FEDERAL COURT OF AUSTRALIA

GDS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 175

ORDERS

THE COURT ORDERS THAT:

1.    The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a male Iraqi national and a citizen of Iraq. He arrived in Australia on 27 November 2011 as an illegal maritime arrival and on 16 July 2012 was granted a Class XA subclass 866 protection visa. Subsequently, a delegate of the Minister for Home Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) determined that the appellant’s visa should be cancelled pursuant to s 109 of the Migration Act 1958 (Cth) on the basis that the appellant had given incorrect answers to certain questions in his protection visa application form. The appellant filed an application for review of the decision of the delegate, and on 24 October 2018 the Administrative Appeals Tribunal gave a decision affirming the decision of the delegate.

2    The appellant then filed in the Federal Circuit Court of Australia (FCCA) an application to review the decision of the Tribunal. That application was determined adversely to the appellant on 17 July 2019. He then filed a Notice of Appeal in this Court. The single ground of appeal is as follows (emphasised words added):

(1)    The Federal Circuit Court erred in failing to find that the Second Respondent failed to give the Appellant a meaningful opportunity to appear pursuant to section 425 of the Migration Act 1958 (Cth), and thus failed to accord procedural fairness.

Particulars

1.1    The Federal Circuit Court should have upheld ground three of the Appellant’s grounds of review.

1.2    The Federal Circuit Court should have held that at a point in the hearing when the Second Respondent should have remained open to persuasion, the Second Respondent put a bundled series of reasons for refusing the Appellant’s claim in a manner which suggested that the Second Respondent had already made up its mind against the Appellant and nothing would change its mind, thus, allowing the Appellant to be heard further had the appearance of an empty gesture.

3    The appellant represented himself at the hearing, with the assistance of an interpreter. He filed written submissions in advance of the hearing and handed up a prepared submission at the commencement of the hearing. The Minster was represented by the Australian Government Solicitor, and also filed written submissions.

2.    BACKGROUND

4    In the course of making his application for his protection visa, on 18 February 2012 the appellant provided a statement setting out his claims. The claims are graphic and disturbing, although they may be broadly summarised in fairly clinical terms as including the following:

(1)    the appellant and three of his brothers worked for an American logistics company in Iraq. In November 2006, because they worked for that company, the appellant and his brothers A and K were captured by the Shia militia. The appellant and K were detained in the militia’s headquarters and tortured by the Shia militia until another of their brothers, S, gained the release of the appellant and K;

(2)    the appellant returned to his employment in 2007, but the militia attended the house and took away S while the appellant hid and was not found. S was later found dead;

(3)    nothing further happened until September 2011, when the appellant and A received a threatening letter. Fearing that they would also be killed, they tried to flee and applied for passports, but were told that a restriction had been placed on them by the militia, so they were not allowed to leave Iraq. A contact then arranged fake passports for the appellant and A and they left Iraq for Indonesia in November 2011, and eventually arrived in Australia later that month.

5    As the learned primary judge summarised in her decision:

[5]     In his statement of claims, the Applicant stated his fear that if he returned to Iraq he would face a real chance of being tortured and taken away by the militia; that he risked being killed on return due to the fact that he had worked for the Americans; and that he would be targeted because he was a Sunni Muslim. He said that in January 2012, the militia went to his home and took his paternal uncles, whom they accused of harbouring him and his brother, and detained them for 25 days until the family was able to raise enough money for their release. The Applicant claimed he had no defence against the militia. They control the government and have their hands in everywhere. The Iraqi government would not protect him from the militia. He would not be safe in Iraq. He had no place to hide. He would not be able to survive in Iraq and relocation to another area in the country was not a reasonable option.

6    The appellant’s travel history indicates that after the appellant’s protection visa had been granted, the appellant left Australia and departed to Iraq four times between August 2012 and July 2017, staying in Iraq for a total of 32 months, as follows:

(1)    17 August 2012 to 24 April 2013 – eight months;

(2)    21 June 2014 to 24 April 2015 – ten months;

(3)    29 September 2015 to 25 March 2016 – six months;

(4)    13 November 2016 to 5 July 2017 – eight months.

