Matete v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT BUCHANAN J: 1 This appellant (whose New Zealand passport identified him as Teina Antonio Tereia Matete) arrived in Australia on 7 August 2000 and was granted a special category visa on that day. The visa was cancelled, on 29 May 2007, by a delegate of the Minister for Immigration and Citizenship ('the Minister') under s 109 of the Migration Act 1958 (Cth) ('the Act'). 2 The visa was cancelled because the delegate concluded that when entering Australia the appellant had falsely stated his name and date of birth, had failed to declare his criminal history and had used a fraudulently obtained New Zealand passport. The delegate concluded that the appellant was, despite the details shown in his passport, Takave Pokoati and that he had been born on 13 November 1968 rather than, as he claimed, on 11 March 1969. Prior to cancellation of his visa the applicant had also been convicted of a number of criminal offences in Australia and finally was sentenced to five months imprisonment. 3 The appellant applied on 7 June 2007 to the Migration Review Tribunal ('the MRT') for review of the delegate's decision. He engaged solicitors to make representations on his behalf. He argued that he had not been personally served with a notice of intention to cancel his visa. That claim was rejected by the MRT in its decision. He maintained, through his solicitors, by personal written representations and by oral statements before the MRT that he had not falsely stated his name or his date of birth, that he did not have a criminal history in New Zealand and that his New Zealand passport was not bogus or obtained fraudulently. The MRT drew to the appellant's attention both in writing before the hearing and orally at the hearing, that it had available to it evidence from Interpol New Zealand and the Australian Federal Police that his fingerprints were those of Takave Pokoati, a New Zealand citizen with an extensive criminal history in that country. The MRT in its decision which was handed down on 1 November 2007 rejected the appellant's claims that he was not Takave Pokoati. 4 The MRT made a series of factual findings to the following effect: · The appellant was personally handed a notice of intended cancellation of his visa on 11 May 2007 by officers of the Department of Immigration and Citizenship while he was in custody at the Byron Bay Police Station; · The appellant is Takave Pokoati who was born on 13 November 1968; and · The appellant therefore did not provide his correct name or date of birth when he arrived in Australia and he failed to declare his criminal record. 5 The MRT considered a range of factors advanced by the appellant, or on his behalf, as to why, nonetheless, his visa should not be cancelled but decided that all of those matters were outweighed by his failure to comply with the requirements of the immigration laws and his subsequent criminal history in Australia. 6 Those findings of fact, and the assessment which was made on the overall merits of the appellant's claim to remain in Australia, are not subject to judicial review. The decision of the MRT may only be set aside if some jurisdictional error in its decision, or the processes by which it was reached, is established. 7 Although it is not necessary for me to evaluate the matter independently it is worth noting that amongst the material before the MRT was a 'Criminal and Traffic History' from the Ministry of Justice in New Zealand for Takave Pokoati dated 11 May 2007. That history indicated that Takave Pokoati was also known by various aliases which included the surname Matete and each of the given names Teina and Antonio (as well as other surnames and given names) in various combinations. The document showed a ten year history of criminal convictions and imprisonment until 1993. It gave Takave Pokoati's date of birth as 3 March 1969. 8 I shall return to some discussion of this discrepancy in due course. Although both the delegate and the MRT in due course concluded that the appellant was born on 13 November 1968, it appears also that, initially at least, enquiries in New Zealand were directed to the possibility that the appellant was born in Gisborne, New Zealand (as he claimed) but on 3 March 1969 rather than, as he stated, on 11 March 1969. 9 The appellant commenced proceedings before the Federal Magistrates Court of Australia ('the FMCA') seeking judicial review of the decision of the MRT. On 7 August 2008 the FMCA dismissed the application for judicial review. The learned Federal Magistrate found that no jurisdictional error had been established (Matete v Minister for Immigration and Anor [2008] FMCA 573). 10 In the proceedings before the FMCA the appellant repeated his argument that he had not been properly given the notice of intention to cancel his visa. The argument was rejected. Like the MRT, the FMCA concluded that the notice of intended cancellation was personally handed to the appellant at the Byron Bay Police Station on 11 May 2007. 