Federal Court of Australia

BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The time in which an appeal may be brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be extended to 16 June 2021.

3.    Leave be granted to the applicant to rely on the draft notice of appeal dated 26 August 2021.

4.    The application pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be allowed.

5.    The matter be remitted to the Tribunal, differently constituted, for determination according to law.

6.    The respondent pay the applicant’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

MORTIMER CJ:

1    The applicant seeks to appeal, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), from a decision of the Administrative Appeals Tribunal made on 31 March 2021. His application was filed out of time and he requires an extension of time. The respondent Minister did not oppose the grant of an extension of time. I consider it is appropriate in the circumstances for time to be extended, given there is a reasonable explanation for the delay and given my view of the merits of the applicant’s appeal ground.

2    For the reasons set out below, the s 44 appeal application succeeds.

Introduction

3    On 31 October 2010, the applicant arrived in Australia from Iraq as an “unauthorised maritime arrival”. On his account, he was at that point 17 years of age. He was granted a protection (subclass 866) visa on 4 May 2011. Comparatively, based on the chronologies in the numerous protection visa decisions this Court reviews, the grant of a protection visa to him occurred in a relatively short period of time. There was no evidence of any identity issues being raised with him during the protection visa application process. He was a granted a protection visa with the identity he claimed at that time, being the same identity he claimed in his citizenship application.

4    On 18 June 2015, the relevant time required under s 22 of the Australian Citizenship Act 2007 (Cth) for his residence in Australia having been met, the applicant lodged an application for Australian citizenship by conferral in accordance with s 21 of the Citizenship Act. On 10 July 2019, a delegate of the Minister refused the applicant’s citizenship application, not being satisfied of the applicant’s “identity” or his good character, because of the non-satisfaction that he was who he said he was. The basis for the refusal was a suite of documents gathered by the Department and placed before the delegate, which also formed the basis of the Minister’s contentions to the Tribunal.

5    On 10 July 2019, the applicant applied to the Tribunal for review of the delegate’s decision. On 31 March 2021, the Tribunal affirmed the delegate’s decision.

6    On 16 June 2021, the applicant filed an application for an extension of time to commence an appeal to this Court under s 44(2A) of the AAT Act. Annexed to the application was a draft notice of appeal. Although proceedings such as this are described by s 44 of the AAT Act as an “appeal”, they invoke the original jurisdiction of this Court. It is well established that s 44 appeals are in the nature of judicial review and involve similar approaches by this Court: see Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [202].

7    By leave, the applicant subsequently sought to rely on a draft notice of appeal dated 26 August 2021, which the Minister did not oppose.

8    This proceeding was originally docketed to and heard by Farrell J. Her Honour is due to retire on 1 August 2023, and the proceeding was re-allocated to me on 30 June 2023. The parties were given an opportunity to make further submissions and to consider whether they wished to have a further hearing before me. The parties elected not to make further submissions, and not to request any further hearing. I have considered all the materials before Farrell J, including the transcript of the hearing.

9    So far as is relevant to the appeal, the issue for determination before the Tribunal concerned subsection 24(3) of the Citizenship Act, which provides that:

The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

10    The Act does not elaborate on how the Minister is to be satisfied of the identity of a person. However, the Citizenship Procedural Instruction 16 – Assessing Identity under the Citizenship Act (CPI 16) provides policy guidance to decision-makers in relation to assessment of identity for the purposes of the Citizenship Act. At [19]-[20], the Tribunal set out the content of CPI 16 as follows:

A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allows a person to be uniquely distinguished from others within a specific context.

[…]

11    The Tribunal correctly stated at [11] of its reasons that these documents constitute an expression of government policy intended to guide the exercise of powers by the Tribunal. I have discussed an earlier version of these instructions in G v Minister for Immigration and Border Protection [2018] FCA 1229; 266 FCR 511, where I explained how policy cannot control the meaning of the legislation or the statutory task of the repository of power; a decision-maker must perform their task with (at [266]):

active intellectual consideration of the material before them in a fulsome way, and not only in accordance with a structure imposed on the decision-maker by an executive policy. A Tribunal must give active intellectual consideration to what is the correct or preferable decision on the basis of all the material before it, in all of the circumstances before it. One of those circumstances is the existence, and content, of an executive policy.

12    The Tribunal applied the guidance in CPI 16, approaching the review by assessing the evidence and material before it on the “three pillars” of identity described in CPI 16 – biometrics, documents and life story – noting there was little evidence or material about the first “pillar”. The Tribunal could have observed, but did not, that CPI 16 cannot narrow or define the meaning of “identity” in s 24(3) of the Citizenship Act.

