AGJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 435
•16 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AGJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 435
File number(s): MLG 132 of 2018 Judgment of: JUDGE EGAN Date of judgment: 16 May 2024 Catchwords: MIGRATION LAW – whether the conceded error on the part of the Authority in the way in which it failed to consider new information under the provisions of s. 473DD of the Act was material or not – whether the applicant had provided a reasonable explanation for his failure to provide any documentary evidence of his identity, nationality or citizenship under the provisions of s. 91W of the Act – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss. 91W, 473CB, 473DD Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
DXG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 41
M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 13 May 2024 Date of hearing: 13 May 2024 Place: Melbourne Counsel for the Applicant: Mr M. Guo Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr M. Kenneally Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
<MLG 132 of 2018> FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
16 MAY 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Amended Application for Review filed on 26 April 2024 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Amended Application for Review fixed in the amount of $8,371.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
INTRODUCTION
The applicant is a twenty-eight (28) year-old Shia non-citizen of Australia who arrived in Australia as an unauthorised maritime arrival in or about 2012 at the age of about 16.
On 19 August 2016, by a Safe Haven Enterprise Visa (SHEV) application dated 20 May 2016, the applicant applied for a Protection Visa with the assistance of a solicitor and migration agent called “Refugee Legal”. [1]
[1] Exhibit 1 – Court Book (CB) p. 16-60.
In a statutory declaration forwarded to the Department with the SHEV application, the applicant surprisingly raised a claim relating to his fear of returning to Afghanistan, notwithstanding that he had not lived in Afghanistan, or had any relevant life experience in Afghanistan, since he was aged 2 or 3. For most of the time since he had left Afghanistan, he had lived in relative safety with his family in Pakistan, at a place where the rest of his family still lives. [2]
[2] CB p. 54-56.
By a letter from the then Department of Immigration and Border Protection dated 24 November 2016, the applicant was requested to attend an interview to discuss his visa application. [3]
[3] CB p. 72-74.
By an email dated 16 December 2016 sent to Refugee Legal, the applicant was asked to provide, inter alia, documentary evidence of his identity, nationality or citizenship pursuant to the provisions of s. 91W(1) of the Migration Act 1958 (Cth) (the Act). [4] Section 91W of the Act relevantly provided as follows:
[4] CB p. 77-82.
91W.The Minister must be satisfied a person meets the criteria for a protection visa pursuant to s 65 of the Act. A person does not meet the criteria if the grant of the visa is prevented by s 91W. Section 91W provides:
(1)The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant's identity, nationality or citizenship.
(2) The Minister must refuse to grant the protection visa to the applicant if:
a.The applicant has been given a request under subsection (1); and
b. the applicant refuses or fails to comply with the request…
c. the applicant does not have a reasonable explanation for refusing or failing to comply with the request…
d. when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant: i. refuses or fails to comply with the request; or
…
(3) Subsection (2) does not apply if the Minister is satisfied that the applicant:
a. has a reasonable explanation for refusing or failing to comply with the request…; and
b. either:
i. …; or
ii. has taken reasonable steps to produce such evidence.
By a further letter dated 20 December 2016, the applicant was asked to attend an interview on 17 January 2017 to discuss his visa application. [5]
[5] CB p. 85-87.
By an email response dated 22 December 2016, the applicant’s lawyer provided a statutory declaration sworn by the applicant, together with further information requested by the Department. [6]
[6] CB p. 92-98.
By a letter from the Department to the applicant (copied by email to the applicant’s lawyer) dated 23 July 2017, the applicant was advised that the Department had received adverse information concerning his visa application which would be the reason, or a part of the reason, for refusing to grant the visa. Reference was made in the letter to the fact that social media postings, and other information received, had indicated that the applicant’s family operated a very successful business in Quetta, and that the applicant’s elder brother, namely one NAME WITHELD, was a Pakistani citizen who had travelled extensively internationally on a Pakistan passport. It was also indicated that the applicant’s brother had not only identified himself as being a citizen of Pakistan, but that he had made patriotic statements concerning Pakistan. At Items 3 and 4 of such letter, it was said as follows: [7]
[7] CB p. 102-103.
Item 3
The information identified above indicates that your brother and father are citizens of Pakistan with identity documents in their possession. Based on this I am not satisfied that your status in Pakistan is as an illegal Afghan refugee, or that you are undocumented, and without identity documents to support your identity. This may lead me to find your identity is not as claimed, and that your country of reference is not Afghanistan as you claim.
