FEDERAL COURT OF AUSTRALIA

DTW17 v Minister for Immigration and Border Protection [2019] FCA 1622

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a Faili Kurd from Iran, appeals against a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision was to affirm a decision of a delegate of the first respondent (the Minister) to cancel the appellant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth).

2    The appellant’s notice of appeal contains five grounds, but in his outline of submissions filed in advance of the appeal hearing the appellant abandoned ground 3 and indicated that he did not press ground 5. The remaining three grounds are to the following effect:

(a)    the Federal Circuit Court erred in not accepting the appellant’s contention that the Tribunal failed to comply with s 424A of the Migration Act in that it did not give to the appellant clear particulars of the previous positive protection visa decision (ground 1);

(b)    the Federal Circuit Court erred in not accepting the appellant’s contention that the Tribunal unreasonably failed to make a telephone call to a corroborative witness, in circumstances where that witness may have given material evidence on the provenance of the appellant’s passport (ground 2); and

(c)    the Federal Circuit Court erred in failing to give adequate reasons for its decision in relation to why it dismissed ground 2 of the amended application relied upon in that Court (ground 4).

3    For the reasons that follow, none of these grounds is made out.

Background

4    The following outline of background facts and matters is based on the reasons of the primary judge (the Reasons).

5    On 14 November 2011, the appellant arrived in Australia as an irregular maritime arrival, claiming to be a stateless Faili Kurd born in Iran. During his entry interview, he claimed that he was stateless, he did not have any identity documents or a birth certificate, he had departed Iran on a fraudulently procured passport, and that if returned to Iran he would be persecuted as a Kurd.

6    On 1 November 2012, the appellant applied for a protection visa. He maintained that he had never held a valid passport, and had been disadvantaged in Iran as an undocumented Faili Kurd.

7    On 26 November 2012, a delegate of the Minister (the First Delegate) decided that the appellant should be granted a Subclass 866 (Protection) visa on the basis that he had a well-founded fear of persecution in Iran as a member of a particular social group constituted by unregistered or undocumented people living in Iran (the Protection Visa Decision).

8    On 15 August 2013, the appellant departed Australia on an Australian issued Titre De Voyage. He returned to Australia on 30 September 2013. On his outgoing and incoming passenger cards he indicated that the country in which he would, and did, spend most of his time abroad was Iran. On his return, the appellant was found to be in possession of an Iranian passport issued in his name by the Iranian Embassy in Canberra on 25 June 2013, and which detailed an Iranian National ID Number, a birth certificate number, and that the appellant had last departed Iran on 3 October 2011.

9    On 28 January 2016, a delegate of the Minister, pursuant to s 107 of the Migration Act, issued the appellant with a notice of intention to consider cancellation of his visa under s 109 of the Act (the Section 107 Notice) on the basis that the contents of the Iranian passport found in the appellant’s possession appeared to indicate that his claims to be a stateless Faili Kurd were incorrect. The appellant was invited to provide a response within 14 days after he was taken to have received the Section 107 Notice.

10    On 22 February 2016, the appellant’s registered migration agent provided a written response to the Section 107 Notice in which the appellant reiterated that he had originally departed Iran on a false passport, and claimed that the Iranian passport found in his possession on his re-entry to Australia was another false passport obtained by an agent with connections to the Iranian Embassy in Canberra.

11    On 19 October 2016, a delegate of the Minister (the Second Delegate) cancelled the appellant’s visa. The delegate found that the appellant had provided incorrect answers in his visa application, and that he had not complied with s 101(b) of the Migration Act. The delegate was satisfied that there was a ground for cancelling the visa, and that the reasons for cancelling the visa outweighed the reasons for not cancelling the visa.

12    On 20 October 2016, the appellant applied to the Tribunal for review of the Second Delegate’s decision. A copy of the Second Delegate’s decision and the notification of that decision were attached to the appellant’s application for review.

13    On 20 April 2017, the appellant was invited to attend a hearing before the Tribunal on 23 May 2017. He did so with the assistance of his registered migration agent and a Kurdish interpreter.

14    On 25 May 2017, the Tribunal invited the appellant to comment on information which it considered would be the reason, or a part of the reason, for affirming the decision under review. The information was that his Iranian passport stated that his last departure from Iran was on 3 October 2011. The information was stated to be relevant to the review as it would suggest that when he originally departed Australia he did so under his real name, that he held an official passport, and that he was a citizen of Iran at the time.

