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

The Applicant's claims 17 The Applicant provided various written materials to the Tribunal, including a statement of evidence. He also gave oral evidence at the hearing. 18 Relevantly, the Applicant submitted that he and his siblings had left Burkina Faso "a long time ago to find life elsewhere in the world"; that he did not have an address to go to in that country or people with whom he could "start life all over again" or who could support him; and that his family would suffer "great distress and despair" being "displaced with nowhere to live". 19 Further, the Applicant made claims in written submissions dated 4 June 2020 that when living in Burkina Faso he had been captured by the government while protesting and beaten and tortured. His father had arranged his escape, and he had fled the country. He claimed to therefore fear being "recaptured, torture or killed" by the Burkina Faso government if returned by reason of his earlier political activities (CBA525). The Applicant additionally provided written submissions prepared by his "support person", also dated 4 June 2020 (CBA529-A538).

The Administrative Appeals Tribunal decision 20 By reference to a number of examples, the Tribunal found the Applicant to have been ([104]): … an unsatisfactory witness and revisionist historian. Key aspects of his evidence are false, inconsistent, exaggerated, implausible or incomplete. This conclusion is not made lightly and arises not from objectively minor matters of fact or [the Applicant's] demeanour, but on substantial evidentiary aspects. 21 It later observed that ([200]): [f]or the reasons adduced earlier, key aspects of QYFM's evidence are either false, inconsistent, exaggerated, implausible or incomplete. He frequently attempted to blame evidentiary deficiencies on others. QYFM's current claims often rested on bare assertion, including when he presented a new narrative for the circumstances of his departure from Burkina Faso, and dispensed with the family massacre narrative he consistently maintained between 1997 and 2000. He implausibly asked the Tribunal to believe that the family massacre narrative and having to desert his wife and two children in Burkina Faso, were invented by his lawyers or arose from language issues, mistranslation, or his 'mental health' (sic). He now attributes his trauma to a 'capture and torture' narrative similarly containing unexplained inconsistencies. 22 Other aspects of the Tribunal's reasons as might be thought potentially relevant to the present application are those relating to international non-refoulement obligations and to the extent of the impediments that the Applicant would face if returned to Burkina Faso.

Non-refoulement obligations 23 After a detailed analysis, the Tribunal found that Australia did not owe non-refoulement obligations to the Applicant. As such, this consideration weighed neither for nor against revocation. 24 The Tribunal found that the Applicant had conceded that claims he had made in 1997 as to the circumstances in which he had departed Burkina Faso had been false. The claims now pressed going to those circumstances, which suggested that he faced risk if returned as a result of previous political activities, were uncorroborated and were not credible. Relevantly for the purposes of the present application, in addressing those matters the Tribunal stated: 161. The respondent noted that QYFM has provided a further statement on 4 June 2020 stating that in Burkina Faso, he was captured along with other students who were protesting on the streets against the government. He claims that his father and other supporters of the student movement paid money to prison officials to release him, after which he fled from the country. The respondent contended that his most recent claims are, again, inconsistent with other evidence he has provided to the Tribunal and the Department and as such, the Tribunal should not be satisfied that the Applicant's claims are in any way credible. 25 With respect to other risks posed to the Applicant arising from the circumstances in Burkina Faso more broadly, the Tribunal found as follows: 173. QYFM also raised generalised fears of harm arising from instability in Burkina Faso, caused by an increase in indiscriminate acts of terror and attacks on civilian targets since approximately 2016. It is not clear from his evidence where he would settle if repatriated. QYFM was born in the capital, Ouagadougou, where his mother currently lives. Institutional structures and services, as they are in Burkina Faso, appear most developed in or immediately adjacent to the capital. Many of the targets identified in the media reports provided by QYFM appear linked to places where western tourists congregate, or tit-for-tat reprisals between Muslim and Christian groups, or government-related activity, particularly in the north of the country. There is no evidence to suggest that QYFM, as a Muslim man with family living in the capital, would be required to live in areas attracting a 'do not travel' rating recommendation in the DFAT report he tendered, which, in any event, is more relevant to Australian citizens contemplating travel to Burkina Faso, rather than returning citizens like QYFM. That is not to diminish the risks confronting the general population in Burkina Faso, just that they are general risks confronting the population generally and not QYFM specifically. 26 In view of the Applicant contemporaneously seeking review of the refusal of his application for a protection visa, the Tribunal also noted as follows regarding non-refoulement: 172. … He may have additional evidence to present in the context of his appeal against the refusal of his 2019 Protection Visa application, but that is a matter for another Division of this Tribunal. The claims he presented at this hearing do not enliven Australia's non-refoulement obligations. … 207. As for the other considerations in this matter, QYFM's non-refoulement claims have changed substantially over time. On the information he presented at the present hearing, his claims are unpersuasive. It is noted, however, that an appeal against the refusal of his 2019 Protection Visa application is yet to be heard, at which he has a further opportunity to present any additional claims or information.

