respect of the authenticity of the Statutory Declaration. The Tribunal observed that a letter issued pursuant to s 359A of the Migration Act 1958 (Cth) (Act) had been sent, which included information about the methodology and conclusions within the forensic report that was relied upon by the Delegate (Forensic Report). The s 359A letter also annexed copies of various sample signatures that had been utilised in making the report. The Tribunal observed that scans of the signatures with greater pixel density had been requested and ultimately provided (at [14]-[22]). However, the Tribunal declined to provide the original documents bearing the signatures in issue (Original Documents). This was despite limitations that had been identified by the applicant’s experts regarding their ability to forensically analyse the signatures without access to the originals. The Tribunal was also not prepared to release the full Forensic Report.
The Tribunal observed that the Forensic Report was amongst documents that were the subject of a certificate under s 376 of the Act. The Tribunal exercised its discretion to release parts of the information covered by the s 376 certificate, explaining at [19]:
19.The Tribunal determined it was appropriate, in the interest of procedural fairness, to exercise this discretion and on 25 January 2018, wrote to the applicant, pursuant to s. 359A of the Act, inviting her to comment on particulars of information which would, subject to her comments and response, provide the reason or part of the reason for affirming the Department's decision to refuse her application for the subclass 801 permanent partner visa. The particulars of information provided to the applicant included some details from the report of the Department's forensic document examiner, explaining the methodology used in that report and also copies of the signature examples utilised by the Department's forensic document examination unit in the examination of the document purportedly signed by the sponsor. The particulars of information put to the applicant also included information provided to the Department by the sponsor in support of his claim as to when the parties' relationship ceased.
In relation to the requests for the Original Documents, the Tribunal stated at [20]:
20.On 30 January 2018, the representative contacted the Department and confirmed receipt of the letter sent on 25 January 2018 and noted they would be passing it on to their forensic specialist for their further comments. Subsequent to further enquiries from the representative the Tribunal advised the representative on 15 February 2018 that the Tribunal did not consider it appropriate to provide the original documents referred to in the s.359A letter and that it was also unable to provide scans of the original documents at the 600 DPI resolution requested by the representative.
The Tribunal observed that it had subsequently been able to provide higher 600 DPI resolution scans (at [22]). In relation to the validity of the s 376 certificate, the Tribunal stated at [27]-[28]:
27.The Tribunal sought submissions from the applicant and her representative at the start of the hearing on 20 April 2018 as to the validity of the s. 376 certificate. The applicant indicated she would rely on submissions from her representative with respect to this issue, who submitted the certificate appeared to be validly issued.
28. The Tribunal has determined that the s.376 certificate is a valid certificate, as it is satisfied it is in the public interest that internal correspondence between the Department's Family Violence Processing Centre and Document Examination units not be released, as some of this information could prejudice the effectiveness of the methods and procedures used by these units within the Department. The Tribunal is also satisfied that release of all correspondence between the Department and the sponsor is not in the public interest because the full release of this information may jeopardise the third party's safety.
The Tribunal had regard to evidence given at the hearing by the applicant at [29]-[37]. This included evidence that the applicant knew the Sponsor signed the Statutory Declaration, as she claimed that this had happened in her presence. However, the applicant informed the Tribunal that she was not sure if the contents of the Statutory Declaration were written by the Sponsor as the preparation of the document had not otherwise occurred in her presence.
The Tribunal then considered the evidence given by Ms Novotny at [38]-[39]. The Tribunal summarised Ms Novotny’s evidence that the Original Documents “would have enabled her to undertake the required examination”… but “she also received no instructions to undertake an examination of the supplementary material that was provided following her initial report” (the supplementary material being the higher quality scans of the documents that had been requested on behalf of the applicant) (at [38]). The Tribunal also acknowledged Ms Novotny’s claim that “she could not usefully comment on the [Forensic Report] without seeing the full report” (at [39]).
The Tribunal found Ms Novotny to be a credible and suitably qualified expert. It “placed considerable weight” on her evidence (at [45]). The Tribunal acknowledged it was unfortunate that it had not initially been apparent that the Tribunal was able to provide copies of the documents in the requested format and resolution (600 DPI). However, it considered that this had been rectified (at [46]).
