FEDERAL COURT OF AUSTRALIA

ADT16 v Minister for Immigration and Border Protection [2018] FCA 1198

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA): ADT16 v Minister for Immigration & Anor [2017] FCCA 2169. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 16 December 2015. By its decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth).

2    The delegate proceeded on the basis that the appellant’s identity was as he had claimed, but nonetheless concluded that the appellant did not satisfy the criteria for the grant of the visa.

3    The Tribunal affirmed the delegate’s decision on a different footing. It determined that s 91WA(1)(a) of the Act mandated that the visa application be refused because the appellant had, in support of his visa application, provided a bogus document (a passport) as evidence of his identity, nationality or citizenship and he did not have a reasonable explanation for doing so. Section 91WA of the Act was not in force at the time of the delegate’s decision. It did, however, apply at the time of the hearing of the application for review before the Tribunal: s 11 and s 15(3) of the Migration Amendment (Protection and Other Measures) Bill 2015 (Cth).

4    The Tribunal’s conclusion that the appellant had provided a bogus document was founded upon a report prepared by a document examiner within the Department administered by the Minister. In these reasons, it will be referred to as the DER. According to the Tribunal’s reasons (at [18]), the DER contained information to the following effect in relation to the passport:

…

•    unnumbered page 1 and page 2, along with corresponding pages 35 and 36, of the applicant’s passport were printed on an inkjet printer and were missing security features;

•    pages 9 and 10, along with pages 27 and 28, of the applicant’s passport were perforated with the number ‘A5399307’, whereas the remaining pages of the passport were perforated with the number ‘B4829106’.

5    The Tribunal put this information to the appellant and invited him to comment. The Tribunal did not otherwise provide the appellant with a copy of the DER. For reasons that will soon be explained, the DER was not in evidence before the primary judge on the appellant’s application for judicial review, nor is it in evidence before this Court on the appeal.

6    The appellant was represented by a direct access barrister on his application for judicial review before the primary judge. The same barrister appeared for the appellant on the appeal. The grounds of appeal are broadly to the effect that the primary judge erred by rejecting each of the four grounds for judicial review raised in the proceedings below.

7    Before turning to the grounds of appeal, it is convenient to set out the applicable provisions of the Act and to provide relevant detail as to how the appellant, by his Counsel, conducted the proceedings below. The conduct of the judicial review proceedings was itself the subject of evidence and submissions before this Court. My summary of what occurred is to be understood as reflecting my findings of fact on the evidence before me.

THE ACT

8    At the time of the Tribunal’s decision, s 91WA of the Act relevantly provided:

91WA Providing bogus documents or destroying identity documents

(1)    The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

(a)    the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

…

(2)    Subsection (1) does not apply if the Minister is satisfied that the applicant:

(a)    has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

(b)    either:

(i)    provides documentary evidence of his or her identity, nationality or citizenship; or

(ii)    has taken reasonable steps to provide such evidence.

(3)    For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

9    The phrase “bogus document” was defined in s 5(1) of the Act to mean:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

10    In the performance of its review function, the Tribunal was required to invite the appellant to appear before it and to give him a meaningful opportunity to give evidence and present arguments: s 425 of the Act. The Tribunal was also required to comply with ss 424AA, 424A and 438 of the Act, insofar as they arose in the appellant’s case. At the time of the Tribunal’s decision, those provisions relevantly provided:

424AA Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

…

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

…

438 Tribunal’s discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)    If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

PROCEEDINGS BEFORE the primary judge

11    The grounds for judicial review were expressed as follows:

Ground 1: The Secretary failed to follow procedures required by law pursuant to section 438(2)(a) of the Migration Act 1958 (Cth)

1.    The Secretary did not follow procedures required by law pursuant to section 438(2)(a) of the Migration Act 1958 (Cth) by failing to issue a certificate of non-disclosure of information with regard to the departmental forensic examination report of the applicant’s Pakistani passport which was found to be ‘bogus’ for the purposes of section 91WA of the Migration Act 1958 (Cth), resulting in the refusal of the applicant’s protection visa.

…

Ground 2: The applicant was denied the applicant [sic] procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth) with regard to the non-disclosure of information

2.    The applicant was denied procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth) by the non-disclosure of information with regard to the departmental forensic examination report of the applicant’s Pakistani passport which was found to be ‘bogus’ for the purposes of section 91WA of the Migration Act 1958 (Cth), resulting in the refusal of the applicant’s protection visa.

