FEDERAL Court of Australia

DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 2 of the orders of the Federal Circuit Court made on 25 June 2020 in DCP17 & Anor v Minister for Immigration & Anor and DCR17 & Anor v Minister for Immigration & Anor [2020] FCCA 1681 be set aside and in lieu thereof it is ordered:

(a)    the decision of the Tribunal made on 20 June 2017 be set aside;

(b)    the matter be remitted to the Tribunal, differently constituted, for determination according to law; and

(c)    the first respondent pay the applicant’s costs of the application.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal, to be fixed by way of a lump sum by a Registrar in default of agreement.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

 2.    Order 2 of the orders of the Federal Circuit Court made on 25 June 2020 in DCP17 & Anor v Minister for Immigration & Anor and DCR17 & Anor v Minister for Immigration & Anor [2020] FCCA 1681 be set aside and in lieu thereof it is ordered:

a.    the decision of the Tribunal made on 20 June 2017 be set aside;

b.    the matter be remitted to the Tribunal, differently constituted, for determination according to law; and

c.    the first respondent pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION

1    These reasons for judgment deal with two appeals before the Court. The appellant DCP17 is the husband of the appellant DCR17. The appeals raise for consideration the scope and operation of ss 424A and 425 of the Migration Act 1958 (Cth), including the meaning and application of the statutory term “clear particulars” in s 424A, in circumstances where an issue before the Administrative Appeals Tribunal was the authenticity of identity documents about the appellants, which had been provided by a third party to the (then named) Department of Immigration and Border Protection. The question raised by the grounds in each appeal is in substance whether in the circumstances of these reviews before the Tribunal, the appellants should have been permitted to view the identity documents, or been given copies of them, and whether the Tribunal’s failure to allow them to do so resulted in it exceeding its jurisdiction either by not giving the appellants a “hearing” of the kind contemplated by s 425, or by reason of a contravention of s 424A of the Act.

2    The Federal Circuit Court dealt with the appellants’ judicial review applications together, and dismissed their challenges to how the Tribunal dealt with the identity documents. On these appeals, the appellants contend the Federal Circuit Court erred in its construction of the applicable provisions, and in its ultimate conclusion that the Tribunal’s decisions in each review were not affected by jurisdictional error.

3    For the reasons set out below each appeal will be allowed.

Background

4    The second appellant (DCY17) in each matter is the son of DCP17 and DCR17. The family arrived in Australia as “irregular maritime arrivals” on 1 April 2010. The appellants claimed that they were stateless Faili Kurds. The name of the ethnic group to which the Tribunal accepted the appellants belong was spelled differently in various documents before the Tribunal. For consistency, I have adopted the spelling “Faili”. The appellants were granted protection visas (Class XA) Subclass 866 on 28 January 2011.

5    On 7 October 2016, DCP17 was sent a Notice of Intention to Consider Cancellation of his protection visa. DCP17’s Notice advised him that the Department was of the view that he had provided incorrect information in his visa application, and therefore had contravened s 101(b) of the Act.

6    Section 101(b) of the Act provides:

101 Visa applications to be correct

A non-citizen must fill in or complete his or her application form in such a way that:

(a)    all questions on it are answered; and

(b)    no incorrect answers are given or provided.

7    The incorrect information DCP17 was alleged to have provided was that he was a stateless Faili Kurd when he was, in fact, an Iranian national. The allegation that DCP17 was, in fact, an Iranian national was based on a number of documents provided to the Department on 18 March 2016. The documents included Shenasnamehs (Iranian identity documents) said to be for the three appellants, a passport for DCP17, savings booklets and health insurance booklets for DCP17 and DCR17 (including photos), a receipt for the purchase of a mobile phone service for DCP17, and a contract for the purchase of an apartment for DCP17, and a marriage certificate naming DCP17 and DCR17. There were also a number of other documents in the name of the second appellant, including a series of school reports.

8    DCP17 was invited to respond to the Notice, and did so on 19 October 2016. The response indicated that DCP17 maintained that he was stateless, was not an Iranian citizen, and the information the Department had received was incorrect. In substance, DCP17 explained that he knew the documents had been provided by his wife’s nephew, with whom he and his wife had had a major disagreement. He outlined the nature of the disagreement, and the issuing of intervention orders by the Victorian Magistrates’ Court on both sides. He contended his wife’s nephew was seeking to extract revenge against his family and to have the family removed from Australia, and had provided false documents as part of seeking this revenge.

9    On 20 October 2016, DCR17 was sent a Notice of Intention to Consider Cancellation of her protection visa. The Notice foreshadowed grounds for cancellation of her visa that were the same as her husband’s; namely that she had represented on her visa application, and in interviews, that she was stateless, when in fact she was an Iranian citizen. DCR17’s Notice and DCR17’s responses were substantively similar to DCP17’s documents.

10    After submissions were made by them, the appellants’ protection visas were cancelled on 21 December 2016 on the basis of contraventions of s 101(b) of the Act. On 29 December 2016 the appellants sought review of the cancellation decisions in the Tribunal.

11    On 12 April 2017, the Tribunal held a joint hearing in relation to both appellants’ review applications. The appellant husband and wife appeared at the review hearing and gave evidence. Obviously, at the centre of the review hearing was the question whether the appellants had given false information about their citizenship status (or lack thereof), and the Tribunal questioned the appellants extensively at the review hearing on this matter. After the review hearing, the Tribunal sent them each a letter pursuant to s 424A of the Act, in relevantly identical terms. At the review hearing, the Tribunal had foreshadowed to the appellants it would take this course. I will return to the contents of this letter later in my reasons, but at the moment it suffices to state that the Tribunal informed the appellants that it considered there were a number of discrepancies and inconsistencies in the accounts they had given about these documents, about their family relationships (including the person alleged to be the wife’s nephew), about which passports the appellants used to depart Iran and other adverse information provided by two other individuals about the appellants which suggests the appellants have Iranian citizenship through birth.

