Federal Court of Australia

DRY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1465

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to amend the notice of appeal in terms of the draft annexed to the appellant’s submissions and as to grounds 2, 3 and 4 in so far as they may raise issues not raised in the Court below to raise those issues.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the appeal to be assessed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    In 2012, the appellant was granted, under the Migration Act 1958 (Cth) (the Act), that class of visa known as a Subclass 866 (Protection) visa. After he had been in Australia for some four years. A delegate of the Minister presently title the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), responsible for the administration of the Act, gave him a notice under s 107 of the Act of an intention to consider cancellation that visa. The appellant made submissions in response to that notice. The delegate, nonetheless, decided to cancel the visa on the basis of falsehoods, in particular, responses to questions in his application and supporting declaration which had been identified in the notice of intention to consider cancellation. The appellant then sought the review of that decision by the Administrative Appeals Tribunal (Tribunal).

2    On 28 October 2016, for reasons given in writing, along with the terms of the decision, to the appellant, under cover of a letter dated 31 October 2016, the Tribunal decided to affirm the Minister’s delegate’s visa cancellation decision. The appellant then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of that decision by the Tribunal.

3    There was some passing reference, but no formal notice of contention, in the Minister’s submissions on the appeal, to the subject of whether or not an extension of time was needed following that judicial review application. It is not necessary to consider that issue in relation to the appeal. The reasons for judgment of the learned primary judge make it plain that, in the event that an extension had been necessary, and his Honour thought that it was not, he would have granted the requisite extension.

4    In any event, on 2 December 2019, for reasons delivered ex tempore that day, the Federal Circuit Court, having granted leave to rely upon a further amended application and amended grounds, dismissed, with costs, the application. The appellant has now appealed to this Court against the order of dismissal.

5    The grounds of appeal are set out in a document annexed to the appellant’s written submissions. Strictly, one might say that two of the grounds, at least, are proposed grounds, because they did not appear in the notice of appeal as filed. The Minister goes rather further and contends that in respect of some of the grounds, they raise issues which were not raised below. It is, of course, appellate, not original, jurisdiction that this Court exercises in cases such as the present. Even so, it would be unusual, where a pure point of law was raised, not to grant leave. The concern as to prejudice would arise in relation to evidentiary embarrassment in the usual course.

6    In respect of one of the grounds, ground 2, it is possible to conceive of such embarrassment in relation to why it was that the reasons, in 2012, of the Independent Protection Assessment (IPA) were not considered relevant by the Secretary to the Minister’s department. However, as will be seen, on further analysis, it is sufficient to dispose of that ground to assume, in the Minister’s favour, that there was particular reason not to consider the IPA report relevant to the particular decision under review by the Tribunal.

7    That there is a desire to amend the grounds of appeal reflects, so it is submitted, an absence of published reasons until after the notice of appeal against the Federal Circuit Court’s order was filed. It is, with respect, a serious misconception to regard reasons for judgment in respect of an order pronounced as not having been “published” when they are delivered orally in open court. They are published at that time. The misconception, in my view, has arisen as a result of a practice voluntarily undertaken by this Court and other courts, to revise reasons for judgment delivered ex tempore other than at the request of an editor of authorised law reports or for the purposes of preparing an appeal book. However that may be, I can well understand how it was that further reflective thinking in relation to grounds of challenge did not occur until the reasons for judgment, as revised, were sent to the parties.

8    In my view, the interests of justice in this particular appeal are best served by, insofar as the same may be necessary, granting leave to the appellant to amend the notice of appeal in terms of the draft annexed to the appellant’s submissions, and as to grounds 2, 3 and 4 insofar as they may raise issues not raised in the Court below to raise those issues.

9    The grounds of appeal as so identified are these:

1.    The Federal Circuit Court erred in finding that the Second Respondent did not act unreasonably, or fail to take into account a relevant consideration in failing to obtain and/or consider either the 2012 IPA in which the Appellant’s protection visa claims were recorded or the IPA record of interview.

Particulars

1.1    The Federal Circuit Court should have found that the Second Respondent’s failure to obtain and/or consider these documents was legally unreasonable or was a failure to take into account relevant information.

1.2    The foundational issue for the Tribunal, identified in the notice of intention to cancel, was whether the protection visa claims made by the Appellant in 2012 were true.

1.3    It was the assessment of the IPA, made when the events upon which the Appellant’s claims were based were still fresh in his mind, which led to the protection visa being granted.

1.4    The IPA interviewed the Appellant and the Appellant made claims before the IPA which were recorded in the IPA’s assessment.

1.5    The IPA and the interview were thus relevant and significant documents for the purposes of determining whether or not the Appellant’s claims were true.

1.6    The assessment and the interview were in the possession and control of the Department, and could have been obtained and considered by the Tribunal.