…

Ground 3: There was an insufficient lack of intention by the applicant to mislead or deceive the Tribunal to satisfy the elements of fraud or deception, resulting in the misapplication of section 91WA(1) of the Migration Act 1958 (Cth)

3.    Given the applicant provided both his passport and his national identity card at [45], there was an insufficient lack of intention on the part of the applicant for the Tribunal to find that he misled or deceived the Tribunal as found at [46]. The conduct of the applicant with regard to production of the Malaysian visa did not relate to the applicant’s identity, nationality or citizenship for the purposes of the protection visa application. The applicant’s conduct therefore did not fall within the terms of section 91WA(1) of the Migration Act 1958 (Cth), giving rise to reviewable error.

…

Ground 4: There was an insufficient logical or evidentiary basis for the Tribunal’s finding that the applicant’s explanation for the bogus document was ‘unreasonable’ resulting in the misapplication of section 91WA(1) of the Migration Act 1958 (Cth)

4.    The Tribunal’s decision was affected by jurisdictional error as there was insufficient logical or evidentiary basis for the Tribunal to find the applicant’s explanation for the provision of the bogus document in the form of his Pakistan passport was ‘unreasonable’ at [44] of the decision record after finding at [33] that the passport provided to the DIBP by the applicant was ‘altered by a person who did not have authority to do so’. The Tribunal therefore misinterpreted, misunderstood or misapplied section 91WA(1) of the Migration Act 1958 (Cth), which precluded the grant of the protection visa to the applicant.

12    I have omitted from these grounds lengthy passages appearing under the heading “particulars”. They appear to take the form of submissions. In any event, there is no allegation that the primary judge misunderstood the nature of the challenges raised in the four grounds, nor that the primary judge failed to determine any part of the application before him.

13    In advance of the hearing of the application for judicial review, the Minister prepared an index to a court book containing documents relevant or potentially relevant to the judicial review proceedings. The appellant’s Counsel was provided with a draft of the index and afforded an opportunity to comment upon it. The index referred to two documents (numbered 6 and 8) which were marked with a notation to the effect that those documents were not reproduced in the court book. An annotation to the index asserts that the documents “contain information disclosure of which is considered to be contrary to the public interest”.

14    It appears that Counsel for the appellant enquired as to whether any document before the Tribunal was subject to a certificate issued pursuant to s 438(1) of the Act. The Minister’s representative provided the appellant’s Counsel with a document from the Tribunal’s records which confirmed that no certificate had been issued by the Minister pursuant to s 438(1) of the Act in respect of any material before it. That was subsequently confirmed in an email from the Minister’s legal representative to the appellant’s Counsel, expressed as follows:

Dear [appellant’s counsel]

I have reviewed this matter and can again confirm that there are no certificates issued under s 437 or 438 of the Migration Act.

The documents you have identified below were not reproduced in the court book due to our instructions that the disclosure of these documents would be contrary to the public interest. This is reflected in the index to the relevant documents.

I further direct your attention to paragraph 18 of the Tribunal’s decision in which information from the document examination report considered relevant to the Tribunal was put to your client pursuant to s 424AA and which the Tribunal has replicated in the decision.

Regards

…

15    It is unclear whether the court book was prepared by the Minister pursuant to an order of the FCCA and, if so, whether the terms of such an order would have compelled the inclusion of the DER within it. If there be such an order, Counsel for the appellant has not brought it to the attention of this Court on the appeal.

16    The appellant made no application for relief before the primary judge alleging the Minister was in default of any order for the preparation, filing and service of the court book. Nor did the appellant, by his Counsel or otherwise, invoke any other process of the FCCA so as to compel the Minister to produce a copy of the DER.

17    As the email correspondence made plain, had such an application been made, the Minister would have resisted production of the DER on the ground that it contained information subject to a claim for public interest immunity. Had that occurred, it would have been necessary for the primary judge to resolve the claim in accordance with well-established principles: Sankey v Whitlam (1978) 142 CLR 1 at 38 — 43 (Gibbs ACJ); 58 – 64 (Stephen, Aikin JJ agreeing at 103); 95 — 96 (Mason J). Relevant to the determination of such a claim would be the importance of the information contained in the document to the resolution of the controversy: Alister v The Queen (1984) 154 CLR 404 at 412; Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38 (Black CJ, Gummow and French JJ). On an application for judicial review alleging a breach of the rules of procedural fairness by the withholding of information, proof of the content of the withheld information may well be critical to the applicant’s success: AGG17 v Commonwealth of Australia [2018] FCA 242 at [52] – [58].

18    These background circumstances affected the determination by the primary judge of the grounds for review in a number of ways. After stating that no challenge to the Minster’s claim for public interest immunity had been made by the appellant in the course of the judicial review proceedings (at [34]), his Honour said (at [35]):

Mr Williams of counsel was given the opportunity to identify whether or not he was advancing any such claim, and maintained that he accepted that the document was the subject of a proper claim for public interest immunity. The substance of Mr Williams’ argument was that the failure to issue a certificate under s.438 of the Migration Act meant that part of the statutory procedure for the review had not been followed and that accordingly, the applicant had lost the opportunity of seeking to have disclosed the certificate, seeking to challenge the certificate, and/or seeking access to the documents.

