FEDERAL COURT OF AUSTRALIA Al-Qadhi v Minister for Immigration and Border Protection [2017] FCA 1300 File number: WAD 527 of 2017 Judge: MCKERRACHER J Date of judgment: 9 November 2017 Catchwords: PRACTICE AND PROCEDURE – application for an urgent injunction to restrain the Minister from making an adverse decision in regards to the applicant's application for Australian citizenship – where first respondent seized documents pursuant to s 45B(1) of the Australian Citizenship Act 2007 (Cth) on the basis of a reasonable suspicion that the documents were 'bogus documents' as defined by s 5(1) of the Migration Act 1958 (Cth) – whether applicant will suffer severe and irreparable consequences if the Minister was to make a decision adverse to his citizenship application – where there is no evidence of any specific immediate consequence or actual loss to be sustained as a consequence of an adverse decision – where applicant will not lose any right of substantive merits review in respect of any adverse citizenship decision – relevant principles for granting interlocutory relief Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 13, 16(1)(d) Australian Citizenship Act 2007 (Cth) ss 16, 21, 21(2)(h), 24, 24(3), 45A(2), 45B(1), 45(2)(b), 45C(1)(c), 45C(1)(d), 48B Federal Court of Australia Act 1976 (Cth) s 21 Migration Act 1958 (Cth) ss5(1), 195A, 501(6)(c)(ii) Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Durani v Minister for Immigration and Border Protection (2013) 223 FCR 391 Harbour Radio Pty Limited v Australian Communications and Media Authority [2012] FCA 439 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 Date of hearing: 6 November 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: Mr MGS Crowley Solicitor for the Applicant: Putt Legal Counsel for the Respondents: Mr A Gerrard Solicitor for the Respondents: Australian Government Solicitor ORDERS WAD 527 of 2017 BETWEEN: MOHAMMED AL-QADHI Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent CINDY WITTENBAKER Second Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 9 NOVEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application filed 3 November 2017 be dismissed. 2. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCKERRACHER J: INTRODUCTION 1 By originating application filed on 23 October 2017, the applicant seeks a variety of relief, including an order under s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in these terms: (a) An order under s 16(1)(d) of the ADJR Act directing the respondent, and any of his delegates, to refrain from making a final decision on the applicant's application for citizenship unless and until the respondent: (i) reveals the nature and content of certain unspecified 'other information' referenced by the respondent as informing its decision-making; (ii) reveals the nature and content (as opposed to conclusions) of a document examiner's report informing the respondent's seizure decision and likely to inform its final decision; and (iii) makes an enquiry with the Yemeni authorities as to authenticity of the documents it has issued. THE CASE 2 The originating application is supported by a statement of claim, which effectively pleads the following matters: The applicant is a citizen of Yemen and an Australian permanent resident. Yemen is, and has been since about 2015, in a state of civil war. The applicant has applied for Australian citizenship under s 16 of the Australian Citizenship Act 2007 (Cth). A final decision has not been made. On or about 18 January 2017 the first respondent, by his delegate, seized certain identification documents supplied by the applicant claiming a reasonable suspicion that the documents were 'bogus documents' as defined by s 5(1) of the Migration Act 1958 (Cth) and therefore subject to seizure under s 48B of the Citizenship Act. The documents were: (a) a Yemeni Birth Certificate, in the name of 'Mohammad Abdulrahman Al Qadhi; and (b) a 'Personal Identification Card' in the name 'Mohammad Adbulrahman Ahmad Al Qadhi. On or about 15 February 2017, the applicant requested a statement of reasons pursuant to s 13 of the ADJR Act. On or about 15 March 2017 the first respondent's delegate responded that seizure decision was 'based on a reasonable suspicion that the documents were forfeited' (sic), and reference a document examination having been performed. It was then stated that the 'conclusions that the documents were counterfeit' were based on: (a) 'evidence of substitution of handwritten personal data' (birth certificate); and (b) 'an absence of security features expected in secure documents' (identity card). On or about 15 June 2017, the applicant then provided to the first respondent further identity documents obtained from the Yemeni Embassy in Jakarta in light of the civil war in Yemen itself and suggested that the Minister confirm the authenticity of their issue with the Yemeni Embassy in Jakarta, and provided contact details for that purpose. The further documents were: (a) a birth certificate in the name of 'Mohammed Ahmad Al Qadhi; (b) a Personal Identification Card in the name of 'Mohammed Abdulrahman Ahmad Al Qadhi'; and (c) an extract of 'Individual Civil Register' in the name of 'Mohammed Abdulrahman Ahman Al Qadhi'. By letter dated 28 August 2017 marked 'DRAFT' the first respondent sent the applicant an 'Invitation to comment on adverse information' by which it