7    On 24 June 2016 an Iraqi passport in the appellant’s name was located in the luggage of a traveller who had entered Sydney airport.

3.    THE DECISION OF THE DELEGATE

8    On 16 November 2017 the Department of Immigration and Border Protection (as it then was) issued a Notice of Intention to Consider Cancellation (NOICC) of the appellant’s visa. It invited the appellant to provide a response to the proposition that the appellant had not complied with s 101(b) of the Act because he provided incorrect answers in his application for the visa insofar as he claimed: (a) that he feared harm if he returned to Iraq, and yet had returned to Iraq on four occasions; and (b) that he could not obtain an Iraqi passport, and yet had obtained an Iraqi passport in 2015.

9    The primary judge accurately records the sequence of events as follows in her reasons:

[19]     By letter dated 2 February 2018 the Applicant, by his migration agent, responded to the Notice. In summary, the response stated that the Applicant's answers given in his Visa application were correct. However, due to his circumstances it appears as if he did not comply with s.101(b) of the Act. In particular, the Applicant referred to his health deterioration as a result of his kidney disease as being the reason why he returned to Iraq on several occasions. He claimed that during these visits, he maintained a low profile, and focused on his health but that he had no alternative other than returning to Iraq due to his health issues. He also provided an explanation as to why he obtained an Iraqi passport, and why this passport was brought back by another person to Australia. He confirmed that he continues to fear for his life if he returns to Iraq.

[20]     An International Treaties Obligation Assessment (ITOA) was done in relation to the Applicant and concluded on 18 May 2018. In that ITOA the assessor noted that since obtaining his Visa on 16 July 2012 the Applicant had returned to Iraq on four occasions (see above at [14]). The Applicant's claim that he has a serious kidney disease, which ultimately resulted in a kidney transplant at the end of 2016, was noted and accepted. However, the assessor raised issues as to how the Applicant was able to obtain a valid Iraqi passport in circumstances where he had previously claimed in his statement of claims when applying for the Visa, that he had been unable to do so. Issues were also raised about the Applicant's claims where he stayed when he travelled to Iraq. In particular, the assessor concluded that the Applicant spent considerable time in the southern part of Iraq, where his family resides.

[21]     The ITOA assessor concluded that, having made four lengthy trips to Iraq for a total of 32 months between 2012 and 2017 and spent some 16 months in southern Iraq without apparent incident, the Applicant did not have a subjective fear of harm. Nor did the ITOA assessor accept that the Applicant had an adverse profile in Iraq for any Convention related reason. For similar reasons the ITOA also concluded that he was not a person to whom Australia had a non-refoulement obligation under other relevant international treaties.

10    The delegate subsequently determined that the appellant had provided incorrect information, had therefore not complied with s 101(b) of the Act, and that the visa should be cancelled. The appellant’s visa was accordingly cancelled under s 109 of the Act on 13 June 2018.

4.    THE DECISION OF THE TRIBUNAL

11    On 29 June 2018 the appellant applied to the Tribunal for review of the delegate’s decision. The appellant was represented by a solicitor and migration agent before the Tribunal.

12    The Tribunal relevantly found as follows:

[49]     While I accept that the applicant has had a kidney disease and had a transplant in Iraq, I am not satisfied that the applicant has travelled to Iraq exclusively to search for a donor and to undertake the procedure. To begin with, country information indicates that siblings and other close family relatives are generally the most suitable donors and that they are tested via blood tests and other non-invasive procedures to assess their suitability.

[50]     Given this, his brother’s (who ultimately donated his kidney) suitability could have been established very early on in the process. The applicant had claimed that his siblings were scared of the procedure (meaning the live kidney transplant rather than the compatibility testing procedure which is non-invasive) and that he and his brother spent years searching for a kidney without success, and his brother only donated the kidney once the situation became very serious. The issue of interest to the Tribunal however, is not whether they were scared to donate, but that the applicant claims that no family member underwent basic tests (such as blood tests) to see whether they were compatible. It is reasonable to believe that the applicant’s doctors in Iraq would have done this early on in the consultation stage when the applicant claimed he returned to Iraq for the sole purpose of seeking a donor.