19    The grounds of appeal contain no attack upon the conclusions that no challenge had been made to the public interest immunity claim, that an opportunity had been given to advance such a challenge, and that it had been accepted by Counsel that the Minister’s claim for public interest immunity was properly made.

20    The reasons of the primary judge for dismissing the application for judicial review will now be considered in the course of determining each ground of appeal.

Grounds 1 AND 2

21    The first ground of appeal is expressed as follows:

Ground 1: The Secretary failed to follow procedures required by law pursuant to section 438(2)(a) of the Migration Act 1958 (Cth)

1.    The primary judge erred at [37] of the judgment by finding the ‘Department was [not] required to give a certificate under s.438 of the Migration Act’ with regard to the departmental forensic examination report of the applicant’s Pakistani passport, which was found to be ‘bogus’ for the purposes of section 91WA of the Migration Act 1958 (Cth). To the contrary, the Secretary did not follow procedures required by law pursuant to (a) section 438(2)(a) of the Migration Act 1958 (Cth) which requires that the Secretary ‘must notify the Tribunal in writing that section 438 of the Migration Act 1958 (Cth) applies in relation to the document or information’. Further, the Secretary failed to consider whether this was an appropriate matter for the Secretary to provide advice to the Tribunal regarding the ‘significance of the document or information’, pursuant to section 438(2)(b) of the Migration Act 1958 (Cth). As a result, the Tribunal was unable to consider whether this was an appropriate matter for the Tribunal to exercise its discretion to disclose any matter contained in the document or information to the appellant, in light of the advice by the Secretary, pursuant to section 438(3) of the Migration Act 1958 (Cth). The applicant was therefore denied procedural fairness as a consequence, giving rise to reviewable error.

22    This ground of appeal, and its counterpart in the grounds for judicial review, allege error on the part of the Secretary. The Secretary was not joined as a respondent on the application for judicial review. The question before the primary judge was whether the Tribunal committed jurisdictional error. The concluding sentence of the ground identifies how the Tribunal’s jurisdiction was said to have been affected by the alleged error on the part of the Secretary: namely that the applicant was denied procedural fairness on his review application before the Tribunal.

23    Section 438 of the Act only applies to a document or information meeting the description in either s 438(1)(a) or (b). In the course of oral argument, Counsel submitted that the DER had been provided to the Minister or an officer of the Department in confidence so as to enliven s 438(1)(b). I am not satisfied that argument was raised before the learned primary judge, nor am I satisfied that the terms of s 438(1)(b) are established on the evidence in any event. Moreover, even if the condition in s 438(1)(b) was satisfied, it would not follow that the Tribunal committed jurisdictional error.

24    Section 438(1)(a) will not be satisfied merely because the Minister or some other person subjectively considers that disclosure of information contained in a document would be contrary to the public interest for a reason that may form the basis of a claim for public interest immunity in later legal proceedings. The Minister must certify in writing that such a circumstance exists. On the facts, that was not done.

25    To the extent that the appellant’s Counsel argued that the claim for public interest immunity made in the course of the judicial review proceeding amounted to certification for the purposes of s 438(1)(a), the submission is to be rejected. Clearly it did not.

26    The consequence of the Minister providing no certificate in writing pursuant to s 438(1) in relation to the DER is that the Secretary had no obligation to take the steps identified in s 438(2) in relation to the document. No obligations pertinent to the Tribunal itself were enlivened under s 438(3). On its terms, s 438 of the Act neither compelled nor prevented the Tribunal from providing a copy of the DER to the appellant. Whether or not the Tribunal was otherwise required by the rules of procedural fairness to provide the appellant with the DER is to be discerned without reference to s 438.

27    The appellant relied on Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 and MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1. Neither case assists him.

28    In Singh, the Minister issued a certificate pursuant to s 375A(1) of the Act in the context of a review under Pt 5 of the Act. Section 375A(2) prohibited the Tribunal from disclosing the information subject to the certificate to the review applicant. An issue arose as to whether the rules of procedural fairness required that the existence of the Minister’s certificate be disclosed to the review applicant. The Full Court answered that question in the affirmative.

29    There is an important difference between s 375A and s 438 of the Act. In the context of a review under Pt 5, upon the issue of a certificate under s 375A(1) and the giving of a notice under s 375A(2)(a), s 375A(2)(b) operates to prohibit the Tribunal from providing the document or information the subject of the certificate to the review applicant. No such prohibition arises in the context of a review conducted under Pt 7. It is not necessary to consider the consequences, if any, of that difference between the two provisions.