notified the applicant of a further seizure on the basis of a conclusion of a reasonable suspicion that the documents were 'bogus documents' informed by another document examination. It was said that the conclusion was based on: (a) unspecified 'other available information'; (b) a 'fraudulent' alteration by substitution of a photograph (identity card); (c) substitution of personal data on an otherwise legitimate birth certificate; and (d) fraudulent alteration of the Civil Register document by substitution of personal data. The first respondent responded to a Freedom of Information application with the document examiner's report eviscerated of all substantive information. The first respondent has declined to provide any further information of the document examiner's specific concerns. The first respondent has declined to identify the 'other available information'. The applicant contends there is a denial of procedural fairness because the applicant cannot meaningfully respond to conclusionary propositions advanced by the first respondent. The applicant further contends that in the particular circumstances of an applicant from Yemen, the posture of the first respondent places the applicant in an impossible position, such that for the first respondent to proceed to reach a final decision without attempting to confirm the authenticity of the documents with the issuing authority is a constructive failure to exercise jurisdiction, or is otherwise unreasonable. The applicant contends: (a) The documents are not 'bogus documents' within the meaning of subsection 5(1) of the Migration Act because inter alia: (i) they were issued in respect of the applicant by the Yemeni authorities; and/or (ii) any alteration was made by a person with authority to do so; (b) the applicant is entitled to recover the documents under s 45C(1)(c) of the Citizenship Act; (c) the applicant is entitled to a declaration under s 45C(1)(d) of the Citizenship Act that the documents are not forfeited; (d) the applicant is entitled to a declaration under s 21 of the Federal Court of Australia Act 1976 (Cth) that the respondent must authorise the applicant to access the documents notified as seized on 18 January 2017 under s 45(2)(b) of the Citizenship Act so that the applicant's own examination of the documents can be performed; (e) that by reason of the conduct (as that term is used in the ADJR Act) of the first respondent by his delegate, the first respondent has: (i) denied the applicant procedural fairness in not identifying the 'other available information' and not descending to the content of the issues identified by the document examiner in sufficient detail so as to enable a proper response; and (ii) failed to make an obvious enquiry of a readily available fact. STATUTORY FRAMEWORK 3 Section 21 and s 24 of the Citizenship Act relevantly provide as follows: 21 Application and eligibility for citizenship (1) A person may make an application to the Minister to become an Australian citizen. … General eligibility (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person: (a) is aged 18 or over at the time the person made the application; and (b) is a permanent resident: (i) at the time the person made the application; and (ii) at the time of the Minister's decision on the application; and (c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and (d) understands the nature of an application under subsection (1); and (e) possesses a basic knowledge of the English language; and (f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and (g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and (h) is of good character at the time of the Minister's decision on the application. … 24 Minister's decision (1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Note: The Minister may cancel an approval: see section 25. (1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8). (2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7). … Identity (3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. … (emphasis added) THE APPLICATION 4 By an urgent application filed on 3 November 2017, the applicant sought an injunction to restrain the Minister from making a decision which would refuse the applicant's application for citizenship, unless and until the following matters are satisfied: (a) the nature and content of certain unspecified 'other information' referenced by the respondents as informing their decision-making is revealed to the applicant; (b) the nature and content (as opposed to conclusions) of a document examiner's report referenced by the respondents as informing their decision-making is revealed to the applicant; (c) the applicant is afforded an opportunity to have his own document examiner inspect the impugned identity documents and to prepare a report; and (d) the respondents make all reasonable efforts to enquire with the Yemeni issuing authorities in Jakarta to confirm whether the impugned identity documents were in fact issued in respect of the applicant as claimed. Evidence 5 The urgent application was supported by a corroborating affidavit sworn by the applicant's solicitor, who essentially advances the history of the exchanges between the parties from which the following is apparent. 