FEDERAL COURT OF AUSTRALIA

Asaad v Minister for Home Affairs (No 2) [2019] FCAFC 214

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

THE COURT:

1    This is an appeal from the decision of the primary judge dismissing the appellant’s claim for constitutional writ relief in respect of the decision by the Minister personally to cancel his partner visa pursuant to s 501(2) of the Migration Act 1958 (Cth) on 8 February 2018.

Background

2    The appellant represented himself before the primary judge and, after we refused an adjournment earlier today, before us (see Asaad v Minister for Home Affairs (No 1) [2019] FCAFC 213).

3    In about 2011, the Minister no longer accepted that the appellant held an Australian passport or was an Australian citizen in circumstances that we will describe later. Following this, also in 2011, the appellant applied for a bridging visa.

4    By letter dated 20 February 2012, the Minister’s Department informed the appellant that a delegate had decided not to exercise the discretion under s 501(1) of the Act to refuse his application for the bridging visa (the 2012 non-cancellation decision). The letter warned the appellant that if he engaged in any further conduct that might bring him within the scope of s 501, the cancellation of any visa that he held and/or refusal of any future visa application may be considered, and if so, the fact of this warning would weigh heavily against him. It also told him that if he ever made a future application for a visa or Australian citizenship or completed an incoming passenger card when entering Australia, he would be required by law to disclose any criminal convictions he might have in that application or passenger card.

5    On 12 August 2013, the appellant was granted the partner visa.

6    The Minister came to consider the cancellation of the partner visa after the appellant’s conviction and sentence to three years and six months imprisonment by the Queensland District Court on 12 May 2016 for the offence of dishonestly obtaining a financial advantage by deception. That conviction was obtained because, in a trial by jury, the Crown proved beyond reasonable doubt that the appellant had falsely represented that he was an Australian citizen, had the name “Michael Boghdadi Asaad”, and had claimed entitlement to an age pension under which he obtained payments for seven years until 2009, totalling $89,161.44.

The Minister’s reasons

7    On 8 February 2018, the Minister issued a statement of his reasons for his decision to cancel the appellant’s partner visa. The Minister observed that one of the judges in the Court of Appeal of the Supreme Court of Queensland, when considering the appellant’s appeal against conviction and sentence, had said:

Upon review of the record of the trial, the evidence proved beyond reasonable doubt that the appellant obtained payments from the Commonwealth by the deception of intentionally creating and using the false identity, Michael Boghdadi Asaad; he intentionally induced the Commonwealth to believe that this false identity was his true identity, whilst believing that his conduct in doing so was deceptive; and the appellant thereby dishonestly obtained a financial advantage from the Commonwealth.

8    On 15 November 2017, the Administrative Appeals Tribunal considered the claim made by the appellant after his conviction to be entitled to an age pension by reason of his residence here. The Minister noted that in determining whether the appellant had been born in Australia, the Tribunal had examined his oral evidence, that of his wife, and the documents before it, including a baptismal certificate purporting to have been signed on behalf of the Anglican Diocese of Tasmania parish of New Norfolk, on 21 February 1939. The Minister noted that the Tribunal had made findings on the issue of the genuineness of that certificate, that there was no record of the birth of a person with the name the appellant has used and the Tasmanian Registry of Births, Deaths and Marriages did not have a birth certificate for him in its records.

9    The Minister had regard to the evidence given by the appellant that he had agreed that he had not been listed as a person who had been baptised at the relevant church, but claimed that he had been baptised at an associated one. The Minister observed that the Tribunal examined other matters relating to whether or not the appellant had been able to establish that he was in fact born in Tasmania at or about the time he said. The Minister noted that the Tribunal had come to the conclusion that, on the material before it, the baptismal certificate dated 21 February 1939 was not genuine, and in consequence it was not satisfied that the appellant was born in Australia.

10    The Minister also referred to the appellant’s somewhat extensive criminal history, both in this country and as provided by the Federal Bureau of Investigation of the United States of America. He discussed the appellant’s offending and expressed the view that, since 1971, the appellant had been a persistent offender and that his conduct had been very serious.