•You may provide commend on this information
Item 4
You were previously requested to produce documentary evidence of your identity, nationality or citizenship for inspection by an officer of the department under section 91W(1) of the Migration Act 1958 (the Act). When this request was made, you were given a warning that the Minister cannot grant a protection visa to you if you refuse or fail to comply with the request or produce a bogus document in response to the request.
You have refused or failed to comply with the section 91W(1) request. Unless you have a reasonable explanation for refusing or failing to comply with the request, and either:
•Produce documentary evidence of your identity, nationality or citizenship; or
•Take reasonable steps to produce such evidence
your visa application must be refused.
If the Minister is not satisfied that you have a reasonable explanation and you do not produce documentary evidence, or take reasonable steps to produce such evidence, then your visa application must be refused under section 91W(2) of the Act.
Based on the information contained at items 1, 2 and 3 (as discussed above), I am currently not satisfied that you do not have documentary evidence of your identity, nationality or citizenship; or that a reasonable explanation has been given; or that reasonable steps to produce such evidence have been taken.
You may provide comment on this information.
In the 23 July 2017 letter, the applicant was then invited to give additional information as follows: [8]
[8] CB p. 103-105.
Invitation to give additional information
In accordance with section 56 of the Migration Act 1958 (the Act), I am inviting you to give further information on the matters discussed below, which are relevant to making a decision on your PV application.
Claimed ethnicity:
You have provided inconsistent statements about your ethnicity. In your statement of claims you identified as being of Hazara ethnicity and fear of harm of returning to Afghanistan for this reason. In a submission dated 22 December 2016, you stated that you are of Qizalbash ethnicity and explained the reasons for this inconsistency. These have been noted.
However I have concerns regarding the credibility of your claimed ethnicity for the following reasons:
•At PV interview you were unable to provide any detail, knowledge or understanding of the Qizalbash ethnicity you now claim to belong to;
•At PV interview you provided limited understanding of why you originally thought you were of Hazara ethnicity, identifying your name NAME WITHELD and religion as Shia;
•This limited evidence to support why you thought yourself to be Hazara, is also inconsistent with your ability to provide detail about the students who attended your school in Pakistan, and demonstrate an understanding that the non Hazara students who attended were identifiable as such due to their different facial features. Your ability to differentiate between Hazaras and non Hazaras at your school, sheds significant doubt on the reasons you have presented in your submission dated 22 December 2016, for the inconsistencies in your claimed ethnicity.
This may lead me to conclude that you are not the ethnicity you claim. Would you like to comment on this information?
Illegal residence in Pakistan as an undocumented Afghan refugee:
In your statement of claims you stated that you and your family had no right to enter Pakistan or to live there. However, the evidence you provided at your PV interview about your life, family and experiences in Pakistan was vague and lacked detail. When specifically questioned about this, you were unable to confirm or provide any information about the claimed illegal status and/or possession of identity documents of you or your family in Pakistan. I find this inconsistent with your claimed illegal status as an undocumented Afghan refugee in Pakistan.
•This may lead me to conclude that you are not an undocumented Afghan refugee living in Pakistan illegally. Would you like to comment on this information?
Timeframe for response
You must respond to this invitation to comment within 14 days after you are taken to have received this letter. You should provide your response in writing. Please send your response to me using the contact details provided below.
As this letter was emailed to you, you are taken to have received it at the end of the day on which the document was transmitted.
If you do not reply within the timeframe specified above your application may be decided without the Department taking any further action to obtain the requested information. If you are unable to provide this information within this time you should contact us using the contact details provided below.
Providing documents
The Department may make a decision on your application without requesting additional information. You should provide us with all the information you feel is relevant.
Do not send us original documents unless we ask you for them. If you send copies of your documents, ensure that they are certified copies.
If you provide us with fraudulent documents or claims, this may result in processing delays and possibly your application being refused.
Translating your documents
Documents in languages other than English should be accompanied by an English translation. The English translation must be an official certified translation from a National Accreditation Authority for Translators and Interpreters (NAATI) accredited translator. Translations provided by non-accredited translators outside Australia should be endorsed by the translator with their full name, address, telephone number, and details of their qualifications and experience in the language being translated.
Evidence of some of the social media posts referred to in the 23 July 2017 letter relating to the applicant’s elder brother were attached to such letter. [9]
[9] CB p. 107-134.
By an email dated 3 February 2017 from the applicant’s lawyer, the response to the request for further information was received by the Department. [10]
[10] CB p. 135-144.