15    On 28 June 2017, the appellant’s registered migration agent responded to the Tribunal’s 25 May 2017 invitation, advising that the appellant had provided an incorrect date of his departure from Iran to the agent who had procured his Iranian passport from the Iranian embassy in Canberra.

The Tribunal decision

16    On 19 July 2017, the Tribunal decided to affirm the decision to cancel the appellant’s visa. The Tribunal set out its reasons in a statement of decision and reasons (the Tribunal’s reasons).

17    The Tribunal first considered whether there was non-compliance with s 101(b) of the Migration Act by the appellant in the way described in the Section 107 Notice (at [10]-[28]), concluding that there was such non-compliance. The Tribunal next considered whether to exercise its discretion to cancel the appellant’s visa (at [29]-[74]).

18    In considering whether there was non-compliance with s 101(b), the Tribunal noted documents in which the appellant claimed to be a stateless Faili Kurd, and claimed that he would face a real chance of harm for that reason if he returned to Iran (at [11]). The Tribunal also noted the subsequent events that led to the Second Delegate’s decision, including the discovery of the Iranian passport in the appellant’s possession on his return to Australia (at [12]-[16]). The Tribunal considered the appellant’s explanation that the Iranian passport that was found in his possession was a false passport (at [17]-[24]). In the course of considering this issue, the Tribunal stated at [20] (a paragraph that is relevant to ground 2 in the notice of appeal):

I asked him if he knew that Iranian passports have biometric data. He responded that he did know. I put to him that biometric data includes fingerprints and so I asked him how he thought that the applicant’s fingerprints appeared onto the biometric passport. He responded that he didn’t provide any to the man organising his passport. I asked him what happened when he returned to Iran and he was required to put a finger on a scanner for immigration to get a finger print. He responded that he didn’t have to do that. I put to him that I was not convinced that he had fraudulently obtained the passport because it had his name correctly written but a different birth date even though he claimed to have given his driver’s license to him which had the correct date on it. He responded that he gave his name and photo to that person, he doesn’t know anything further and instead offered the name and number of the man who organised the passport for him. I chose not to dial the number provided by the applicant for the reasons that it would be impossible to determine who was on the other side of the line and as such any information provided would be severely undermined and secondly if the person on the other side of the line was who the applicant claims him to be then it could lead to the Iranian government being informed of the applicant’s asylum claims.

(Emphasis added.)

19    The Tribunal was not satisfied with the appellant’s explanation for why the Iranian passport recorded that he had departed Iran on 3 October 2011 (at [25]), which was consistent with the appellant having used the passport to depart Iran when he first came to Australia. In light of these matters, the Tribunal found that the appellant departed Iran in 2011 using a legitimately obtained passport in his name (at [26]). Accordingly, the Tribunal found that the appellant provided incorrect information on his statelessness and his ability to access schooling (at [27]).

20    In considering whether to exercise its discretion to cancel the appellant’s visa, the Tribunal had regard to the prescribed circumstances set out in reg 2.41 of the Migration Regulations 1994 (Cth) (at [32]-[67]) and to additional matters specified in the Department’s guidelines (at [68]-[72]). The Tribunal stated at [34] (a paragraph that is relevant to ground 1 in the notice of appeal):

The Tribunal has access to the original decision which granted the applicant his protection visa based upon the harm a stateless Faili Kurd may encounter. This included the effects of the absence of documentation which inhibited stateless people from legal employment, education, registration of marriages and obtaining birth certificates. The second element to the harm the delegate determined the applicant, as a claimed stateless Faili Kurd, may encounter was based upon imputed political opinion which would lead to a harsher and more frequent ill-treatment by authorities. In both cases statelessness is central to the decision maker’s determination. As such I find that the decision to grant the visa was wholly based upon the incorrect information provided by the applicant. For this reason I place considerable weight in favour of exercising the discretion to cancel the visa.

21    Ultimately, the Tribunal concluded that the appellant’s visa should be cancelled (at [74]).

The proceeding in the Federal Circuit Court

22    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. By his amended application filed on 18 January 2019, the appellant advanced three grounds. In summary, those grounds were that the Tribunal:

(a)    failed to comply with s 424A of the Migration Act in that it did not give to the appellant clear particulars of the previous positive protection visa decision (ground 1);

(b)    unreasonably failed to call a corroborative witness, in circumstances where that witness may have given material evidence on the provenance of the passport (ground 2); and

(c)    failed to consider a legal consequence of its actions, being the possibility of indefinite administrative detention (ground 3).

