AXE17 v Minister for Immigration and Border Protection

B Relevant legislation 10 It is important to understand the legislative context of these appeals. 11 Section 101 of the Act provides that a visa applicant is required to complete an application form in such a way that all questions are answered and "no incorrect answers are given or provided". 12 Section 107 of the Act relevantly provides that if the Minister considers there has been non-compliance with s 101, the Minister can serve a NOICC providing particulars of the non-compliance giving the applicant an opportunity to respond, and in particular, to either demonstrate that there was compliance, and/or to explain why the visa should not be cancelled in any event. 13 Next, by operation of s 108, the Minister is to consider any response given to the NOICC and decide whether there was non-compliance as set out in the NOICC. Following that consideration, by s 109(1) the Minister is to undertake a discretionary exercise considering whether or not the visa should be cancelled. Section 109(1) is of importance and should be set out in full: Cancellation of visa if information incorrect (1) The Minister, after: (a) deciding under section 108 that there was non-compliance by the holder of a visa; and (b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and (c) having regard to any prescribed circumstances; may cancel the visa. (2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled. 14 Lastly, s 438 of the Act is also relevant: 438 Tribunal's discretion in relation to disclosure of certain information etc. (1) This section applies to a document or information if: (a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. (2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) must notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. (3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant. (4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information. 15 Having identified the relevant statutory context it is appropriate to then turn to the individual details of each appeal starting with that of the daughter.

The Daughter's Appeal 16 When the appellant applied for a protection visa in 2012, she claimed to be a stateless Faili Kurd with no other nationality. The protection visa was granted. When reviewing the delegate's decision to cancel the appellant's visa, however, the Tribunal was "satisfied that the appellant is an Iranian national, contradicting her claims for protection that she is a stateless Faili Kurd" and found that the appellant "provided incorrect answers and information when seeking protection by claiming that she was stateless and that she feared harm of returning to both Iran and Iraq": at [39]. As a consequence, the Tribunal found that there was non-compliance with s 101(b) of the Act by the appellant in the way described in the s 107 notice and at [80] the Tribunal affirmed the decision to cancel the appellant's Subclass 866 (Protection) Visa under s 109(1) of the Act. 17 Ground One of the notice of appeal is formulated as follows: Ground 1: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth) (a) The primary judge erred at [32] of the judgment by finding "there was no breach of s 425A of the Act in circumstances where the credible, relevant and significant information was sufficiently disclosed in the course of the hearing for the applicant to respond to the same". (b) To the contrary, the certificate issued under section 438(2)(a) of the Migration Act 1958 (Cth) on 21 September 2016, with regard to folios 1-9; 13-14; 18-19; 28-32; 58; 79-80; 100-107 of the applicant's file BCC2014/564704, was invalid and was therefore not a process according to law. As a consequence, the non-disclosure of certain information under section 438(1)(a) of the Migration Act 1958 (Cth) constituted a denial of procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth). 18 The certificate the subject of this ground of appeal, was issued pursuant to s 438(2)(a) of the Act on 21 September 2016. During the course of the Tribunal hearing, the appellant was advised of the s 438 non-disclosure "certificates" placed on three departmental files, and advised that the Tribunal did not consider the certificates to be valid. It is worth setting out [38] in full: The Tribunal advised the applicant that there are non-disclosure certificates pursuant to s 438(1)(a) placed on three Departmental files before the Tribunal. The Tribunal indicated to the applicant that the Tribunal has carefully considered the certificates but does not consider them to be valid. In accordance with s 424AA, the Tribunal discussed with the applicant information contained in the Departmental file indicating the her brother's real name is [redacted] who has made an attempt to change his name and confirmed that he was in fact an Iranian citizen and not stateless as claimed. When invited to comment on or respond to that information and whether she required more time, the applicant stated that she only knows that they are Faili Kurds and that she is only known by that name The Tribunal is not persuaded by her explanations. The Tribunal is satisfied that the information related to the applicant's brother indicates that his real name is [redacted] who is an Iranian national and consequently she is an Iranian national as well, contrary to the claim of being stateless. 