By reasons dated 6 March 2017, a delegate of the Minister gave notice of the refusal of the application for the SHEV. The basis for the refusal was that the applicant had failed to provide a reasonable explanation as to why he had failed to provide documentary evidence of his identity, nationality or citizenship. [11]
[11] CB p. 158-184.
The matter was referred to the Immigration Assessment Authority (the Authority) for review of the decision of the delegate.
By a letter dated 30 March 2017, the applicant’s lawyer provided written submissions, a statutory declaration of the applicant, and other documents for consideration by the Authority. At the conclusion of the submissions, and after it had been contended that the applicant was a citizen of Afghanistan rather than a citizen of Pakistan, it was submitted as follows: [12]
“We submit that the Department’s finding with respect to Mr X’s nationality is unreasonable and not based on legally sound evidence. As this is the basis for refusing Mr X’s application, we respectfully submit that he should be found to be a person to whom Australia owes protection obligations.”
[12] CB p. 201-208.
By an email dated 3 April 2017, the lawyers for the applicant sent further voluminous material, in excess of 200 pages, to the Authority. [13]
[13] CB p. 219-422.
On 21 December 2017, the Authority affirmed the decision of the delegate.
At [5]-[6] of the reasons of the Authority, it was found as follows:
5. On 30 March 2017, the applicant’s representative provided a submission to the IAA which included argument addressing the delegate’s decision and included a number of new claims and other new information. Enclosed with the submission were a statutory declaration made by the applicant on 28 March 2017 and nine images of documents said to show that the applicant’s grandfather owned land in Afghanistan.
6. The submission includes the following other new information and claims:
•The use of surnames is less common in Afghanistan than it is in Pakistan.
•An undated Law Institute of Victoria fact sheet on social media evidence.
•A 2012 decision of the Family Court of Australia in which social media evidence is said to have been found not to be authentic.
•The school attended by the applicant (‘XX School’) is a private, rather than a public, school.
•The applicant’s older brother X is not willing to provide a copy of his false Pakistani documents. This is said to be evidence in support of the applicant’s claims.
•Country information dated 2013 suggesting that many Afghan refugees are believed to have illicitly acquired Pakistani national identity cards, through bribes or on the black market.
•Country information from 2012 suggesting that false passports are widely available in Pakistan.
•The applicant’s fiancée or wife’s brother-in-law lives in Lahore. He is fiercely opposed to his sister-in-law’s marriage to the applicant, a non-Syed. The applicant will be prevented from practising his Shia faith in Lahore for fear that his wife’s family will harm him.
•An undated article entitled ‘Marriage of Syedani with non-Syed is Haram.’
•A November 2016 decision of the Administrative Appeals Tribunal said to have found that it is not safe in Lahore for Shia Muslims as sectarian violence is occurring across Pakistan and Sunni extremist group Lashkar-e-Jhangvi has operational capacity across all of Pakistan. Effective state protection would therefore not be available.
•Country information dated 6 January 2017 suggesting that state protection for Shia Muslims in Pakistan is not effective.
•Country information dated 13 September 2016 suggesting that Shias in Pakistan are considered heretics and have been frequently targeted by Sunni extremist groups in recent years.
•UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan dated January 2017, said to indicate that the security situation for Shias in Pakistan has not improved.
At [7]-[30] of its reasons, the Authority considered the new information which had been provided. Having done so, it found that it was not satisfied that there was any demonstrated basis justifying its consideration of such information, and that there were no exceptional circumstances justifying such consideration. The Court respectfully adopts what was held by Gageler, Keane and Nettle JJ in M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [30] where it was held, in respect of the meaning of the term “exceptional circumstances”, “ … what will amount to exceptional circumstances is inherently incapable of exhaustive statement.”
On 18 January 2018, the applicant filed an Originating Application for Review. On 26 April 2024, the applicant’s lawyers filed an Amended Application for Review, the one remaining Ground of which relied upon at the hearing before the Court was as follows:
Grounds of application
1. The Immigration Assessment Authority misapplied s 473DD(b)(ii) in finding that it could not consider the new information described at [14] of its reasons, by:
a. irrationally concluding that the new information was not ‘supportive of’ the Applicant’s claims; or
b. wrongly concluding that the new information was not ‘credible information’, or information that ‘may have affected the consideration’ of the Applicant’s claims.
It was submitted on behalf of the applicant that the Authority had erroneously failed to consider new information provided to it subsequent to the adverse finding made by the delegate.