13    It should also be noted that s 24(3) is a prohibition which will be engaged unless the Tribunal is satisfied of a person’s “identity”. There is no debate that such satisfaction must be formed reasonably and rationally: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [28] (French CJ); [63], [72], [76] (Hayne, Kiefel and Bell JJ); [90]-[91], [105] (Gageler J).

The Tribunal’s decision

14    The Tribunal’s decision concentrated on evidence and material before it regarding what the Tribunal treated as two other individuals, with different names. In these reasons I shall describe those names as A2 and A3. Neither of these individuals appeared before the Tribunal, or provided statements. At least as to A2, there was no probative evidence that any such human being in fact existed, as a different individual to the applicant. As to A3, there was some probative evidence that a human being with the names associated with A3 did exist, and indeed that this person had provided addresses also associated with the applicant.

15    The point I am seeking to make is that in circumstances such as those before the Tribunal, it is critical not to confuse or conflate different names with different identities. Identity is a concept entirely bound up with a human being. A person has an identity. At least in the context of the Citizenship Act, a person may have, or have been ascribed (correctly or incorrectly) different names, but will only have one identity. CPI 16 recognises this, correctly so. The Tribunal’s decision, and the Minister’s submissions to the Tribunal and to this Court, do not always appreciate that distinction.

16    In relation to its assessment of the applicant’s identity, the Tribunal made the following findings of fact in relation to the apparent intersections between the applicant, A2 and A3:

(a)    there were compelling similarities between the names and nominated dates of birth of the applicant and A2 ([46(a)]);

(b)    there were strong similarities between the names and nominated dates of birth of the family members of the applicant, and those of the family members of A2 ([46(b)]);

(c)    the circumstances and reasons for leaving Iraq, as set out in written statements by each of the applicant and A2, were comparable ([46(c)]);

(d)    accompanying an application for a refugee visa application (lodged by A3 on 10 July 2010 but on behalf of A2) was a photograph of the applicant, purporting to be a photograph of A2 ([46(d)]); and

(e)    documentation of residential addresses used by the applicant showed some overlap with addresses used by A3 ([46(e)]).

17    The Tribunal noted “for completeness” the following differences in the documents about, and narrated life stories of, the applicant and A2:

(a)    identity documents show that they were born in different years ([47(a)]); and

(b)    there are differences in the years of birth of their parents and the names and details of some of their siblings. Additionally, there are disparities in the date each of their brothers died and how they died ([47(b)]).

18    The Tribunal then said at [48]:

In making these findings, I note that [the applicant] was unable to provide the Tribunal with any explanation about the intersection between himself and the identities of [A2] and [A3]. He could not account for similarities in his and [A2]’s names, family details or life story. He could not explain how or why his photo was attached to an application made in July 2010 in the name of [A2]. He could not answer why he and [A3] have used three identical addresses over the past nine years. [The applicant] simply insisted at his hearing that he has never heard of either [A2] or [A3].

(Original emphasis.)

19    The Tribunal also found at [49] and [51]-[53]:

I found [the applicant]’s evidence in this regard implausible in view of the intertwined nature of his and [A2]’s life stories, and the use of [the applicant]’s photo by [A2]. I also found [the applicant]’s reticent responses to questions during his oral evidence raised questions about the credibility of his narrative of his life story. This is despite my acceptance that identity documents and statements filed with the Tribunal in relation to [the applicant] and his family members are accurate.

…

Weighing all of the evidence, I am satisfied that an overall assessment of the life stories and documents from [the applicant] and [A2] – the similarities between their father’s and grandfather’s names, their birthdays, the names of their parents and details of family members, and their reasons for leaving Iraq – indicate they are not two separate identities. Also relevant to this conclusion is the inexplicable intersection of three identical addresses used by [the applicant] and [A3] over the past nine years.

I now consider the biometrics of [the applicant] and [A2]. [The applicant] did not dispute that his photo was lodged with [A2]’s application for a refugee and humanitarian (class XB) visa on 10 July 2010. This was also confirmed in a Facial Image Comparison Report. Based on this evidence, the biometrics shows [the applicant] and [A2] are the same person. In making this finding, I note there are no other clear personal identifiers before the Tribunal, such as fingerprints or verified signatures, that distinguish [the applicant] from [A2].