11    The Minister turned to considering the risk to the Australian community of granting a visa. He referred to the sentencing judge’s finding that the appellant’s criminal history in the circumstances of the subject offence revealed “an ingrained dishonesty and willingness to deceive and disregard the law; this offence could not be said to be out of character or an aberration.” The Minister adopted that finding and also noted, with concern, that the appellant had continued to falsely claim that he was born in Tasmania in his sworn evidence to the Tribunal in 2017 and in his response received by the Department on 29 January 2018 to the Department’s invitation for him to satisfy the Minister, under s 501(2)(b) or otherwise, to exercise the discretion not to cancel his visa.

12    The Minister found that the appellant had not taken responsibility or demonstrated remorse for his most recent offending. He took into account that the appellant had been released on parole at the earliest possible date of his eligibility in respect of his last offence, and that he had the support of his wife, adult and minor children, and stable accommodation with his family. The Minister considered a number of other matters in some detail. Given the limited scope of the appeal, however, it is not necessary to refer to them.

13    The Minister noted that the appellant had not made any claims which required assessment in relation to Australia’s non-refoulement obligations. He considered the possibility that the appellant might be stateless, giving rise to the prospect of indefinite detention. The Minister weighed that possibility against the seriousness of the appellant’s criminal offending. He said that he could not make a definitive finding as to the appellant’s country of nationality on the material before him.

14    The Minister accepted that there would be a hardship on the appellant and his family if he were deported or removed from Australia. Having regard, however, to all the matters which the Minister considered relevant to making his decision, including the character test as defined in s 501(6) of the Act, all other available information available to him, including information provided by or on behalf of the appellant, the Minister found that he reasonably suspected the appellant did not pass the character test and was not satisfied by the appellant that he did.

15    The Minister said he had given primary consideration to the best interests of the appellant’s two minor children. He found that their best interests would be served by not cancelling the visa, particularly in the case of one of his children, who had a disability in respect of which the Minister had given serious consideration in his reasons.

16    The Minister found that the appellant had committed a number of serious crimes and had a history of persistent offending that had caused loss and or detriment to individuals and to the Commonwealth, and in respect of his most recent conviction. The Minister considered that the appellant, and non-citizens generally who commit such offences, should not expect to be permitted to remain in Australia, and that the Australian community could be exposed to serious harm should he reoffend in a serious fashion. The Minister found that there was an ongoing likelihood of the appellant reoffending and could not rule out the possibility that he would do so. The Minister decided that the Australian community should not tolerate the risk of further harm that the appellant posed and that consideration outweighed the countervailing considerations, including the best interests of his two minor sons, the possibility that the appellant was stateless, and the impact on his Australian citizen wife and adult children. The Minister also had regard to his lengthy residence in Australia and the positive contributions the appellant had made to the Australian community, such as they were. The Minister said that he was cognisant that, where serious harm could be inflicted on the Australian community, even strong countervailing considerations were generally insufficient for him not to cancel a visa.

17    The Minister concluded that the appellant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations. Accordingly, the Minister cancelled the partner visa.

The proceedings before the primary judge

18    Before the primary judge, the appellant relevantly contended that the Minister erred in failing to hold himself estopped, or otherwise that the Minister was estopped, from cancelling his partner visa by the 2012 non-cancellation decision. The appellant submitted to his Honour that the Minister could not be allowed to go back on the promise or representation that underlay that decision. He contended that there had not been a material change in his circumstances since the 2012 non-cancellation decision and he had not engaged in any further offending conduct after that date. That was because the offending conduct, for which he was convicted in 2016, had ceased upon his detection in or about 2009.

19    The second basis on which the appellant, relevantly for the purposes of this appeal, challenged the Minister’s decision before the primary judge was that the Minister failed properly to consider and deal with his claim to be an Australian citizen.

20    After his Honour reserved his decision, the primary judge gave both the appellant and the Minister leave to provide supplementary written submissions on the issue as to whether the Minister had erred in assessing the risk that the appellant posed to the Australian community.

21    The appellant made submissions in response that went beyond his Honour’s invitation. The appellant sought to re-ventilate that the Minister erred in the way in which he dealt with that risk in the course of argument today.