23    The primary judge rejected each of these grounds and dismissed the application for judicial review.

24    In relation to ground 1, the primary judge reasoned as follows:

13.    Under ground one of the application, the Applicant argues that by reference to the Tribunal’s stated findings in paragraph 34 of the Decision Record, the obligation under s.424A of the Act applied in respect of that information, being the, as described, “original decision”, and that the Tribunal did not comply with its obligation of providing that information to the Applicant.

14.    The First Respondent accepts that the basis of the original decision granting the Applicant the visa was “part of the reason” for affirming the decision under review, and that it would comprise “information” for the purposes of s.424A of the Act, but for s.424A(3)(b) of the Act.

15.    In the Department’s notification of the delegate’s decision, it stated:

“Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugees Convention. You consistently maintained that you were stateless and as a result of your statelessness would face persecution in Iran. This claim was fundamental to the determination that you are a person to whom Australia has protection obligations ...”

16.    This statement was repeated on page seven of the delegate’s decision. Further, it was noted by the delegate at page 10 of the delegate’s Decision Record:

“The visa holder’s Protection visa was granted on the basis that he satisfied the Minister that the visa holder engaged Australia’s protection obligations under the Refugees Convention. The visa holder has consistently maintained that he are [sic] stateless. This claim was fundamental to the determination that the visa holder is a person to whom Australia has protection obligations. As the incorrect information provided was material to this determination it appears the visa holder may not have engaged Australia’s protection obligations.”

As can be observed from the above, it is the matter of statelessness that was part of the reason for affirming the decision under review.

17.    The Applicant attached copies of both the Department’s notification and the delegate’s decision to his application to the Tribunal for review. He takes no issue with that. It was therefore given by the Applicant for the purpose of the review, and fell within the exception to s.424A of the Act at s.424A(3)(b) of the Act. I agree with the First Respondent that it does not matter that the Tribunal’s decision referred to the source of the information as the original visa decision itself; rather, the question is whether the Applicant gave the information for the purpose of the review, and thus brought it within the ambit of s.424A(3)(b) of the Act.

(Footnote omitted.)

25    In relation to ground 2, the primary judge set out [20] of the Tribunal’s reasons and an extract from the transcript of the hearing before the Tribunal. The primary judge reasoned as follows:

21.    As is evident from the transcript, the Applicant does not specifically request of the Tribunal that the Tribunal call any person. It was for the Applicant to make out his case and the Tribunal had no duty in that respect. I agree with the First Respondent that the matter was not a critical fact the existence of which was easily ascertained. Whilst the genuineness of the passport was a critical fact, it was not an easily ascertainable fact and the Tribunal set out its concerns. The Tribunal could not satisfy itself of the identity of a person whom it might call. The Tribunal was concerned also as to the possibility that the Iranian authorities may learn of the [appellant’s] asylum claims. Its approach was prudent and its concerns justified.

22.    The Tribunal determined to make no phone call. It set out in paragraph 20 of the Decision Record, its reasons for not doing so. Even assuming that the Applicant was requesting of the Tribunal to exercise its discretionary statutory power to take evidence on oath or affirmation at s.427(1)(a) of the Act, a fact the Court does not accept, the refusal to do so by the Tribunal was not legally unreasonable.

23.    There was an evident and intelligible justification provided by the Tribunal.

(Footnote omitted.)

26    It is not necessary to refer to the part of the Reasons dealing with ground 3, as this matter is not pursued on appeal.

The appeal

27    The appellant relies on grounds 1, 2 and 4 in his notice of appeal. These grounds are as follows:

(a)    the Federal Circuit Court erred in not accepting the appellant’s argument in relation to ground 1 of the amended application relied upon in that Court (ground 1);

(b)    the Federal Circuit Court erred in not accepting the appellant’s argument in relation to ground 2 of the amended application relied upon in that Court (ground 2); and

(c)    the Federal Circuit Court erred in failing to give adequate reasons for its decision in relation to why it dismissed ground 2 of the amended application relied upon in that Court (ground 4).

Ground 1

28    The appellant contends that the Tribunal took into account information drawn from the decision record for the Protection Visa Decision, that this comprised part of the reason for affirming the decision under review, and that s 424A of the Migration Act was therefore engaged. The appellant contends that the Tribunal failed to comply with that provision.