12    Relevantly to the grounds of appeal, the Tribunal stated at several points in this s 424A letter (with my emphasis):

These are a significant number of varied and detailed documents regarding the applicants. As discussed in the delegate’s decision, the documents have been viewed by the Document Examination Unit and have been determined to be genuine items, based on the knowledge of such documents.

This information is relevant to the review because there is no reference in any of these materials, provided over a period of time by you and your wife separately, to your wife having a brother called [redacted]. The Tribunal considers that if your wife had a brother called [redacted], you and your wife would have mentioned him in these documents. If the Tribunal relies on this information in making its decision, it may consider that [redacted] is not your wife’s brother/your brother-in-law, that he does not exist, and that you have fabricated this evidence to support your claims that the documents given to the Department on 18 March 2016 were fake. The consequence of this is that the Tribunal may find that those documents are genuine and that you are an Iranian citizen rather than a stateless Faili Kurd, and this would be the reason or part of the reason for affirming the decision under review.

This information is relevant as it contradicts your claim at the hearing that your brother in-law [redacted] was involved in creating the documents that allowed you and your family to come to Australia. The Tribunal may determine that if [redacted] did exist and did assist in the creation of documents to assist you to depart Iran, you would have mentioned this at the entry interview, when asked specifically about the arrangements made to depart Iran, including the creation of a passport for you to depart. You did not do so. The Tribunal may determine that this is further evidence that no person by the name of [redacted] exists, and that you have fabricated this evidence to support your claims that the 18 March 2016 documents were fake; or in the alternative, if [redacted] does exist, he did not arrange the documents to enable you to depart Iran, which throws doubt on your explanation that the documents were created at an earlier point in time and may cause the Tribunal to doubt your overall credibility. The consequence of this is that the Tribunal may find that the 18 March 2016 documents are genuine, that the numbers on the documents are genuine, and you are an Iranian citizen rather than a stateless Faili Kurd, which would be the reason or part of the reason for affirming the decision under review.

This information is relevant as it causes the Tribunal to have significant concerns about the credibility of your evidence that the documents provided to the Department were created for the purpose of assisting you to depart Iran. It demonstrates that you have provided different information over a period of time with respect to the nature of the documents that were used to leave Iran. The Tribunal may consider that your overall credibility is affected by this alternate evidence as provided by you. The consequence of this is that the Tribunal may find that the 18 March 2016 documents are genuine and you are an Iranian citizen rather than a Faili Kurd, which would be the reason or part of the reason for affirming the decision under review.

This information is relevant because it may demonstrate that you and your son have Iranian citizenship through right of birth, and your wife has Iranian citizenship through marriage to you, according to Iranian citizens law. The consequence of this is that the Tribunal may conclude that you provided incorrect information that you are a stateless Faili Kurd in Iran.

If the Tribunal relies on any of the above information in making its decision, it may find that the documents provided to the Department are genuine, that you are not a stateless Faili Kurd in Iran and that you have Iranian citizenship. The Tribunal may also doubt your overall credibility. This would be the reason, or part of the reason, for the Tribunal affirming the decision under review.

13    It is significant to my decision on the appeals that in this letter, the Tribunal relied on the proposition that the documents were genuine at every point in its purported compliance with s 424A, in relation to every proposition it sought to put to the appellants. It also commenced the s 424A letter with this proposition by reference to a report from the Department’s “Document Examination Unit”, which as I explain (and as was not disputed) was incorrect and inaccurate.

14    The Tribunal affirmed the decision of the delegate on 20 June 2017.

Key aspects of the Tribunal’s reasons

15    The Tribunal gave separate reasons for its decision in respect of each of DCP17 and DCR17, but the reasoning is the same, and the text is very similar. No criticism should be made of this, but it should be noted, because it explains why only one set of Tribunal reasons needs to be closely considered. I discuss the Tribunal’s reasons by reference to its reasons in DCP17’s review, and this was the way the appeal was argued before this Court.

16    The Tribunal considered that it had no jurisdiction in relation to the son (DCY17) because his visa was automatically cancelled under the operation of s 140(1) of the Act, and therefore the cancellation of his visa was not the result of a relevant decision. On the appeal, both parties accepted first, that the outcome of the son’s cancellation decision stood or fell with the outcome of his parents’ cancellation decisions; and second, that no relevant distinction was to be drawn between the Tribunal’s reasoning on the husband’s review and its reasoning on the wife’s review, so they all stood or fell together.

17    From [75] onwards, the Tribunal explained the contents of the s 424A letter, in particular the contradictions in various accounts given by the appellant about whether he and his family had travelled on passports in their own names, or in false names. The Tribunal noted the absence of a written response from the appellant to the s 424A letter, but also noted the explanations given at the hearing, which the Tribunal did not accept. The Tribunal found at [77] that the account given during the entry interview, and in pre-hearing submissions was the correct one – that is, that people smugglers issued DCP17 and his family false passports in false names to leave Iran, and those passports were subsequently destroyed by the people smugglers. At [79]-[80], it rejected the appellant’s explanation which sought to draw a connection between the 37 identity documents sent to the Department and their use in Iran before he left to create passports for the family to use when they fled:

The Tribunal considers that the applicant has changed his evidence at the Tribunal hearing in an attempt to explain the presence of the documents handed in on 18 March 2016.