11 The FMCA also rejected a claim by the appellant that the member of the MRT had been biased against him. The learned Federal Magistrate listened to the audio tape of the hearing of the MRT and concluded that the allegation of bias was not made out. 12 After the hearing the appellant applied for leave to reopen his case. Leave was granted. The appellant drew to the attention of the FMCA an email in the possession of the delegate, sent by an officer of the Department of Internal Affairs in New Zealand, which suggested that no person with the surname "Pokoati" was born in Gisborne on 3 March 1969 and no person with the surname "Pokoati" and given name "Tavake" had been born in New Zealand at any time. (It should be noted that the given name referred to was not that identified by the MRT.) According to evidence before the FMCA, the email was part of an electronic file held by the Department but was not in the Department's physical file. The FMCA found that the email was not amongst documents sent to the MRT. The MRT was, under the Act, obliged to consider the appellant's application for review for itself, independently of the delegate's decision. The FMCA found that the email had never been provided to the MRT and that the MRT was, accordingly, under no obligation to consider it. The application for judicial review was dismissed on 7 August 2008. 13 On 1 September 2008 a notice of appeal to this Court was filed. A short extension of time in which to appeal was required and was granted by a Judge of the Court on 30 September 2008. The grounds of appeal in this Court were expressed as follows: 1. That a breach of the rules of natural justice occurred in connection with the making of the decision; 2. That procedures that were required by law to be observed in connection with the making of the decision were not observed; or in alternative failure to consider relevant information. 3. The Tribunal erred in that its decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of law to the facts as found by the Tribunal. 4. The first respondent acted in such a way as to affect the tribunal's processes by either bad faith or fraud. Particulars: On May 9th 2007 Mr Allan Hall an officer employed by the Minister received an email from Ms Flo Snowden of the New Zealand Department of Internal Affairs. This email stated that: a) There was no one in New Zealand born with the name of Takave Pokoati, date of birth and; b) The passport issued in the name of Teina Matete was a legal passport lawfully issued. c) On May 29th 2007, Mr Hall then proceeded to, notwithstanding the information he received from the New Zealand Department of Internal Affairs, cancel the applicant's visa on the partial basis of the existence of a false document. Mr Hall purportedly exercised his discretion in full knowledge of prima facie evidence that ran counter to his determinations. Furthermore, Mr Hall knowingly prevented or caused to be prevented said email from being sent to the applicant or the tribunal in contravention of s352(4). 5. That the exercise of a power was so unreasonable that no reasonable person could have so exercised the power. 14 The notice of appeal was supported by an affidavit which added further, more detailed contentions. Relevantly, it stated: 8. The court at paragraph 42; Tribunal did not consider a document which it never had before it for consideration, notwithstanding that that document should have been sent to it by the Minister's department in compliance with s.352(4) of the Act: a) The actions of the Minister in failing to act according to s.352(4) of the Act denied the applicant the opportunity to present and evidence which supported his claim, particularly that there was credible evidence from a New Zealand Government authority that said the New Zealand Births Deaths and Marriages showed no record of the birth of Takave Pokoati. Had the tribunal been given this evidence it may have been convinced that notwithstanding evidence to the contrary, the applicant was not Takave Pokoati and is Teina Matete. … 11. The first respondent withheld relevant information from the tribunal particularly an email dated May 9th 2007 in which the New Zealand Department of Internal Affairs told the first respondent that there was no record of a Takave Pokoati being born on 13 November 1968. 12. Had the tribunal been in possession of this information it could have come to a different conclusion as to the applicant's truthfulness in filling out his passenger card. 15 As will be seen in the discussion which follows, paragraphs 8(a) and 11 of the affidavit misstated the content and effect of the email in question. In my view, seen in its proper context, it does not have the significance for which the appellant argued. 16 The appellant's oral contentions on the appeal (based upon the fact that the delegate had received the email but not provided it to the MRT) were that he had been denied procedural fairness and that a fraud had been committed on the MRT. 17 The email recorded research done in New Zealand which revealed that "there is no person with the surname POKOATI born in Gisborne on 3 Mar 1969 and no person with the surname POKOATI and given name Tavake born in New Zealand at any time". However, the decision of the MRT recorded that material supplied by New Zealand police, verified by fingerprint comparison, showed that the appellant had been identified as Takave Pokoati, born 13 November 1968. The suggestions, therefore, seemingly rejected by the New Zealand Department of Internal Affairs that the appellant might be "Tavake Pokoati" born on 3 March 1969 at Gisborne or elsewhere were not ones which played a part in the decision of the MRT. Nor were they reflected in the earlier decision of the delegate. There was therefore, no inconsistency between the decision of the delegate and the MRT, on the one hand, and the information provided by the New Zealand Department of Internal Affairs on the other. 