30    In MZAFZ, the Tribunal acted upon a certificate purportedly issued under s 438(1) of the Act as a basis for withholding a document from a review applicant. Beach J held that the certificate was invalid because it did not conform to the statutory prescription in s 438(1). In obiter Beach J said that the failure of the Tribunal to disclose the existence of the certificate to the review applicant constituted a breach of the rules of procedural fairness. His Honour said (at [50]) that the Tribunal ought to have:

…

(a)    disclosed the existence of the certificate to the applicant …;

(b)    given the applicant the opportunity to make submissions on the validity of the certificate if she so chose …;

(c)    disclosed to what extent, if any, the Tribunal was going to take into account information covered by the certificate and as a part thereof at least whether the information was favourable, unfavourable or neutral to the applicant;

(d)    given the applicant at least an opportunity to seek a favourable exercise of discretion under s 438(3)(b).

31    In the present case, the Tribunal did not and could not point to the issue of a certificate under s 438 of the Act as a legal basis for withholding information from the appellant that it might otherwise have been required by the laws of procedural fairness to provide. All of that is explained by the fact that no certificate had issued at all. No obligations of the kind discussed in Singh and MZFAZ arose.

32    If there be a breach of the rules of procedural fairness by the Tribunal, it was not consequent upon any failure by the Secretary or the Tribunal to observe the requirements of s 438 of the Act.

33    The first ground of appeal is not established.

34    The second ground of appeal is expressed as follows:

Ground 2: The applicant was denied the applicant [sic] procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth) with regard to the non-disclosure of information

2.    The primary judge erred at [41] of the judgment by finding that the Tribunal ‘complied with the requirements of s.424AA of the Migration Act insofar as they were enlivened’ or at [42] of the judgment that ‘adequate particulars of the relevant documents were given to the applicant.’ To the contrary, the applicant was denied procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth) by the non-disclosure of information with regard to the departmental forensic examination report of the applicant’s Pakistani passport which was found to be ‘bogus’ for the purposes of section 91WA of the Migration Act 1958 (Cth), resulting in the refusal of the applicant’s protection visa.

35    The failure of the appellant to press for a ruling on the Minister’s claim for public interest immunity had the forensic consequence that the DER was not in evidence before the primary judge. Notwithstanding that, the primary judge said:

38.    Even if a requirement of Division 7 of Part 7 of the Migration Act found that a s.438 certificate should issue in respect of documents the subject of a claim for public interest immunity where such record is given to the Tribunal, it has not in the present case given rise to any practical injustice. The substance of the Report was disclosed to the applicant at the time of the hearing before the delegate and by the notice that was provided to the applicant date 5 September 2014, as well as during the hearing in which the Tribunal complied with the requirements of s.424AA of the Migration Act, insofar as any obligation under s.424AA was enlivened.

39.    On the face of the material before the Court, the applicant provided a copy of the delegate’s decision with the application for review and on one view, no obligation under s.424AA of the Migration Act arose. In any event, to the extent relevant, the Tribunal made sufficient disclosure during the course of the hearing to comply with the obligations under s.424AA of the Migration Act if any such obligation was enlivened.

40.    The disclosure that took place gave the applicant a proper opportunity in the course of the review to have a real and meaningful hearing. The process adopted by the Tribunal complied with the obligations of procedural fairness. I am satisfied that, even if there was any error in compliance with Part 7, the applicant suffered no practical injustice …

Ground 2

41.    In relation to ground 2, for the reasons already given, it is apparent that the Tribunal complied with the requirements of s.424AA of the Migration Act insofar as they were enlivened. On one view, adequate particulars had already been given in relation to the Report by the notice and also were contained in the Delegate’s decision. In any event, no argument was identified explaining why s.424AA of the Migration Act failed to provide sufficient particulars beyond Mr Williams of counsel contending that the full document might have provided the applicant. That is not what s.424A or s.424AA of the Migration Act requires.

42.    I do not accept that inadequate particulars of the relevant document were given to the applicant. I find that the applicant was given sufficient particulars of the forensic report to meaningfully and properly participate in the hearing. There was no breach of s.424A, s.424AA or s.425 of the Migration Act. Ground 2 fails to make out any jurisdictional error.

36    The primary judge was correct to proceed on the basis that s 424AA is concerned with the disclosure of information and not with the production of documents. However, in my view, the primary judge erred in positively finding that the Tribunal had disclosed adequate particulars of the information contained in the DER so as to discharge its obligations under s 424AA or s 424A of the Act. A finding to that effect would depend upon a comparison of the information in fact contained in the DER and the information in fact conveyed by the Tribunal to the appellant: Singh at [18]. In my view, whether or not the substance of the DER was adequately conveyed to the appellant is a question of fact that could not be determined without reference to the DER itself.