[51]     The applicant’s willingness to return to Iraq on four occasions is also inconsistent with his claim made in his protection visa application that he had no place to hide and would not be safe or able to survive in Iraq. Not only did he survive, he was able to father a child and to receive a kidney transplant in the nearly three years (over four occasions) in which he lived there.

[52]     I do not accept that he exclusively went to Kurdistan and only transited through Basra (or caught a service taxi from there) as he could not get a direct flight. This does not explain why he did not route through Baghdad and avoid Basra entirely (the alleged location of his persecution and of his family), or even use another carrier entirely.

[53]     I also note that his response to the Notification of Intent to Cancel stated that ‘he departed to Basra al-Sadr teaching hospital for ABO cross match’ (folio [x]) and there are some medical reports from 2 November 2015 in the name of [Applicant] (the applicant’s name) from the same hospital (folios [y] & [z]) which is inconsistent with his claim that he spent no time at all in Basra. While I am willing to accept that he spent some time in Irbil, Kurdistan I am satisfied that he also spent considerable periods of time in Basra with his family.

[54]     I do not accept his claim that his doctor in Irbil sent him to see a specialist in Basra and that he went there on a day trip but didn’t stay there because it was unsafe. It lacks credibility that the hospital that had already treated the applicant and that would perform his kidney transplant would not have the requisite specialist and would send the applicant to a place as allegedly dangerous as Basra for a consultation. The applicant appears to have attended an ultrasound and x-ray specialist (folio [A]) in Basra and it lacks credibility that the kidney transplant hospital in Irbil did not have such a specialist within its facility or elsewhere in Irbil. Nor does it explain why he was only sent all the way to have an ultrasound in Basra on only one occasion in the four visits to Iraq.

13    It will be seen that the Tribunal accepted that the appellant had a kidney condition, but was not satisfied that he had travelled to Iraq exclusively to search for a donor and to undertake the procedure. It was satisfied that the appellant would receive sufficient medical support in Iraq ([65]).

14    The Tribunal also considered the appellant’s multiple visits to Iraq to be incompatible with his initial claim in his visa application that there was no place to hide in Iraq, and nowhere for him to be safe. This finding involved the Tribunal rejecting several aspects of the appellant’s explanation of events, and also a conclusion on the part of the Tribunal that the appellant’s initial claims which resulted in him being granted the visa lacked credibility. This was not only because the appellant had frequently travelled to Iraq and stayed there for approximately 2 years and 8 months, but also because one of his brothers, K, who had the same history as the appellant in relation to working for the American logistics company, had remained in Iraq unmolested for the past 6 years (at [61]). The Tribunal also found that the appellant’s claims that his uncles had been detained and tortured for harbouring the appellant and his brother lacked credibility in circumstances where another brother, B, “remain[ed] unmolested in the same location in Basra for six years if the applicant was wanted by the militia” (at [62]).

15    The Tribunal concluded that the appellant had fabricated his underlying claim to fear harm in Iraq, and had given incorrect answers in his visa application to the questions concerning his fear of harm, which resulted in the grant of the visa (at [69] and [70]). After considering relevant discretionary matters and Australia’s international obligations, the Tribunal concluded that the visa should be cancelled (at [73] – [88]).

5.    THE DECISION OF THE FCCA

16    The application for judicial review before the FCCA contained three grounds. The primary judge notes in her reasons that the appellant was represented by counsel at the hearing ([38]).

17    In the first ground, the appellant challenged the findings of fact expressed at [49] and [50] of the Tribunal’s reasons on two bases. First, that it was inappropriate for the Tribunal to base a conclusion concerning medical advice and procedures in Iraq on country information concerning medical procedures in the United Kingdom. Secondly, that the Tribunal’s finding as to what doctors in Iraq would have done does not follow from that country information. The appellant accordingly contended that the Tribunal’s reasoning process was irrational or illogical.

