APPELLANTS QUESTIONS WHY THEY WEREN’T ALLOWED TO REVIEW THE DOCUMENTS WHICH CAUSED THE CANCELLATION OF THEIR VISA
DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 290 (30 March 2021)
This a migration case where the appellants alleged that they should have been permitted to view the documents or copies of them and that the Tribunal’s failure to allow them to do so resulted in it exceeding its jurisdiction by not giving the appellants a “hearing” of the kind contemplated in the Migration Act 1958.
The family arrived in Australia as “irregular maritime arrivals”. The appellants claimed that they were stateless. he appellants were granted protection visas (Class XA) Subclass 866.
DCP17 was sent a Notice of Intention to Consider Cancellation of his protection visa. DCP17’s Notice advised him that the Department was of the view that he had provided incorrect information in his visa application, and therefore had contravened S.101(b) of the Migration Act.
The incorrect information DCP17 was alleged to have provided was that he was stateless, when he was in fact, an Iranian national. The allegation that DCP17 was, in fact, an Iranian national was based on a number of documents provided to the Department. The documents included Shenasnamehs (Iranian identity documents) said to be for the three appellants, a passport for DCP17, savings booklets and health insurance booklets for DCP17 and DCR17 (including photos), a receipt for the purchase of a mobile phone service for DCP17, and a contract for the purchase of an apartment for DCP17, and a marriage certificate naming DCP17 and DCR17. There were also a number of other documents in the name of the second appellant, including a series of school reports.
An issue before the Administrative Appeals Tribunal was the authenticity of identity documents about the appellants, which had been provided by a third party to the (then named) Department of Immigration and Border Protection. The question raised by the grounds in each appeal is in substance whether in the circumstances of these reviews before the Tribunal, the appellants should have been permitted to view the identity documents, or been given copies of them, and whether the Tribunal’s failure to allow them to do so resulted in it exceeding its jurisdiction either by not giving the appellants a “hearing” of the kind contemplated by s 425, or by reason of a contravention of s 424A of the Act.
Should the appellants be permitted to review or have copies of the documents/ Is the tribunals failure to allow the appellants to examine the documents resulted in the excess of jurisdiction by not giving the appellants a “hearing” of the kind contemplated by the Migration Act?
If the documents were authentic (as the Tribunal found), this fundamentally undermined the whole basis on which the appellants had applied for protection visas – namely, their statelessness. On the other hand, if the documents were not authentic, then this may have been highly probative of the appellants’ account about how family members were trying to exact revenge on them. In that sense, the authenticity of the documents, independently from the consistency of the appellants’ accounts about them, was capable of leading to a “rejection, denial or undermining” of the appellants’ responses to the allegations of contraventions of S101 of the Act
In the present circumstances of the review before the Tribunal, the appellants had no opportunity to see the original identity documents as provided first to the Department, then to the delegate, and then to the Tribunal. Nor did they have the opportunity to see copies.
The appellants could give no direct evidence to the Tribunal about why the documents were not authentic (which was their position). They could not have the documents independently examined and put that information before the Tribunal. They could not meaningfully answer the “information” that “would be the reason or part of the reason” for the Tribunal affirming the decision under review; namely that the identity documents were authentic and proved on their face that the appellants were Iranian citizens and were not stateless, and therefore also proved on their face that the appellants had given “incorrect” information in their visa applications, being the basis for the cancellation of their protection visas.
Conclusion: The appeal shall be allowed. The decision of the Tribunal is hereby set aside.