6 On 7 February 2017, the applicant received a letter from the second respondent to whom I will refer (collectively with the first respondent) as the Minister, advising that the document provided on 18 January 2017 had been seized under s 45B(1) of the Citizenship Act on the basis that on an assessment of the document and other available information, it was reasonably suspected this document was a 'bogus document' as defined by s 5(1) of the Migration Act, as the birth certificate of the applicant was fraudulently altered. Additionally, it was asserted that there was a reasonable suspicion that the personal identification card for the applicant was counterfeit. Each document was therefore deemed to be forfeited to the Commonwealth under s 45A(2) of the Citizenship Act. The applicant was advised of his options to institute proceedings against the Commonwealth to either recover the document or seek a declaration the documents are not forfeited. 7 The applicant's solicitors responded on 15 February 2017 seeking a statement in writing setting out the findings on the material questions of fact, referring to the evidence or other material on which the findings were based and giving reasons for the decision pursuant to the ADJR Act. 8 The Minister responded on 15 March 2017 with a statement of reasons, supplementing the original advice, stating that the suspicion was based on findings contained in a Documents Examination Case Report, prepared by an experienced forensic examiner of documents, following examination of the two documents. It was stated that the conclusion that the documents were counterfeit was based on: (a) the absence of security features expected in security documents (in relation to the identity card); (b) the ineffective operation of security characteristics (in relation to the identity card); and (c) evidence of substitution of handwritten personal data (in relation to the birth certificate). 9 Shortly after, on 20 March 2017, the Minister also advised the applicant that he was to be given the opportunity to comment on, or provide an explanation about, adverse information that may lead to a decision to refuse his application to become an Australian citizen. The Minister explained that an adverse decision may be made because before approving the applicant's citizenship, he must: (a) be satisfied that the applicant is of good character pursuant to s 21(2)(h) of the Citizenship Act; and (b) not be prohibited from approving the applicant becoming an Australian citizen under s 24(3) of the Citizenship Act. 10 It was further explained that on 7 February 2017, a request had been sent for facial comparison of two images available to the Department for Immigration and Border Protection. One of the images was from the biometric capture taken at the time the applicant sat his citizenship test on 7 September 2015. The other was from the Yemen Personal Identification Card as submitted to support the claimed identity. The expert examiner had concluded that the face was not of the same person. 11 This, in turn, impinged upon the good character test. 12 By letter dated 30 May 2017, the applicant's solicitor insisted on behalf of his client that his name and date of birth as supplied to the Department was correct. Several documents were attached to that letter, being documents certified by the Embassy of Yemen as well as related NAATI translations. At that stage, the applicant was currently away on a remote mine site. 13 The Department responded to a further information request by providing some additional documentation. The applicant contends such documentation is quite inadequate to allow him to ascertain the concerns the Minister has about the documentation and why it might be 'bogus'. For example, the content of the facial image comparison report is heavily redacted insofar as its reasoning is concerned. Similar redactions apply to the report of the forensic document examiner. 14 By letter from the applicant's solicitors dated 13 June 2017 to the Minister, it was advised that the further identification documents the applicant had supplied were obtained from the Yemeni authorities in Sanaa. These were forwarded to the Embassy in Jakarta for certification. The contact person for the documentation at the Jakarta Embassy was identified. His phone number was also supplied. A statutory declaration was provided from the applicant concerning the original provision of his identity documents. The Minister was urged to conduct further facial comparisons and to conduct enquiries in Yemen and Jakarta to verify the applicant's identity. 15 A number of further exchanges ensued, the applicant maintaining his position and the Minister declining to take further steps as requested by the applicant. The applicant also made the point that he had nose surgery conducted in Darwin about three years. By 2 November 2017, the Minister had indicated that he would not delay the making of a decision on the applicant's citizenship application. These proceedings were issued the following day. THE APPLICANT'S CONTENTIONS 16 It is common ground that the applicable principles for interlocutory relief are set out in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 where Gleeson CJ and Crennan J said (at [19]) (footnotes omitted): The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed. … 17 The applicant argues that he would suffer severe and irreparable consequences if the Minister were to make a decision (presumably) adverse to his citizenship application. Such a decision would be made, according to the applicant, on a legally unfair basis, and the damage would be suffered, notwithstanding that a right of review of the decision would be available to the applicant in the Administrative Appeals Tribunal. 