18    From [82], under the heading “The ‘false’ identity documents”, the Tribunal recorded the appellant’s response to the 37 documents as being to allege they were “fake”, and created by his wife’s brother. It is in this part of its reasoning, and as part of explaining why it does not accept what the appellant told the Tribunal about the documents, that the Tribunal begins to make a series of findings that the 37 documents are genuine. For example, at [86] (with my emphasis):

The Tribunal notes the post hearing submission that the applicant was not born in Iran but in Iraq. In the pre-hearing submission it was stated his family had been born in Iraq. The Tribunal does not accept this information, the Tribunal considers that the documents that have been provided are genuine documents, that the shenasnameh that has been provided is a genuine document that notes that the applicant was born in [redacted]. As detailed below, there is a process that permits Faili Kurds who have connections to Iraq to be provided with Iranian citizenship. The process includes Faili Kurds who have come to Iran from Iraq and established their connection to the country, they have had their citizenship granted. Accordingly the information that the applicant was born in [redacted] and had his citizenship from birth, as demonstrated in the shenasnameh, is correct information.

19    Findings to similar effect – that the identity documents were genuine – were made by the Tribunal at [85], [86], [89], [90], [113], [114], [123] and [149]. At [85] and [89], the Tribunal made those findings relying in substantial part on the proposition that the Department’s Document Examination Unit had examined the documents and determined them to be genuine.

20    It is true that the Tribunal’s detailed reasons expose many instances where the Tribunal was dissatisfied with responses given by the appellant on a range of issues, and that this dissatisfaction was wider than simply the provenance of the 37 documents. The Tribunal’s rejection of the appellant’s explanations as credible was based on a number of factual findings about discrepancies or flaws in the appellant’s evidence and explanations. Some of these findings were used in the Tribunal’s reasoning to conclude the 37 documents were genuine, other findings flowed from the Tribunal’s premise that the documents were genuine. Some factual findings were reached more independently of the Tribunal’s conclusions about the genuineness of the documents, being based on other matters – for example, the findings at [99]-[109] about whether some of the appellant’s relatives (also identified as ethnically Faili Kurds) have Iranian citizenship by birth. The Tribunal found this information suggested the appellant’s circumstances were the same, and that he also had Iranian citizenship by birth.

21    Nevertheless, in my opinion it cannot be gainsaid that the Tribunal’s focus on the genuineness of the 37 documents is a central theme of its fact finding process.

Federal Circuit Court decision

22    The Federal Circuit Court summarised the decision of the Tribunal from [18]-[26]. Three grounds of review were raised:

1.    The Second Respondent failed to comply with section 424A.

2.    The Second Respondent failed to comply with section 425.

3.    The decision of the Second Respondent is affected by legal unreasonableness.

23    The Federal Circuit Court noted that whilst ground 1 and ground 2 were pleaded separately, they were combined in written submissions and oral arguments by the appellants and the Minister.

24    As to ground 1, the Federal Circuit Court found that the s 424A letter gave sufficient and clear particulars of the information (at [44]). It further found (at [45]-[46]) that the reason the Tribunal affirmed the decision of the delegate was because of DCP17 and DCR17’s responses to the Department’s questions about the identity documents, and not the source documents themselves. Accordingly, it dismissed ground 1 on those two bases.

25    In relation to ground 2, the Federal Circuit Court found at [63] that the Tribunal was not required to show the appellants the identity documents for the appellants to have a “meaningful opportunity” to present evidence and advance arguments in the review in the Tribunal. It dismissed ground 2. Ground 3 was also dismissed. No legal unreasonableness argument is pressed on appeal.

The parties’ appeal submission in summary

The appellants’ submissions

26    As to the s 424A ground, the appellants submit that where the issue in the review is the genuineness of a document, it would not be possible for the Tribunal to comply with s 424A of the Act, without allowing the appellants to see the impugned documents. They contend the obligation to provide “clear particulars” in s 424A(1)(a) may, depending on the facts and on what is in issue in the review, require provision of either the original documents, or copies of them.

27    They submit a visual examination of the relevant document may reveal information going to the genuineness of the document, which an applicant may be in a position to identify if they have lived in the relevant country. Further, they submit that document authentication may well require adducing expert evidence, and briefing an expert is not possible without the expert being able to examine the document itself.

28    The appellants dispute the distinction made by the Federal Circuit Court in its reasons between the Tribunal’s assessment of the “inconsistencies and concerns that arose from the Applicants’ response to the Source Documents” and the documents themselves. They contend:

The Tribunal’s concerns about credibility were built on the premise that the Documents were genuine, and that the Appellants had therefore lied about being stateless. The genuineness of the Documents was thus at least “part of” the reason for affirming the decision under review.

29    In the alternative to their contentions about compliance with s 424A, the appellants submit the Tribunal failed to afford the appellants a hearing in accordance with s 425(1) of the Act. With the genuineness of the documents being a key issue in the review, the appellants were denied an opportunity to give evidence about any features apparent on, or in, the documents, whether pursuant to the appellants’ own observations of the documents or through an expert. The opportunity they did have was “not meaningful in the circumstances” without being able to see the identity documents, and consider whether to adduce expert evidence about them. As I understood it, the latter point was said to be especially important given that in fact, the Department’s Document Examination Unit had not examined the documents. There was therefore no expert evidence or opinion before the Tribunal about their genuineness.

The Minister’s submissions

30    The Minister submits that contrary to the appellants’ submissions, the Tribunal is not obliged to disclose documents whenever a review applicant wishes to challenge the genuineness of the documents, relying on, in part, SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 14 at [9]. The fact the appellants can posit a means of challenging the genuineness of documents that requires being able to look at the documents (such as engaging an expert), is an insufficient basis to find a contravention of s 424A. The Minister relies on VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at 99 [28]-[29], where the High Court held that procedural fairness in that case only required that the person be informed of the substance of the allegations in the “dob-in” letter.