CONCLUSION

In circumstances where I find the three pillars of identity – biometrics, documents and life story – do not distinguish [the applicant] from [A2], I cannot be satisfied of the identity of [the applicant]. For these reasons, I find that the prohibition in subsection 24(3) of the Act must apply.

(Original emphasis.)

20    The Tribunal also noted that the delegate had made findings in respect of whether the applicant was a person of good character, pursuant to s 21(2)(h) of the Citizenship Act; but found that it was not necessary to consider that aspect, in light of its decision in relation to identity.

21    Accordingly, the Tribunal affirmed the decision under review.

The parties’ arguments in summary

22    The applicant’s amended draft notice of appeal set out two grounds of review, as follows:

Grounds relied on

1. the decision of the Tribunal to accept the appellant’s identity documents as accurate but then find that it could not be satisfied of his identity was legally unreasonable.

2. the decision of the Tribunal not to hear oral evidence from the appellant’s sisters in Iraq was legally unreasonable.

23    The grounds were not further particularised. In the applicant’s written submissions filed on 3 November 2021, the applicant indicated that he would not press ground 2.

24    Contending that the applicable standard for the Tribunal’s satisfaction under s 24(3) as to identity is that found in BOY19 v Minister for Immigration and Border Protection [2019] FCA 574; 78 AAR 481 (“reasonable satisfaction”), the applicant submitted that the Tribunal’s reasons disclosed an illogical basis for its lack of satisfaction. Although the ground of appeal is expressed as legal unreasonableness, the applicant’s counsel framed his argument in illogicality and the Minister did not cavil with this re-framing, correctly so with respect. Legal unreasonableness may sometimes be demonstrated by illogicality, although the latter can also be treated as a separate ground of review, as SZMDS demonstrates: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611.

25    The applicant submits that the following evidence before the Tribunal contained information regarding the names and dates of birth of the applicant, his parents, grandparents and siblings that was consistent with his own narrative:

    his school report;

    his parent’s marriage certificate;

    his mother’s death certificate;

    his father’s certificate of Iraqi nationality;

    his Iraqi ID card;

    the Iraqi ID card of his father;

    the Iraqi ID card of his Sister A;

    the Iraqi ID card of his Sister S;

    the Iraqi ID card of his Sister N;

    his brother’s death certificate; and

    statements from Sister A and Sister S denying the existence of a brother with the name of either A2 or A3 (but testifying to the applicant being their brother).

26    The applicant’s Iraqi ID card bears a photograph that was not disputed by the Minister to be of the applicant. The Tribunal made no finding this ID document was forged or fake.

27    The applicant submits that once the Tribunal accepted the documents listed in [25] to be accurate, it was not “reasonably open to conclude that these documents did not establish [the applicant’s] identity and were therefore unreliable”. The applicant contends that the Tribunal’s reasons do not contain an intelligible path of reasoning to support the conclusion that it was not satisfied that the applicant was who he said he was. This, the applicant submits, is the Tribunal’s task in determining if the prohibition in s 24(3) is engaged – is the applicant the person he says he is, not necessarily whether he can be distinguished from A2 (who, as the applicant’s submissions implied, was not even established before the Tribunal to be a separate human being, especially given the photograph).

28    The Minister rejects the applicant’s reliance on BOY19 and submits that a gloss such as “reasonable satisfaction” is inapt for s 24(3). I accept this submission. As the Minister contends, the Tribunal must form a state of satisfaction in accordance with the now well-accepted principles in Li, and a gloss of “reasonable satisfaction” does not add to those principles.

29    The Minister makes some submissions about a concept described as “subjective jurisdictional fact”. The Minister relies on a line of authority in decisions of this Court which suggest that “unreasonableness” as a form of jurisdictional error is not the proper ground of review, and rather the inquiry is one of whether the subjective jurisdictional fact is vitiated by illogicality or irrationality: see EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409 at [45]; Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 [42]. Murphy and O’Bryan JJ noted in BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; 274 FCR 532 at [30] that this “distinction … has not been widely embraced”. In any event, I find that it is unnecessary to address these submissions in light of the Minister’s correct acceptance of the applicability of the principles in both Li and SZMDS.

30    The Minister contended that the Tribunal’s reasoning at [48]-[52] plainly provides a logical connection between the evidence that was before the Tribunal, discussed at [46]-[47], and the conclusions drawn about identity. The strength of the logical connection is not material; as long as there was some logical connection, then that is all that was required. The advantages the Tribunal had in hearing this and seeing the applicant give evidence, and how the applicant dealt with information put to him during the hearing led to a number of general credibility findings against the applicant which need to be taken into consideration when assessing whether the Tribunal’s reasoning could be described as illogical, or whether its overall conclusion could be characterised as legally unreasonable because of illogical reasoning.

