NBDY v Minister for Immigration & Multicultural Affairs

The Federal Magistrate's decision 8 The Federal Magistrate heard the appellants' applications for review of the respective Tribunal decisions together. The appellants claimed that the Tribunal exceeded its jurisdiction by failing to follow the statutory process laid down for the cancellation of visas under s 109 of the Act and by failing to take into account the circumstances required to be considered under the statutory scheme. His Honour was satisfied that the Tribunal had followed the correct process and had taken into account the 'prescribed circumstances'. Accordingly his Honour rejected the appellants' application. As the appellants raise the same grounds in this appeal as in the Federal Magistrates Court his Honour's reasons will be considered in more detail in that context. Before doing so a brief outline of the statutory scheme for the cancellation of visa may be helpful.

The legislative provisions 9 The decision to cancel the appellants' visas was based upon their failure to comply with ss 101 and 103 of the Act: '101. A non-citizen must fill in his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given. … 103. A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given'

'in relation to a person, means a document that the Minister reasonably suspects is a document that: (a) purports to have been, but was not, issued in respect of the person; or (b) is counterfeit or has been altered by a person who does not have authority to do so; or (c) was obtained because of a false or misleading statement, whether or not made knowingly.' 10 The process of cancelling a visa for non-compliance with the above requirements commences with the Minister giving the visa holder a notice under s 107 of the Act. The notice must give particulars of the suspected non-compliance and specify the period allowed for the holder to provide any written response. It must advise the visa holder that the Minister will consider cancelling the visa and that the visa holder may dispute the allegation of non-compliance or, if non-compliance is accepted, give reasons for it and show cause why it should not be cancelled. Even if the allegation of non-compliance is disputed the visa holder may, against the possibility of the Minister finding that there has been non-compliance, also show cause why the visa should not be cancelled. 11 Before cancelling a visa the Minister must decide that there has been non-compliance, consider any response to the notice given under s 107, and have regard to any prescribed circumstances; s 109(1). The prescribed circumstances that the Minister was required to consider in relation to the appellants were those set out in Reg 2.41, namely: (a) the correct information; (b) the content of the genuine document (if any); (c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document; (d) the circumstances in which the non-compliance occurred; (e) the present circumstances of the visa holder; (f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; (g) any other instances of non-compliance by the visa holder known to the Minister; (h) the time that has elapsed since the non-compliance; (i) any breaches of the law since the non-compliance and the seriousness of those breaches; (j) any contribution made by the holder to the community.'

This appeal 12 This appeal was initially heard by Hill, Branson and Stone JJ. Following the untimely death of Hill J the parties declined the offer of a rehearing and agreed that the appeal should be decided by the remaining two judges. The circumstances outlined below have delayed the determination of the appeal.

Application to rely on additional grounds of appeal 13 During the initial hearing of this appeal, the Court raised with counsel for the appellants the possibility that the outcome of the case could be affected by the decision of the Full Court of this Court in QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363 and the then pending appeal in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 522 both of which concerned, inter alia, the interpretation of Article 1C(5) of the Refugee Convention. Counsel for the appellants was given a short period to determine if the appellants wished to pursue this issue. 14 On 17 August 2005 the appellants notified the Court that they wished to pursue the issue and, with the leave of the Court, they filed Notices of Motion seeking leave to amend their respective grounds of appeal. At that stage the appellants sought to add one new ground of appeal, namely, the alleged failure of the Tribunal to consider whether the appellants had been recognised as refugees and, if so, whether Article 1C(5) applied. At the hearing of the notice of motion the appellants also sought leave to include a second new ground of appeal being the alleged failure of the Tribunal to fulfil its obligations under s 359A of the Act. 15 On 19 October 2005 the Minister filed notices of motion seeking to have the appellants' notices of motion struck out. The hearing of these notices of motion was deferred pending the decision of the Full Court in NBGM and, eventually, they were heard on 22 August 2006. At the conclusion of the hearing the Court refused the application for leave to rely upon the Further Amended Notices of Appeal and stated that reasons for this decision would be published at the same time as judgment in the appeal. Our reasons in respect of each of the proposed grounds of appeal are set out below.

Application of Article 1C(5) of the Refugees Convention 16 Article 1C(5) provides that the Convention ceases to apply if the putative refugee 'can no longer … continue to refuse to avail himself of the protection of the country of his nationality'. The appellants submitted that they had been recognised by Australia as refugees within the meaning of the Article 1 of the Refugees Convention, albeit not pursuant to the provisions of s 36 of the Migration Act. Accordingly, they submitted, the Tribunal was bound to consider whether cancellation of their visas would be consistent with Australia's obligations under the Convention and, in particular, if Article 1C(5) applied. 17 As the respondent pointed out there is no evidence to show that the grant of Refugee and Humanitarian visas to the appellants involved recognising them as refugees within the meaning of the Convention. Moreover it must be remembered that the present proceedings concern a decision to cancel the appellants' visas because such recognition as they acquired was based, at least in part, on incorrect information and bogus documents. It would be a very strange result, and at odds with the structure and intention of both the Migration Act and the Refugees Convention if in mounting this challenge the appellants could rely on their recognition as refugees procured by such means. In our view there is insufficient merit in the appellants' submissions to justify the Court exercising its discretion to allow the appellants to rely on this ground of appeal.