At the hearing before the Court, it was conceded on behalf of the first respondent that the Authority had erred in its application of s. 473DD(b)(ii) of the Act. Whereas s. 473DD(b)(ii) was focused upon whether new information “may have affected the consideration of the referred applicant’s claims”, the Authority had proceeded on the erroneous basis of whether the new information supported the applicant’s claims.
Section 473DD of the Act relevantly provided as follows:
Section 473DD
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Notwithstanding the concession referred to above, it was submitted on behalf of the first respondent that although the Authority had erred, such error was not jurisdictional in nature, because such error was immaterial, in the sense that even if the Authority had accepted and considered the new information, the Authority could not realistically have arrived at a different decision. [14]
[14] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024]
When considering s. 473CB(1) of the Act (which is acknowledged as being a provision mandatory in its terms, as opposed to the terms of s. 473DD), the Full Court of the Federal Court in Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379 at [32] and [33], per Yates, Murphy and Moshinksy JJ, said, in respect of a breach of s. 473CB(1), and in the context of the materiality of such breach, the following:
“[32] We consider the following principles to be applicable:
(1) Section 473CB(1) of the Act is mandatory in its terms. It provides that the Secretary must give the “review material” to the Authority. The Authority is required to undertake a de novo consideration of the merits of the decision referred to it rather than to correct error in the delegate’s decision. That the Authority must consider the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance with s 473CB(1), such that the Authority has all of the material before it that was provided by the applicant to the delegate: EVS17 at [32]-[34].
(2) Where the Secretary fails to give review material to the Authority in breach of s 473CB(1) that will result in jurisdictional error where the review material that was not provided could have resulted in the making of a different decision. A contravention only results in jurisdictional error if the error is material in the sense that it operates to deprive the applicant of the possibility of a successful outcome: EVS17 at [42]; Hossain at [30]-[31]; SZMTA at [2], [3], [48], [49].
(3) Whether the document or information which was not given to the Authority could have resulted in it making a different decision must be assessed “realistically”: SZMTA at [45], [49] and [50].
(4) In order for the Court to decide whether the Authority’s decision could realistically have been different evidence of the content of the document or information is relevant and admissible, and it is appropriate to have regard to the Authority’s decision: SZMTA at [50] and [71].
(5) The applicant for judicial review has the onus of proof to show that the missing document or information is material: SZMTA at [4], [41].
(6) Speculation as to how the missing document or information “may” have affected the decision is not enough to discharge the onus of demonstrating materiality. The Court must decide whether non-compliance with s 473CB(1) has operated to deprive the applicant of the possibility of a successful outcome; i.e. whether the Authority’s decision could realistically have been different: SZMTA at [68], [69] and [71].
(underlining inserted)[33] Contrary to one aspect of the Minister’s submissions, the relevant test does not require an assessment of the likelihood of the omitted review material affecting the decision. The test is whether the omitted review material could realistically have resulted in the decision-maker making a different decision: i.e., whether the visa applicant has been deprived of the realistic possibility of a successful outcome.”
It is, with respect, clear that the Full Court in CPA16 followed the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4] and [41] of the Court’s judgement on the question of onus of proof. Those findings in SZMTA were as follows:
[4]Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof. The Full Court was correct to hold in CQZ15 that evidence of the content of notified information can be relevant to the determination of materiality and can on that basis be admissible in such an application. The Full Court was also correct to find on the evidence adduced in BEG15 that the undisclosed and incorrect notification in that case was immaterial. The undisclosed and incorrect notification in SZMTA was similarly immaterial and did not result in jurisdictional error.
…
[41]There is no dispute between the parties that an incorrect, and therefore invalid, notification by the Secretary that s 438 applies in relation to a document or information can give rise to jurisdictional error in the conduct of a review. There is also no dispute between the parties that it is the applicant for judicial review of the decision of the Tribunal who bears the onus of proving that a jurisdictional error has occurred.
It was at [22] of the written submissions of the applicant filed on 26 April 2024 that an attempt was made to satisfy the onus of proof imposed upon the applicant to demonstrate how a consideration of the new information by the Authority could realistically have resulted in the Authority arriving at a different decision in favour of the applicant. It was submitted that “ … on any view, the new information of the brother’s unwillingness to hand over false documents was plainly consistent with the applicant’s argument and evidence that the documents were false.”
The reference to the elder brother having been unwilling to hand over false documents of his Pakistani citizenship was first raised, late, at [8] of the most recent statutory declaration of the applicant dated 28 March 2017, which relevantly provided as follows: [15]
8.The Department said that I didn’t provide the copies of my brother’s fake documents to prove they are fake. I have been advised against providing these documents. Further, when I spoke to my brother about it, he refused to give me his documents.