18 The contention that the appellant was denied procedural fairness depended upon the proposition that a failure to comply with s 352(4) of the Act infected the processes of the MRT with jurisdictional error. When an application is made to the MRT the Secretary of the Department must be notified and must ensure that certain steps are taken. Section 352(4) of the Act provides: (4) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision. As Mr Godwin of counsel, who appeared for the Minister, pointed out, an identical obligation is imposed upon the Secretary in connection with reviews by the Refugee Review Tribunal ('the RRT') by s 418(3) of the Act. 19 Any suggestion that the MRT denied the appellant procedural fairness or otherwise committed jurisdictional error cannot be accepted. In WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 ('WAGP') a Full Court concluded that a failure by the RRT to take into account documents which were not put before it by the Secretary did not indicate a lack of procedural fairness on the part of the RRT. The Full Court also held that a failure by the Secretary to comply with s 418(3) of the Act did not affect the validity of a subsequent decision of the RRT. I can see no basis for distinguishing the legal position in the present case and I am, therefore, obliged to treat WAGP as binding upon me. The appellant's arguments, to that extent, must be rejected. 20 However, the appellant as I have already indicated went further. He said the delegate had acted in bad faith and his actions amounted to a fraud upon the processes of the MRT. He relied upon the decision of the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189('SZFDE'). 21 The email containing information from the New Zealand Department of Internal Affairs (about "Tavake Pokoati") was sent to the delegate on 9 May 2007. Two photographs were attached to the email as electronic files. They were apparently the photographs supplied by the appellant with two applications for passports in New Zealand in the name under which he travelled to Australia. In response to a request of some kind from the MRT (although details of the request were not in evidence before the FMCA) the delegate provided to the MRT electronic versions of the photos which he "used to identify the applicant" as Takave Pokoati. It is likely that two of those photos were the photos supplied to him with the email of 9 May 2007 (the passport application photos) while two others (of Pokoati in custody) came from the New Zealand police. The appellant complained on the appeal that the two photos supplied by the New Zealand Department of Internal Affairs had been disconnected from the text of the email to which they were attached. He suggested that indicated bad faith on the part of the delegate. I am not persuaded that is so. 22 As Mr Godwin argued, there is no evidentiary basis upon which I could conclude that the delegate had acted in bad faith. The delegate, Mr Hall, swore an affidavit before the FMCA but was not cross-examined about this or any other matter. Furthermore, he was not obliged to discuss in his own decision, or provide to the MRT under s 352(4) of the Act, information that was not relevant. It was open to him to provide the photographs relevant to the question of visual identification without the text of the email to which they were attached in circumstances where the text of the email was neither relied upon nor was inconsistent with his conclusions. Even if some procedural defect had been revealed, it would have been necessary to show that any omission by the delegate was not only fraudulent in the relevant sense but also that it affected the decision-making process of the MRT (see Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, especially at [33]). Neither limb of this test has been made out in the present case. 23 Reliance on SZFDE is misplaced. SZFDE concerned the conduct of a migration agent. The High Court found that advice by the migration agent to applicants for protection visas, that they should not attend a hearing guaranteed to them by s 425 of the Act, had been given fraudulently (at [51]), that the fraud "had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants" (at [49]) and that the decision of the RRT was "properly regarded, in law, as no decision at all" because the jurisdiction of the RRT had not been exercised (at [52]). The decision turned closely upon the necessity to afford a hearing under s 425 of the Act, so that applicants for protection visas might give evidence and present arguments orally. That is not the matter at issue in the present case and SZFDE is neither directly in point nor a useful analogy. 24 No basis has been established upon which it would be open to conclude that the MRT acted beyond its jurisdiction in making the factual findings that it did or in the manner it assessed the appellant's claims to remain in Australia against those factual findings. 25 I am satisfied that no error in the decision of the FMCA has been established, nor any jurisdictional error in the decision or processes of the MRT. The appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.