Minister for Home Affairs v Waraich

Application to this court 11 On 20 December 2018, the Minister applied to this Court for judicial review of the Tribunal's decision. 12 By its Notice of Appeal, the Minister relied on the following grounds: 1. The Tribunal erred in law by considering itself unable to consider under s 34(2) of the Act admitted dishonesty or misconduct of Mr Waraich, over and above the offences for which he had been convicted, that was urged upon the Tribunal as a reason why it should affirm the decision under review. 2. The Tribunal erred in law by failing to consider substantial arguments, relying on established facts, worthy of serious consideration, particularly that admitted dishonesty of Mr Waraich over and above his convictions, favoured affirmation of the decision under review. 3. The Tribunal erred in law by misunderstanding or misconceiving the Minister's submissions to it, in that it stated that it was "not argued" that there was a risk that Mr Waraich would re-offend (at [64]), when the Minister in fact did submit that there was an ongoing risk of Mr Waraich re-offending, and that the Tribunal's error materially affected its conclusion about the risk of Mr Waraich re-offending. 4. The Tribunal misunderstood or misconstrued a 34(2)(c) of the Act and erred in law by: a) Distinguishing between "it being contrary to the public interest to remain an Australian citizen" (the former) and "it being in the public interest for a person no longer to remain an Australian citizen" (the latter) (as did the Tribunal at [71]); and/or b) By finding that distinction "significant and critical" (as did the Tribunal at [71]) and/or c) Relying on that distinction (as it did at [72]) to reason that deterrence cannot be taken into account in deciding under s 34(2) of the Act and/or d) Finding (as did the Tribunal at [74]) that the Tribunal could take into account (as favouring revocation) the integrity of the migration and citizenship regimes only if it is "contrary to the public interest for an offender to remain an Australian citizen" and not if it is in the public interest for the person to remain an Australian citizen; and/or e) Relying on the above distinction (as it did at [75]) to restrict how convictions may be taken into account under s 34(2) of the Act in relation to either public interest or discretion and/or f) Finding (as did the Tribunal at [76]) that it not permissible to ask whether it is "in the public interest" to revoke the review applicant's Australian citizenship and/or g) Relying on the above distinction (as it did at [77]) to find that it is in the public interest for the person to remain an Australian citizen and/or h) Reasoning that it could not consider, under s 34(2) of the Act, in this case, the integrity of the migration or citizenship regimes? 5. The Tribunal erred in law by reasoning as a matter of principle as it did at [78]. 13 The first three grounds are interrelated. So too are grounds four and five. Accordingly, I deal with those respective grounds in tandem. 14 I note that the Tribunal filed a submitting notice on 25 January 2019 and made no submissions to the Court.

Grounds one, two and three - The Tribunal's failure to consider significant and important evidence and its failure to respond to a substantial argument advanced by the Minister