31    Second, the Minister submits that the appellants were in fact provided with sufficient particulars of the identity documents, such as ID card numbers, passport numbers and details in the marriage certificate. These details of the documents were sufficient for the appellants to provide meaningful comment.

32    Third, and adopting the approach taken by the Federal Circuit Court, the Minister submits, the central issue before the Tribunal was the inconsistencies in the appellants’ evidence in explaining the origin of the identity documents to the delegate and to the Tribunal, rather than the genuineness of the identity documents themselves. The Tribunal was also concerned by information about other family members which apparently suggested that DCP17 was an Iranian national. These matters were, the Minister contended, all independent of the question of the genuineness of the documents and were the reason for affirming the decision under review.

33    For the same reasons the Minister submits there was no breach of s 425 of the Act. The appellants were made aware of the dispositive issues at the Tribunal hearing, and had a fair opportunity to present evidence and arguments on those issues. Section 425 should not be understood to impose an additional obligation on the Tribunal to disclose apparently adverse information that was not required to be disclosed under s 424A of the Act.

Resolution

Ground 1: s 424A

34    Some of the observations about the scope and operation of s 424A are collected by Wigney J in Ibrahim v Minister for Immigration and Border Protection [2018] FCA 2087 at [68] to [75]. The nature of the obligation is also addressed by the High Court in Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 and the earlier decisions referred to therein.

35    Relevantly to the issues in the present appeal, the following points should be made:

(a)    This is not a situation where there is any debate that the 37 identity documents were “information” for the purposes of s 424A; cf SZLFX at [23]-[24];

(b)    This was not a situation where what was at issue was whether the Tribunal needed to disclose its “subjective process” of reasoning: cf SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 96 ALD 1 at [18]; and

(c)    It is not disputed that the appellants did not see copies of the documents (let alone the originals as given to the Department) until they were sent as part of the Tribunal’s file to the Federal Circuit Court for the purposes of the judicial review application.

36    It is well-established that the pre-condition upon which s 424A operates is that the information “would be the reason, or part of the reason, for affirming the decision that is under review”. The use of the future conditional tense has been said by the High Court to indicate that an objective characterisation is required, by reference to criteria for making the decision on the review, and not to the prospective reasoning of an individual Tribunal member: SZBYR at [17]. See also Ibrahim at [69]. However, the High Court has also said in SZLFX at [24] (with my emphasis):

As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship [14], s 424A depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.

37    The observations in SZBYR at [17] and SZLFX at [24] might suggest different approaches to the pre-condition. However, in the present factual circumstances there can be no doubt that the 37 identity documents contained “information” that would be the reason for affirming the delegate’s decision. That is because they were capable of proving the appellants were not stateless but held Iranian citizenship, and had therefore given false information on their protection visa applications. Indeed, that was the apparent purpose of the provision of the documents to the Department, of their use by the delegate, and as I explain below, their use by the Tribunal. The authenticity, or lack of authenticity, of the documents is part of their inherent character. Put another way, if the documents were authentic (as the Tribunal found), this fundamentally undermined the whole basis on which the appellants had applied for protection visas – namely, their statelessness. That could not be seen as any accidental or inadvertent contravention of the obligation in s 101 of the Act. On the other hand, if the documents were not authentic, then this may have been highly probative of the appellants’ account about how family members were trying to exact revenge on them. In that sense the authenticity of the documents, independently from the consistency of the appellants’ accounts about them, was capable of leading to a “rejection, denial or undermining” of the appellants’ responses to the allegations of contraventions of s 101 of the Act: see SZBYR at [17]; SZLFX at [22]; cf ATP15 v Minister for Immigration and Border Protection [2016] FCAFC 53 at [42].

38    Therefore, the appellants are correct to pose as the critical question for ground 1 of the appeal – what does it mean, in the specific circumstances of this review before the Tribunal, to say that the Tribunal was required to “give particulars” of that information.

39    The appellants rely on the decision of Flick J in SZNKO v Minister for Immigration and Citizenship and Another [2010] FCA 297; 184 FCR 505. That appeal concerned a decision of the then Refugee Review Tribunal on the review of a protection visa application. One of the Refugee Convention attributes upon which the appellant in SZNKO relied – as a national of Bangladesh – was religion, claiming he was a Christian, and Christians faced persecution in Bangladesh. The “information” at the centre of the debate about compliance with s 424A was a letter in support of his claims signed by the “Chairman of a Union Council” in Bangladesh. At [13], Flick J described the concern of the Tribunal as being that the letter was

substantially the same as another letter he had come across in an unrelated proceeding. The concern was whether the letter relied upon by the appellant was a letter “made to order”.

40    Flick J stated at [16]:

At no time did the Tribunal Member disclose to the present appellant details of the person who wrote the other letter referred to, the identity of the Union Council from whence it had come, or its date.

41    This then, was the ss 424A and 424AA issue which arose.

42    At [19], Flick J notes that the adjective “clear” was introduced by amendment to s 424A in 2007, and stated that the change in language cannot be ignored. I respectfully agree. At [20], his Honour explained why the similarity in content of the two letters so as to provoke the Tribunal’s concerns could well be part of the reason for affirming the decision under review, but went on to find that “information” for the purpose of s 424A is not to be so confined, and that what is to be “given” to a review applicant is “clear particulars” of the information. Then at [23], in the passage on which the appellants relied, his Honour found:

There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to “comment … or respond …” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.