37    It does not follow that the appeal should be allowed.

38    In the proceedings before the primary judge, the onus was on the appellant to establish that the Tribunal had committed jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ). That could not be done merely by pointing to the circumstance that the appellant had not been provided with a copy of the DER. The summary of the DER provided to the appellant may have been sufficient to discharge the Tribunal’s obligation to afford procedural fairness, or it may not have been. As a consequence of his concession that the DER was properly the subject of a claim for public interest immunity, the appellant could not introduce the DER in evidence in support of his case.

39    In my view the primary judge was bound to reject the second ground of judicial review as unsupported on the evidence adduced in the proceeding. Accordingly, relief on the appeal will not be granted notwithstanding the error I have identified at [36] above.

GROUNDs 3 and 4

40    The remaining grounds challenge the Tribunal’s finding that the appellant had provided a bogus document and that he had given no reasonable explanation for doing so. As a consequence of those findings the Tribunal concluded that the requirements of s 91WA of the Act were fulfilled and that the visa application had to be refused.

41    The grounds are expressed as follows:

Ground 3: There was an insufficient lack of intention by the applicant to mislead or deceive the Tribunal to satisfy the elements of fraud or deception, resulting in the misapplication of section 91WA(1) of the Migration Act 1958 (Cth)

3.    The primary judge erred at [43] of the judgment by finding that ‘[n]o such intent to mislead or deceive is required under s.91WA of the Migration Act’ and ‘[n]o fraud or dishonesty is required under s.91WA of the Migration Act.’ To the contrary, given the applicant provided both his passport and his national identity card at [45], there was an insufficient lack of intention on the part of the applicant for the Tribunal to find that he misled or deceived the Tribunal as found at [46]. The conduct of the applicant with regard to production of the Malaysian visa did not relate to the applicant’s identity, nationality or citizenship for the purposes of the protection visa application. The applicant’s conduct therefore did not fall within the terms of section 91WA(1) of the Migration Act 1958 (Cth), giving rise to reviewable error.

Ground 4: There was an insufficient logical or evidentiary basis for the Tribunal’s finding that the applicant’s explanation for the bogus document was ‘unreasonable’ resulting in the misapplication of section 91WA(1) of the Migration Act 1958 (Cth)

4.    The primary judge erred at [44] of the judgment by finding the ‘Tribunal gave logical and rational reasons for the finding that the applicant’s explanation was not a reasonable explanation for providing the bogus document within the meaning of s.91WA of the Migration Act.” To the contrary, the Tribunal’s decision was affected by jurisdictional error as there was insufficient logical or evidentiary basis for the Tribunal to find the applicant’s explanation for the provision of the bogus document in the form of his Pakistan passport was ‘unreasonable’ at [44] of the decision record after finding at [33] that the passport provided to the DIBP by the applicant was ‘altered by a person who did not have authority to do so’. The Tribunal therefore misinterpreted, misunderstood or misapplied section 91WA(1) of the Migration Act 1958 (Cth), which precluded the grant of the protection visa to the applicant.

Fraud or deception

42    As to the jurisdictional error alleged in ground 3, the primary judge said (at [43]):

… Mr Williams of counsel submitted that there is a requirement of fraud or deception by the applicant that must be found under s.91WA of the Migration Act. Such an implication does not sit with the provision as a whole and in particular, the ability of the applicant to proffer a reasonable explanation. No such intent to mislead or deceive is required under s.91WA of the Migration Act. No fraud or dishonesty is required under s.91WA of the Migration Act. Ground 3 fails to make out any jurisdictional error.

43    In my view, the appellant cannot succeed on this ground of appeal, even if error be demonstrated in the construction the primary judge placed on s 91WA. Even assuming that it was necessary for the Tribunal to be satisfied that the appellant himself participated in fraudulent or deceptive conduct, the findings of the Tribunal would fulfil that requirement. As discussed below, the critical findings were that the appellant had provided the passport in support of his visa application knowing that it had been altered by a person not having the authority to do so, specifically by the endorsement in it of a falsified Malaysian visa. These findings have not been successfully challenged.

44    The question of whether s 91WA imports a requirement that the visa applicant be shown to have engaged in fraudulent or deceptive conduct in the provision of a bogus document should be reserved for determination in a case in which the outcome turns upon it.

Legal unreasonableness

45    It is submitted that the Tribunal’s process of reasoning was legally unreasonable, in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, specifically in its conclusion that the appellant had not given a reasonable explanation for providing the bogus document within the meaning of s 91WA(2).

