DRY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Ground 1 10 It is not, as, with respect, the Minister correctly submitted, either immediately apparent, or apparent at all, how it is that the IPA (including for the avoidance of doubt the record of interview) in 2012 was relevant to the Tribunal's review. It was not the decision of the delegate who granted the protection visa that was under review by the Tribunal; the granting of that visa was a given. The decision under review was that of a delegate cancelling the protection visa. 11 This acknowledged, it does appear that in the IPA's reasons there was recorded answers which had been given in 2012 at the time of interview. However that may be, it was always in the appellant's interests to advance such reasons as he was disposed and advised as to why it was that the protection visa should not be cancelled. If something was to be made in his favour in terms of statements given to the Independent Protection Assessor or otherwise in 2012 it was for him to make something of them and to furnish the requisite supporting material to the Tribunal. 12 The core function of the Tribunal was that of review, not inquisition. The absence of the IPA did not, in my view (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, at [18], go to jurisdiction. The Tribunal was not under any obligation to seek out the IPA. All the more so, it was under no such obligation because it was not asked to do that. 13 The appellant was represented in the proceedings before the Tribunal. Inferentially, the IPA was hardly a revelation when it came to the attention of the parties by its inclusion in the application book before the Federal Circuit Court. The parties necessarily include the appellant. It was always possible for the appellant to have sought, under the Freedom of Information Act 1982 (Cth), a copy of the material before the delegate when granting the protection visa. There was no reason at all, in the circumstances of this case, for the appellant, or those advising him, to assume that a document pertinent to the granting of the protection visa would be considered relevant to assessing whether falsehoods had been made, as alleged in the notice of intention to consider cancellation. 14 By analysis, ground 1 is really predicated upon a solicitation to a particular merits submission, which is that the IPA interview contained a more contemporary account from that later given by the appellant. 15 In the court below, the learned primary judge, at [48], observed: The fact that the applicant had earlier successfully obtained a report identifying that the applicant should be granted a protection visa in 2012 and that the applicant provided information at an interview in June 2012 supporting his claims does not identify any easily ascertainable or critical fact in respect of the 107 notice the subject of the determination by the Tribunal. I respectfully agree with his Honour's observation. 16 There needed, in any event, in this case to be rather more than an inchoate reference to a document which was said to be a document that ought to have been considered relevant in order to enliven, for the purpose of the conduct of the review, a jurisdictional error argument based on a failure to conduct such a review according to law.

Ground 2 17 The short answer to ground 2 is that given by the Minister in his submissions. That is, that there are at least three judgments of Full Courts of this Court which stand for propositions directly opposed to ground 2: WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413; SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; Ashraf v Minister for Immigration and Border Protection (2018) 261 FCR 97. 18 The long and the short of it is that s 418(3) looks to what the Secretary considers relevant, not what may or may not, as a matter of objective assessment, be relevant. Assuming, in the Secretary's favour, that the Secretary did not consider the IPA to be relevant, there is every reason for the Secretary not to have sent the assessment to the Tribunal. But, even if the Secretary, either through inadvertence or through a particular error of law, ought to have sent the IPA assessment to the Tribunal, because the Secretary ought to have considered it, as a matter of law, relevant, no amount of error by the Secretary would vitiate the Tribunal's exercise of its jurisdiction. 19 There was no conduct by or on behalf of the Tribunal which in any way could be said to have engendered an assumption reasonably, or indeed at all, on the part of the appellant, that the IPA was otherwise before the Tribunal for the purpose of its conducting its review. There is just no merit, at all, in ground 2.