43    At [24], Flick J noted the importance of addressing the “practicality” of how the obligation under s 424A is to be discharged by the Tribunal, but at [26] noted the impact that a concern about genuineness or authenticity could have on the outcome of a review. Flick J concluded at [27] and [29]:

A meaningful opportunity to “comment … or respond” in the present proceeding required the disclosure of information that was withheld. An explanation may have been forthcoming if the applicant had been told more about the other letter that the Tribunal Member had come across. The reservations of the Tribunal Member, especially given his other concerns as to the credibility of the now appellant, may not have been misplaced. No further “comment … or respon[se]” may in fact have been forthcoming. But the opportunity to “comment … or respond” is the very procedural safeguard which enables an applicant to at least have an opportunity to address those reservations. An opportunity to “comment … or respond” to the other letter is only a meaningful opportunity if there has been disclosure of such particulars as enables an applicant to put that other letter into context. Letters in the same terms, but dated years apart, may be more difficult for an applicant to explain (for example) than letters written relatively contemporaneously in much the same circumstances.

….

Compliance with those provisions must necessarily depend upon the facts and circumstances of the claims being advanced before the Tribunal, the ability of any particular applicant to properly avail himself of the opportunity to be heard before the Tribunal, and the limited procedural protections prescribed by the Commonwealth legislature.

44    I accept, as the Minister submitted, that SZNKO was not a situation where the Court was considering if “source” documents should have been provided, but rather was considering the nature and extent of “particulars” about a letter which should have been given to a review applicant. Nevertheless, the appellants did not rely on what was said by Flick J in some mechanical kind of way to submit his Honour’s resolution of the appeal should be adopted on these appeals. What the appellants emphasised, in my opinion correctly, was that his Honour recognised the importance of ensuring a review applicant had the proper, and entire context of the “information” which was troubling the decision maker, had enough detail (hence the emphasis on “clear”), and recognised what might be required to discharge the obligation in a given review would be highly fact-dependent. Those are propositions with which I respectfully agree.

45    The appellants also relied on his Honour’s recognition of the “limited procedural safeguards” for Tribunal reviews in Part 7 of the Act, and therefore the importance of those safeguards which were present. A similar point was made by Gray J about s 425 in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 at [5]. I respectfully agree with both of their Honours.

46    In SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3, the Minister submitted SZNKO was wrongly decided. No such submission was made in this appeal. In any event, to that submission, the Full Court in SZTGV responded at [30]:

Although the Minister submitted that SZNKO was wrongly decided, the general propositions which Flick J identifies at [29] and [31] do nothing more than reflect the terms of the relevant provisions and orthodox principles. No doubt, the result turned on the particular facts, and reasonable minds might differ about those facts, but his Honour’s statements of general application are persuasive.

47    In contrast, the Minister points to the last sentence of [74] in Ibrahim, where the Court states, having referred to SZNKO earlier in that paragraph:

It must also follow that the requirement does not extend to giving the applicant a copy of the document in which the relevant information is contained: SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 14 at [9].

48    The Full Court’s decision in SXRB is only 11 paragraphs long. SXRB also concerned the refusal of a protection visa by the then Refugee Review Tribunal. In its s 424A letter, the Tribunal referred to several documents which the applicant had supplied in support of a business visa application, being the visa which had been granted and on which the review applicant had travelled to Australia. Although the Full Court’s reasons do not expressly say this, it is a reasonable inference that the Tribunal saw the provision of these documents (being “official” documents from, and about a University in Sudan where the review applicant was a student) in support of his business visa application as undermining his claims to fear persecution in Sudan. It was in this context that the Full Court rejected the argument about what s 424A required of the Tribunal, finding (at [9]):

The terms of s 424A do not require the RRT to do other than give “particulars” of certain information. Considered fairly, the particulars given under s 424A must be such as to show clearly the content of the relevant information and its potential significance to the Tribunal’s decision in order that the applicant can understand what may be said against him or her. Section 424A does not require the Tribunal to give the documents from which the information is derived. The particulars of information provided in the Tribunal’s detailed and lengthy letter of 24 August 2004 clearly met the requirements of s 424A of the Act.

(Emphasis added.)

49    It is the proposition in bold which the Minister emphasises. I do not consider that proposition is determinative against the appellants’ contentions. First, it is of course correct that s 424A does not “require” the Tribunal to give documents from which “information” is derived. There is no absolute obligation of such a kind on the Tribunal. Second, this proposition makes it clear that much depends on precisely what the “information” in issue is. In the case before the Tribunal in SXRB, it appears the “reason” was the fact of support for the review applicant from institutions in Sudan which he had himself relied upon for the grant of a business visa. The factual circumstances of the present appeal are quite different. Here, the source documents themselves are critical; they were both the impetus, and a determinative factor in, the Tribunal’s decision. In particular, that the gravamen of the contravention of s 101 of the Act was the provision of “incorrect” answers in visa applications about whether the appellants were from Iran but stateless, when the identity documents provided by a third party to the Department suggested they were from Iran and Iranian citizens. The importance of the source documents to the reviews was increased by the appellants’ response that they were not genuine documents.

50    In the present circumstances of the review before the Tribunal, the appellants had no opportunity to see the original identity documents as provided first to the Department, then to the delegate, and then to the Tribunal. Nor did they have the opportunity to see copies. That is notwithstanding that the appellants tried to get the documents through Freedom of Information requests, and the Tribunal was aware they were making Freedom of Information requests to get those documents: see [2] and [10]-[21] of the affidavit of Ms Anne Nhien Nguyen dated 29 January 2019, read on the judicial review application before the Federal Circuit Court without objection. See also [10]-[12] of the Tribunal’s reasons.