22    The primary judge accepted the Minister’s submission that risk had not been specifically raised as an issue anywhere in the appellant’s grounds of review the subject of the hearing before him. His Honour held that having regard to the content of the appellant’s supplementary submissions on that issue, he did not consider that it was in the interests of justice to grant the appellant leave to raise that issue in the proceeding, and therefore did not consider his supplementary submissions on that topic. When the appellant sought to raise the same issue at the end of his submissions before us today, we refused him leave to do so because it was not an issue before, or the subject of reasons by, the primary judge and it had not been foreshadowed in any way in the appeal.

23    His Honour held that the Minister was not prevented from exercising his discretion to cancel the partner visa by reason of the 2012 non-cancellation decision, rejecting the appellant’s argument. His Honour also held that the Minister was entitled to have regard to the appellant’s claim that he was an Australian citizen despite his conviction, which negated his citizenship.

24    The primary judge considered that, when the Minister’s reasons were read as a whole, it was clear that the Minister did not rely on the statements in the way the appellant had claimed, but as matters relevant to the conclusions he reached about the appellant’s “longstanding disregard of Australian and international laws”. His Honour held that the Minister was entitled to use the 2016 conviction in relation to the failure of the appellant to pass the character test so as to enliven his discretion. He found that the Minister separately identified the May 2016 conviction as a new event upon which he had based his conclusion that the appellant had not met the character test, and that the later parts of the Minister’s reasons, upon which the appellant had focused his principal submission, were directed to discretionary considerations, many of which the appellant had raised in his submissions to the Minister.

25    The primary judge found that the Minister was not estopped by the 2012 non-cancellation decision from deciding to cancel the appellant’s partner visa in 2018 based, at least in part, on the May 2016 conviction. His Honour considered that whether or not the Minister had also relied on conduct the subject of that conviction that had occurred before 2012, the conviction itself constituted offending that post-dated 2012 and, in addition, it constituted a new relevant fact.

26    The primary judge held that the Minister was entitled to take those new facts into account in determining first, whether or not the appellant satisfied him that he passed the character test in 2018 and, secondly, whether he should not exercise his discretion to cancel the visa as a consequence. He found that the Minister’s reasons provided an evident and intelligible justification of his decision.

27    Accordingly the primary judge dismissed the application before him.

This appeal

28    The appellant’s notice of appeal expressed the following two grounds (using the actual wording that the appellant used):

Estopale was not properly adhere to;

Citizenship and issuance of passport was not adhere to.

29    In substance, these grounds raised two alleged errors on the part of the primary judge: first, that his Honour erred in holding that the Minister was not estopped from making his decision by the 2012 non-cancellation decision; secondly, that his Honour erred in holding the Minister had not made a jurisdictional error in finding the appellant was not an Australian citizen.

Consideration

30    No estoppel arises from the 2012 non-cancellation decision.

31    First, the delegate made that decision under s 501(1) not to exercise the discretion to refuse to grant the appellant a bridging visa. In contrast, the Minister’s decision to cancel the appellant’s partner’s visa under s 501(2), related to a different visa and to the exercise of a different power. In Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 at 511 [36]-[37] Griffiths and Perry JJ (with whom Mortimer J agreed on this issue at 517 [70]) held that where a new and relevant fact emerges which potentially bears upon the exercise of the power under s 501(2), that power may be exercised, in an appropriate case, to cancel a person’s visa, notwithstanding the existence of an earlier decision, based on more limited facts, not to cancel the visa. The Full Court held that that construction was consistent with s 33(1) of the Acts Interpretation Act 1901 (Cth), which provides as follows:

Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.

32    The Full Court held that the Migration Act did not manifest a contrary intention to displace the presumption created by s 33(1). Indeed, that presumption is consistent with the purposes for which the power was granted. The Minister’s discretion under s 501(2) is unconfined, except to the extent that the subject matter, scope and purpose of the Migration Act evinces a legislative intention to exclude consideration of some matter: R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ. There is nothing in s 501(2) to indicate an intention to exclude consideration of a new, more recent, fact that occurs after the making of a decision.

33    Secondly, in the 2012 non-cancellation decision, the delegate had not said that the Minister would never have regard to, or consider the fact of, any subsequent conviction irrespective of when the offending conduct may have occurred.

34    Thirdly, the appellant’s conviction occurred on 12 May 2016. As the primary judge found, the Minister identified that conviction as a new event since 2012. Relevantly, s 501(7)(c) provided that a person had a substantial criminal record for the purposes of a character test if the person had been sentenced to a term of imprisonment of 12 months or more, which the appellant’s sentence in May 2016 plainly was.