Extent of impediments if returned 27 The Tribunal also gave the extent of impediments that the Applicant would face if returned careful analysis. It found that the Applicant had been in recent contact with his mother who lived in Burkina Faso, and rejected claims that he could no longer speak his native languages. Regardless, it found that this consideration weighed substantially in favour of revocation in view of difficulties that the Applicant would face in "re-establishing himself" in that country.

Impact on victims 28 With respect to the impact of a decision not to revoke on members of the Australian community, the Tribunal found as follows: 189. Clause 14.4(1) of the Direction states: Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness. 190. In the absence of any evidence from victims of QYFM's offending, the Tribunal finds this consideration has neutral effect.

Grounds 29 In his application filed on 12 August 2020, the Applicant advances the following grounds: 1. The Applicant, respectfully, submits that the Senior Member erred in a denial of procedural fairness in the making of the decision, in regard to subparagraph 14(a) 'International non-refoulement obligations' and possibly (e) 'Extent of impediments if removed' in the Direction. 2. Regarding the former, the Applicant submits, in his oral evidence before the Tribunal, he was asked a series of 'closed questions'. 3. At no time was he asked why he left Burkina Faso; but rather, both Respondent's [sic] focused on the Applicant's criminal offending, travel records, and ties to his family.

Applicant's submissions 30 The Applicant filed written submissions on 3 December 2020. He lodged a further set of submissions on 8 December 2020. Having sought the views of the Minister, who indicated that this further filing (which was out of time) was not opposed, I granted leave for those submissions to be filed. They were accepted for filing on 14 December 2020. 31 In his first set of written submissions, the Applicant indicates that in his view he does satisfy the character test. He submits that he can honestly state: "I have not committed such of the crimes mentioned under ss501(6) Character test, whether in Australia or another country and neither have I been sentenced for such crimes in my life". He also notes that the "Australian Government may not follow their non-refoulement obligations as to [his] protection visa application". In relation to the issue of whether he has a substantial criminal record as defined by s 501(7) of the Migration Act, the Applicant submits as follows: 7. Ss 501(7) is a part of ss 501(6) Character test, and under paragraph 501(7) substantial criminal record is (a) a person is sentenced to death, a crime to be sentenced to death is a crime of Treason as is noted under ss501(6) Character test which can only be committed by High Profile officials and is a High Profile Crime. The death penalty for such crimes does not exist in Australia, this implies and confirms these offences are offences committed in a foreign country and a person has been assessed on entry to Australia, under the Australian constitution the Minister has no power to remove a person from Australia unless it is specifically of crimes as described under ss501(6) and a person has been sentenced to the terms noted under ss501(7) Substantial Criminal Record for such crimes and the only power the Minister has to deport a person is under Division 9 sections 200, 201, 202, 203, 204, 205, 206. within the Migration Act 1958. (b) the person has been sentenced to imprisonment for life. This sentencing is for crimes listed under ss501(6) Character test. Assisting enemies at war with the Commonwealth is a sentence required under this paragraph. (c) the person has been sentenced to a term of imprisonment of 12 months or more. 3UM Identity information at airports - requirements under this section is under Terrorism within the Crimes Act 1914 Scope of section (1) A constable may make a request under this section of a person (a suspect) if: (a) the request is made at a constitutional airport; and (b) the constable reasonably suspects that the suspect has committed, is committing or intends to commit an offence against a law of the Commonwealth, or a law of a State or Territory, punishable by imprisonment for 12 months or more. (2) A constable may also make a request under this section of a person (a suspect) if: (a) the request is made at an airport other than a constitutional airport; and (b) the constable reasonably suspects that the suspect has committed, is committing or intends to commit an offence against a law of the Commonwealth punishable by imprisonment for 12 months or more. (d) The person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more, or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or (f) the person has: (i) been found by a court to not be fit to plead, in relation to an offence; and (ii) the court has nonetheless found that on the evidence available the person committed the offence; and (iii) as a result, the person has been detained in a facility or institution. 8. The above ss 501(7) "substantial criminal record" is a part of ss501(6) "Character test", that indicates the sentencing and imprisonment of crimes noted under ss501(6). 9. The penalty for Terrorist crimes ranges from 6 to 12 months imprisonment to life or in fact , death, in accordance to the Crimes Act 1914 Federal Legislation, the Criminal Code Act 1995 and the Australian Security Intelligence Organisation Act 1979. 32 In his second set of written submissions, the Applicant states that the Delegate erred "by failure to note the exact words and meaning to provide a legal decision consistent with sub-section 501(6)". He refers, in particular, to s 501(6)(d) of the Migration Act. 33 The Applicant further submits that the Delegate erred in that their decision was "entirely based" on an unacceptable risk of harm to the Australian community and the proposition that the protection of the Australian community outweighed the best interests of children. The Applicant does not further expand on that submission. 34 Finally, the Applicant draws the Court's attention to s 4 of the Migration Act 1958 (Cth): the object section of the legislation. He then submits as follows: 7. I also bring to the courts attention that I am an permanent resident of Australia because of the Class BC Subclass 100 Partner visa issued to me on 5th July 2011, a visa I had held until 8th November 2017 before it was cancelled and that that visa was not cancelled on entry to Australia for crimes noted under ss501(6) Character test. I, QYFM, continue and conclude that I am unlawfully held in immigration detention because of the jurisdictional error of an assessment made by the Minister's delegate in that the delegate has failed to exercise correctly, accurately and completely the interpretation of (in the event a person is allowed to enter or remain in Australia) "a person may be a risk to the Australian community if the person had committed such crimes in a foreign country before arrival and must be dealt with accordingly, and therefore the person's visa must be cancelled, granted or refused by law." I, QYFM, was living in Australia as a permanent resident at the time my visa was cancelled. I seek revocation of the Class BC Subclass 100 Partner visa I had originally held and release from immigration detention according to law. 35 In the Applicant's oral submissions it became clear that the nub of his contention was that on a true understanding of the law, s 501 was required to be read subject to the provisions of Part 2 Division 9 ("Deportation") of the Migration Act as confer power on the Minister to deport non-citizens on security grounds or non-citizens who have been convicted of certain serious offences: see ss 200-203.

