AOJ20 v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 949

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AOJ20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 949

File number: ADG 66 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 2 October 2024

Catchwords: MIGRATION – Application for judicial review – Citizen of Afghanistan – Excluded fast track applicant – Where the Delegate found the applicant submitted a bogus identity document in support of visa application – Denial of procedural fairness – Legal unreasonableness –– Opportunity to comment on document in meaningful or effective way– Particulars of why document was considered to be bogus – Practical injustice – Minister concedes error in matters referred to applicant for comment – Is this jurisdictional error – Or can it be characterised as technical error – Is any failure to provide comment jurisdictional error leading to relevant decision being vitiated – Materiality – Conflict of authority – Minister submits discretion not to grant constitutional writs should be granted – Matters to be considered – Application dismissed

Legislation:
Freedom of Information Act 1982 (Cth)

Migration Act 1958 (Cth) Pt 7AA, ss 5, 5AA, 5H, 5J, 36, 57, 65, 91WA, 473BA, 476, 487ZJ

Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Migration Regulations 1994 (Cth) Sch 2

Cases cited:
BES16 v Minister for Immigration & Border Protection [2018] FCA 78

BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865

Craig v South Australia (1995) 184 CLR 163

Dau v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FedCFamC2G 413

DVH16 v Minister for Immigration & Border Protection [2020] FCCA 131

Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123

HZCP v Minister for Immigration & Border Protection (2019) 273 FCR 121

Kabir v Minister for Immigration & Citizenship [2010] FCA 1164

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Antoon (2023) 298 FCR 400

MZAPC v Minister for Immigration & Border Protection (2021) HCA 17

Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217

Plaintiff M7/2021 v Minister for Home Affairs (2021) 389 ALR 1

Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294

SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190

SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1

VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 131 FCR 7

Division: Division 2 General Federal Law

Number of paragraphs: 203

Date of hearing: 9 May 2024

Place: Adelaide

Counsel for the Applicant: Mr Aleksov

Solicitor for the Applicant: Camatta Lempens

Counsel for the Respondent: Ms Hooper

Solicitor for the Respondent: Australian Government Solicitor
ORDERS

ADG 66 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AOJ20

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

2 OCTOBER 2024

THE COURT ORDERS THAT:
1.The application filed by the Applicant on 10 February 2020 is dismissed.
2.The Applicant pay the Respondent’s costs fixed in the sum of EIGHT THOUSAND, THREE HUNDRED AND SEVENTY ONE DOLLARS AND THIRTY CENTS ($8,371.30).