46    In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 the Full Court, referring to Li, identified (at [44]) two contexts in which a conclusion of legal unreasonableness might be made:

…  Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls ‘an area of decisional freedom’: it has the character of a choice that is arbitrary, capricious or without ‘common sense’. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking ‘an evident and intelligible justification’. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]).

See also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [6]; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [60].

47    In Stretton, Allsop CJ said (at [11]):

… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

See also Eden at [65].

48    Allsop CJ emphasised that the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation. With that caution in mind, it is convenient to determine this ground of appeal by examining whether the Tribunal’s conclusion that the appellant had no reasonable explanation for providing the bogus document was one lacking in an evident or intelligible justification.

49    The reasons of the primary judge for rejecting the fourth ground of review are very brief. They were expressed as follows (at [44]):

In relation to ground 4, the Tribunal gave logical and rational reasons for the finding that the applicant’s explanation was not a reasonable explanation for providing the bogus document within the meaning of s.91WA of the Migration Act. That finding was open on the material before the Tribunal. No jurisdictional error was made out by ground 4.

50    Determination of the question of whether the appellant had given a reasonable explanation for providing a bogus document to the Department involved two steps. The first step involved acceptance or rejection of the appellant’s assertions concerning the circumstances in which the passport came to be altered by a person not having the authority to do so and the extent of the appellant’s involvement, knowledge and degree of responsibility appertaining to those circumstances. The second step required an evaluative judgment as to whether the explanation provided by the appellant (if accepted on the facts) was “reasonable” within the meaning of s 91WA(2) of the Act.

51    The appellant provided the Tribunal with two written statements bearing on the issues arising under s 91WA of the Act. The first, dated 25 September 2014, is set out in the Tribunal’s reasons (at [11]). By that statement the appellant explained how he had originally obtained his passport. He asserted that he believed the passport was genuine because he had applied for it himself. In relation to the Malaysian visa, the appellant said:

My departure from Pakistan was organised with the help of my cousin, ... I left money with cousin and he paid the agent when I got to Indonesia. The only contact I had with the agent that organised my travel was by telephone. I gave my passport to my cousin and he gave my passport to the agent. The passport was given back to me at the airport. It was arranged by telephone that I was to meet a man at the airport and gave me back my passport I am not sure who he was and I have had no further contact with him. I understood that the agent needed my passport to apply for a visa to Malaysia for me. The agent had my passport for about 3 months. When the passport was given back to me I recall that checked the Malaysian visa and the page with my photo and details. My passport did not look different other than the new visa and I did not suspect that passport had been altered in any way.

I did not knowingly provide the Department of Immigration with a ‘fraudulently altered document’. I believe my passport is genuine because I applied for it myself. I do not know if the Malaysian visa is genuine. I do not know if the agent who arranged by travel altered my passport in some way.

52    In a further statement dated 4 November 2015, the appellant stated:

My passport and prior travel

I am informed that my passport has been determined by the Department of Immigration to have been ‘fraudulently altered.’

I was surprised and confused by this assessment. I believe that my passport was genuine. The Department of Immigration did not inform me why it was decided that my passport had been altered.

I have asked the Department of Immigration for my passport back, so that I can look at it closely to find out what is wrong with it. But I’m told that the Department of Immigration will keep it because it has been assessed to have been ‘fraudulently altered.’ However, I have since looked at a colour copy I have of my passport.

In about early June 2012 I travelled to Malaysia by plane using my passport. I can see from the colour copy of my passport that there is a stamp from 3 June 2012. As I have previously mentioned, I was deported by the Malaysian authorities. At that time I recall my passport being stamped, which may have been on 3 June 2012. As I said in my interview with the Department of Immigration, I’m not sure why I was deported. There were a lot of other people from Pakistan and Afghanistan on the same plane and we were all deported. We arrived in Malaysia on one day and we were deported on the next day.

Some weeks later I travelled again to Malaysia by plane using my passport. There are two date stamps in my passport around this time - one on 18 June 2012 and one on 19 June 2012. I believe that when I left Pakistan my passport was stamped, which may have been on 18 June 2012. When I arrived in Malaysia my passport was also stamped, which may have been on 19 June 2012.

There are two other date stamps in my passport - one on 25 April 2012 and one on 24 July 2012. I believe that these may relate to my Malaysian visa, which expired after 3 months.

I continue to rely on my Statement of 25 September 2014 regarding how I obtained both my passport and my Malaysian visa.