51    Therefore, the appellants could give no direct evidence to the Tribunal about why the documents were not authentic (which was their position). They could not have the documents independently examined and put that information before the Tribunal. They could not meaningfully answer the “information” that “would be the reason or part of the reason” for the Tribunal affirming the decision under review; namely that the identity documents were authentic and proved on their face that the appellants were Iranian citizens and were not stateless, and therefore also proved on their face that the appellants had given “incorrect” information in their visa applications, being the basis for the cancellation of their protection visas. The evidence before the Tribunal, and the Tribunal’s own reasons, make it clear that from the very commencement of the proposal that the appellants’ visas should be cancelled, the acceptance of authentic documentary proof of Iranian citizenship was seen to undermine the entire basis of the appellants’ claims for protection, and to render the appellants’ conduct deserving of the description of fraud.

52    In contrast to VEAL, there was no competing public policy issues at work here which may have required the Tribunal to balance competing considerations in how it provided information to a review applicant. The identity documents were not procured or provided under cover of anonymity, as the appellants’ counsel submitted by reference to some of the evidence. One piece of evidence before the Tribunal was an application for an intervention order by the nephew against DCP17. The nephew is named as the applicant, and makes the following statement about why he wants the intervention order:

I TOLD IMMIGRATION THE TRUTH ABOUT HIM NOT BEING FULL KURDISH. IMMIGRATION TAKES THESE LIES SERIOUSLY AND AS A RESULT, REVOKED HIS VISA AND PLACED HIM ON A BRIDGING VISA AWAITING OUTCOME OF DEPORTATION.

53    Second, an email before the Tribunal made the same point, identifying the nephew by his boat number, but having identified him by name in the previous sentence:

ONE103 presented at the compliance counter with photographs of the documents. He stated that he had already told the persons concerned that he was going to divulge this information to the department.

54    Thus, the kind of considerations which led the High Court in VEAL to find that provision of the “substance” or “gist” of a document was sufficient, were not considerations for the Tribunal. Further, in VEAL the authenticity of documents said to be determinative of “fraud” perpetrated by a visa holder was not the issue. In the present case, the word “fraud” is used to describe the appellants’ conduct, from the cancellation recommendation right through to delegate’s reasons, although that term was not used by the Tribunal. Nevertheless, it underpinned its findings such as those at [98] that DCP17 had “concocted” his claims about why the documents were not genuine.

55    One way to test the content of s 424A is to do what the Full Court in ATP15 did, at [39], and to ask whether the review applicant had been given what was needed in order to provide a meaningful response. In ATP15, the Full Court considered the review applicant “needed no further particulars in order to provide a meaningful response on this issue”.

56    Here however, where the genuineness of the identity documents was the assumption upon which the whole cancellation process had proceeded (and the subject of multiple findings by the Tribunal for aspects of its conclusion), and where the appellants had never been provided even with copies of the documents, in my opinion it cannot be said the appellants had sufficient “particulars” to provide a meaningful response to the authenticity of the documents. It was the authenticity of the documents which established the key fact of Iranian citizenship. If the documents were not accepted to be authentic, then that key fact could not be established.

57    While it is correct that some observations might be made on authenticity from having the list of the documents, the dates of issue and (for example) the names on the marriage certificate, it is clear that these matters may in some circumstances say little about authenticity. That is the whole point of document examination. False documents may appear genuine: that is the forger’s art. For example, a false driver’s licence may be expertly copied and created so as to appear just like an authentic original. In such a situation, providing a person with the name on the licence, a licence number and a date of issue may tell the person very little about whether the document is authentic or not, and may not provide the person with very much at all for the purposes of a meaningful response. Authenticity may almost entirely depend on document examination. Indeed, the better the imitation, the more that may be true.

58    Added to this should be the now accepted fact that there never was any examination of the identity documents by the Department’s Document Examination Unit. In my opinion the passages which I have extracted above from the Tribunal’s reasons make it plain that the Tribunal relied quite heavily on its belief that the Document Examination Unit had determined the identity documents were genuine. Unsurprisingly, this appeared to bolster the Tribunal’s confidence in reaching its own view that the documents were genuine, and in finding the appellants to have lied about being stateless. I consider it is likely that the Tribunal’s mistaken belief on this matter could well have been responsible for the Tribunal’s decision not to give the appellants copies of the documents. That is, so far as the Tribunal believed by the time the review came to the Tribunal, the documents had been examined by experts who were experienced and independent, and found to be genuine. That may well suggest the Tribunal saw no point in giving them to the appellants. It is otherwise difficult to see why the Tribunal would not have taken this critical step.

59    I accept that some flexibility is required to see the term “clear particulars” in s 424A as encompassing what in some cases have been called “source documents”. As I have outlined above, the phrase “clear particulars” is capable of incorporating source documents, and in some circumstances (such as the present) disclosure of source documents may be the only way of giving “clear particulars”. Aside from a case such as the present, which is my opinion is an example, another example might be where the delegate is provided with a “dob in” letter that is written in Mandarin Chinese, being the first language of the visa applicant and which provides factual allegations inherently conclusive against the claims of the visa applicant. The nuances of what is said by the informer may well require the Tribunal to show the visa applicant the letter in the original Mandarin Chinese, and not to simply summarise it in English. It may well be that the only way to give the visa applicant “clear particulars” (that is, clear to the visa applicant) of what is said to undermine her claims, is to provide a copy of the original letter, in Mandarin Chinese. That is what may be needed to provide a meaningful response. Especially where the category of “information” under consideration is what might be described as third party informer information, it is in my opinion readily predictable that in some cases source documents might have to be provided to satisfy the terms of s 424A.

60    The present was one such situation.

61    The Federal Circuit Court erred at [46]-[47] of its reasons in finding that the only (or even the principal) reason for the Tribunal affirming the decisions were the inconsistencies in the appellants’ narrative. As I have sought to explain, the authenticity of the documents had always been, and remained, of central and critical importance to the outcome of the review and that is how the Tribunal itself treated the issue. The Federal Circuit Court also erred in not upholding the appellants’ contentions about a contravention of s 424A of the Act.