19 The appellant contends that because the certificates were invalid, the failure to disclose the information the subject of the certificates to the appellant in advance of the hearing, caused a denial of procedural fairness, and constituted jurisdictional error. It is said that the primary judge erred in failing to find this. At the resumed hearing, this ground was identified with greater precision and it was submitted that there was a denial of procedural fairness by reason of the appellant: (a) being denied access to the documents themselves; (b) not having sufficient time to respond to the information in those documents; (c) being "taken by surprise" by the information; (d) not being invited to provide post-hearing submissions; and (e) being denied an opportunity to present evidence and arguments as to this material. The appellant contends that due to the centrality of the documents which were the subject of the certificates, the alleged failure to afford procedural fairness amounts to jurisdictional error. Further, submissions were made to the effect that it is unclear whether the Tribunal considered s 438 at all. Given the Tribunal's explicit mention of s 438, and its decision that the certificates were invalid, this last argument must be rejected immediately. 20 The Minister submits that there was no denial of procedural fairness, and as a result, no jurisdictional error. The High Court recently considered the requirements of procedural fairness in relation to s 438 certificates in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252. A majority of the High Court found that the requirement of procedural fairness imposes a disclosure obligation, by which the Tribunal must disclose the existence of the certificates to the applicant. A failure to do so would constitute a breach of procedural fairness, and could (but will not necessarily) constitute jurisdictional error. During the course of the daughter's Tribunal hearing, this disclosure was made. Whether a certificate is valid will depend upon the fulfilment of either of the preconditions set out in sub-s 438(1)(a) or (b). The Tribunal found that neither of these preconditions were met, and the certificates were invalid. Importantly, the majority provided guidance on when an incorrect notification of a s 438 certificate could result in jurisdictional error. This is only where the incorrect notification is "material", in the sense that it operates to deprive the applicant of the possibility of a successful outcome, by, for example, denying the applicant "an opportunity to give evidence or make arguments to the Tribunal and thereby deprive the applicant of the possibility of a successful outcome": at [2]-[3]. 21 The primary judge examined the documents the subject of the certificate, and noted that the matters as to the brother's Iranian passport and assertion of being Iranian were both put to the appellant, upon disclosing the existence of the invalid certificate. Aware of its duty to afford procedural fairness, the Tribunal's reasons outlined this process, noting it had been carried out "in accordance with s 424AA": at [24]. The Tribunal then invited the appellant to comment on or respond to that information (which she appears to have done), and asked whether the appellant required more time to consider the information. The appellants did not provide any evidence to suggest that the Tribunal's account of what occurred during the hearing did not in fact occur. The respondents contend that no practical injustice can be said to have occurred given that the material was put to the appellant, and the appellant was afforded the opportunity to comment upon it. 22 The submissions of the respondents should be accepted.

The Mother and Brother Appeals 23 The mother and brother appellants also obtained protection visas in 2012 in similar circumstances of alleging to be stateless, and answering "no" to the question of "do you hold any other citizenship or are you a national of any other country?". The Tribunal hearings considered the question of non-compliance with the requirements of s 101(b) of the Act, and the issue of whether the visa should be cancelled. 24 Ground One is in substance the same in both the mother and brother appeals (save for the paragraph references to the primary judgments). The ground also relates to s 438 certificates, although jurisdictional error is, rather surprisingly, said to be present by reason of such certificates not having been issued. Ground One in the mother's appeal was as follows: 1(a) The primary judge erred from [21]-[23] of the judgment by finding at [21] "[i]n relation to ground 1, Mr Williams submitted that there should have been issued a certificate under s 438 of the Act. Section 438 of the Act is a discretionary power and there was no s 438 certificate issued in the present case. Mr Williams submitted that because there was a certificate issued in relation to the applicant's daughter that this somehow gave rise to a denial of procedural fairness to the applicant in the present case." 1(b) To the contrary, the Secretary did not follow procedures required by law pursuant to section 438(2)(a) of the Migration Act 1958 (Cth) and failed to issue a certificate of non­disclosure of information with regard to folios 1-9; 13-14; 18-19; 28-32; 58; 79-80; 100- 107 of file BCC2014/564704, pertaining to his sister's file, (AXG17). As a consequence, the non-disclosure of that information under section 438(1)(a) of the Migration Act 1958 (Cth) constituted a denial of procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth). 