[15] CB p. 206.
Such claim had not been raised at any earlier time by the applicant, in either lengthy submissions, or earlier statutory declarations, provided to the Department. That was in circumstances where the applicant had been legally represented by private lawyers even before he lodged his SHEV application.
Contextually, the Authority was required to look at the new information in the light of the information and evidence which was already before it. The Authority reasonably considered why such new information had only come to light, upon request by the Authority, at such a late stage. At [13] and [14] of its reasons, the Authority found as follows:
[13]The applicant’s representative provides the new information that the applicant’s older brother R is not willing to provide copies of his false Pakistani identity documents. She submits that this is evidence in support of the applicant’s claims. The basis for this proposition is unclear. She referred to the delegate’s statement that ‘despite the claims of the applicant’s father and brother having fake Pakistani identity documents, none of these have been submitted for consideration as part of the applicant’s PV application’ and states that she finds it incredible that the department would request that bogus documents be provided as part of an application, especially as they are not in the applicant’s name, nor have they ever purported to have been used by the applicant.
[14]The applicant has submitted other documents that are not in his name. However, he was not asked to provide copies of his brother R’s or his father’s allegedly false Pakistani identity documents. I accept that he may not have been aware of the adverse inference that might be drawn by delegate from his failure to provide copies of these documents. I am satisfied that this is information that was not and could not have been provided to the delegate before she made her decision. I do not however, accept the proposition that this information is supportive of the applicant’s claims. In all the circumstances, I am not satisfied that exceptional circumstances exist to justify the consideration of this information.
That the Authority identified that an adverse inference could have been drawn against the applicant by reason of the applicant’s failure to produce copies of his elder brother’s passport/citizenship card, or some other documentation relating to his Pakistani citizenship, whether valid or fake, was of no moment. It was the applicant’s case that his brother had obtained Pakistani citizenship by the submission of fake documents, the procurement of which in Pakistan was something which relevant country information indicated was rife. In circumstances where the submission of fake documents to a government department in Australia was unlikely to come to the attention of any Pakistani government authority, it was reasonable for the Authority to take into account the fact that such documents had not been produced. It was reasonable for the Authority to consider that, in circumstances where there was no evidence that the applicant’s elder brother and the applicant were in some way estranged, the elder brother would have provided such assistance to the applicant as was requested. There was no extreme illogicality or irrationality in the Authority making such observation.
In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:
“[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
[61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”
The finding of the Authority at [14] of its reasons that the claim concerning the alleged refusal of the elder brother to provide his allegedly fake citizenship documents to the applicant was not supportive of the applicant’s claims was unexceptional. Such finding was but part of the continuum in the Authority’s non-acceptance of all of the other claims made by the applicant. The non-acceptance of those other claims by the Authority, not relevantly challenged in either the Grounds of Review, or in the applicant’s written submissions, was important. The Authority was entitled to assess the evidence before it as a whole. Having done so, and on a plain reading not only of [13]-[14] of its reasons, but also on the whole of its reasons, the Authority was clearly unprepared to find that the claim about the brother’s alleged unwillingness to hand over false documents was capable of being believed.
The mere fact that a claim is made does not render it capable of being believed. An assessment as to whether a claim is capable of being believed or not is a question for the decision-maker, having regard to all the evidence before them. The Authority intellectually engaged with that issue. The Authority clearly considered that the acceptance of any such claim would merely have given rise to speculation as to whether the claim was factually based, or whether it was fictional. In such circumstances, and in the absence of any compelling evidence probative of the applicant’s claim, be it either actual or circumstantial, the Authority was entitled to regard it as incapable of being believed. The applicant, therefore, had failed to discharge his onus.
In the present matter, the proposition advanced on behalf of the applicant was that because a new claim had been made, then at the least, such claim was “capable of belief”. It was submitted that any such claim must be a claim which may have affected the Authority’s consideration of the applicant’s claims under s. 473DD, and thereby result in the subject error on the part of the Authority being a material error, warranting remitter, with all of the attendant delays associated therewith, irrespective of the merits of the claim. Should that proposition be accepted, there would be little utility in the first respondent participating in the administrative review of any decisions of the Authority which were adverse to applicants. The submission went too far and was untenable.
The Court finds that the failure on the part of the Authority to relevantly consider the new information was a decision which another reasonable, logical and rational decision-maker could have arrived at based upon the same material as was before the Authority. [16] It was not a decision which lacked an evident and intelligible justification. [17]
[16] SZMDS at [135] per Bell and Crennan JJ.