18    After carefully setting out the parties’ arguments, the primary judge rejected this ground. It is not necessary to address her reasoning in detail, because this ground finds no equivalent in the present Notice of Appeal. In short, the primary judge found that the Tribunal was entitled to rely on medical information (misdescribed in the Tribunal’s reasons as “country information”) that generally siblings and close relatives are the most suitable donors for kidney transplants , and that the Tribunal had evidence before it of blood testing in Iraq (at [44] and [45]). The primary judge then found that in light of that evidence the Tribunal was entitled to draw inferences that: (a) had the appellant solely returned to Iraq for the purpose of seeking a kidney donor, then during his first visit in 2012 he would have had his siblings tested for compatibility; and (b) in circumstances where this did not occur, the purpose for his visits was not exclusively to find a kidney donor (at [50]).

19    In the second ground, the appellant contended that the Tribunal had incorrectly found that he had made a claim that he had spent “no time” in Basra (his home town), and the Tribunal had consequently made a finding adverse to his credibility by finding that in fact the appellant had spent time in Basra during his visits. This ground is not advanced on appeal and again can be addressed in short measure. The primary judge rejected it on the basis that the ground mischaracterised the reasoning of the Tribunal (at [66]). The primary judge found that the Tribunal did not in fact conclude that the appellant had advanced the proposition that he had literally spent no time during his visits in Basra, but rather that he had downplayed spending any more than fleeting or insignificant time there (at [68]).

20    The third ground before the primary judge, which finds expression within the present ground of appeal, was as follows:

On 4 October 2018 the applicant attended a hearing before the Tribunal. At one point during the hearing the Tribunal member spent 10 minutes putting multiple concerns to the applicant, following which the member invited the applicant to comment. Such conduct by the Tribunal was procedurally unfair. In the circumstances, the applicant was denied procedural fairness, and the Tribunal breached s 425 of the Migration Act 1958 (Cth) by not giving the applicant a fair hearing.

21    The primary judge records the submission advanced on behalf of the appellant as being that the appellant was not given a genuine or meaningful opportunity to comment or respond to a “spray of questions or propositions that the Tribunal put to the Applicant” (at [73]).

22    The primary judge refers in her reasons to the transcript before the Tribunal, and sets out extensive passages from it. Citing the Full Court decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited [1994] FCA 1074; (1994) 49 FCR 576 at 590-591, the primary judge concludes that the Tribunal gave the appellant a meaningful opportunity to appear and give evidence and respond on a question by question basis (at [88]). Her Honour concluded that there was no absence of procedural fairness.

6.    THE APPEAL

23    The appellant commenced his submissions by handing up a two page written submission. He relied on that in addition to his earlier written submissions. In oral submissions, he also made reference to various documents that he had with him in court to support his claim to have had a genuine and serious illness caused by kidney failure. He also referred to other matters of fact that were before the Tribunal. For the most part, it is clear that the points raised do not represent any contention that can be characterised as going to whether or not the Tribunal made a jurisdictional error in reaching its decision, or the primary judge erred in failing to detect such an error. To the extent that his oral submissions are relevant to the grounds of appeal advanced, I address them below.

24    Before turning to the grounds, two preliminary matters warrant attention. First, in an interlocutory application filed on 28 January 2020 the appellant requested that the Court appoint counsel to assist him in the preparation and presentation of the appeal. That application was not mentioned during the course of the hearing. Nor did the appellant ask for an adjournment for the purpose of obtaining representation. Secondly, in email correspondence with the Court shortly before the hearing, the appellant sought permission for a friend of his, also in immigration detention, to attend at the hearing to provide assistance. That application was not opposed by the Minister and I approved that course. However, on the evening before the hearing an email was sent by the Minister’s representative, informing the Court and the appellant that arrangements could not be made for the friend to appear. The appellant did not raise this matter at the hearing. He proceeded, with the aid of an interpreter, to make his submissions in support of his case. In so doing, he demonstrated to me that he was not a person suffering from a legal incapacity such that it might have been necessary or appropriate to appoint a litigation representative (see Federal Court Rules 2011 (Cth) r 9.63). Nor was I satisfied that a referral under r 4.12 was appropriate. In those circumstances, the failure of his friend to attend court did not adversely affect his presentation of the case. The appellant did not submit otherwise.