Minister's submissions 36 The Minister - understandably, given that the Applicant's written submissions were received after the time ordered for their filing - has advanced no written submissions in respect of anything other than the grounds actually advanced. In respect of those grounds, the Minister submitted that the grounds the Applicant pressed appeared to have been "copied and pasted" from the submissions that his "support person" made to the Tribunal dated 4 June 2020, noting that identical typographical errors appear in both documents. Those submissions - made prior to the relevant Tribunal hearing - were directed to the conduct of the previous Tribunal, rather than the Tribunal on remittal as might be relevant to the present application. 37 Leaving that observation aside, the Minister submitted that the grounds must fail at the outset. That was because the Applicant had not put into evidence a transcript of the relevant Tribunal hearing: notwithstanding the Minister having advised him of the need to do so. There was therefore: … simply no evidence before the Court that the "second" Tribunal (whose decision is now under review by the Court) conducted itself in the same way as had been previously asserted in respect of the "first" Tribunal. 38 The Minister further submitted that the grounds as advanced were too general to permit a meaningful response, particularly in circumstances where the Minister had been required to file submissions without the benefit of having notice of the Applicant's submissions. Against the contingency that the Court might not accept that contention however, the Minister's written submissions also advanced the following general propositions: With respect to the closed questions the Applicant submits he was asked, under s 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) subject to that Act and any other enactment the procedure of the Tribunal - which operates inquisitorially - is a matter for its discretion. Moreover, subject to the rules of apprehended bias (which the Minister submits the Applicant neither has raised nor could raise on the facts of this application) the Tribunal is entitled to test the evidence of applicants by way of robust questioning (citing Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227; 256 FCR 1 at [24]); With respect to the reason for the Applicant having left Burkina Faso, it was for the Applicant to advance his case (citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 201 ALR 437 at [57]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]). In any case, he had set out his case in respect of those circumstances in written submissions before the Tribunal dated 4 June 2020 (CBA525). The Minister's written submissions had put in issue the credibility of that account, in view of apparent inconsistencies with other evidence (CBA623). The Tribunal had addressed those written submissions in its reasons, doing so expressly at paragraph [161] (see above at [24]). With respect to the extent of impediments if removed, the Tribunal found that this consideration weighed substantially in favour of revocation. Whatever the Applicant might wish to advance with respect to the Tribunal's analysis of this consideration, that squarely raises questions of materiality (citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]). 39 In view of the circumstance that the grounds advanced when read in the context of the 4 June 2020 submissions prepared by the Applicant's "support person" apparently refer to the conduct of the earlier Tribunal, the Minister "for completeness" also submitted that: … the matter which led to the quashing of the "first" Tribunal decision … was satisfactorily addressed here. The Tribunal here, in the absence of any evidence from victims of the Applicant's offending, found the matter set out at paragraph 14.1 of the Direction had a neutral effect (… [see at [190]]). 40 In respect of the written and oral submissions QYFM had later advanced with respect to the construction of s 501 of the Migration Act counsel for the Minister, Mr Solomon-Bridge, noted that the power to cancel the Applicant's visa was that which had been conferred by s 501(3A). Mr Solomon-Bridge referred the Court to the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 (Nystrom) as precluding acceptance of the submissions advanced by the Applicant.