The Tribunal acknowledged Ms Novotny had nonetheless given “clear and cogent reasons” as to why she was unable to provide a concluded opinion on whether the signature on the Statutory Declaration was authentic. The Tribunal also acknowledged that she had provided clear evidence regarding the potential limitations that may affect the forensic examination of signatures. The Tribunal observed that Ms Novotny had not provided specific comment regarding the Forensic Report “due to her lack of access to the full report” and to the Original Documents that were the subject of that report (at [47]).
The Tribunal considered the applicant’s complaints that she had not been provided procedural fairness in this regard. It did not accept them, considering as follows:
59. The Tribunal has considered this issue. The Tribunal notes that the documents in question were covered by the s.376 certificate, which the Tribunal is satisfied is valid due to the public interest issues involved. As is discussed elsewhere in this decision, the Tribunal has exercised the authority vested to it through the s.376 certificate and in the interest of according the applicant procedural fairness, released some of the documents and sample signatures which were in the material covered by the s.376 certificate. The Tribunal also provided information as to the methodology used by the Department's forensic document examiner in response to some of the concerns identified by Ms Novotny in her report.
60. I did not consent to the release of the original documents contained in the Department's file as this is not the usual practice of the Tribunal and in my view, it is necessary to ensure the documents are available for any future appropriate use by the Department, the Tribunal or other statutory bodies. I acknowledge the submissions in relation to the benefit of having access to the original documents but I am not persuaded it would be appropriate for the original documents in the Department's file to be released. I have also considered the more recent reported opinion from a different forensic expert that it would be inappropriate and unreliable to undertake a forensic document examination on anything but the original documents and that the opinion of Ms Novotny that an examination would be possible upon documents scanned in the requested file format at the requested pixel density should not be accepted.
61. I am not persuaded why the specifications and comments from Ms Novotny with respect to the basis on which a forensic document examination could take place should be disregarded. The Tribunal provided the applicant with copies of the documents and sample signatures at the highest resolution scan that was available to it through the current technology available to the Tribunal. I am satisfied that the best endeavours were made by the Tribunal with respect to this issue and the related issue of making transparent the methodologies used by the Department's forensic document examiner. I am aware that there was a delay in providing the document scans in the requested file format and at the requested pixel density, but consider the salient point to be the document scans were eventually provided in one of the requested format.
62. The applicant's initial representative submitted a further forensic examination should occur on a signature of the sponsor from an Acknowledgement of Service (Divorce) document. I am not satisfied this is necessary in this matter, as I am not convinced the applicant has demonstrated why the opinions of the Department's forensic document examiner should be disregarded.
63. The applicant's representatives have submitted that not providing the original documents upon which the Department prepared their forensic opinion about the sample signature results in the applicant not been accorded procedural fairness in this matter, as the signature in question was the sole consideration relied upon by the delegate when they decided to refuse the applicant's visa application. They also submit that the cost involved in seeking a formal report from a new forensic expert, when the original documents would not be available to that expert, were such that the applicant would be denied procedural fairness. The Tribunal does not accept these claims and is satisfied the applicant has been accorded procedural fairness in this matter. This is because the Tribunal has made the applicant aware of the basis on which the Department's forensic document examiner provided their opinion and given her a reasonable opportunity to provide submissions and comments she cared to make, to the extent that I deem it appropriate under the authority vested to the Tribunal pursuant to s.376 and s.359A of the Act. It is open to the applicant to have provided submissions, comments and other material in response to the information the tribunal has provided to her as she saw fit. In this matter, the Tribunal has provided the applicant with ample time to provide evidence and submissions in support of her claims and I am satisfied she has been accorded procedural fairness.
The Department’s forensic document examiner
The Tribunal was satisfied that the Forensic Report was prepared by a suitably qualified forensic document examiner, and that the methodologies adopted by the examiner were consistent with accepted methodologies regarding the genuineness of a signature or document (at [48]). These appeared to have been broadly consistent with those described as appropriate by Ms Novotny.
The Tribunal was not satisfied that the evidence supported the applicant’s claims that it “was impossible for the Department's forensic examination to be conclusive and reliable due to the limited size of the sample signatures examined and the low image resolution of the sponsor's Chinese signature on his 2006 passport” (at [49]).
The Tribunal found:
54.I am satisfied it is appropriate to place weight on the actual conclusions reached by the Department's forensic document examiner. Accordingly, the Tribunal finds the Department's forensic document examiner opinion in relation to the signature on the statutory declaration in question is that the evidence provides qualified support for the proposition the questioned signature appearing is the product of simulation behaviour written by a writer other than the sponsor. The Tribunal further finds the Department's forensic document examiner opinion is that the evidence provides very strong support for the proposition that the original statutory declaration in question has been altered.