Ground two

2.    In the alternative to ground one, the Appellant says that the Tribunal’s decision was invalid because a precondition to the valid exercise of the Tribunal’s power, being the valid exercise of the Secretary’s duty to provide documents to the Tribunal pursuant to section 418(3) was not met.

3.1    Section 418(3) of the Act require the Secretary to provide to the Tribunal those documents in their possession and control which they considered relevant to the review.

2.2    On the balance of probabilities, both the Independent Protection Assessment and the record of interview were in the possession and control of the Secretary, and in particular, the Independent Protection Assessment was in the possession and control of the Secretary, because it was reproduced in the Court Book.

2.3    Both the assessment which recorded the Appellant’s claims at interview, and the interview itself were clearly relevant and significant .

2.4    Either their relevance is a jurisdictional fact, or the Secretary’s power has to be exercised reasonably, and, in failing to provide these documents to the Appellant, the Secretary failed to act reasonably.

2.5    The failure to provide the documents affected the Tribunal’s exercise of its powers.

Ground three

3.    The Tribunal’s failed to direct itself that a high degree of persuasion is required to make findings that the Appellant committed migration fraud, and that the Appellant provided bogus documents, given the gravity of the findings .

3.1    The Tribunals’ failure to direct itself correctly when forming a state of satisfaction with respect to material facts was material to the Tribunal’s decision, and thus the Tribunal erred in the exercise of its jurisdiction (Tarasovski v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 570, 572-573; NBDY & NBDZ v MIMIA [2004] FMCA 658).

Ground four

4.    The First Respondent failed to address an integer or aspect of the Appellant’s case when exercising its discretion, which was whether the Appellant faced a risk of hardship or harm upon return to Iraq which would not enliven Australia’s protection obligations, but would nevertheless be a hardship to the Appellant relevant to the exercise of the discretion.

[sic]

Ground 1

10    It is not, as, with respect, the Minister correctly submitted, either immediately apparent, or apparent at all, how it is that the IPA (including for the avoidance of doubt the record of interview) in 2012 was relevant to the Tribunal’s review. It was not the decision of the delegate who granted the protection visa that was under review by the Tribunal; the granting of that visa was a given. The decision under review was that of a delegate cancelling the protection visa.

11    This acknowledged, it does appear that in the IPA’s reasons there was recorded answers which had been given in 2012 at the time of interview. However that may be, it was always in the appellant’s interests to advance such reasons as he was disposed and advised as to why it was that the protection visa should not be cancelled. If something was to be made in his favour in terms of statements given to the Independent Protection Assessor or otherwise in 2012 it was for him to make something of them and to furnish the requisite supporting material to the Tribunal.

12    The core function of the Tribunal was that of review, not inquisition. The absence of the IPA did not, in my view (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, at [18], go to jurisdiction. The Tribunal was not under any obligation to seek out the IPA. All the more so, it was under no such obligation because it was not asked to do that.

13    The appellant was represented in the proceedings before the Tribunal. Inferentially, the IPA was hardly a revelation when it came to the attention of the parties by its inclusion in the application book before the Federal Circuit Court. The parties necessarily include the appellant. It was always possible for the appellant to have sought, under the Freedom of Information Act 1982 (Cth), a copy of the material before the delegate when granting the protection visa. There was no reason at all, in the circumstances of this case, for the appellant, or those advising him, to assume that a document pertinent to the granting of the protection visa would be considered relevant to assessing whether falsehoods had been made, as alleged in the notice of intention to consider cancellation.

14    By analysis, ground 1 is really predicated upon a solicitation to a particular merits submission, which is that the IPA interview contained a more contemporary account from that later given by the appellant.

15    In the court below, the learned primary judge, at [48], observed:

The fact that the applicant had earlier successfully obtained a report identifying that the applicant should be granted a protection visa in 2012 and that the applicant provided information at an interview in June 2012 supporting his claims does not identify any easily ascertainable or critical fact in respect of the 107 notice the subject of the determination by the Tribunal.

I respectfully agree with his Honour's observation.

16    There needed, in any event, in this case to be rather more than an inchoate reference to a document which was said to be a document that ought to have been considered relevant in order to enliven, for the purpose of the conduct of the review, a jurisdictional error argument based on a failure to conduct such a review according to law.

Ground 2

17    The short answer to ground 2 is that given by the Minister in his submissions. That is, that there are at least three judgments of Full Courts of this Court which stand for propositions directly opposed to ground 2: WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413; SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; Ashraf v Minister for Immigration and Border Protection (2018) 261 FCR 97.

18    The long and the short of it is that s 418(3) looks to what the Secretary considers relevant, not what may or may not, as a matter of objective assessment, be relevant. Assuming, in the Secretary’s favour, that the Secretary did not consider the IPA to be relevant, there is every reason for the Secretary not to have sent the assessment to the Tribunal. But, even if the Secretary, either through inadvertence or through a particular error of law, ought to have sent the IPA assessment to the Tribunal, because the Secretary ought to have considered it, as a matter of law, relevant, no amount of error by the Secretary would vitiate the Tribunal’s exercise of its jurisdiction.