Consideration

Some preliminary matters

31    I am not persuaded the Minister’s highlighting of the definition in s 3 of the Citizenship Act of the term “identifying information” is correct. This supports the opinions I explain below about why the Tribunal’s ultimate conclusion is illogical. The definition in s 3 relates to particular provisions of the Citizenship Act: see ss 42-45. It is a distraction. I accept that “identity” as a concept may involve examination of the kinds of material set out in CPI 16 and described as “pillars”. The concept may not be limited to these three categories. The splitting of the concept of identity into these three categories by CPI 16 may also have in part explained why the Tribunal’s reasoning miscarried in such an illogical way.

32    Ultimately, the concept of “identity” is about an assessment of whether the repository of the power to confer citizenship is satisfied the human being who is the individual applying for citizenship is the person they say they are, with the relevant background to their citizenship application they rely on, and not a different human being with a different background which may affect their citizenship application. The historic use in documents of different names that appear to all be attributed to an applicant may clearly be relevant to this assessment. But use (or ascription, even without knowledge, to a person) of a different name may in a given factual circumstance say nothing about identity. Take for example the common situation of a person changing their name when they marry. There may not be documentary proof of this name change, for a variety of reasons, in any given circumstances. But the name change may not affect the proposition that the person has a single identity, rather than being two different human beings, or a human being with an entirely different background to the one they rely upon in their citizenship application. The Minister’s submissions acknowledged this to some extent.

The Tribunal’s reasoning

33    The earlier protection visa application was an offshore application, said to have been made by a person then located at a detention centre in Indonesia. The application states the individual has a brother, who is his sponsor for the visa application. The name and address given for the brother is the name of A3 and an address in Orange, New South Wales. The protection visa application later states that the applicant had help filling out the form. The application states the individual will need an Arabic interpreter. The form is filled out in English and there is different handwriting on parts of the application. The form does not have a signature as such, but rather a single printed name. These features taken cumulatively are likely to indicate a number of factual possibilities about this earlier protection visa application, none of which were explored at all by the Tribunal, which is remarkable given the agreed position that the applicant’s photograph appears on the application. For example, an obvious factual possibility is that the person named A3 (the sponsor on the earlier protection visa application) lodged this form for the applicant without his knowledge. I make no findings of course, but seek to demonstrate that the earlier protection visa application, with different names, does not necessarily lead to only one conclusion about the identity of the applicant. This is part of why the Tribunal’s reasoning is so obviously illogical, when it accepts the accuracy of the applicant’s Iraqi identity document. If the Tribunal were reasoning logically, it would have had to explore these factual issues.

34    While I accept the Minister is correct that the Tribunal’s reasoning must be examined as a whole, and while I accept the reasons (at [48]-[49]) disclose the Tribunal doubted the credibility of the applicant, I find those doubts were more likely than not caused by the confusion in the Tribunal’s reasoning about what could logically be drawn from the circumstances of an earlier protection visa application with the applicant’s photograph attached to it.

35    Inconsistently with its doubts about the applicant’s credibility, the Tribunal accepts all of the material positively put forward by the applicant to establish that he is who he says he is. I note his narrative also includes being in Indonesia at the time of the earlier protection visa application. This material included testimony from his sisters, to which the Tribunal barely refers which again suggests that it was conflating names with the concept of identity. The Tribunal does not find the material relied on by the applicant was false, or forged. To the contrary, it positively accepts it, and indeed uses that material to conclude that the person in the earlier protection visa application (A2) is the same person as the applicant; see [51]:

they are not two separate identities.

36    This, rationally, should have been a matter in favour of the satisfaction as to the applicant’s identity, not against it. The names were different. Some of the details were different, including dates of birth. The photograph was the same. The applicant was in Indonesia at this time. The previous protection visa application on its face suggested it had been filled out by whoever purported to be the sponsor/brother (A3). There was a myriad of factual possibilities about why the applicant might not know or know of A3, including that the previous protection visa had been filed without his knowledge. There were a myriad of reasons why A3 (assuming he is a person, and the person who filled out the previous protection visa application) might have described himself as the applicant’s brother when he was not. The applicant’s denials of ever having made or authorised such an application could be consistent with this. These are not matters on which this Court makes any finding, other than to point out the need for fact finding on these matters to have occurred, to avoid the irrationality currently present in the Tribunal’s reasoning. All these matters required some careful fact finding, which is absent from the Tribunal’s decision.