Tribunal’s conclusions
The Tribunal considered evidence that had been provided by the applicant supporting her version of what transpired in the relationship, and the other evidence that was before it in this regard, at [65]-[77]. Ultimately, the Tribunal was not prepared to accept the applicant’s account of the relationship.
In relation to the Statutory Declaration, the Tribunal expressed its conclusions at [80]-[85]:
80.…the Tribunal finds the Department's forensic examination of the statutory declaration purportedly signed by the sponsor on 9 October 2015 provides qualified support for the proposition the questioned signature appearing is the product of simulation behaviour written by a writer other than the sponsor.
81. With respect to the related issue of whether the statutory declaration was written by someone other than the sponsor, the Tribunal finds the Department's forensic document examination provides very strong support for the proposition that the original statutory declaration in question has been altered. I note the applicant does not contest this possibility and I accept she has not claimed otherwise in statements she has provided to either the Department or the Tribunal…
83.It is apparent to me that at the very least the parties were experiencing significant conflict and disruption in their relationship throughout the second half of 2015 and in particular during the period when it is alleged the sponsor participated in the preparation of and then signed the statutory declaration in question. I consider it likely their relationship ceased before the date in February 2016 claimed by the applicant. Irrespective of the specific date the relationship ceased, I am not convinced the available evidence supports the contention the questioned signature could not be anything but genuine. I am also not convinced it is appropriate to place no weight on the sponsor's claims he did not sign this document. I consider it to be the case that the evidence strongly suggests the statutory declaration was not prepared or written by the sponsor and whilst this is a distinct issue, it does give rise to further concern as to the authenticity of the questioned signature.
84.Upon considering the overall evidence before me and the submissions made with regard to this evidence, I am satisfied the questioned signature on the statutory declaration is not that of the sponsor. I am therefore satisfied the applicant did provide information to the Department that was false and misleading at the time it was given. I am further satisfied that the information is false and misleading in a material particular, as the statutory declaration purportedly signed by the sponsor on 9 October 2015 was provided by the applicant in support of her application for a subclass 801 permanent partner visa and was relevant to the criteria the Minister may consider when making a decision on that sort of application.
85.Therefore, the applicant does not meet PIC 4020(1).
The Tribunal was not persuaded that PIC 4020(1) should be waived. The Tribunal was not convinced by the applicant’s claims that her Australian born child would be impacted by lower sanitary conditions. The Tribunal observed that both of the child’s parents were Chinese citizens and there were no apparent constraints upon their ability to return to China. The Tribunal was not satisfied that the applicant’s preference to raise the child in Australia warranted finding that compassionate or compelling circumstances justified the grant of the visa (at [88]-[91]).
As the Tribunal concluded that the applicant could not meet PIC 4020 for the purposes of cl 801.226 of Schedule 2 to the Migration Regulations 1994 (Cth), it affirmed the Delegate’s decision (at [92]-[93].
PROCEEDINGS BEFORE THIS COURT
The applicant relies upon the following grounds contained in an application filed on 18 September 2018:
1.Making an adverse decision against the applicant on the basis of a forensic examination and report without affording the applicant the due process, procedure and opportunity to respond to the forensic examination.
2.Failing to conduct a new forensic examination based on newly obtained materials and documents available to the parties.
Ground 1
At the hearing of this matter, Dr Tully clarified that it was contended that two categories of material ought to have been put to the applicant, namely:
(a)The Original Documents; and the
(b)The entire Forensic Report.
Dr Tully also clarified that ground 1 was essentially a ground of legal unreasonableness. This appears to have been a sensible clarification. The Statutory Declaration clearly fell within the exception contained within s 359A(4)(ba) of the Act. It is questionable whether the other Original Documents, individually, could be said to have been, each “in its terms”, a “rejection, denial or undermining” of the applicant’s claims to meet the criteria for the visa (see Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197 at [19]-[28]). The applicant did not contend any breach of s 360.