29    Section 424A provides as follows:

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.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(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.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

30    Section 424A was considered by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at [11]-[22]. In particular, the High Court stated at [17] that the reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of the decision. Further, the use of the future conditional tense (“would be”) in s 424A(1)(a), rather than the indicative, strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the decision-maker’s reasoning on the facts of the case: SZBYR at [17].

31    The appellant submits that, in [34] of its reasons, the Tribunal took into account information contained in the decision record for the Protection Visa Decision, and that the Tribunal was required by s 424A(1) to give the appellant “clear particulars” of this information, being information that “would be the reason, or a part of the reason, for affirming the decision that is under review”. The appellant submits that the Tribunal took into account, not only the fact of statelessness, but also “the harm that a stateless Faili Kurd may encounter”, the “effects” of the absence of documentation, and the imputation upon the appellant of a political opinion adverse to the Iranian government.

32    The Minister accepts that the following information (referred to in [34] of the Tribunal’s reasons) was information that the Tribunal considered would be a part of the reason for affirming the decision under review:

(a)    the information that the appellant claimed he was stateless;

(b)    the information that the appellant claimed that, because he was stateless, he would face persecution in Iran, including on the basis that he could not go to school; and

(c)    the information that the appellant’s claim to be stateless, and to face persecution on that basis, was central to the Protection Visa Decision.

33    The Minister submits that all of the information above fell within the exception in s 424A(3)(b), being information that the appellant gave to the Tribunal for the purposes of the review. Insofar as the appellant relies on the fact that the Tribunal at [34] referred to certain additional matters, the Minister submits that, properly understood, and having regard to the criteria for the decision, these were not matters that would be the reason, or a part of the reason, for affirming the decision under review, and therefore are outside s 424A(1).

34    In my view, the matters referred to by the Tribunal in [34] of its reasons did not attract the obligation in s 424A(1). The appellant attached to his application for review by the Tribunal copies of the notification of the Second Delegate’s decision and the decision record of the Second Delegate’s decision. The information in those documents was, therefore, given by the appellant to the Tribunal for the purposes of the review, and fell within the exception in s 424A(3)(b).

35    The notification of the Second Delegate’s decision recorded that the appellant had claimed to be stateless and that the appellant had claimed that stateless people faced persecution in Iran, including being denied access to schooling (AB 28-31). The Second Delegate’s decision record recorded the same matters (AB 38-41). Further, both documents contained paragraphs stating that the appellant’s claim to face persecution on the basis of statelessness was fundamental to the determination that he was owed protection obligations: see the quotations in [15]-[16] of the Reasons, set out above.

36    Insofar as the Tribunal referred, at [34], to “the harm that a stateless Faili Kurd may encounter” and the “effects” of the absence of documentation, these matters were referred to in the notification of the Second Delegate’s decision and the Second Delegate’s decision record. Those documents record various statements by the appellant that, as a Faili Kurd, he: did not have any identification documents or birth certificate; he was “not accepted” and “disadvantaged” in Iran; he did not have “basic rights”; and he did not have rights to schooling and citizenship (AB 28-31, 39).

37    While the notification of the Second Delegate’s decision and the Second Delegate’s decision record did not refer in terms to the imputation to the appellant of a political opinion that would lead to harsher and more frequent ill treatment by authorities, the Tribunal’s reference to this matter in [34] of its reasons was merely illustrative of the point that the appellant’s claim to face persecution on the basis of statelessness was fundamental to the determination by the First Delegate that the appellant was owed protection obligations. This point was clearly stated in both the notification of the Second Delegate’s decision and the Second Delegate’s decision record.

38    Thus, as a matter of substance, the information referred to by the Tribunal at [34] of its reasons was information that the appellant gave the Tribunal for the purposes of the review. Accordingly, the information fell within s 424A(3)(b). That conclusion is not negated by the fact that the Tribunal referred, at [34] of its reasons, to the source of the information as the decision record for the Protection Visa Decision, rather than the Second Delegate’s decision record.

39    I note for completeness that the issue being considered by the Tribunal in [34] of its reasons was whether the decision to grant the appellant a protection visa was based, wholly or partly, on the incorrect information provided by the appellant. There is no doubt that the appellant was on notice of this issue. It was clearly raised in the notification of the Second Delegate’s decision and the Second Delegate’s decision record. That said, it is necessary to determine whether the Tribunal failed to comply with the obligation in s 424A(1). For the reasons given above, the Tribunal was not required to give the appellant particulars of the information referred to in [34] of the Tribunal’s reasons.