25 This ground of appeal appears to confuse the role of the Minister and the Secretary somewhat, but essentially two discernible arguments were made. First, that the Secretary did not follow procedures required by s 438(2)(a) of the Act. This argument must fail for the reason identified by the primary judge - no certificate was ever issued. The Secretary's duty in s 438(2)(a) is only enlivened in circumstances where the Secretary has provided the Tribunal with a document or information to which s 438 applies. Section 438 only applies to a document or information when the Minister has certified that information in accordance with s 438(1). 26 The second argument is that the primary judge erred by not finding that s 438 certificates should have been issued by the Minister. Mr Williams, counsel for the appellants, somewhat counter-intuitively sought to rely upon the fact that a s 438 certificate had been erroneously issued in the daughter's case, to prove that such a certificate should have been issued in relation to the same material in the mother and brother cases. The submission was also made that a reviewable error arises because no declaration of invalidity had been made in either case. This last submission can be dismissed simply - no certificates were issued in the first place. 27 This ground of appeal has no merit for a number of reasons. As the primary judge pointed out, s 438 is a discretionary power. Having regard to the terms of s 438 of the Act, there does not appear to be any obligation upon the Minister to make the relevant certification, even in circumstances where the reasons which allow the Minister to certify documents are met: see SZMTA at 260 [19] for a discussion of the reasons which allow the Minister to certify documents. 28 The appellants provided no argument of substance as to why I should find that there was a reviewable error. As a matter of logic, Mr Williams' sole argument as to why this failure constituted jurisdictional error, cannot succeed. It was said that jurisdictional error was constituted by a failure to afford procedural fairness, specifically, the non-disclosure of the information the subject of the certificate in the sister's appeal. The effect of certification is to restrict an applicant's access to certified documents and grant the Tribunal a discretion as to whether the information should be disclosed at all. It is difficult to see how a failure to issue a certificate could ever cause procedural unfairness to an applicant - except perhaps in circumstances where it erroneously caused the Tribunal to choose not to have regard to the information at all: SZMTA at 260 [23]. 29 The fundamental issue referred to in this ground, appears to be what was disclosed to the appellants, and whether either of the appellants have been denied procedural fairness in relation to the content of the material. This element of the ground of appeal is expressed as non-disclosure of information pursuant to s 438(1)(a) of the Act, which occurred as a consequence of the Secretary's failure to follow procedure, and a failure to issue a certificate. This premise is rejected for the reasons I have already identified. 30 To the extent that there was some residual argument run at the resumed hearing as to non-disclosure of the relevant information separate from the failure to issue a certificate, this does not appear to fall within the grounds of appeal, and was not an issue raised before the primary judge. No leave was sought to amend the notice of appeal before me. Further, no specific argument was made as to how the failure to disclose the information affected the cases of the mother and brother in a practical sense or deprived them of procedural fairness. As the respondent pointed out, the information which was relied upon by the Tribunal to find that there had been a breach of s 101 appears to have been information provided directly by both the mother and brother in their own communications with the Department when seeking to update their personal information: AB AXE17: 198; AB AXF17: 196; 211, 214. Further, in accordance with an obligation to afford procedural fairness, the information which pertained to both appellants having different names and Iranian passports was put to both appellants during the course of the Tribunal hearing: see Tribunal's AXE17 reasons at [14]; and Tribunal's AXF17 reasons at [12]. It is for this reason that this further argument also has no substance.