Minister's submissions 15 By the first ground of appeal, the Minister submitted that the Tribunal failed to consider the First Respondent's oral evidence where he conceded having made a false application for a protection visa, a false application to VicRoads and false statements to the Tribunal in his written witness statement. 16 More specifically, the Minister submitted that the First Respondent admitted during cross-examination that: (1) in relation to his protection visa application: (a) he lodged the protection visa application "just…so he could stay in Australia"; (b) none of the claims made in that protection visa application were true; (c) he recalled signing a declaration that everything contained within the application was true, despite knowing that the contents were not true; (d) he falsely claimed that his father and his brother were missing; and (e) he submitted false newspaper articles in support of his application. (2) in relation to his application to VicRoads for a driver's licence: (a) he had "kept secret" the fact that he had previously held a Victorian driver's licence in another name (Amardeep Singh), and that this was because he needed to "keep up the same story"; and (b) when confronted by a VicRoads investigator about his non-disclosure, he denied knowledge of "Amardeep Singh". (3) in relation to his witness statement before the Tribunal, dated 8 June 2018, he made false statements to the effect that his "agent" had: (a) failed to notify him of the refusal of the protection visa application; and (b) sought review of the refusal decision without notifying the First Respondent. 17 The Minister submitted that the Tribunal made no reference to, nor did it attribute any weight to, evidence that the First Respondent acted dishonestly over a considerable period of time, including by providing a witness statement to the Tribunal which he conceded in cross-examination was false in material respects. The Minister submitted that the Tribunal's failure to do so was an error of law. 18 The Minister made the following submissions in relation to the Tribunal's failure to consider evidence of the First Respondent's dishonesty. First, the Tribunal failed to consider the Minister's submissions about the First Respondent's admitted falsification and dishonesty over and above the dishonesty evidenced by his convictions. These submissions were "seriously advanced" and "worthy of serious consideration": Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123; (1988) 79 ALR 267 at 276; Casarotto v Australian Postal Corporation (1989) 86 ALR 399 at 403. 19 In this respect, the Full Court of the Federal Court's reasoning in Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; (2018) 267 FCR 492 at [47] is apposite: If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the Minister may commit jurisdictional error. This passage has been cited with approval numerous times: see, eg, GBV18 v Minister for Home Affairs [2019] FCA 1132 at [74]; Navoto v Minister for Home Affairs [2019] FCAFC 135 at [84]-[85]; GPO18 v Minister for Home Affairs [2019] FCA 1067 at [63]; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [49]. 20 Second, the Tribunal failed to perform its duty by failing to take into account "cogent evidence providing substantial support to the applicant's case": Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13], Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-[112]. 21 Third, the Tribunal misconstrued s 34(2) of the Citizenship Act by limiting its consideration only to the matters for which the First Respondent had been convicted even though he conceded that he made false statements to government authorities and the Tribunal, for which he was not convicted. 22 Finally, those matters may be relevant to the Minister's discretion and to his assessment of the public interest. For the purpose of s 34(2) of the Citizenship Act, conduct which does not amount to a conviction may be taken into account in the exercise of the Minister's discretion once the jurisdiction is invoked. 23 In relation to the third ground specifically, the Minister submitted that it had argued before the Tribunal that there was an ongoing risk the First Respondent would engage in further dishonest conduct. However, the Tribunal found that there was no reason to expect that the First Respondent would re-offend. The Tribunal also found that the Minister did not contend that there was a risk the First Respondent would re-offend. The Minister submitted that the Tribunal's misunderstanding of its submissions in relation to the First Respondent's risk of re-offending was a further legal error. 24 The Minister submitted that where, as here, a tribunal reaches a conclusion based in whole or in part on a misunderstanding of the claim or submission made, that misconception will amount to legal error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63]. Accordingly, on the Minister's submission, the Tribunal's finding that there was no risk of re-offending (at [78]) was vitiated by an error of law due to the failure to consider the evidence and submissions of the Minister.

First Respondent's submissions 25 The First Respondent maintained that grounds one, two and three of the appeal should fail for the following reasons. First, he submitted that the "admitted dishonesty and misconduct" was the subject of conflicting and contested evidence at the hearing. For instance: (1) in relation to the protection visa application, the question of whether the First Respondent had falsified a newspaper article was ultimately not pressed by counsel at the protection visa hearing and could not be relied on as an indication of dishonesty; (2) in relation to the application for a driver's licence, the First Respondent had always claimed that he lawfully changed his name in India, and this was the reason why he had driver's licences in his previous and current name; and (3) in relation to the statement before the Tribunal, the First Respondent reiterated that he did not remember receiving a copy of the decision to refuse his protection visa or the process which led to the application for review of that decision and, when in cross-examination it was squarely put to him that the statement had false information in it, he denied this. 26 Further, the First Respondent submitted that the Tribunal had, in any event, taken into account the evidence of dishonest conduct over and above the dishonesty evident from the First Respondent's convictions. The First Respondent submitted that the Tribunal's consideration of this evidence was illustrated in the Tribunal's Decision and Reasons for Decision dated 5 December 2018 at [50]-[51]: 50. The Applicant was of course fortunate that the sentencing magistrate took a lenient view but at the same time it must be said that no other convictions are recorded against the Applicant and I was not told of anything which may be pending. This means that, except for his convictions in this matter, the Applicant has been otherwise law-abiding as would be expected by the Australian community. 51. I am not satisfied I should qualify this statement any further to reflect matters put to the Applicant in cross-examination based on claimed inaccuracies or errors in documentation going back over years. I consider again it was overstatement by Counsel for the Minister to say that every signed application this Applicant has made is tainted by fraud. Fraud has a different denotation or connotation. Specifically, and more accurately, the Applicant has been convicted of four charges involving false and misleading declarations on his student visa, permanent skilled visa and citizenship applications. 27 The First Respondent submitted that this was an all-encompassing consideration of both the criminal and allegedly dishonest non-criminal conduct by the First Respondent. Indeed, it was posited that the phrase "going back over the years" must have been referable to the instances of "dishonesty" for which the First Respondent was not convicted. 28 The First Respondent also reiterated the established principle that a tribunal is not required to expressly refer to every piece of evidence in its decision, nor should its reasons be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": see, eg, Carrascalao v Minister for Immigration [2017] FCAFC 107; (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ). Where the reasons of a tribunal are otherwise comprehensive, and the issue has at least been identified at some point, the inference that the decision-maker failed to "have regard to" the information is an inference that should not readily be drawn: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ); Minister for Immigration v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [64]-[65] (Stone, Foster and Nicholas JJ).