The Forensic Report was the subject of a s 376 certificate. The Tribunal had a discretion under s 376 of the Act to disclose information that was the subject of the s 376 certificate to the applicant. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, in relation to an analogous discretion, it was stated (per Bell, Gageler and Keane JJ):
24.Second, the Tribunal has a discretion under s 438(3)(b), after taking account of such advice as the Secretary may have given to the Tribunal under s 438(2)(b), to disclose to the applicant the information or any matter contained in the document. Implicit in the conferral of that discretion and in the hierarchy of provisions within Pt 7 is that the Tribunal has no power under s 427(1)(c) and no obligation under s 424AA, s 424A or s 425 to disclose to the applicant the information or any matter contained in the document unless the discretion is affirmatively exercised. No doubt, the discretion under s 438(3)(b) must be exercised within the bounds of reasonableness and the obligations imposed by ss 424AA, 424A and 425, where engaged, must be performed to the maximum extent permitted by the reasonable exercise of that discretion.
Dr Tully also relied upon s 357A of the Act, which exhorts that in applying Division 5 of Part 5 of the Act, the Tribunal is to “act in a way that is fair and just”. Dr Tully, sensibly, did not ultimately contend that s 357A provided some distinct source of obligation by which common law procedural fairness could be incorporated. He did, however, rely by analogy on cases such as Minister for Immigration and Citizenship v Maman [2012] FCAFC 13; (2012) 200 FCR 30 and WAFV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 240; (2003) 132 FCR 280.
However, those cases did not turn upon grounds of legal unreasonableness. Such grounds ultimately fall to be determined by the particular circumstances, statutory context and reasoning or approach employed by the Tribunal in each case.
Legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 at [68] and [76] per Hayne, Kiefel and Bell JJ). It may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn” (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43]). However, the test has been described as “necessarily stringent” (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] per Kiefel CJ). It is not met where reasonable minds could have come to different conclusions (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ).
The Original Documents
Copies of the Original Documents were provided to the applicant with the s 359A letter that was sent by the Tribunal.
The Tribunal provided reasons for not providing the Original Documents to the applicant (or those that the applicant had engaged). Those reasons are set out in some detail above. The Tribunal considered it would not “be appropriate for the original documents in the Department’s file to be released” in circumstances where it was not “usual practice” and the Tribunal considered it “necessary to ensure the documents are available for any future appropriate use by the Department, the Tribunal or other statutory bodies” (at [60]). This was also in circumstances where the Tribunal had considered that it had sufficiently disclosed the substance of the material in a manner that would allow the applicant reasonable opportunity to comment, notwithstanding the applicant’s contentions (which were not accepted) that she had been provided with insufficient opportunity in this regard (at [19] and [59]-[63]).
Essentially, the Tribunal was concerned that provision of the originals may compromise their availability for future uses. The Tribunal had not been persuaded that their provision was necessary, as it considered that it had provided the applicant with sufficient procedural fairness (which I have taken to mean adequate opportunity to comment within the applicable statutory context and circumstances of the case).
I accept Mr Reilly’s submission that these reasons provided an “evident and intelligible justification” for the Tribunal’s decision not to release the Original Documents (if they were, in fact, within the Tribunal’s possession or control). Even if another decision maker may have approached the matter differently, this would not provide sufficient basis for a finding of legal unreasonableness. I would therefore not have accepted this part of ground 1 on this basis.
However, as I raised with the applicant’s Counsel at hearing, a further difficulty with ground 1 is that there does not appear to be clear evidence before the Court that the Tribunal actually possessed the Original Documents sought by the applicant. In this regard, Dr Tully directed the Court to various indications in the Court Book that the documents may have been in the Tribunal’s possession or control. This included:
(a)Reference in the s 376 certificate at CB 349 to folios on the Departmental file. Whilst Dr Tully suggested an inference could “possibly” be drawn that Original Documents were contained in the Departmental file that was provided to the Tribunal, this is by no means clear on the face of the certificate.
(b)An email to the applicant’s representative at CB 462, in which the Tribunal stated that certain scans “can be made of the original documents. Please see attached”. The email also stated that certain other attachments were “not available as original documents in the non-electronic Departmental file that is available to the Tribunal” and that the only scans the Tribunal could provide of those documents were of redacted copies that had been sent by post. This evidence indicates that the Tribunal had access to, at least, scans of certain Original Documents (including the Statutory Declaration). However, it does not clearly establish that the Original Documents were themselves within the possession of the Tribunal.