The Daughter's Appeal 31 Ground Two of the notice of appeal began as follows: Ground 2: Unreasonableness/No evidence - there was an insufficient logical or evidentiary basis for the Tribunal to find that the applicant would not suffer harm on the basis of being a female who has rejected Islam and adopted a western lifestyle. 32 In explaining the ground over a further two paragraphs in the notice of appeal, the appellant identified (in a confusing manner) a number of quotations from the primary judgment which were said to lack a sufficient logical or evidentiary basis. Essentially, the appellant submitted that there were four conclusions or findings made by the Tribunal which were legally unreasonable, and in respect of which the primary judge erred: (a) rejecting the claim that she was not a virgin; (b) rejecting the claim that she had uploaded photos to Facebook of herself in swimwear, of which her uncle had then become aware; (c) rejecting the overall claim that the appellant would suffer harm on the basis of being a female who has rejected Islam and adopted a Western lifestyle; and (d) adverse credibility findings. Finally, there was an argument put in the alternative, that the appellant was denied procedural fairness pursuant to s 424A or 424AA of the Migration Act 1958 (Cth) by the finding that the "[applicant] is not a virgin". 33 Regarding the submission that there was an insufficient evidentiary or logical basis as to the rejection of the claims in (a)-(c) above - as I remarked to Mr Williams during the course of the hearing, as a matter of logic there is an important difference between not accepting a positive contention made by another, and making a positive finding to the contrary. The Tribunal rejected the claims identified in the second ground of appeal on the basis that there was insufficient evidence provided to support the claims and in the circumstances of the adverse credibility findings already made against the appellant, they could not be accepted: at [63] of the Tribunal's reasons. There is no legal requirement that the Tribunal have some "rebutting evidence before holding that a particular factual assertion is not made out": CQG15 at [65]. As far as the evidentiary record shows, there was no evidence provided by the appellant which sought to substantiate her claims. The lack of credibility of the appellant was mentioned numerous times throughout the Tribunal's reasons (see [13], [17], [19], [29], [31], [36], [38], [51]-[53], [63], [66], [68], [69], [70] and [71]). In making each of its adverse credibility findings, the Tribunal referenced a logical basis for that finding which was open on the facts. In turn, in rejecting each of the Ground Two submissions, the Tribunal identified that the adverse credibility findings combined with a lack of evidence, led to the rejection of the claims. It follows that the submission that there was no evidentiary or logical basis upon which the claims could be rejected, must fail. For the sake of completeness I should also note that, given the primary judge's rejection of the ground, it may be assumed that his Honour's reference to the Tribunal's finding that the applicant "was not a virgin" is a typographical error: at [33]-[34]. This was not raised the appellants as demonstrating any kind of legal error, and the appeal was clearly run on the basis that the Tribunal had rejected the claim that she was not a virgin. 34 As to the submission that the credibility findings themselves were legally unreasonable, this is an argument that will always depend upon the particular circumstances and findings in the particular case: Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at 17 [57]. In CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 the Full Court addressed the limited circumstances in which findings of credibility might constitute jurisdictional error (at 508-509 [38]). While credibility findings are not immune from judicial review, that does not detract from the fact that ultimately credibility findings are matters of fact that are within the Tribunal's jurisdiction to make. It is well established that the Tribunal is not required to accept uncritically the claims made by an appellant, but is entitled to test their veracity: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. The Tribunal carried out this process in relation to a large number of the claims made by the appellant. The appellant's submissions seemed to be premised upon the misunderstanding that the Tribunal needed to be positively satisfied that the appellant was a virgin in order to reject the appellant's claim. I have said enough to explain why this is misconceived. The appellant did not appear to advance any other relevant arguments as to why the rejection of the claims was unreasonable. 35 As for the claims as to ss 424A or 424AA, the appellant has not explained on what basis any obligation under those provisions would be enlivened. As the primary judge explained, the evidence as to whether or not the appellant is a virgin is not information that gives rise to any obligation under s 424A of the Act. This was an argument run by the appellant before the Tribunal, and the Tribunal was entitled to reject the claim. This element of Ground Two was not expanded upon by counsel for the appellant, and the ground must fail.