Obligations arising under s 359A of the Migration Act 18 As an additional ground of appeal, the appellants also sought to rely on s 359A of the Act which provides that the Tribunal must give the applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review and must give the applicant the opportunity to comment on this information. The appellants identified the information that allegedly attracted the obligation as being information concerning a re-assessment of the appellants' claims conducted after they had been granted their visas. 19 The Court was referred to those parts of the Tribunal's decisions in which it addressed the present circumstances of the appellants as required under paragraph (e) of the 'prescribed circumstances'. The Tribunal noted that the appellants' claims had been re-assessed after the grant of the visa and that it had been concluded that the appellants did not have a well-founded fear of persecution for a Convention reason. In the case of each appellant, the Tribunal expressly noted this information in setting out the matters it had taken into account in reaching its conclusions. Counsel for the appellants submitted therefore that particulars of this information should have been provided to the appellants in writing as required by s 359A. 20 Counsel for the Minister pointed out that the information about the reassessment of their claims and the adverse conclusion had previously been disclosed to the appellants in the delegate's record of decision in their case. In so far as notions of fairness are relevant to the question of leave, counsel sought to rely upon this. 21 The Court is aware that, following the High Court's decision in SAAP v Minister for Immigration and Multicultural Indigenous Affairs (2005) 79 ALJR 1009, 215 ALR 162, there must be strict compliance with the procedures imposed by s 359A. Consequently, if certain information was the whole or a part of a Tribunal's reasons for affirming a decision to reject an application for a protection visa, failure to comply with these procedures will warrant setting aside the Tribunal's decision even if there has been no substantive denial of procedural fairness. 22 Procedural fairness is, however, a relevant issue in determining whether the appellants ought to be allowed to raise the question of compliance with s 359A at this late stage. The Tribunal's decisions were made in March 2004, the Federal Magistrate's judgment was handed down in November 2004, notices of appeal were filed in this Court in December 2004 and the appeals were heard in August 2005. Counsel for the appellants explained the delay with reference to the decision of the Full Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, which was decided on 24 February 2006. Counsel submitted that prior to this decision the s 359A ground of appeal could not have succeeded. Counsel was not able, however, to give any explanation for the delay between the date on which SZEEU was handed down and their raising the ground of appeal at the hearing. 23 Although a new ground of appeal was foreshadowed at the hearing of the appeals, it was only that concerning Article 1C(5) of the Convention. Indeed, at the hearing of the appeals counsel for the Minister indicated that there would be strong objection from the Minister should any additional amendment be sought. Plainly the Minister was concerned that any extension of the appeal to include new grounds should be limited to that articulated at the initial hearing. 24 It is our view that this second proposed ground of appeal should not be permitted. The first reason is the importance of there being finality of litigation; H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43 at [8]. Subject to the appellants deciding whether to seek leave to amend their notices of appeal and raise a ground concerning Article 1C(5) of the Convention, the hearing of the appeals was completed on 12 August 2005 without reference to s 359A of the Act. Secondly, the appellants were clearly made aware of the reassessment and its conclusion and therefore any failure of the Tribunal to comply with the strict requirements of s 359A did not deprive them of procedural fairness. Finally, as a subsidiary matter, some weight must be placed on the unexplained delay in applying for leave to rely on the new ground of appeal.