18 The applicant contends the Minister's correspondence exposes the following reasoning: (a) the applicant would be refused Australian citizenship as being ineligible under s 21(2)(h) of the Citizenship Act because the Minister would not be satisfied the applicant was a person of good character; (b) by notices of seizure of 'bogus' documents on 18 January 2017 and 28 August 2017, the Minister has already formed a 'reasonable suspicion that the [identity] documents [supplied by the applicant] were counterfeit' or 'fraudulent'; (c) chapter 11 of the Citizenship Policy describes that a person of good character would be honest, be truthful and not practise deception or fraud in their dealings with the Australian Government, including not providing false personal information or other material deception during visa and citizenship applications; and (d) the Minister would not otherwise be satisfied of the applicant's identity so that the conferral of citizenship must be refused under s 24(3) of the Citizenship Act. 19 Currently the applicant is a lawful non-citizen of Australia as the current holder of a permanent residency visa. The consequence of a finding that he is not of 'good character' under the Citizenship Act would, the applicant says, 'lay the foundation' for the cancellation of the applicant's permanent residency visa under the Migration Act, including that relevant to the applicant's 'past and present general conduct' under s 501(6)(c)(ii) of the Migration Act. Section 501(6)(c) provides: 501 Refusal or cancellation of visa on character grounds (6) For the purposes of this section, a person does not pass the character test if: … (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or … 20 In the end, the applicant says the consequence of the cancellation of his permanent residency visa would be the loss of his working rights, and the loss of his current fulltime employment as a 'FIFO' worker. There may also be the prospect of detention, he says, given the applicant was originally granted a protection visa on 7 September 2011, pending a decision of the Minister, personally, whether or not to exercise his power to grant a visa under s 195A of the Migration Act. 21 The applicant relies heavily on a lack of procedural fairness. He contends that procedural fairness requires that the applicant understand the 'nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person', relying on Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, where their Honours said (footnote omitted) (at [83]): Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry. 22 In this regard, the reference by the Minister in his letter of 28 August 2017 to unspecified 'other available information' as a foundation for the 'reasonable suspicion' that the identity documents were 'bogus documents', the applicant submits, is quite unsatisfactory. The applicant requested an explanation of that 'other available information' by letter of 12 October 2017, but has received no substantive response. 23 It is inadequate, the applicant contends, simply to receive a narration of conclusions of a document examiner as this is not the 'content of information' that the repository of the power has taken into account as a reason for coming to a conclusion, presumably, adverse. In this regard, the applicant says that the Minister's 20 March 2017 letter does not satisfy the requirements of procedural fairness, nor does the content of the letter of 28 August 2017, which was a further summary of conclusions reached in respect of the seizure of the substitute identity documents. By letter of 28 August 2017, the Minister summarised the conclusions of the document examiner in respect of the seizure of the substitute identity documents as follows: (a) '[t]he conclusions that the identity card had been fraudulently alerted [sic] by photograph substitution'; (b) '[t]he birth certificate is a legitimately manufactured document which has been fraudulently altered. This conclusion is based on evidence of substitution of personal data (in relation to the birth certificate)'; and (c) '[h]as been fraudulently altered. This conclusion is based on evidence of substitution of personal data (in relation to the Civil Register document)'. 24 The applicant complains that the allegations made, effectively against him, are impossible for him to explain or meet because they are nothing more than conclusionary propositions narrating the findings of another person. Without the details of the missing 'security features' or the alleged ineffectuality of the 'security characteristics' or an explanation of the 'evidence' said to inform the conclusion of 'substitution of missing data', there is insufficient information to enable the applicant to meaningly respond. 25 In addition to the absence of procedural fairness, the applicant also complains about the failure on the part of the Minister to make obvious enquiries. 