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 BROWN:
INTRODUCTION

These reasons for judgment relate to an application for judicial review of a decision of a delegate of the Minister of Home Affairs made on 6 February 2020.[1] The applicant seeks that a writ of certiorari issue and the relevant decision be quashed and the matter be referred back to the Delegate for reconsideration.
[1] Hereinafter referred to as ‘the Delegate’ or ‘the Ministerial Delegate’.
The major effect of the decision was to exclude the applicant from the fast-track review process, through which he had sought to obtain the protection of Australia, as a refugee, pursuant to the provisions of the Migration Act 1958 (Cth).[2] It is this matter which is the subject of the current proceedings.
[2] Hereinafter referred to as ‘the Act’.
The basis for this exclusion is that the Delegate found that the applicant had failed to provide a reasonable excuse for producing a bogus document in support of his application for protection. The document in question was an Islamic Republic of Afghanistan driver’s licence.
As a consequence of this decision, the applicant became characterised as an excluded fast track review applicant as defined by section 5 of the Act on the basis that he had without reasonable explanation provided a bogus document to the Delegate in support of his application. In practical terms, this meant he could no-longer be considered for the grant of a protection visa.
In reaching this decision, the Delegate had access to reports from a document examiner, who concluded that the document was not genuine. It is the contention of the applicant that he was not given a proper opportunity to comment on the matters raised by the document examiner and thus an error of jurisdiction has occurred.
In these circumstances, the applicant contends firstly, that the Delegate breached its statutorily codified obligation to provide adverse information to him for his comment and thus the resulting decision is not within the jurisdiction of the Delegate; and secondly, the decision is legally unreasonable because the Delegate accepted uncritically the opinion of the document examiner concerned.
The Minister does not accept these contentions. Its submission is that sufficient information was provided in respect of the document to allow the applicant to comment and, even if there was some technical error in the content of the information provided, such error is not of sufficient moment to justify the court exercising the jurisdiction conferred upon it to quash the relevant decision. It being the Minister’s position that the court always retains a discretion to refrain from issuing prerogative writs.
LEGAL CONTEXT
As will be detailed in greater detail in due course, the relevant decision had two components. Firstly, a determination that the applicant was not owed protection obligations by Australia because he was not a refugee [the section 65 decision] and secondly, the decision, to exclude him from the fast track review process because he supplied a bogus document. Only this second matter is the subject of judicial review.
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of an application for a protection visa, the criteria required to be satisfied are set out in the Act and in Schedule 2 to the Migration Regulations 1994 (Cth). In general terms, any applicant is required to satisfy one of the primary criteria contained in either section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and is therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
[I]n a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
The expression serious harm is defined in section 5J(5) as follows:
·a threat to the person's life or liberty;
·significant physical harassment of the person;
·significant physical ill-treatment of the person;
·significant economic hardship that threatens the person's capacity to subsist;
·denial of access to basic services, where the denial threatens the person's capacity to subsist;
·denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
The applicant is a citizen of Afghanistan. He arrived at Christmas Island, by boat, in May of 2013. He is a Sunni Muslim by religion and a Pashtun by ethnicity. He claims to be at risk of suffering persecution, if returned to Afghanistan, because of his ethnicity and because the Taliban will perceive that he acted against them because he reported an attempted bombing to police.
Because of the nature of his arrival, provisions of the Act require that the applicant be classified as an unauthorised marine arrival for migration purposes according to the definition provided in section 5AA of the Act.[3] This classification prescribes the manner through which any applicant is able to claim the protection of Australia on the basis of being a refugee.
[3] In general terms, an unauthorised marine arrival is a person who entered Australia between August 2012 and 1 January 2014, by boat, without authority from the Australian Government to do so. Pursuant to section 473BA of the Act, they are also known as fast-track review applicants.
In simple terms, unauthorised marine arrivals, are prevented from making any application for asylum until administratively authorised to do so and thereafter, the manner in which their applications are to proceed, is stipulated by the Act.
On 4 July 2016, the applicant was authorised, by a delegate of the Minister, to apply for either a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV). This process is commonly referred to as lifting the bar and engaged what is referred to, in the applicable legislation, as a fast-track assessment process.
Part 7AA of the Act mandates a process of review in respect of all decisions made by ministerial delegates in respect of such fast track applicants. In broad terms, if the delegate declines to grant a protection visa under the Act, the decision in question must be referred to the Independent Assessment Authority, for an independent review, as soon as practicable after it has been made.
As indicated above, the applicant is seeking to review his exclusion from the fast track review process not the finding, under section 65, that he was not owed protection. He asserts that the former decision is vitiated by jurisdictional error. If he is successful in this application, the applicable remedy for the court is issue prerogative writs of certiorari and mandamus quashing the decision and requiring the Minister to reconsider the matter.
In these circumstances the court has no jurisdiction to deal with the section 65 aspect of the decision, given it is a primary decision to which section 476(2)(a) applies. Accordingly, the court has no authority to review the decision as it has not been dealt with under the fast track process created by Part 7AA as there has been no review by the IAA. However, as will be detailed in due course overlapping factual decisions were made by the Delegate in respect of both aspects of the case.
BACKGROUND