Grounds of appeal 25 Our rejection of the appellants' applications to amend their grounds of appeal leaves for consideration the grounds of appeal originally stated in the notices of appeal filed in December 2004. The grounds are that the Federal Magistrate erred in failing to find that the Tribunal exceeded its jurisdiction in affirming the delegate's decision to cancel the visas without: (a) having made the decision that there was non-compliance with ss 101 and 103 of the Act as required by s 109(1)(a); and (b) taking into account the prescribed circumstances as required by s 109(1)(c). 26 Essentially, the appellants contend that the Federal Magistrate failed to address the substance of the appellants' submissions. Accordingly, the appellants repeated those submissions in this Court with little reference to the conclusions of the Federal Magistrate. This approach does not assist an appeal court and has been criticised by previous Full Courts as, for instance, in Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 where the Court commented at [10]: 'We would add that much of the appellant's submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge's reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal's reasons as distinct from considering the primary judge's reasons.' 27 In this case, as in Sathiyanathan, the appellants have given us little assistance in identifying errors that are said to have been made by the Federal Magistrate. 28 In relation to the first ground of appeal the appellants submit that the Minister only has discretion to cancel a visa after doing those things required under ss 109(1)(a)-(c). The first of those things is to decide 'whether there was non-compliance by the holder of [the] visa' as described in the notice given under s 107. In making this decision, the appellant submits, the Tribunal did not apply the high standard of satisfaction that the section requires and that the Tribunal correctly identified as being required. 29 In assessing the truth of the appellants' claims, the Tribunal was not able to refer to any positive material contradicting the appellants claims and appeared to proceed on the basis that it needed to be 'satisfied' that the appellants' claims were true. According to the appellants this was manifest in the Tribunal's statement that the Tribunal was 'not satisfied' that NBDY's explanation of her journey was accurate. Further, in assessing the genuineness of the appellants' documents, the Tribunal failed to consider properly other documents that were put forward by the appellants in support of the impugned documents' authenticity. The Tribunal preferred to rely (in the appellants' submission, entirely) on information provided by the Croatian authorities. Second, the appellants submitted that the Federal Magistrate did not address the substance of these submissions and that his Honour considered only whether the Tribunal turned its mind to the correct issues rather than the correct standard of proof. 30 There can be no doubt that the Federal Magistrate was alive to these submissions; they are carefully summarised at [32]-[35] of his reasons. They were, however, not accepted. At [40]-[41] his Honour also summarised the respondent's submissions in reply which were repeated before us. In holding that the Tribunal had discharged its duty to review the delegate's decision 'according to the merits of the case', his Honour clearly, and in our view correctly, accepted the respondent's submissions. 31 The Tribunal correctly directed itself as to the level of proof required in finding that the appellants had made false statements and the fact that the onus of discharging this burden lay on the Minister. In doing so it appropriately cited Jasbeer Singh v Minister for Immigration and Ethnic Affairs [1994] FCA 1011 and Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570. There is nothing in the Tribunal's reasons to suggest that it did not apply the test it identified. The Tribunal carefully analysed the appellants' claims and explained why it did not find the appellants to be credible witnesses and why it concluded that the documents provided were bogus documents. In reaching its conclusion the Tribunal, as it was entitled to do, preferred the information it received from Croatia to the evidence of the appellants. The evidence from the Croatian authorities is capable of providing the high degree of satisfaction required by the provision and there is no jurisdictional error in preferring it to the appellant's evidence. 32 In relation to the second ground of appeal, the appellants submitted that while the Tribunal referred to the prescribed circumstances, and made some observations about them, it did not 'take into account' the circumstances in the relevant sense. In particular, the appellants claimed that the Tribunal failed: · to exercise independent judgment in respect of each of the prescribed circumstances; · to reach conclusions of fact as to which were the relevant circumstances; and · to determine what weight should be attributed to each of the relevant circumstances and to how those circumstances were relevant to the ultimate decision. 33 These submissions were put to the Federal Magistrate who summarised them at [36]-[39] of his judgment. Again, the appellants submitted that his Honour failed to address the substance of these submissions. 34 The prescribed circumstances that the Tribunal was required to consider are set out in [11] above. The Tribunal considered each of these circumstances and, impliedly, the significance of each for the decision under review. The Tribunal then stated that it found the reasons for cancelling the visas outweighed the reasons for not cancelling them and briefly explained in each case why it came to that conclusion. In relation to the daughter, NBDY, the Tribunal took into account her relative youth and immaturity at the time the alleged incidents took place and the fact that she may have been influenced by her father when making the visa application. The Tribunal also took into account the fact that the visa applications were made eight years after the alleged incidents and that at that time NBDY knowingly submitted the claims and bogus documents. 35 In relation to the father, NBDZ, the Tribunal noted that he had applied for Australia's protection on the basis that he was a refugee and referred to the limited ability for Australia to respond to the enormous demand for such places. The Tribunal said that the falsification of a claim of persecution in order to obtain such protection 'brings into question the integrity of the program' and 'undermines Australia's ability to respond fairly and adequately to the demand'. 36 We are satisfied that in both cases, the Tribunal took into account the prescribed circumstances. Ultimately, the weight to be attached to each circumstance must be decided in the context of the circumstances as a whole. This is a matter for the Tribunal as a finder of fact and it is not for the Federal Magistrates Court or this Court to interfere with the Tribunal's conclusions where the finding can reasonably be regarded as open to it. The appellants' submissions would involve scrutiny of the Tribunal's reason at a level inconsistent with the admonitions of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 37 For the reasons given above we have concluded that both appeals must be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson and Stone.

Counsel for the Appellants: Mr G Kennett (on the appeal) and Mr L Karp (on the notices of motion)

Solicitor for the Appellants: Christopher Levingston & Associates

Counsel for the Respondent: Mr N Williams SC (on the notices of motion) and Mr T Reilly (on the appeal and notices of motion)

Solicitor for the Respondent: Australian Government Solicitor