40    For these reasons, ground 1 is not made out.

Grounds 2 and 4

41    The appellant contends that: the Tribunal failed to give an intelligible and justifiable reason for not taking steps to call a corroborative witness; its decision not to do so was therefore legally unreasonable; and this affected the Tribunal’s ultimate decision.

42    The appellant submits that the person identified by the appellant was a critical witness, being the person who the appellant claimed had provided his false Iranian passport (the Iranian passport being the key information against his claim of being stateless).

43    The appellant submits that the Tribunal considered whether it should call this witness, and decided not to do so. The Tribunal provided two reasons for this decision. The appellant submits that neither reason is justifiable.

44    In relation to the Tribunal’s first reason (namely, that if it made the call it would be “impossible” to determine who had answered the phone), the appellant submits that: the Tribunal, being an expert in determining the credibility of witnesses, could have asked any number of questions to verify the identity of the person answering the phone; it could also have requested the person to provide corroborative information; for the Tribunal to state that it was “impossible” to assuage concerns about the claimed identity of the person was unjustifiable.

45    In relation to the Tribunal’s second reason (namely, that pursuing the inquiry might reveal the appellant’s protection claims to the Iranian authorities), the appellant submits that: on the appellant’s narrative, this person already knew much about the appellant and his statelessness; there is no reason why the Tribunal needed to discuss the appellant’s protection claims with this person; and the reasoning is impossible to reconcile with the Tribunal’s ultimate findings that the appellant suffers no risk of harm from the Iranian authorities by reason of being an asylum seeker. At the hearing of the appeal, counsel for the appellant accepted that the second reason provided by the Tribunal was not unintelligible (T14).

46    The appellant also submits that: the primary judge did not engage with these arguments at all, and simply stated a conclusion that the Tribunal’s approach was prudent and its concerns justified; and the reasons of the primary judge did not, therefore, meet the necessary standard.

47    In my view, the Tribunal’s decision not to call the phone number provided by the appellant was not legally unreasonable. The Tribunal had an evident and intelligible justification for not doing so: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63]-[76]. I consider both of the reasons provided by the Tribunal at [20] of its reasons to have this character.

48    The first reason provided by the Tribunal was that it would have no way of determining whether the person who answered the phone was, in fact, who the appellant claimed he was. It is true that the Tribunal could have asked the person questions in order to attempt to determine his identity. However, particularly in circumstances where the Tribunal had evident credibility concerns about the appellant, it was open to the Tribunal to take the view that, even with the benefit of such questions, it would be unable to determine the identity of the person who answered the call.

49    The second reason provided by the Tribunal was that it was possible that pursuing the inquiry could lead to the Iranian authorities becoming aware of the appellant’s protection claims. In my view, that was a valid concern. The appellant’s evidence was that the person worked for the Iranian Embassy. It is difficult to see how the Tribunal member could ask the person questions about the genuineness of the passport without disclosing his own identity (i.e., as a Tribunal member), the appellant’s identity and the fact that the call related to a hearing about a protection visa. If the person did, in fact, work for the Iranian Embassy, this would give rise to a possibility of the Iranian authorities becoming aware of the appellant’s protection claims.

50    I note for completeness that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can in some circumstances supply a sufficient link to the outcome to constitute a failure to review: see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]. However, this is not the way the argument for the appellant has been put in the present case and, in any event, the present case does not fall into this category.

51    For these reasons, I reject ground 2 in the notice of appeal.

52    In relation to ground 4, I reject the contention that the primary judge failed to give adequate reasons for rejecting ground 2 in the amended application in that Court. The primary judge provided succinct reasons for rejecting the ground at [21]-[23] of the Reasons (set out above). These paragraphs need to be read in the context of the Reasons as a whole. In my view, when read in the context of the Reasons as a whole, [21]-[23] are sufficient. In any event, in light of my conclusion in relation to ground 2 in the notice of appeal, nothing turns on whether or not the primary judge’s reasons were adequate.

Conclusion

53    For these reasons, the appeal is to be dismissed. At the hearing, both parties accepted that costs should follow the event. Accordingly, I will order that the appellant pay the Minister’s costs, to be fixed by way of a lump sum.

Associate:

Dated:    3 October 2019