On 15 February 2017, the applicant applied for a Safe Haven Enterprise visa.[4] His application was supported by the following documents:
·A Taskera (or Tazkira), which is a form of Afghani identity document. This was a copy and was untranslated;
·A statutory declaration of himself declared on 6 February 2017;
·A copy of a Republic of Afghanistan driving licence issued on or about 15 August 2012 together with an English language translation of it; and an English language translation was provided with it;
·Various documents issued in Australia relating to his identity, absence of police record and character; and
·Country information relating to Afghanistan.
[4] See Court Book at page 39.
The Republic of Afghanistan driving licence is the non-genuine or bogus document which is central to the application for judicial review in this matter. It was certified, by a commissioner for taking affidavit in the Supreme Court of South Australia to be a true and correct copy of the original document as examined by me free of erasure.[5]
[5] See Court Book at page 109.
In his supporting statutory declaration, the applicant indicated he had been born in Afghanistan but had fled to Pakistan, with his parents, as an infant, following the Soviet invasion. He had returned to Afghanistan, with his family, in 2006. His father had thereafter operated a small village shop.
The applicant indicated that the reason he had left Afghanistan was that he had found a large plastic bag outside his father’s shop, which looked suspicious to him. When no-one came to claim it, he reported it to police, who discovered it to be a bomb. A week later, the applicant’s father received a letter from the Taliban, which named the applicant and asserted that he had helped the police and directed that he come and talk to them.
In this context, the applicant asserts that his father told him to flee Afghanistan because he (the father) knew of people who had been killed by the Taliban after being accused of helping the police or the National Government.
The applicant said he did as his father directed and now fears that he will be persecuted by the Taliban, if he returns to Afghanistan, because it will be perceived that he is a supporter of the Government but also because his religious views are different to those of the Taliban.[6]
[6] See Court Book at page 78.
On 7 March 2017, the applicant was requested to provide additional information about his identity. In a statutory declaration declared on 5 April 2017, the applicant indicated that he had lost the original of the Taskera, when it had fallen into the sea, when he was travelling by boat between Malaysia and Indonesia.
The Taskera indicated the applicant’s age, in 2011, was 22, which was incorrect as the applicant was 19 years of age, in 2011. In his SHEV application, the applicant had provided a date of birth of 15 May 1992.
In his statutory declaration, the applicant indicated that he was illiterate and neither he nor his father could read Pashto, the language in which the document had been issued. He further asserted that he had only discovered this irregularity when the document had been translated.
In this context, he believed that it was likely that the official, who had issued the Taskera, had inserted the details of another person into the document. He further deposed that he did not know how he could get the Taskera officially amended from Australia and he was unable to obtain any other identity documents from Afghanistan because he had lost contact with his family.
He further indicated that his only other available identity document was his Afghani driver’s licence, which contained his correct date of birth.[7]
[7] See Court Book at page 113.
On 29 January 2019, the applicant was invited to attend an interview with a departmental officer, which was scheduled to take place on 12 February 2019.[8] The applicant attended the interview.
[8] See Court Book at page 119.
On 17 April 2019, the relevant administrative decision maker requested to examine the original Afghani driver’s licence, a copy of which had been provided. The applicant complied with this request. During this interview, the applicant produced the driver’s licence.[9]
[9] See Court Book at page 141.
On 6 May 2019, the Delegate wrote to the applicant advising him that the driver’s licence produced by him had been assessed by a forensic document examiner, who had found that the document was fraudulently generated.[10] The letter did not expressly state that it was a non original that is a copy which had been examined. Counsel for the Minister concedes that this was an error.
[10] See Court Book at page 143.
The relevant portion of the correspondence reading as follows:
The Islamic Republic of Afghanistan drivers licence, number AA7654 that you provided as evidence of your identity, nationality or citizenship has been assessed by a Forensic Document Examiner who found that the document was fraudulently generated…
I have a reasonable suspicion that the slamic (sic) Republic of Afghanistan driver's licence AA7654 (original doucument) (sic) provided as evidence of identity is counterfeit.
You are invited to comment on the above information.[11]
[11] See Court Book at page 144.
In my view, it is significant that the Delegate, in this letter, advised the applicant that she had a reasonable suspicion that this document was counterfeit. This being one, amongst several, characteristics arising from the relevant statutory definition, which might cause a document to be assessed as being bogus in nature, in the context of a visa application.
In this context, the letter provided an exhaustive definition of the word counterfeit, which was as follows:
The usual dictionary meaning of counterfeit document is made to imitate, and pass for, something else; not genuine. 2. Pretended. 3. An imitation designed to pass as an original; a forgery.[12]
It seems to me to be a matter of irrefutably logic that it was in the context that the Delegate had information available to her that the licence was counterfeit, in the sense of having been made illegitimately to pass for something which it was not or an imitation of the real thing was the matter on which the applicant was asked to comment
[12] See Court Book at page 143.
In this context, the Ministerial Delegate advised the applicant of the potential for him to be deemed to be not entitled to the grant of a SHEV because of the provisions of section 91WA of the Act, which reads as follows:
(1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a)the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b)       the Minister is satisfied that the applicant:
(i)has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii)has caused such documentary evidence to be destroyed or disposed of.
(2)      Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a)has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b)       either:
(i)provides documentary evidence of his or her identity, nationality or citizenship; or
(ii)       has taken reasonable steps to provide such evidence.
(3)For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