37    Instead, the Tribunal leapt from differences in names and details in documents to a rejection of the applicant’s “identity”, “despite” (using its language) what all the documents at [25] above revealed on their face, including documents with photographic identification. It did so after in substance accepting that the applicant and A2 could have been the same person.

38    Finally, and tellingly in my opinion, the Tribunal does not explore at all the potential consequences of its conclusion for the applicant’s holding of the protection visa granted in May 2011. That protection visa was granted to him as the person he claimed to be then, in 2010-2011, being the same person he claimed to be in his citizenship application and before the Tribunal. The Tribunal did not find the applicant was not the person he claimed to be in the successful protection visa application he lodged in May 2011 after his arrival in October 2010. That is also entirely irrational.

39    In SZMDS, and accepting for the purposes of their Honours’ analysis that illogicality can constitute a distinct kind of jurisdictional error to legal unreasonableness (about which their Honours expressed some doubts), Crennan and Bell JJ said at [130] that this kind of error:

is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.

40    In Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 96 ALJR 464 at [43], referring to Crennan and Bell JJ’s reasons in SZMDS, Gordon J further explained the role of unreasonableness in this kind of review:

unreasonableness is concerned with both outcome and process. Whether what is being reviewed is an exercise of a power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said: “the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage” and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) “if there is no logical connection between the evidence and the inferences or conclusions drawn”. Leaving aside the supposed distinction between the exercise of a power and the formation of a state of satisfaction, it is not in dispute that adverse credibility findings are susceptible to jurisdictional error on the basis of unreasonableness.

41    Legal unreasonableness might in this way be described as the umbrella concept, with irrational reasoning going to the material parts of the way in which a conclusion was reached and therefore a power was exercised, being described as one manifestation of legal unreasonableness.

42    While in dissent on the outcome, the reasons of Gummow A-CJ and Kiefel J (as their Honours then were) in SZMDS explain the location of irrationality in judicial review (at [23]-[24]):

In Australia, as Basten JA recently observed, the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms “arbitrary, capricious, irrational” as well as “not bona fide” to stigmatise the formation of an opinion upon which a statutory power was enlivened. Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open.

A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact.

43    As their Honours’ reasons at [43]-[53] illustrate, this ground of judicial review can involve close examination of the fact finding of a repository. Such a process is inherent in the nature of the error alleged, which is a reasoning error of sufficient criticality and materiality to cause the statutory task to miscarry, or not to be performed at all. The need for some scrutiny of fact-finding is illustrated by the description of legal unreasonableness in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [82]:

Nor is the abuse of statutory power limited to a decision which may be described as “manifestly unreasonable”, or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no “evident and intelligible justification” for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’”.

(Footnotes omitted.)

44    The adoption in Li, after SZMDS, of the language of the absence of an “evident and intelligible justification” (my emphasis) bears out, with respect, the earlier reasoning of Crennan and Bell JJ in SZMDS about the overlap in these concepts.

45    In the present case, the Tribunal’s fact finding is internally inconsistent on material issues. It is irrational to accept as accurate all the applicant’s Iraqi documentation, and supporting testimony, and then to find in substance that he should not be believed because of the existence of other documentation for which there could well have been explanations wholly consistent with the applicant’s narrative, but not explored at all by the Tribunal. It is irrational to conflate the factual question of the use of different names with the concept of identity. It is irrational for the Tribunal to have accepted all the documentation put forward by the applicant, and the supporting testimony, and impliedly accept the validity of the grant of the protection visa to him on that basis, and then find itself not satisfied of his identity. It is irrational for the Tribunal to find the applicant was the same person as A2 and then not accept his identity. All these irrationalities were central to the reasoning of the Tribunal on s 24(3).

46    While if the Tribunal had performed its task rationally, it might have examined whether the applicant himself could be held responsible for any falsification of documents in the previous visa application (which may in turn have been relevant to good character), that was not a path of reasoning the Tribunal chose, because of the irrationality which attended its fact finding prior to this point.

47    The s 44 appeal should succeed.

Conclusion

48    The s 44 appeal will be allowed. The matter must be remitted to the Tribunal for determination according to law. Because of the findings made against the applicant by the Tribunal member, the Tribunal should be differently constituted to ensure a review that is, and is apprehended to be, fair and fresh. The usual orders for costs should follow.

Associate:

Dated:    28 July 2023