53    In response to questions put to him at the Tribunal hearing, the appellant stated that he had not signed any forms in connection with the application for the visa to visit Malaysia. According to the Tribunal’s reasons, the appellant provided further information as follows:

16.    The Tribunal asked the applicant whether he was expecting to be issued with a legitimate Malaysian visa. The applicant stated that he believed the visa was genuine. When you go to the airport, the immigration officials check your documentation.

17.    The Tribunal asked the applicant how he expected to obtain a legitimate Malaysian visa without signing any forms. The applicant stated that he did not understand the process. He dealt with an agent. He does not know how the agent did it, whether he had to sign forms or not.

18.    The Tribunal put to the applicant, using the procedure in s.424AA of the Act, the following information from the Department’s Document Examination Report:

•    unnumbered page 1 and page 2, along with corresponding pages 35 and 36, of the applicant’s passport were printed on an inkjet printer and were missing security features;

•    pages 9 and 10, along with pages 27 and 28, of the applicant’s passport were perforated with the number ‘A5399307’, whereas the remaining pages of the passport were perforated with the number ‘B4829106’.

19.    This information was relevant to the review as it suggested that the applicant’s passport was bogus, in that it was altered by a person who does not have authority to do so. Section 91WA of the Act provides that the Tribunal must refuse to grant a protection visa if the applicant provides a bogus document as evidence of his identity and, amongst other things, does not have a reasonable explanation for providing the bogus document. The Tribunal invited the applicant to comment, and advised that he was entitled to request further time to comment if he wished.

20.    The applicant stated that he had told the Tribunal that he applied for his passport in person, and received it by post. He provided the passport to his agent to obtain a visa. He then went to Malaysia, and was deported. After he was deported, he sent the passport again to his agent. He paid money to the agent. When his passport was returned, he saw the visa but didn't check the passport.

21.    The applicant went on to state that when he got to Malaysia, he showed his passport to the immigration officials. They stamped his passport. He put his passport in his luggage, and left the airport. After that, he provided the passport to the Department as evidence to demonstrate that he was a Pakistani national. The passport got damaged slightly by water during the boat trip. He knows the passport is genuine, as he applied for it himself. If the agent did anything, he does not know about it.

22.    The Tribunal put to the applicant that if he did not sign an application form for a Malaysian visa, he must have suspected that he was not going to be provided with a genuine visa and that it was likely that his passport would be altered. The applicant stated that the visa was obtained through his agent. He paid money, and that’s how he got it.

23.    The Tribunal asked the applicant whether he had any other comments on the passport issue. The applicant stated that he had nothing else to say about the passport. The Tribunal can show the personal information page to the Pakistani Embassy to prove it is a genuine document. He also provided an identification card to the Department.

54    The Tribunal accepted that the appellant’s passport was legitimately issued by the Pakistani authorities. It also accepted that the appellant had, through his cousin, given his passport to an agent for the purposes of obtaining a Malaysian visa. The Tribunal considered that this was the most likely point in the sequence of events at which the passport would have been altered.

55    The Tribunal accepted that the appellant had not signed the application for a Malaysian visa and noted that he had been deported from Malaysia before again returning his passport to the agent and attempting to travel to Malaysia a second time. From those findings of fact, the Tribunal reasoned:

39.    The Tribunal does not accept the applicant’s explanation that he did not know how to obtain a Malaysian visa and left it to the agent. The applicant was not lacking in sophistication in the oral evidence he provided at the hearing, and the Tribunal notes that he had previously gone through the process of applying for his passport in person. While it acknowledges that applying for a passport and applying for a visa are different processes, the Tribunal finds it implausible that the applicant would not have understood that it would necessary for him at the very least to sign an application form in order to obtain a Malaysian visa.

40.    In the absence of having signed an application for a Malaysian visa, the Tribunal considers that the applicant could have no expectation of the visa being regularly issued. It appears to the Tribunal that there are two possible ways in which the ‘visa’ could have been obtained:

(a)    it was legitimately issued on the basis of an application form completed by the agent without reference to the applicant, including falsification of the applicant’s signature;

or

(b)    it was a bogus (or fraudulent) visa.

Given that option (a) would not require alteration of the applicant’s passport by the agent, the Tribunal considers that option (b) is the most likely explanation of what took place in this case.

41.    Further, having attempted to travel to Malaysia and been deported, the Tribunal considers that the most likely explanation is that the applicant returned the passport for the agent … for further alterations with a view to making a second attempt to enter Malaysia. The Tribunal considers that the most likely explanation is that pages 1, 2, 9 and/or 10 contained references to the deportation of the applicant and/or to a ‘visa’ not accepted by the Malaysian authorities, and that the agent removed the original of these pages in order to improve the applicant’s chances of entering Malaysia on his second attempt.