The expression bogus document is defined in section 5(1) of the Act in the following terms:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
The applicant was invited to comment on the information provided in the 6 May 2019 letter. Necessarily this information which considered to be potentially adverse to the success of his claim for protection. The invitation was issued pursuant to the provisions of section 57 of the Act, which reads as follows:
(1)In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a)       would be the reason, or part of the reason:
(i)        for refusing to grant a visa; or
(ii)for deciding that the applicant is an excluded fast track review applicant; and
(b)is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c)       was not given by the applicant for the purpose of the application.
(2)      The Minister must:
(a)give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b)ensure, as far as is reasonably practicable, that the applicant understands   why it is relevant to consideration of the application; and
(c)       invite the applicant to comment on it.
The applicant was not provided with the report of the document examiner, who had provided the opinion that to the Delegate that the driver’s licence in question was bogus. This report, which all parties agree can be referred to as the first report reads as follows:
Document: Islamic Republic of Afghanistan drivers licence, number AA7654 (non-original, translation provided).
There is evidence of production irregularities or intentional alteration / manipulation to the generation of document assessed to a degree that the only reasonable proposition is that the originating document is counterfeit or has been fraudulently altered.
It is my opinion that the document is Fraudulently Generated.
This opinion is based on information available at the time of examination and does not verify the legitimacy of the issuance or the information contained within the document.
If a more detailed case report of statement is required, the document may need to be resubmitted for an evidential examination.[13]
[13] See Supplementary Court Book at page 199.
In the submission of counsel for the applicant, Mr Aleksov, it is significant that his client was not advised either that the document examined was a copy or of the specific reasons why it had been adjudged to be bogus. In addition, he did not know of the possibility of any further or more detailed examination and what this might entail.
The main trust of the submission is that the 6 May 2019 letter of did not comply with the provisions of section 57 as it did not provide relevant and complete particulars of the information asserted to form the basis for a possible refusal of the visa to which the applicant could respond in a meaningful or fully informed way. Thus, it did not comply with the rationale of the provision, which is directed towards the provision of procedural fairness to applicants.
The applicant responded to the 6 May 2019 letter with a further statutory declaration, in which he stated that he had applied for the driver’s licence in mid-August of 2012, so he could drive his infirm mother to Peshawar, in Pakistan, to obtain medical treatment for her, from time to time.
In this context, he and his father had gone to the Traffic Management Office in Ali Khel and he had done a brief driving proficiency test. His father had done all the talking necessary to the official concerned and paid him some money, whilst the necessary forms were completed.
He further asserted that he had no reason to believe that the document issued to him was bogus as he himself was unable to read it and, as he had never been stopped whilst driving, in either Pakistan or Afghanistan, it had never been subject to any official scrutiny.[14]
[14] See Court Book at page 149.
Essentially, it is submitted, given the limited nature of the information provided to him that the applicant could respond only to issues raised about how he came into possession of the document itself not to issues related to its actual provenance or its legitimacy, in itself, as a document.
On 3 June 2019, the Department of Home Affairs formally wrote to the applicant that it had been decided that the original driver’s licence supplied to it should be seized on the basis that it was bogus pursuant to the provisions of section 487ZJ(2) of the Act.
On 3 June 2019, in the light of the seizure of the document, the Delegate wrote to the applicant and asked him to provide a reasonable explanation as to why he had provided the bogus document in support of his application.[15]
[15] See Court Book at page 159.
This letter was not couched in terms of section 57 of the Act in the sense that the applicant was not told specifically of the possible adverse consequence, for his application, of the document itself. Again, the applicant submits that this was a breach of the procedural fairness provisions contained in the section.