Consideration 41 It is appropriate to note at the outset that QYFM's written submissions did not significantly (or in any meaningful way at all) engage with what he advanced as grounds of review. Instead, they focussed upon whether the Tribunal was correct in finding that he had a substantial criminal record within the meaning of s 501(6) of the Migration Act. As his submissions evolved orally, QYFM in that regard submitted that s 501(6) should be understood to be implicitly confined by the provisions of Part 2 Division 9 of the Migration Act with respect to deportation. 42 If there had been a plausible basis for such a contention, the Court would have considered inviting QYFM to make an oral application to amend the grounds upon which he was relying to encompass that proposition. Some leniency, subject to a proper objection not being advanced on the Minister's behalf, can properly be extended to a self-represented applicant. However, there is no merit at all in the proposition that QYFM advances in his written and oral submissions. 43 The Tribunal had before it (at G2; Applicant's tender bundle, p 25) a copy of a National Police Certificate dated 8 March 2018. That document recorded that in the Melbourne County Court the Applicant had been convicted on 5 December 2013 of the offence of importing a marketable quantity of border controlled drugs. The document discloses that for that offence, he had been sentenced to 10 years imprisonment with a non-parole period of 7 years. Also before the Tribunal as part of G2 was the transcript of the reasons for sentence delivered by her Honour Judge Douglas of the County Court on that day (Applicant's tender bundle, pp 26-36). Her Honour's reasons reveal that QYFM had been convicted following a jury trial. Her Honour sentenced QYFM the basis that he had sought to place the blame for importing an amount of cocaine with a market value of approximately $724,250.00 onto an innocent victim: his mother-in-law, with whom he had travelled to South America. 44 The Tribunal also had before it (at G3 and G4; Applicant's tender bundle, pp 43-65 and p 296) the reasons of the Supreme Court of Victoria in relation to an appeal by QYFM from his conviction and sentence, which was unsuccessful. 45 Section 501(3A) provides that the Minister must cancel a visa granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 46 QYFM does not dispute that the information at G2 and G3 was before the Tribunal. He advances no basis on which it might be suggested that his conviction and sentence as is recorded in that material were not available to be relied upon by the Tribunal. 47 Section 501(7) defines the term "substantial criminal record" so as to include a circumstance whereby a person has been sentenced to a term of imprisonment of 12 months or more. It is plain that the Applicant necessarily fell within the provisions of s 501(6)(a) of the Migration Act because he had been sentenced to a term of imprisonment of 12 months or more: a sentence of 10 years imprisonment for the offence of importing a marketable quantity of border controlled drugs. That was an offence against a law of the Commonwealth. It is not in dispute that he was serving a term of imprisonment on a full time basis for that offence. 48 Leaving aside the Applicant's oral submission that those provisions must be read down so as to be consistent with the provisions of Division 9 of the Migration Act as confer the power to deport a non-citizen, it is plain that his Visa was lawfully cancelled: subject to his capacity to apply for that decision to be itself revoked. 49 In those circumstances, the Applicant's unsworn statement in his written submissions that he "can honestly state that [he has] not committed any of the crimes mentioned under ss 501(6) … and neither [has he] been sentenced for such crimes in [his] life" is an entirely inadequate foundation for this Court to further consider granting leave to him to argue a proposition that he has not identified in his grounds. 