[17] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and
Having considered all of the evidence and submissions before it concerning the new information, the Authority was entitled to not consider the new information.
Request for Proof of Identity, Nationality or Citizenship
As to the request by the Minister under s. 91W of the Act for the provision of documentary evidence of the applicant’s identity, nationality or citizenship, the Authority at [36]-[41] of its reasons found that the applicant had not produced such evidence and that he had failed to comply with the request. The Authority found as follows:
Request under section 91W
36.By letter dated 24 August 2016, the Minister requested the applicant produce for inspection documentary evidence of his identity, nationality or citizenship under s.91W(1) of the Act. He was advised that if he refused or failed to comply with the request, or produced a bogus document, and if the Minister was not satisfied that he had a reasonable explanation for refusing or failing to comply with the request or producing a bogus document, then the Minister must refuse to grant the visa. I am satisfied that the request complied with s.91W(1) and 91W(2)(d).
37.In a statutory declaration dated 22 December 2016 the applicant responded to the request to provide documentary evidence of his identity, nationality or citizenship. He did not provide any documentary evidence of his identity, nationality or citizenship but provided some explanation, which is discussed below. I note there is no documentary evidence of the applicant’s claimed name before me. The delegate accepted that the applicant’s name was as claimed on the basis that his evidence regarding his name had been consistent. I am not satisfied that this name is the applicant’s name, given the absence of any documentary evidence. However, for the purposes of this review, I have proceeded on the basis that his name is as claimed.
38.The delegate sent the applicant a s.57 invitation in January 2017, which among other things, invited the applicant to comment on information that, in the delegate’s opinion, indicated that the applicant’s father and brother were citizens of Pakistan with identity documents in their possession. The delegate invited the applicant to comment on the fact that, based on that information, she was not satisfied that the applicant did not have documentary evidence of his identity, nationality or citizenship, that he had given a reasonable explanation, or that reasonable steps to produce such evidence had been taken.
39.With a 3 February 2017 response to the s.57 invitation, the applicant provided eight poor quality images of documents, apparently in Arabic. The applicant’s representative indicated that these were copies of the applicant’s father’s Afghan passport, Afghan driver license, and Afghan Taskera (Afghan identity card). She indicated that English translations had been sought, and undertook to provide them as soon as practicable. It appears that translations of these documents were not provided to the delegate. The applicant also provided copies of the court documents previously discussed. No other documents were provided.
40.In the absence of translations of the documents purporting to relate to the applicant’s father, I cannot be satisfied as to their content. Even if translations of the documents were before me, and I was to accept they were copies of genuine documents, I could not be satisfied that these documents relate to the applicant’s father given the absence of any other documentary evidence indicating the applicant’s father’s name or the applicant’s name. Even if I were to accept that they were genuine documents relating to the applicant’s father, which I do not, they would be at most evidence of his father’s nationality at a point in time. I note that the date of issue of the purported passport is 1989. I am not satisfied that these images are documentary evidence of the applicant’s identity, nationality or citizenship.
41. There is no evidence before me that the applicant has produced documentary evidence of his identity, nationality or citizenship and I find that he has failed to comply with the request.
At [42]-[66] of its reasons, the Authority undertook a detailed analysis of all aspects of the applicant’s explanations as to why no relevant identity, nationality or citizenship documentation had been produced by him. After it had done so, the Authority was not satisfied that the applicant had been truthful about his possession of documentary evidence of his identity, nationality or citizenship whilst he was in Pakistan. In particular, at [63]-[68] of its reasons, the Authority found as follows:
63. While I recognise that the applicant was a young person of approximately 16 years of age at the time he left Pakistan, I found his reliance on his youth at the time that he lived in Pakistan as an explanation for his lack of knowledge about his status unconvincing given in particular, his evidence regarding his employment in the family jewellery shop for approximately five years, his awareness of the issues faced by the many undocumented Afghan refugees in Quetta, and his claimed knowledge of his family’s escape from Afghanistan. I note also that the applicant claimed the police used to harass his brother in the jewellery shop due to his lack of documentation and I consider it highly unlikely the applicant would not have been aware of this had it occurred.
64. I find it hard to accept that the applicant would not have obtained an identity document to show if questioned regarding his status in a setting where he claimed harassment of undocumented refugees occurred, and where his own brother R indicated that he had been harassed due to his lack of documentation in the jewellery shop where the applicant worked. It is of concern to me that the applicant has not provided any documentation at all relating to his identity, including any school or other records that may indicate some recognition of his identity. As discussed, there is no documentary evidence before me to support any aspect of the applicant’s claimed identity, including his name. While the applicant provided copies of some untranslated documents purporting to relate to his father’s Afghan nationality, I have not accepted that these documents are documentary evidence of the applicant’s identity, nationality or citizenship.