I am not satisfied that the above evidence demonstrates that the Tribunal had the Original Documents in its possession. Dr Tully, understandably, did not feel able to go as far as submitting at the hearing, on the basis of the above, that it did. The Tribunal may well have possessed some or all of the Original Documents. It appeared to consider itself able at least to “consent to the release of the original documents contained in the Department’s file” (at [60]). However, the evidence on this point is not entirely clear. I am therefore not prepared to draw the inference that the Tribunal possessed the Original Documents. I am also not persuaded that it could have been unreasonable for the Tribunal to have failed to provide document(s) to the applicant that were not within its possession or control.
For the applicant, Dr Tully suggested that the Tribunal could have requested that the Department provide access to the Original Documents (if that is where they were held). I accept that the Tribunal could have made inquiries in this regard.
However, there is no general obligation upon the Tribunal to make inquiries. It has been recognised that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances” justify a finding of error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI) at [25]. However, the cases in which this species of error may be found have been described as “rare and exceptional”: SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 (SZMJM) at [30]. The mere fact that it may have been reasonable for the Tribunal to have made further inquiries is not sufficient to demonstrate jurisdictional error: Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 at [33].
The material before me does not establish how readily ascertainable it would have been for the Tribunal to have procured the Original Documents in the event that it did not possess them. The receptiveness of the Department to such a request is not a matter about which I have clear evidence (even if, as suggested at CB 516-517, the Department may have been willing to provide access to original documents to visa applicants in some cases). The Tribunal’s reasoning indicates that the Tribunal did not consider the provision of originals would be critical within the circumstances of this case. I am not satisfied that this is the kind of “rare and exceptional” case in which error based upon a failure to inquire can be established.
The Forensic Report
In addition to what had been disclosed by the Delegate (see [9] above), the s 359A letter sent by the Tribunal further disclosed copies of the Original Documents and the following information about the methodology used in the Forensic Report:
As reported in delegate decision, this report was prepared by a specialist departmental forensic document examiner from Forensic Identity Services, Enterprise Identity Branch, Identity & Biometrics Division of the Intelligence & Capability Group within the Department of Immigration and Border Protection.
The Assessment request was:
•Examine the questioned signature appearing on the Statutory Declaration, which the applicant claims was prepared and signed on 9 October 2015 by the visa sponsor, to determine whether or not it was written by the writer of the comparison signatures provided by the visa sponsor; and
•An indentation examination on each of the pages of the Statutory Declaration, which the applicant claims was prepared and signed on 9 October 2015 by the visa sponsor, to detect impressions of other entries that may be generated from handwritten entries written above the underlying page.
Methodology utilised by the specialist departmental forensic document examiner for the signature examination was as follows:
Sixteen signatures associated with the person [the visa sponsor] were received for comparison comprising of fourteen request samples appearing on item S2 and two further normal course of business signatures depicted on items S3 and S4. The signatures are complex in their structure and formation displaying similarities in their overall pictorial appearance, complexity in construction, fluency, size, spacing and proportions. I have taken these signatures collectively as comparison signatures of [the visa sponsor].
Summary of Outcome
•In my opinion the evidence provides qualified support for the proposition the questioned signature appearing on the Statutory Declaration, which the applicant claims was prepared and signed on 9 October 2015 by the visa sponsor is the product of simulation behaviour produced by a writer other than the comparison writer of items S2 to S4.
•In my opinion, the evidence provides very strong support for the proposition that the original document, the Statutory Declaration, which the applicant claims was prepared and signed on 9 October 2015 by the visa sponsor, has been altered.
A copy of the Forensic Report is before the Court. In this regard, Dr Tully observed that there was material about the methodology used by the examiner in comparing the signatures that was not disclosed. This included “[l]evels of opinion”, which were categories of propositions according to which the examiner’s opinion might be expressed (e.g. the “evidence provides qualified” or “very strong support for the proposition that…”).
At the heart of it, though, the methodology used by the examiner in coming to their conclusion regarding the signature appears to have been fairly simple and involved examining and comparing the signatures, through which the issues that had been communicated in the Delegate’s decision were identified. That this methodology was used, and copies of the signature extracts relied upon, were communicated to the applicant.
The methodology used in coming to the conclusion regarding the drafting of the Statutory Declaration was more involved. The s 359A letter referred to an “indentation examination” being conducted on each of the pages of the Statutory Declaration “to detect impressions of other entries that may be generated from handwritten entries written above the underlying page”. The outcome of this process was said to provide “very strong support for the proposition that the original document” (claimed to have been prepared and signed on 9 October 2015) had then “been altered”. However, the details of why this was so were not contained within the letter. Upon my understanding of the Forensic Report, which the parties did not contradict at hearing, the indentation analysis (using an Electrostatic Detection Apparatus to detect impressions) showed that a slightly different draft of page 2 appeared to have replaced page 2 in the original version.