50 Insofar as QYFM advanced the contention that s 501 must be read subject to an implied limitation having regard to the provisions of Pt 2 Division 9 of the Migration Act, that submission must be rejected having regard to the reasoning of the High Court in Nystrom. In that case the High Court identified that s 501 of the Migration Act and the provisions of Pt 2 Division 9 of that Act simply provided two (alternative) sources of power by which a non-citizen might be exposed, by different processes and in different circumstances, to similar practical consequences. As a single judge of this Court, I am bound by that decision: notwithstanding that the practical effect appears to be that recourse is rarely if ever now had to that alternative. If the premises upon which that decision was founded are to be challenged, they must be challenged in the High Court. 51 In my view, the prospects of any amended grounds being successfully advanced was so derisorily small as to not warrant consideration being given to inviting the Applicant to make an application in that regard. 52 The Court therefore will confine its consideration to the grounds stated in QYFM's application. It will be recalled they were as follows: 1. The Applicant, respectfully, submits that the Senior Member erred in a denial of procedural fairness in the making of the decision, in regard to subparagraph 14(a) 'International non-refoulement obligations' and possibly (e) 'Extent of impediments if removed' in the Direction. 2. Regarding the former, the Applicant submits, in his oral evidence before the Tribunal, he was asked a series of 'closed questions'. 3. At no time was he asked why he left Burkina Faso; but rather, both Respondent's [sic] focused on the Applicant's criminal offending, travel records, and ties to his family. 53 I accept Mr Solomon-Bridge's submission that those grounds must fail at the outset. That is because the Applicant has neither put into evidence a transcript of the relevant Tribunal hearing, nor sworn an affidavit or sought to adduce any other evidence as would entitle this Court in the absence of a transcript to form the view that in any respect he was denied procedural fairness. There is simply no evidence before this Court as would entitle it to conclude that the manner of the Tribunal's questioning of the Applicant caused its statutory duty to miscarry. 54 In view of the Applicant being self-represented, the Court has carefully read the Tribunal's reasons for decision to identify anything self-evident from its terms as might provide a basis for the Applicant's contentions. To the contrary, the Court has found that the Tribunal's decision appears to have been carefully and comprehensively reasoned and reveals nothing inappropriate. 55 The above is sufficient to dispose of this review. Lest I be in error however in so briefly dismissing the Applicant's case, I also record that I discern no error in the Minister's submissions as summarised at [38] above. If I am in error, I would accept those submissions and conclude that this appeal in any event must be dismissed for those reasons. 56 For completeness I should note that QYFM did not dispute that the Minister's legal representatives had earlier advised him that their client's view was that he would need to arrange for a transcript to be supplied to the Court if he intended to pursue his grounds of review. A copy of that correspondence was supplied to the Court at its request, as was later correspondence from the Minister to the Applicant covering the provision of a USB containing two audio files from the proceeding in the Tribunal. No application for an adjournment was sought to facilitate the transcription of that material. I am satisfied that had there been any merit in the grounds advanced, QYFM was not denied the opportunity to refer to the evidence as might have sustained them before the Court.

Orders and disposition 57 I will order that the application be dismissed. At the hearing QYFM submitted that he was impecunious. Beyond that circumstance however neither party submitted that costs should not follow the event. Impecuniosity, standing alone, is not a reason for a costs order not to be made. I have concluded that the application was without prospects of success and without merit. I will order that the Applicant pay the First Respondent's costs, as agreed or in default of agreement as assessed. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.