19    There was no conduct by or on behalf of the Tribunal which in any way could be said to have engendered an assumption reasonably, or indeed at all, on the part of the appellant, that the IPA was otherwise before the Tribunal for the purpose of its conducting its review. There is just no merit, at all, in ground 2.

Ground 3

20    Ground 3 is also, on analysis, contrary to authority. In fairness, it must be said that it may be that ground 3 was included so as to preserve a position. The relevant authority is now the Full Court’s judgment in Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 (Sun). It was submitted, with particular emphasis on behalf of the appellant, that Sun was not reconcilable with an earlier judgment of this Court affirming a judgment of the then Federal Magistrates Court, namely, NBDY v Minister for Immigration & Multicultural Affairs [2006] FCAFC 145 (NBDY). This submission is correct. Sun and NBDY are not readily reconcilable. However, for the reasons given in Sun, NBDY should no longer be regarded as good law insofar as that ought not already be apparent, with respect, from Sun.

21    It is to be remembered that the Tribunal is not bound by the rules of evidence (see s 420(a) of the Act). That being so, the observations made by Flick and Perry JJ in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 (Sullivan) are pertinent, in addition to the observations made in Sun, both by me and Flick and Rangiah JJ. The Tribunal, in reviewing the cancellation decision, stood in the shoes of the Minister. It did so for the purpose of exercising the discretionary power found in s 109 of the Act. In the exercise of that discretionary power, it was obliged to act on material reasonably probative of findings of fact. There was no onus of proof and no standard of proof other than reasonable satisfaction based on logically probative material. And that material did not have to be evidence admissible in a court exercising the judicial power of the Commonwealth. It would be, to borrow language from a universe of discourse, as stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, to speak of considerations such as those referred to, notably by Sir Owen Dixon, in Briginshaw v Briginshaw (1938) 60 CLR 336 in relation to the exercise of judicial power in making findings of fact when serious issues are at large.

22    In fairness to the appellant, I readily acknowledge that, as is apparent from my judgment in Sullivan, I did see some role for such considerations, based on earlier judgments in this Court. That, however, was not the view that prevailed in Sullivan.

Ground 4

23    Ground 4 takes, as its starting premise, the position flowing from the text of s 109(1)(b) of the Act that the response, if any, given by a person to the notice under s 107 about non-compliance is in the sense described by Sir Anthony Mason in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, “a relevant consideration”. So much, in my view, necessarily flows from the text of that provision.

24    The Tribunal’s reasons disclose that it did consider the response. The appellant nonetheless submitted that, in so doing, it had failed to consider an integer of that response, namely harm which was not significant so as to engender a fear of persecution, but nonetheless might enliven other complementary considerations if the appellant were returned to Iraq, his country of citizenship.

25    The reference to integer doubtless has its origins in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. That case concerned not a visa cancellation decision, but rather an application for a protection visa. It was decided by reference to the particular application that the Tribunal had not engaged with a particular aspect or integer of the claim as made. That really was a question of fact arising upon a consideration of that application.

26    In this particular case, there was no question of the grant of a protection visa; rather, the question was whether there were grounds for cancellation arising from falsehoods such that the power in s 109 should be exercised given that the visa application, as made, was not correct. It was in that context that the Tribunal came to make its decision. Yet further, when one examines the responses given to the Tribunal on behalf of the appellant by his solicitor and migration agent, one finds that the case is put on the basis of explaining why it was that the appellant had, after the grant of his protection visa, twice returned to Iraq. The Tribunal considered that in the context of deciding whether the claim as made was or was not false in the ways identified in the notice of intention to consider cancellation.

27    It was put on behalf of the appellant that:

The fact that the applicant was not harmed when he returned to Iraq does not prove that the events he described in Iraq are not true or that he did not have subjective fear when he applied for refugee status or that the fear he endured is not well founded …

[sic]

28    It was also put in a further submission that he faced substantial harm. The lesser or alternative was never part of the response when one looks to the submissions made on behalf of the appellant. The Tribunal did all that it was required to do in terms of s 109. It considered the response; having so done it made a value judgment reasonably open on the material before it as to whether or not there were or were not falsehoods. It follows that ground 4 has no merit.

29    This is just one of those cases where a protection visa holder, having returned twice to a country in respect of which there was a claimed fear of persecution, was given a notice to show cause as to whether there were falsehoods, provided an explanation relating to reasons for returning; in the one instance, a car accident involving a son, in the other the death of a father, and in so doing maintained that there was a fear of significant harm and no falsehood. Instead, the submission was that there were good reasons for returning and that the appellant had taken steps to adopt what one might term “a low profile”. It is just that the Tribunal did not accept this, and for reasons which are logically explained reached the contrary view and made findings as to falsehood. There the matter must rest.

30    The appeal should be dismissed.

Associate:    

Dated:    9 October 2020