65. The applicant’s evidence suggests that he was a young person with substantial exposure to everyday life in Quetta through his schooling and employment, and an awareness of the importance of identity documentation and issues of nationality for people from Afghanistan living in Quetta. I do not accept that his young age at the time he left Quetta represents a plausible explanation for his lack of knowledge about his and his family’s documentation and status in Pakistan. It is of significant concern to me that when asked whether he had asked his parents about documentation and his or their status in Pakistan, the applicant indicated that he had not done so. I found his evidence as to his reasons for not doing so unconvincing and I am not satisfied that he took reasonable steps to produce evidence of his evidence of his identity, nationality, or citizenship.
66. I am not satisfied that the applicant has been truthful about his possession of documentary evidence of his identity, nationality or citizenship in Pakistan. Considering the evidence as a whole, I am not satisfied that the applicant has provided a reasonable explanation for failing to produce documentary evidence of his identity, nationality, or citizenship. As discussed, neither am I satisfied that he has taken reasonable steps to produce such evidence.
Conclusion
67. There is no evidence before me that the applicant has produced documentary evidence of his identity, nationality or citizenship. I find that the applicant has not provided a reasonable explanation for his failure to comply with the request under s.91W for the purpose of either s.91W(2)(c) or (3)(a).
68. 91W applies to the applicant. Therefore, the grant of the visa is prevented by that section.
In DXG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 41 at [11]-[20] per Beech, Wheelahan and O’Bryan JJ, it was held:
10. …
11.The Explanatory Memorandum to the Migration Amendment (Protection and other Measures) Bill 2014 (Cth) stated that those amendments were to:
make clear that it is an asylum seeker’s responsibility to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claim
and to:
create grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship, and does not have a reasonable explanation for doing so, including when an applicant provides bogus documents to establish their identity or either destroys or discards such evidence, or has caused that evidence to be destroyed or discarded.
12.The Explanatory Memorandum continued:
Schedule 1 of the Bill contains amendments which contribute to the integrity and improve the efficiency of the onshore protection status determination process. The measures clarify the responsibility of asylum seekers and encourage complete information to be provided upfront. The measures apply to all asylum seekers regardless of their mode of arrival.
New section 5AAA makes clear that for the purposes of the Migration Act, it is an asylum seeker’s responsibility to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations (however arising) and to provide sufficient evidence to establish that claim. ...
...
Amended section 91W and new section 91WA relate to the provision of documentary evidence of identity, nationality or citizenship for the purposes of a protection visa application and are integrity measures. Establishing an asylum seeker’s identity is a critical factor in determining whether a non-citizen engages Australia’s protection obligations. The amendments establish grounds to refuse the grant of a protection visa to a protection visa applicant who:•refuses or fails to provide evidence of identity, nationality or citizenship when requested to do so;
•provides a bogus document in response to such a request or provides bogus documents for the purposes of their application; or
•destroys or disposes of documentary evidence of identity, nationality, or citizenship, or causes such evidence to be destroyed or disposed of.
The refusal power will not apply if the applicant has a reasonable explanation and either produces documentary evidence of their identity, nationality or citizenship or has taken reasonable steps to provide such evidence. ...
13.The Minister’s power to grant visas, including protection visas, under the Act is contained in s 65, which interacts with s 91W. Relevantly, s 65(1) provides as follows:
Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
14.The purpose of the foregoing provisions was explained by Mortimer and Wigney JJ (Siopis J agreeing) in BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72; (2017) 252 FCR 97 at [62]- [63]:
62.Essential to regulating the coming into and presence in Australia of non-citizens is to understand who they are, and where they have come from. The role of false documentation in the movement of people around the world is a notorious fact. It is unsurprising the legislature has seen fit to deal with the provision of false or inaccurate documentation in express terms in many places, and in many ways, in the Migration Act as an essential part of securing the objective in s 4(1).
63.More particularly, an individual’s identity, nationality and citizenship are critical in the assessment of a protection visa application. This information goes to the fundamentals of the decision-making process, such as the country of nationality against which a person’s claims are to be assessed. This information will often go to the core of an applicant’s claims, because who a person is and where she or he comes from are integral aspects of why she or he claims to have a well-founded fear of persecution, or to fear significant harm for the purposes of complementary protection. Finally, whether an individual’s claims are accepted as credible will often depend on the decision-maker being satisfied of a person’s true identity.