26 The applicant refers to the fact that he is from Yemen, which is in a state of civil war. He has provided documents which he claims are issued from the Yemeni authorities in Jakarta and a contact person within the Jakarta Embassy who might provide corroboration of the applicant's claims, but the difficulties arising from those circumstances are reasonably apparent. The applicant stresses the Minister is required to exercise powers reasonably and a failure to make an obvious enquiry may indicate that the Minster has constructively failed to exercise power or has exercised his power unreasonably: Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 per Nettle J where his Honour said (at [51]) (footnotes omitted): 51 As already mentioned, there was nothing in the relevant legislation that provided that PRISMS was to be treated as a conclusive record of enrolment. Hence, one obvious way of ensuring, or at least being more certain, that the plaintiff had ceased to be enrolled was to make a telephone inquiry of the University, the direct and authoritative source of confirmation of the plaintiff's enrolment, just as the delegate had done on 20 February 2014 to check the plaintiff's address. Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so – by picking up the telephone and requesting the University to check whether the plaintiff's enrolment status as shown in PRISMS was in fact correct – and the clear link between the delegate's failure to make that inquiry and the delegate's determination to cancel the visa, I consider this to be a case in which the delegate's failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error. 27 The Minister agreed to delay making the decision for a brief period during which the Court could consider further submissions to be made by the applicant on the question of whether or not he would be immediately subject to irreparable harm if the decision was made. The applicant subsequently informed my associate that he no longer presses the submission that his visa would be subject to mandatory cancellation and that he would not be filing any further submissions. In response to that correspondence, the Minister noted that consideration of any potentially applicable cancellation power is discretionary and provides an opportunity for the applicant to provide a response to any notice of intention to consider cancellation. CONSIDERATION 28 In my view, the great difficulty the applicant faces is demonstrating that the balance of convenience favours his application. Assuming for present purposes only that there is a serious question to be tried, it is difficult to establish that the Minister should be restrained from making a decision, which he is required to make by virtue of statute. This is particularly so in circumstances where there is no evidence of any specific immediate consequence or actual loss to be sustained, other than the suggestion that the Minister reaching a conclusion adverse to the citizenship application at this point may be a foundation or step towards the cancellation of the applicant's permanent residency visa. There is no suggestion that these steps are to occur immediately, or in the future. Indeed, there is no reason why the applicant could not make another citizenship application. 29 It is important to recognise in a case such as the present, the public interest is a factor in determining where the balance of convenience lies. In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, in which the applicant sought declarations of invalidity of statutory provisions and sought to restrain the exercise and enforcement of such provisions, Mason ACJ said (at 154) that the Court would protect a plaintiff's alleged constitutional right by restraining the enforcement of a statute where the plaintiff would suffer irreparable injury without any countervailing detriment to the public interest. The position is different, his Honour observed, however, where the proposed restraint on the enforcement of the statute would occasion a significant detriment to the public interest by preventing the defendant from enforcing a legislative scheme which is designed to protect the environment from pollution by litter. See also Harbour Radio Pty Limited v Australian Communications and Media Authority [2012] FCA 439 per Griffiths J (at [15]) and Durani v Minister for Immigration and Border Protection (2013) 223 FCR 391. 30 In my view, the following factors tell against the balance of convenience and injunctive relief: (a) the applicant is not yet an Australian citizen; (b) the final disposition of these proceedings will not confer citizenship upon the applicant. Nor will the Minister be bound to approve his citizenship application(s); (c) the applicant will not lose any rights of substantive merits review in respect of any adverse citizenship decision. No merits review would be limited to the evidence before the Minister's delegate; (d) the applicant does not lose any ability to lodge further applications for citizenship in the future; (e) there is no evidence of job loss; and (f) there is no indication of imminent detention. 31 In all these circumstances, neither the state of the evidence nor legal principle supports the grant of an injunction to restrain the Minister from exercising the statutory power, especially in circumstances where the decision would be reviewable under the relevant provisions of the Citizenship Act and subject to substantive merits review in the Tribunal. CONCLUSION 32 In those circumstances, the application must be dismissed with costs reserved. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 9 November 2017