42.    The Tribunal finds that the applicant engaged the agent to obtain documentation which would enable him to enter Malaysia. Given the circumstances outlined above, and in particular his lack of participation in the visa application process, the applicant must have known that the visa would not be regularly issued. Even if the applicant was not explicitly aware of the alterations made to his passport, he must nevertheless have been aware that the agent would have had to alter his passport to facilitate the inclusion of this irregular visa. The Tribunal therefore does not accept that the alterations were an ‘innocent, unintended or accidental matter’. Accordingly, the Tribunal finds the explanation given by the applicant at the hearing to be unreasonable.

(Footnote omitted)

56    The reasoning at [40] of the decision record appears to slip from an enquiry as to whether there existed a reasonable explanation for providing a bogus document, to an enquiry as to whether there was a reasonable explanation for the circumstances in which the non-genuine Malaysian visa was obtained. Read in isolation, that paragraph might indicate that the Tribunal asked itself the wrong question. The proper focus of the enquiry was whether the appellant had a reasonable explanation for providing a passport as proof of his identity, nationality or citizenship, which was reasonably suspected to have been subject to an unauthorised alteration, namely, by the insertion of a visa that was not genuine. Use of the word “bogus” in connection with the visa (rather than the passport) is apt to confuse that enquiry.

57    Notwithstanding that slip in language, it is clear from the remaining parts of the Tribunal’s reasons that it properly focused its attention on the question of whether the appellant should be believed in his assertion that he did not know that the passport had been “fraudulently altered” at the time that he provided it to the Department because he did not know that the Malaysian visa was not genuine.

58    Critically, and contrary to the appellant’s claim, the Tribunal found that the appellant “must have known”, in all of the circumstances, that the Malaysian visa would not be regularly issued and that he “must … have been aware that the agent would have had to alter his passport to facilitate the inclusion of this irregular visa”. It was by reference to those findings that the Tribunal should be understood as rejecting the appellant’s assertion that he did not know that the passport had been altered by a person not having the authority to do so at the time that he provided it to the Department as evidence of his identity, nationality or citizenship. There was, to adopt the phrase in Stretton, an “evident or intelligible justification” or “a rational foundation” for concluding that the appellant had no reasonable explanation.

59    In written submissions, Counsel for the appellant contended that “it was open to the Tribunal to find that the applicant was not aware of any alterations and that his explanation was reasonable in the circumstances, giving rise to reviewable error”. Counsel’s submission misstates the law. The question is not whether it was reasonably open to the Tribunal to accept the appellant’s explanation. Jurisdictional error will not be shown merely because the Tribunal makes an adverse factual finding in circumstances where a favourable finding might also be available on the same material.

60    Finally, it was submitted that the Tribunal committed jurisdictional error in concluding that it would have been reasonable for the appellant to attempt to obtain a visa through regular channels before “resorting to fraud” and that his failure to do so was unreasonable. The Tribunal said that the appellant had not claimed at the hearing that he had obtained a false Malaysian visa so as to escape Pakistan and escape persecution. The Tribunal noted that this scenario had nonetheless been raised as a possibility at post hearing submissions. The Tribunal observed, correctly in my view, that such a claim would be inconsistent with the appellant’s claim not to have been aware that the Malaysian visa was not genuine. It has not been shown on this appeal how the two claims could be reconciled. The appellant has pointed to no evidence before this Court to demonstrate that he did in fact make a claim to the effect that his fear of persecution in Pakistan was the reason why he could not and did not apply for a genuine Malaysian visa. Whilst it may have been open to the Tribunal to arrive at a different conclusion in respect of this discrete issue, it has not been shown that its reasoning attracts the principles of legal unreasonableness as explained in the authorities to which I have referred.

61    The fourth ground of appeal is not established.

PARTICULARS TO GROUNDS OF APPEAL

62    Before concluding, it should be noted that the grounds of appeal extracted at [21], [34] and [41] above do not include the “particulars” to each ground set out in the amended notice of appeal. As with the grounds for judicial review in the FCCA, the particulars are lengthy. In large part, they are properly characterised as either a recitation of facts or as submissions. In certain instances, the particulars appear to raise a different substantive issue, although that is somewhat unclear. In light of the length and nature of the particulars, the Court informed the appellant’s Counsel that it would not treat any part of the particulars as constituting an additional ground of appeal, separate and discrete from the four grounds identified in the principal paragraphs I have extracted above. No application was made to amend the notice of appeal so as to introduce any one of the arguments that might be subsumed in the particulars as a discrete new ground of appeal. In the circumstances, it is neither necessary nor convenient to set out the particulars in full in these reasons. This appeal has been decided by reference to the principal grounds and the particulars taken into account as in the nature of submissions in support.

Associate:

Dated:    13 August 2018