62    In SZTGV at [8] the Full Court stated:

Breach of s 424A(1), as all parties acknowledged, constitutes jurisdictional error and invalidates the Tribunal’s decision (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 at [77], [173] and [208]).

63    The Minister did not contend otherwise on this appeal.

Ground 2: s 425

64    Even if I had not been satisfied that the Tribunal did not comply with s 424A, and therefore exceeded its jurisdiction, I would in any event have upheld the appellants’ submissions about non-compliance with s 425.

65    It can be accepted that the Tribunal was thorough and careful in the conduct of its review in many ways, conducted a detailed hearing and had sought to explain carefully to the appellants what troubled it about their various accounts and explanations. Nevertheless, in my opinion the evidence demonstrates it is inconceivable that any cancellation action would have been taken against the appellants without the 37 identity documents. Their centrality to the whole process against the appellants under s 101 of the Act cannot be overstated. The procurement of those documents from a third party was what underpinned the whole visa cancellation process. As I have observed, while it is no more than a possible inference, the explanation for the Tribunal’s central omission in what was otherwise a careful review process may well have been its mistaken belief that the documents had been independently and expertly examined.

66    At this point a little more factual background should be mentioned. It is apparent from the evidence that the procurement of the identity documents came about following an “identity assessment” undertaken by the Department, after each of the appellants had applied for Australian citizenship. The evidence is that DCP17 was “referred” by “Citizenship SA” to a branch or section within the (then named) Department of Immigration and Border Protection for an “identity assessment”. It is apparent from the content of the identity assessment that there were two other individuals, alleged to be related to DCP17, and said to be his paternal nephews,

both of whom have either acknowledged that they are either Iranian citizens and provided copies of Iranian identity documents in support of this assertion, or have acknowledged that they have access to Iranian nationality as a consequence of the fact that both sides of their family possess Iranian citizenship.

67    The “identity assessment” went on to allege that the fathers of each of these men, said to be brothers of DCP17, were identified by the men as also holding Iranian citizenship. The “identity assessment” appears to assume or accept all people mentioned are ethnically Faili Kurds, but the point being made is that they also have Iranian citizenship, and are not stateless.

68    From this point, the matter was escalated to the visa cancellation stage. This is how the referral document to “Operational Integrity for Visa Cancellation Consideration”, dated 3 May 2016 described the appellants’ conduct, and the centrality of the identity documents is apparent in this description (with my emphasis added):

The three clients listed above are a family group who together came to Australia on 1 April 2010 as Irregular Maritime Arrivals (IMA), and who were all later granted XA-866 Protection Visas (PV) on 28 January 2011. They have each further applied in February 2015 for Australian citizenship, however no decision has yet been made due to identity concerns being unresolved. Their claims for protection centred upon the claim of statelessness, however they also asserted that all people of their ethnicity (Feyli Kurdish) in Iran did not have status or rights. Grounds for visa cancellation appear to exist as explicit evidence has been obtained that they are in fact Iranian citizens, and that they did in fact have access to the ordinary rights of other Iranian citizens. Cancellation would also appear to be justified as their fraud went beyond mere omission, or bolstering of claims, and was central to the assessment regarding Australia’s protection obligations. Even those limited aspects of their claims which could be construed as not directly disproven by the evidence can nonetheless be considered fatally undermined by their central fraud, leaving at best a weak residual case even if the clients’ never-substantiated assertions of certain events could now be given any benefit of the doubt.

69    This recommendation document continues in this highly critical fashion, including by re-assessing what the author asserts are discrepancies in various visa interviews given by the appellants. The document then concludes (with my emphasis):

The Department now possesses extremely strong evidence that [redacted – the three appellants] are and have always been Iranian citizens. The range of documents available reflects a level of existence in Iran not consistent with a persecuted, undocumented ethnic minority. It indicates not only full Iranian citizenship with documentation dating back over 80 years and three generations, but a life with all the services and benefits attached to that citizenship. On this basis they can be considered to have defrauded the Australian government by providing false and misleading information during their Protection visa application processes, and which led to visa grant.

70    The identity assessment, and this document were plainly the foundation of the delegate’s consideration whether or not to cancel the appellants’ visas, and were also before the Tribunal.

71    It is in the context of this additional factual background that the appellants’ contention that the Tribunal did not comply with s 425 of the Act falls to be assessed.

72    The Minister relied on the decision in ERY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 357 at [42]-[43] for the proposition that it could be inferred in the present appeal that the genuineness of the identity documents was a “subsidiary issue”. It should now be clear that I reject that characterisation. It is not correct on the Tribunal’s reasons as expressed, nor from the context in which the matter came for review by the Tribunal.

73    Further, the situation in ERY17 was quite different. In that case, on an application to rely on amended grounds of appeal not argued before the Federal Circuit Court, the appellant contended the Tribunal had not complied with s 425 in relation to material the Tribunal had before it contained in an “Identity Assessment Report”. The report was said to contain photographs of the appellant both as a guard and as a taxi driver, which the appellant contended were said in the Report to “raise concerns about his integrity and the information he provided in relation to his employment”. The material was covered by a certificate issued under s 438 of the Act but found by the Tribunal to be invalid, and only some of the information was said to have been put to the appellant in a s 424A letter. At [29], the Court described the appellant’s argument as being that

the two features of the identity assessment report that were not disclosed were material, because the Tribunal stated that it had concerns about the appellant’s credibility in relation to his employment, and the appellant had not been given an opportunity to explain why he was standing in front of a taxi, or to respond to the comment contained in the report.