Ground 3 20 Ground 3 is also, on analysis, contrary to authority. In fairness, it must be said that it may be that ground 3 was included so as to preserve a position. The relevant authority is now the Full Court's judgment in Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 (Sun). It was submitted, with particular emphasis on behalf of the appellant, that Sun was not reconcilable with an earlier judgment of this Court affirming a judgment of the then Federal Magistrates Court, namely, NBDY v Minister for Immigration & Multicultural Affairs [2006] FCAFC 145 (NBDY). This submission is correct. Sun and NBDY are not readily reconcilable. However, for the reasons given in Sun, NBDY should no longer be regarded as good law insofar as that ought not already be apparent, with respect, from Sun. 21 It is to be remembered that the Tribunal is not bound by the rules of evidence (see s 420(a) of the Act). That being so, the observations made by Flick and Perry JJ in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 (Sullivan) are pertinent, in addition to the observations made in Sun, both by me and Flick and Rangiah JJ. The Tribunal, in reviewing the cancellation decision, stood in the shoes of the Minister. It did so for the purpose of exercising the discretionary power found in s 109 of the Act. In the exercise of that discretionary power, it was obliged to act on material reasonably probative of findings of fact. There was no onus of proof and no standard of proof other than reasonable satisfaction based on logically probative material. And that material did not have to be evidence admissible in a court exercising the judicial power of the Commonwealth. It would be, to borrow language from a universe of discourse, as stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, to speak of considerations such as those referred to, notably by Sir Owen Dixon, in Briginshaw v Briginshaw (1938) 60 CLR 336 in relation to the exercise of judicial power in making findings of fact when serious issues are at large. 22 In fairness to the appellant, I readily acknowledge that, as is apparent from my judgment in Sullivan, I did see some role for such considerations, based on earlier judgments in this Court. That, however, was not the view that prevailed in Sullivan.

Ground 4 23 Ground 4 takes, as its starting premise, the position flowing from the text of s 109(1)(b) of the Act that the response, if any, given by a person to the notice under s 107 about non-compliance is in the sense described by Sir Anthony Mason in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, "a relevant consideration". So much, in my view, necessarily flows from the text of that provision. 24 The Tribunal's reasons disclose that it did consider the response. The appellant nonetheless submitted that, in so doing, it had failed to consider an integer of that response, namely harm which was not significant so as to engender a fear of persecution, but nonetheless might enliven other complementary considerations if the appellant were returned to Iraq, his country of citizenship. 25 The reference to integer doubtless has its origins in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. That case concerned not a visa cancellation decision, but rather an application for a protection visa. It was decided by reference to the particular application that the Tribunal had not engaged with a particular aspect or integer of the claim as made. That really was a question of fact arising upon a consideration of that application. 26 In this particular case, there was no question of the grant of a protection visa; rather, the question was whether there were grounds for cancellation arising from falsehoods such that the power in s 109 should be exercised given that the visa application, as made, was not correct. It was in that context that the Tribunal came to make its decision. Yet further, when one examines the responses given to the Tribunal on behalf of the appellant by his solicitor and migration agent, one finds that the case is put on the basis of explaining why it was that the appellant had, after the grant of his protection visa, twice returned to Iraq. The Tribunal considered that in the context of deciding whether the claim as made was or was not false in the ways identified in the notice of intention to consider cancellation. 27 It was put on behalf of the appellant that: The fact that the applicant was not harmed when he returned to Iraq does not prove that the events he described in Iraq are not true or that he did not have subjective fear when he applied for refugee status or that the fear he endured is not well founded … [sic] 28 It was also put in a further submission that he faced substantial harm. The lesser or alternative was never part of the response when one looks to the submissions made on behalf of the appellant. The Tribunal did all that it was required to do in terms of s 109. It considered the response; having so done it made a value judgment reasonably open on the material before it as to whether or not there were or were not falsehoods. It follows that ground 4 has no merit. 29 This is just one of those cases where a protection visa holder, having returned twice to a country in respect of which there was a claimed fear of persecution, was given a notice to show cause as to whether there were falsehoods, provided an explanation relating to reasons for returning; in the one instance, a car accident involving a son, in the other the death of a father, and in so doing maintained that there was a fear of significant harm and no falsehood. Instead, the submission was that there were good reasons for returning and that the appellant had taken steps to adopt what one might term "a low profile". It is just that the Tribunal did not accept this, and for reasons which are logically explained reached the contrary view and made findings as to falsehood. There the matter must rest. 30 The appeal should be dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.