25    I turn now to the appellant’s ground of appeal. The Notice of Appeal was filed at a time when the appellant had the benefit of legal representation. In it, the appellant contends that the FCCA failed to find that the Tribunal deprived him of a meaningful opportunity to appear pursuant to s 425 of the Act and so failed to afford him procedural fairness. The first particular refers to ground three of the grounds advanced before the primary judge, the terms of which are set out at paragraph 21 above.

26    Little in the written or oral submissions relied upon by the appellant is relevant to this ground, although in his written note provided during the hearing the appellant submits that the translator involved in the hearing in the Tribunal did not speak his dialect and was unable to translate the true meaning of his answers, a matter to which I return below.

27    In ARK16 v Minister for Immigration [2018] FCA 825, Mortimer J gives a convenient summary of the principles relevant to procedural fairness and the hearing rule:

[37]        Where an obligation to afford procedural fairness is expressly or impliedly imposed, the general question is whether a person has been denied an opportunity to be heard on a matter which she or he ought fairly to have been given in the totality of the circumstances: Minister for Immigration & Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55] (Gageler and Gordon JJ). The plurality at [42] also emphasized the following (citations omitted):

As was said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs:

It is … not to the point to ask whether the [decision-maker’s] factual conclusions were right. The relevant question is about the [decision-maker’s] processes, not its actual decision.

[38]        Another often cited expression of the general principle is in Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [83]:

Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.

28    The primary judge relied on the Full Court’s well known passage in Alphaone at 590-591, which includes the following:

[28]     It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard.  That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. 

(emphasis added, citations omitted)

29    In the present case, the substance of the complaint advanced below was that the “spray” of questions levelled at the appellant during the hearing before the Tribunal was such that he did not have a meaningful opportunity to respond to them. In my view, that criticism is not warranted. First, the appellant had the benefit of representation at the hearing. Secondly, it is apparent from a review of the transcript, and particularly at pages 52 – 61, that the Tribunal directly put to the appellant the propositions of fact that caused it disquiet about the veracity of his evidence. Excerpts of that questioning are set out in the primary judge’s reasons at [74]. The Tribunal listed its concerns and then asked the appellant for a response, and twice repeated the question whether or not there was anything that he would like to raise. Thirdly, the Tribunal directly asked the appellant’s legal representative whether she would like to discuss anything with the appellant before adjourning, but the representative declined that invitation and instead asked for an opportunity to supply additional written submissions. That request was granted by the Tribunal. Subsequently, further written submissions were supplied.

30    In these circumstances, it is apparent that the primary judge was correct to reject this ground of appeal.

31    In the second particular to ground one of the appeal the appellant contends that the bundled up series of questions put to the appellant by the Tribunal suggested that the Tribunal had already made up its mind and would not change it. In my view this complaint, to the extent that it is different to the first, is also without foundation. The transcript reveals that the Tribunal voiced its several concerns with the evidence given, and afforded a genuine opportunity to the appellant to respond, not only orally but also in writing. Nothing in the evidence suggests that the Tribunal had closed its mind to persuasion or was otherwise biased.

32    Having regard to these matters, it is not necessary to consider whether as a matter of law it was necessary for the Tribunal to descend to the level of detail in his questioning of the appellant as it did.

33    Finally, I have noted above that in written submissions provided at the hearing the appellant complained that the translator assisting before the Tribunal did not speak his dialect. This point was not made before the FCCA. Nor was it taken up in the Tribunal. In fact, at the outset of the hearing in the Tribunal, the appellant was invited to let the hearing officer know if he had “any problems with the way the interpreter is doing his job”. The appellant had ample opportunity to raise any concerns that he had in this regard, including: with his own representative at the hearing; with the Tribunal at the hearing; in submissions to the Tribunal provided after the hearing; or on appeal before the FCCA. No such opportunity was taken. To the extent that it represents a further ground of appeal, it is a new one and leave to raise it must be obtained. In the circumstances just outlined, I would not grant that leave. It is raised too late and has insufficient merit to warrant an exercise of discretion in favour of the appellant.

7.    DISPOSITION

34    For the reasons set out above, the appeal must be dismissed. The appellant should pay the Minister’s costs of the appeal.

Associate:

Dated:    21 February 2020