74    At [38]-[39], in its reasons for refusing leave to rely on this ground, the Court found that s 425 required the Tribunal to inform a review applicant about the issues which were “in play” on the review, citing the use of that phrase by Nettle and Gordon JJ in SZMTA at [99], where their Honours said:

Here, the conduct of a review under Pt 7 is addressed in Div 4. The Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That obligation sets the boundaries of the playing field. The phrase “the issues arising in relation to the decision under review” is central to the operation of Pt 7. An applicant is entitled to know of, and therefore be in a position to respond to, the issues arising in relation to the decision under review. An applicant is entitled to know what is in play. Otherwise it is difficult to see how a Tribunal could be said to be pursuing an objective of providing a mechanism of review that is fair and just.

(Original emphasis.)

75    At [39]-[43], the Court held that the Tribunal was not obliged to give the appellant notice of the two features of the identity assessment report that the appellant relied upon, namely the photograph of the appellant standing in front of a taxi, and the Department officer’s comment about the significance of the uniform photograph and the taxi photograph, because these aspects did not form any basis for any finding by the Tribunal on any material question of fact. They were not “in play” in the requisite sense in the review before the Tribunal.

76    I see no parallels with the circumstances in the present appeal. The Minister’s reliance on ERY17 is not persuasive in the resolution of the appeal.

77    The Minister further submits that if

the AAT is not required to provide the information under s 424A, then it cannot be supposed that the general words in s 425 would require that additional information be put to the Appellants. Sections 424A and 425 should be read together: the relevant matter being dealt with by s 424A (for the purposes of s 422B) is the provision of information on which the review applicant may comment or respond.

78    It can be accepted that, since they are part of the suite of procedural fairness provisions imposed on the Tribunal under Part 7, ss 424A and 425 should be read and construed as intended to give effect to harmonious goals, insofar as that is possible: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 509 [70].

79    Nevertheless, they perform different functions, one more specific than the other. The obligation in s 424A is circumscribed in a number of ways; see for example subs 424A(3). It is also circumscribed to some extent by the use of the term “particulars” in the text of the obligation imposed. The context suggests that word is used to convey the need for sufficient detail in what is said by the Tribunal so that a person can understand why, and how, the adverse information would be a reason to decide the review against the person. Sometimes that detail may require source documents, as I have concluded on ground 1, but in many circumstances it will not.

80    That however does not exhaust the universe of the Tribunal’s obligation in s 425 to give a visa applicant a meaningful opportunity to “give evidence and present arguments”.

81    As Gray J also emphasises in SZHKA at [6], one of the express purposes of the obligations in s 425 to invite a person to a hearing (and conduct a hearing if the invitation is accepted) is so that a review applicant can present “evidence”. While that may often be evidence from the review applicant, it may also be evidence from other witnesses, including expert witnesses. The reason why that is so important is explained in the same decision by Gyles J at [27] (with my emphasis added):

In my opinion, the obligation to invite an applicant to appear before the Refugee Review Tribunal (the Tribunal) to give evidence and present arguments relating to the issues concerning the decision to refuse a visa is fundamental to the review of protection visa decisions provided for by Pt 7 of the Migration Act 1958 (Cth) (the Act). By that stage the applicant will have been refused a visa by the Minister (or the delegate of the Minister) with written reasons provided (s 66(2)(c)) and the Tribunal does not consider that it should decide the review in the applicant’s favour on the basis of the material before it (s 425(2)(a)). In other words, the Tribunal will require persuasion.

82    In the present circumstances, the Tribunal was plainly going to need “persuasion” that the identity documents were not authentic, given the reason for the visa cancellation, the delegate’s decision and especially given its (incorrect) view that they had been independently examined and found to be genuine. The hearing afforded to the appellants failed to be meaningful when the central issue of the authenticity of those documents could not be adequately tested or challenged by the appellants, because they did not even have copies of the documents. The meaningful nature of the hearing was further reduced by the fact that the Tribunal did not only have the documents itself, but used its own examination of the documents in its reasoning. That the Tribunal did so is apparent from the descriptions I have given earlier, as well as findings such as that at [86] of the Tribunal’s reasons:

Accordingly the information that the applicant was born in Ilam and had his citizenship from birth, as demonstrated in the shenasnameh, is correct information.

83    The terms of these findings indicate the Tribunal has carefully examined the documents itself, and its impressions arising from that examination contributed to the conclusions it formed.

84    The appellants were unable to give direct evidence about the authenticity of the documents, from their own examination of them. It is a reasonable inference that, having been brought up and lived in Iran, they would be familiar with such documents and able to give direct evidence about them. They would also have been able to secure an expert opinion from a document examiner. Given the lengths they went to with their Freedom of Information applications, it is certainly a reasonable inference that the appellants may have elected to take such a course. After all, the future of themselves and their teenage son in Australia was at stake. Further, taking into account the weight the Tribunal placed on the (non-existent) Document Examination Unit report, it is likely the Tribunal would have given real weight to such an expert opinion.

85    In my opinion, the Tribunal did not give the appellants the kind of hearing which s 425 intended they should receive, in the very particular and unusual circumstances of their reviews before the Tribunal.

Conclusion

86    Both grounds of appeal should be upheld. As I have explained, even if ground 1 was not upheld, I would have upheld ground 2. The Federal Circuit Court’s conclusions were erroneous and its orders must be set aside. In their place, the judicial review application of each appellant should be upheld and the Tribunal’s decision in relation to each of DCP17 and DCR17 should be set aside. Both matters must be remitted for reconsideration by the Tribunal, differently constituted.

87    There is no basis for anything but the usual order as to costs. The appeals were conducted on the basis that the outcome in DCP17’s appeal should flow through to DCR17’s appeal. Accordingly, the same orders will be made in that appeal but only one order for costs will be made, and that order will be made in DCP17’s appeal.

Associate:

Dated:    30 March 2021