35    Fourthly, the delegate’s representation in the 2012 non-cancellation decision could not in any event operate as an estoppel as a matter of law. As Mason CJ said in Attorney-General of New South Wales v Quin (1990) 170 CLR 1 at 17:

The Executive cannot, by representation or promise, disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or the exercise of the power…

36    That is because an estoppel cannot be raised to prevent or hinder the exercise of a statutory discretion in accordance with the statutory duties and functions of the decision-maker: Minister for Immigration v Kurtovic (1990) 92 ALR 93 at 111 per Gummow J; cf Parker 247 FCR at 513 [44] - [45] per Griffiths and Perry JJ.

37    Last, and in any case, there is no evidence to suggest that the appellant acted to his detriment in reliance on the 2012 non-cancellation decision. To paraphrase the rhetorical question asked by Gummow J in Kurtovic (1990) 92 ALR 93 at 118: is the appellant to be heard to say that, but for the representation in the 2012 non-cancellation decision upon which he seeks to rely, he would have committed further offences or otherwise acted in such a way as to entitle the Minister to cancel his visa? It could hardly be thought that the appellant had refrained from engaging in such conduct (namely not committing another offence) on the faith of the representation.

38    For these reasons, the first ground must be dismissed.

39    The appellant explained that, as he understood the second ground, he intended it to refer to the Minister’s failure properly to investigate and determine, in arriving at his decision to cancel the partner visa, whether he was in fact an Australian citizen, as he claimed. The appellant argued that the Minister had an obligation to investigate that question and could not merely accept findings to the contrary made by the Queensland courts or the Tribunal.

40    As the primary judge observed, there was no dispute that the appellant had been granted a partner visa in 2013 and had continued to hold that visa until the time of the Minister’s decision to cancel it. Two things follow logically from those circumstances. First, in order to obtain a visa, the appellant had to be a non-citizen, since a citizen does not need a visa. Secondly, the fact that the appellant held a visa enabled the Minister to consider the exercise of his discretionary power under s 501(2) to cancel it.

41    In addition, as the primary judge also noted, the appellant’s claim to be an Australian citizen was irrelevant to his application for relief because that application challenged the Minister’s exercise of his discretion to cancel a visa that authorised the appellant to stay lawfully in Australia, which, were he a citizen, he would not need.

42    In our opinion, the Minister did consider, in the exercise of his discretion under s 501(2), the appellant’s claim to be an Australian citizen. He took into account the findings of the jury, the Queensland Court of Appeal and the Tribunal, each of which was made in contested proceedings in which the appellant necessarily, but unsuccessfully, had put in issue his claim that he was an Australian citizen. As the Minister noted, in adopting the judge’s findings set out at [7] above, the jury and Court of Appeal had found beyond reasonable doubt that the appellant was not who he said he was, nor an Australian citizen. The Tribunal came to the same finding, although, in that case, unlike in the criminal trial, the appellant may have had some obligation or onus to establish a basis why, or satisfy the Tribunal that, he was a citizen. It was open to the Minister to have regard to the findings of the two courts and the Tribunal that were probative and persuasive of the fact that the appellant was a non-citizen.

43    The appellant also submitted that the Minister was in error in taking into account his conduct in asserting that he was an Australian citizen after his conviction. In our opinion, the Minister was entitled to take that into account. At the conclusion of his reasons, the Minister stated that he had considered all relevant matters, including making an assessment against the character test as defined in s 501(6). In that consideration, the Minister was not limited to his finding that he reasonably suspected that the appellant did not pass the character test by reason of his convictions under s 501(6)(a), and was entitled to have had regard to his past and present general conduct in exercising his discretion under s 501(2).

44    The Minister did not make a jurisdictional error in having regard to or taking those matters into account in arriving at his discretionary decision under s 501(2). In particular, the Minister had no obligation to conduct his own investigation into the appellant’s citizenship status, although, had he chosen, he could have. In our opinion, the Minister acted in accordance with law in his consideration of the appellant’s assertions as to his citizenship when exercising his discretion to cancel the partner visa under s 501(2). For those reasons, ground two must be dismissed.

Conclusion

45    It follows that the appeal must be dismissed with costs.

Associate:

Dated:    22 November 2019