Consideration 29 The assessment of the veracity and weight to be given to evidence before the Tribunal is plainly a matter for the Tribunal. It is not the proper function of this Court, upon an application for judicial review to substitute its own assessment of the evidence for that of the Tribunal, for to do so would undoubtedly involve entering the field of merits review for which this Court has no mandate. However, where, as here, the Tribunal entirely fails to consider relevant evidence when assessing the merits of the application before it, the Tribunal will have failed to discharge its statutory duty. 30 The Minister's principal contention in relation to grounds one, two and three was that the Tribunal failed to consider the First Respondent's oral evidence, in particular the evidence given in the course of cross examination. The Minister identified concessions made by the First Respondent in cross examination concerning dishonesty in relation to his protection visa application, including that the First Respondent had submitted fake newspaper articles in support of his protection visa application which he had procured from people "back in India". Yet there is no reference by the Tribunal to the evidence given by the First Respondent concerning false statements made in connection with his protection visa application. The Minister also referred to concessions made by the First Respondent under cross-examination concerning false statements in his witness statement, relied upon by the First Respondent before the Tribunal. The First Respondent conceded that the witness statement was false in relation to a claim that he had not been notified of the earlier refusal of his protection visa. The Minister submitted that this evidence revealed dishonesty by the First Respondent many years after his visa and citizenship applications and involved dishonest statements made directly to the Tribunal. Notwithstanding this evidence, the Tribunal made no reference to this evidence. The First Respondent also conceded under cross-examination that he had made false statements to VicRoads in relation to his application for a driver's licence, in particular that he failed to disclose that he had previously held a Victorian driver's licence, under the name Amardeep Singh. When questioned about this by VicRoads, the First Respondent claimed to have forgotten about his prior driver's licence. 31 I agree with the Minister's submission that the Tribunal's failure to consider significant oral evidence given by the First Respondent was a legal error in numerous respects. I agree that the oral evidence given by the First Respondent admitting dishonesty, summarised above, was material to a rational assessment of the decision before the Tribunal and material to an assessment of the First Respondent's prospect of re-offending, his character and his remorse. That evidence, which went beyond evidence of the First Respondent's convictions, was relevant to the application before the Tribunal. 32 It was an error of law for the Tribunal to fail to consider oral evidence that was "seriously advanced" and "worthy of serious consideration" in an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276-277; Casarotto v Australian Postal Corporation (1989) 86 ALR 399 at 403. I accept the Minister's submission that the Tribunal erred by overlooking an argument that was substantial and clearly articulated, as described by the Full Court in Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492 at [47]. 33 The Tribunal was legally required to consider the First Respondent's oral evidence in deciding whether to revoke the cancellation decision but failed to do so. This is consistent with the reasoning in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 at [13], in which Bell, Gageler and Keane JJ held: Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Federal Court has properly recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant's case, including any such evidence contained in a document or report provided to it by the Secretary, in the same way that the Tribunal would fail to perform that duty if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case. 34 I also agree that it was a legal error for the Tribunal to have construed s 34(2) of the Citizenship Act as limiting, in the exercise of its power, consideration of the First Respondent's conduct to only conduct or matters for which he had been convicted and which fell within s 34(2)(b)(i)-(iv) of the Citizenship Act. The Tribunal applied this construction, as evident from [27] of its Reasons, saying that even if it had disbelieved the First Respondent's evidence on a certain point, it was "not something which impacts on the facts", because "he has already been convicted of his offences". I agree with the Minister's submissions that s 34(2) of the Citizenship Act contains no such express distinction and there is no reason in principle to apply such a distinction. 35 The Tribunal's reasoning also misconceived the Minister's contentions in relation to the First Respondent's risk of re-offending. The Tribunal found at [64] that there was: no reason to expect that the [respondent] will re-offend… and it was not argued in any event there would be any such risk. The Minister did argue that there was an ongoing risk of the First Respondent engaging in further dishonest conduct. The Tribunal's misunderstanding of the Minister's submissions is a further legal error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63]. 36 For the above reasons, I uphold grounds one, two and three of the application.