The Daughter's Appeal 36 Ground Three was in the following terms: Ground 3: Misapplication of law or failure to ask the correct question regarding whether the applicant would obey Islamic doctrine and wear the hijab 3(a) The primary judge erred at [37] of the judgment with regard to whether the "Tribunal had misapplied the relevant law and had asked the wrong question in relation to the applicant disobeying an Islamic doctrine and wearing the hijab" by finding at [38]that "[t]here was no failure by the Tribunal to complete the statutory task or failure by the Tribunal to apply the correct test in considering any other factors as to why the visa should not be cancelled and in particular, the applicant's claims that might fall under the Refugee Convention or complementary protection. No jurisdictional error as alleged in ground 3 is made out". 3(b) To the contrary the Tribunal fell into jurisdictional error by failing to consider the issue of persecution in relation to the correct "particular social group", that being a female who has rejected Islam and who has adopted a western lifestyle. In so far as the decision of the Tribunal found at [66] that the applicant is required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed. 37 In relation to the argument that the Tribunal failed to consider the issue of persecution in relation to the correct social group, I have said enough in respect of Ground Two to explain why I consider the Tribunal considered the appellant's claims of having rejected Islam, and adopting a Western lifestyle insofar as they were made. Mr Williams did not point to any further submissions made by the appellant as to Westernisation other than those specified in Ground Two. 38 The element of this ground which was focussed upon by counsel during oral submissions was that the Tribunal erred by finding that the appellant "would wear the hijab and culturally-appropriate clothing if she had to return to Iran". The appellant relies upon a point of principle to demonstrate such an error: that it is incorrect for the Tribunal to require or expect the appellant to take reasonable steps to avoid harm (see Appellant 395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at 492 [50] per McHugh and Kirby JJ). In fact, Mr Williams went so far as submitting: The chador, the hijab, becomes a symbol that must be torn off, reduced, and the tribunal then steps in and says, "Just go back and wear it and behave. Behave and be a good little Islamic girl." The tribunal is no better than the oppressor. The tribunal is saying, "Go and obey your oppressor" 39 Apart from being hyperbole, this submission misses the point. The appellants have mischaracterised the finding as reliant upon an assumption that the Tribunal expects that she would wear the hijab in order to avoid harm. The finding of the Tribunal should be stated in full: For the reasons of adverse credibility finding, the Tribunal is satisfied that the application would wear the hijab and culturally-appropriate clothing if she had to return to Iran, not because she has to or that she would be forced by anyone, but because she is untruthful in stating otherwise. 40 As the primary judge noted, this is a case where the Tribunal made adverse credibility findings which formed the basis for rejecting the claim that the appellant would not wear the hijab in Iran. The appellants did not raise any argument as to the reasonableness of those adverse findings in relation to this ground of appeal. It follows that it was open to the Tribunal to conclude that should the appellant return to Iran, she would continue to wear the Hijab. In any event, the Tribunal considered whether, in the alternative, the appellant would suffer serious or significant harm if she did not wear the hijab. The Tribunal concluded that it was not satisfied that the appellant would suffer serious or significant harm as contemplated by the Act. No issue was taken by the appellants as to this finding which was made in the alternative. This ground must also fail.

Mother and Brother Appeals 41 Ground Two of the notices of appeal in relation to the mother and brother were said to be interdependent with Ground Two of the sister's notice of appeal. The appellants claim that the Tribunal misapplied the law with regard to the sister, and failed to examine whether the mother and brother face a real risk of harm from the sister's father, uncle or Islamic extremists given that the sister rejected Islam and adopted a Western lifestyle and the relevant family members impose strict doctrines of Islam onto the mother and her daughter. This ground raises two issues. First, whether the claim to fear harm fairly arose on the materials and the Tribunal overlooked it; and secondly whether the law was misapplied in regard to the sister's appeal. The second issue may be disposed of for the reasons identified at [39]-[40] above. 42 In relation to the mother's appeal, I requested that counsel for the appellant, Mr Williams, identify the basis upon which it was said that the primary judge fell into error in noting that no claim as articulated had been made. He pointed to AB87-88. These pages are part of the mother's statutory declaration which formed part of her application for a protection visa in 2012. It is unsurprising therefore that there is no reference to a fear of harm based upon her daughter's westernisation in Australia or rejection of Islam. The claim raised is that the mother feared harm due to her brother-in-law's radical beliefs, and her daughter's refusal to marry another radical Muslim. At AB89 the mother summarises that she fears harm upon return as she fears repercussions for her decision to flee with her children. Similarly, in relation to the brother's appeal, Mr Williams pointed to AB78-81 and AB36 [1]. None of those references on close analysis support the nature of the claim that was said by the primary judge to have arisen. The pages again relate to the brother's application for a protection visa in 2012. Reference is made to family members with radical beliefs, and his sister's refusal to marry. Given that Mr Williams was unable to point to any part of the evidence which demonstrated how or when the claim arose, this ground of appeal must be rejected in both the mother and brother appeals. 43 For these reasons, the appeals must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.