However, the Tribunal does not appear to have considered that the conclusions of the Forensic Report in this regard were inconsistent with the applicant’s evidence. The applicant had emphasised that she could not say whether the document had been prepared by the Sponsor, nor the manner in which this had been done, as she had not been there when the document had been prepared. At [81] of its decision, the Tribunal considered:
81. With respect to the related issue of whether the statutory declaration was written by someone other than the sponsor, the Tribunal finds the Department's forensic document examination provides very strong support for the proposition that the original statutory declaration in question has been altered. I note the applicant does not contest this possibility and I accept she has not claimed otherwise in statements she has provided to either the Department or the Tribunal…
In the above circumstances I am not persuaded, on balance, that it was closed to the Tribunal to reason as it did in considering (a) that it had sufficiently disclosed the substance of the report to allow meaningful comment, but (b) it was in the public interest not to disclose the full report as disclosure of the whole of this communication could prejudice the effectiveness of the methods and procedures used by the Departmental unit in question.
I am not persuaded that the above reasoning was unintelligible, or capable of meeting the high threshold for legal unreasonableness. It follows that ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Tribunal erred in not conducting a new forensic examination taking into account additional materials including an Acknowledgement of Service (Divorce) document that was said to bear the Sponsor’s signature. The Tribunal acknowledged that a request for this had been made (at [62]). However, the Tribunal did not consider such a further forensic examination was necessary, as it had not been persuaded that the opinions of the Department’s forensic examiner should be disregarded.
Dr Tully submitted that the Tribunal erred in not conducting (or arranging to have conducted) the further examination that was requested. This was considering the limitations and other issues that had been identified by the applicant and her experts in respect of the earlier examination. Dr Tully contended that the Tribunal erred in this regard by not making an obvious inquiry about a critical fact, the existence of which was able to be readily ascertained (per SZIAI). He alternatively submitted that the Tribunal ought to have requested that the Department deliver the original Statutory Declaration to the applicant’s expert for the purposes of further examination.
Dr Tully submitted that there were “obvious” avenues of inquiry that had been identified by the applicant’s representative and which led to “easily ascertainable and relevant facts”, being “a comparison of signatures on two forms purportedly both containing the sponsor’s signature, and whether, following an examination of the original statutory declaration and sample signatures in light of the Department’s methodology, the sponsor’s signature appeared on that declaration”. Dr Tully submitted that the Tribunal erred in failing to conduct an independent forensic examination of the further document that had been provided and/or by not referring the Statutory Declaration for further “independent scrutiny”.
For the reasons I have given above, I do not accept that it has been established that the production of the original Statutory Declaration was “readily ascertainable” in the sense that term was used in SZIAI. It is not clear on the evidence that this document was within the possession or control of the Tribunal. It is also not clear how readily the Department would have acceded to the production of the original for forensic testing and/or analysis.
I am also not persuaded that the “critical fact” of the authenticity of the Sponsor’s purported signature on the Statutory Declaration would have been “readily ascertainable” through undertaking the additional forensic analysis proposed by the applicant. The exact forensic examination process contemplated by the applicant in this regard was not entirely clear (if the Tribunal was unwilling or unable to provide the original Statutory Declaration to the applicant’s expert(s). The applicant’s experts had given evidence regarding the limitations they submitted attended any analysis without the original. All in all, it is not obvious that the “critical fact” in issue in this case would have been “readily ascertainable” through some additional forensic analysis being conducted or arranged by the Tribunal.
I also accept Mr Reilly’s submission that it was open to the Tribunal not to consider the proposed additional forensic analysis to be necessary in circumstances where it was satisfied that the Forensic Report procured by the Department was relevantly authoritative, and was not satisfied that the applicant and/or her experts had provided sufficient reasons for not relying upon that report.
All in all, I am not satisfied that the applicant has demonstrated that this is the type of “rare and exceptional case” in which error based upon a failure to inquire has been made out: SZMJM at [30].
CONCLUSION
I have not found that the Tribunal’s decision was affected by jurisdictional error. It follows that the application before this Court must be dismissed.
I will hear the parties in relation to costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 13 October 2022
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