Grounds four and five - The Tribunal misunderstood and misapplied s 34(2)(c) of the Citizenship Act in a way that was material to its decision

Minister's submissions 37 The fourth and fifth grounds of appeal related to a conclusion by the Tribunal that it was not satisfied that "it would be contrary to the public interest for the First Respondent to remain an Australian citizen" pursuant to s 34(2)(c) of the Citizenship Act. 38 In its Reasons, the Tribunal made this finding under the heading "Contrary to public interest versus in the public interest" (emphasis in original). It then proceeded at [71] to draw a distinction between "contrary to the public interest" and "in the public interest", and stated that "the difference between these two formulations is significant and critical" (emphasis added). The Minister submitted that there is no distinction of substance between the above formulations and, by applying that false distinction, the Tribunal misunderstood, and misapplied, s 34(2)(c) of the Citizenship Act, and thereby fell into error. 39 The Minister referred to TRHL v Minister for Immigration and Border Protection [2016] FCA 376 at [41], in which Gilmour J held that: …the expression of the public interest requirement under s 34(2)(c) as ultimately put on behalf of the Minister before the Tribunal as being "in the public interest that the appellant not continue to be an Australian citizen" is synonymous with the statutory language that "it would be contrary to the public interest for the appellant to remain an Australian citizen. (emphasis added) 40 The Minister submitted that by incorrectly focusing on what is "in" the public interest, the Tribunal may have rejected, or placed insufficient weight on, arguments advanced by the Minister. Further, in reaching its state of satisfaction for the purposes of s 34(2)(c) of the Citizenship Act, the Tribunal only considered what it thought was "contrary" to, rather than "in", the public interest.

First Respondent's submissions 41 The First Respondent conceded that there should be no distinction made between "contrary to the public interest" and "in the public interest" and that the correct interpretation is as explained by Gilmour J in TRHL. The First Respondent submitted, however, that any error the Tribunal made in the distinction was not material as the Tribunal discharged the task required of it. Namely, it took into account factors for and against the public interest, and decided that although the First Respondent had been convicted of very serious offences, there were a number of positive factors supporting his application to set aside the revocation of his Australian citizenship. Those supporting factors included his remorse and regret, the delay in prosecuting him and the adverse impact on him and his family. 42 An important factor relied upon by the First Respondent was the finding by the Tribunal that there was no reason to suspect he would re-offend, as well as the recognition of his contribution to the Australian community. The First Respondent submitted that it was only after making these findings that the Tribunal went on to consider the distinction under the heading "contrary to public interest versus in the public interest".

Consideration 43 In relation to the fourth and fifth grounds of appeal, I find that the Tribunal's construction of s 34(2)(c) of the Citizenship Act, which involved a purported distinction between "contrary to the public interest" and "in the public interest", is erroneous. It is a linguistic distinction of no practical significance or importance. Indeed, the purported distinction has previously been rejected for that very reason in TRHL and I respectfully agree. 44 I also agree with the Minister's submission that the Tribunal's erroneous construction of s 34(2)(c) of the Citizenship Act was material to the Tribunal's consideration of the application and to its decision for the following reasons. First, the Tribunal's reasoning was premised on a finding that the difference between the two formulations was "significant and critical". It followed that the Tribunal's reasoning, and the manner in which it considered the respective submissions, must have been imbued with this characterisation. 45 Second, and relatedly, the Tribunal's reasons only considered, in reaching the state of satisfaction for the purposes of s 34(2)(c) of the Citizenship Act, what it thought was "contrary" to, rather than "in", the public interest. This is apparent in the following aspects of the Tribunal's reasoning, all of which were predicated on a misunderstanding that the Tribunal was only required to consider matters "contrary" to the public interest: (1) at [72] of the Reasons, where the Tribunal did not take into account the Minister's submissions about deterrence; (2) at [74]-[76] of the Reasons, where the Tribunal incorrectly contextualised the Minister's submissions regarding the integrity of the migration and citizenship regime; and (3) at [77]-[78] of the Reasons, where the Tribunal's erroneous distinction foreclosed a proper analysis of the Minister's submissions in relation to the interests of the Australian community and the prospect of re-offending. 46 Accordingly, it follows that the Tribunal's misconstruction of s 34(2)(c) of the Citizenship Act was a material error and I uphold grounds four and five.

Disposition 47 The application is upheld and I make the orders set out above. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.