15.The following aspects of the foregoing provisions, which were uncontroversial between the parties, can be noted.
16.First, by s 91W(1), the Minister or an officer is empowered to request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship. It was common ground that it is permissible for the Minister to make a generic request of an applicant seeking production of any documentary evidence of the applicant’s identity, nationality or citizenship. That occurred in the present case.
17.Second, s 91W(2) requires the Minister to refuse to grant the protection visa to the applicant if four conditions are satisfied: the applicant has been given a request under subsection (1); the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and, when the request was made, the applicant was given a warning that the Minister cannot grant the protection visa to the applicant if the applicant refuses or fails to comply with the request or produces a bogus document in response to the request. It was common ground that the question whether the applicant has a reasonable explanation for refusing or failing to comply with the request is a matter for the Minister to determine. That conclusion follows from the interrelationship between s 65(1) and s 91W(2). By s 65(1), the Minister may only grant a protection visa if the Minister is satisfied that the grant of the visa is not prevented by s 91W. The conclusion is consistent with the approach taken by the Full Court in AIB16 v Minister for Immigration [2017] FCAFC 163; (2017) 254 FCR 457 at [89]- [91] (Tracey, Mortimer and Moshinsky JJ).
18.Third, s 91W(3) stipulates that s 91W(2) will not apply if two conditions are fulfilled. Those conditions are: first, that the Minister is satisfied that the applicant has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and second, that the applicant either produces documentary evidence of his or her identity, nationality or citizenship or has taken reasonable steps to produce such evidence. It can be observed that there is a logical discord between ss 91W(2) and (3). If the first condition in s 91W(3)(a) is fulfilled and so the Minister is satisfied that the applicant has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document, the third condition in s 91W(2)(c) will not be fulfilled. It follows that s 91W(2) will be inapplicable, regardless of whether the second condition in s 91W(3)(b) is fulfilled. That logical discord appears to render s 91W(3) otiose.
19.Fourth, the phrase “reasonable explanation” connotes not only that the explanation is rational, but also that the explanation is credible. To illustrate, an applicant may explain that they are unable to produce a document evidencing their identity because the document has been lost or taken from the applicant. That is a rational explanation for the failure to produce the document. However, if there is sufficient reason to doubt the credibility of the explanation, the explanation will not be reasonable. This is the meaning given to the phrase by the Full Court in AIB16, in the context of the production of bogus documents by the applicant, with which we respectfully agree:
91.Without wishing to state the obvious, the provision requires there to be an explanation for the provision of a bogus document: that is, the narrative told must explain, and connect to, the provision of the bogus document. Second, the delegate must be satisfied the explanation is “reasonable”. The word reasonable connotes an explanation that is not fanciful, that is believable in the circumstances and which has sufficient rational connection to how and why the bogus document was provided. Reasonable minds between delegates may differ on this: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ.
92.It is also obvious that for an explanation to be reasonable, it must first be accepted as genuine. Not all genuine explanations will be reasonable, but all reasonable explanations will be genuine.
93.We accept the Minister’s submissions about the delegate’s reasoning. In the appellant’s explanation, which he volunteered, there was a common substratum of facts between his claim to fear persecution and his explanation for the provision of a bogus document. In order for the delegate to determine whether he was satisfied the appellant had given a reasonable explanation about the bogus document, it was open to the delegate to examine and assess the appellant’s claims to protection. Had the appellant’s narrative about what happened to him in Iran been accepted, it is likely the delegate would have found there was a reasonable explanation for the purposes of s 91W. However, if the delegate found the appellant’s protection claims not to be credible, it was almost inevitable the appellant’s explanation would not be accepted as reasonable. The structure of the delegate’s reasoning reflects an approach that was plainly open to him.
20.The foregoing observations of the Full Court in AIB16 have particular application in the present case.
The Court finds that it was open to the Authority to find that the applicant had not provided any reasonable explanation for his failure to comply with the request made under s. 91W of the Act, for the purposes of either s. 91W(2)(c) or (3)(a). All of the requisite preconditions for such finding had been made out.
The Authority did not err in the way in which it arrived at its finding that the grant of the visa was prevented by reason of the applicant’s non-compliance with the provisions of s. 91W of the Act.
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Ground of Review relied upon by the applicant at the time of the hearing before the Court is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 16 May 2024
HCA 12 at [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
[76] per Hayne, Kiefel and Bell JJ.
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