In response, on 10 June 2019, the applicant indicated that he was attempting to obtain verification of the driver’s licence through the Afghani Embassy. He provided a further statutory declaration in which he reiterated his position that he had not been privy to the issue of the document and further he had not been able to contact his father, in Afghanistan, due to the fact his family did not have access to a telephone, to discuss the matter with him.
In these circumstances, if there had been anything untoward in respect of the issue of the document in question, he was not a party to it. Again, it is the tenor of his case that he was not able to respond effectively to the forensic issues raised by the document itself but could only deal with how he came to possess it.
As a consequence of these matters, on 30 July 2019, the applicant made a request to the Department, pursuant to the provision of the Freedom of Information Act 1982 (Cth) for access to any information relating to the forensic investigation carried out in respect of the seized document. It being the underpinning of his case that this was the only mechanism through which he personally could come to grips with what the document examiner had actually indicated.
It was in this context that the records contained in the supplementary court book came to be produced. These indicate that there was a second document examination report commissioned by the Delegate – the second report. It is dated 18 November 2019 and by necessary implication was conducted on the original document, which had been seized.
The relevant opinion provided was that one or more of the document’s manufacturing security characteristics or issuing security characteristics are simulated, which led the examiner to conclude as follows:
Document: Afghanistan Drivers Licence, number AA7654 (no translation provided).
It is my opinion that this is a counterfeit Afghanistan driving licence.[16]
[16] See Supplementary Court Book at page 200.
Again, the applicant complains that he was not privy to the contents of the second report and was not able to comment upon it or indeed obtain a second opinion as to its veracity. More significantly, he is critical that the Delegate accepted the opinion without subjecting it to any apparent scrutiny.
As such, it is submitted that the Delegate failed to exercise the jurisdiction conferred upon it to assess evidence led before it and determine its probity or otherwise. It being asserted that this was a responsibility which had, in effect, been delegated to the document examiner.
In addition, the record indicates that there was a third document examination – the third report. It is dated 28 November 2019 and is referrable to a Translation of Afghanistan Driving Licence, number 7654, of which the examiner opines as follows:
It is my opinion that the translation is not genuine and it contains a recycled counterfeit optically variable device (hologram).[17]
Again, the applicant was not informed about the contents of the third report. As will be enlarged upon, in due course, both parties agree that this third report, which is not referred to in the actual decision, can have no application to these proceedings.
[17] See Supplementary Court Book at page 203.
In each case, the identity of the examiner in question is concealed. In this context, the applicant complains that he was not given the opportunity to challenge the qualifications or expertise of the expert concerned or indeed to seek a second opinion from a suitably qualified expert of his own as to the validity of the proffered opinion that the relevant document was in fact bogus. Again, it is submitted that this prevented him having an opportunity to comment on the document in question in any meaningful or effective way.
Counsel for the Minister concedes that none of these reports were physically provided to the applicant, but she contends that no error of jurisdiction was occasioned by this failure as the necessary import of them was provided to him for his comment as required by the provisions of section 57. It is her case that the section 57 requirement only applied to the first report in any event.
In essence, the Minister contends that section 57 is a procedural fairness provision, and, in this case, there has been no actual incident of procedural unfairness accorded to the applicant and so no breach of natural justice. He was told that the Delegate considered the Afghani document to be a bogus document and the applicant was given an opportunity to comment. This was all that was required to be done in order to discharge the Delegate’s obligations under section 57.
In addition, the Minister submits that the application should be dismissed because even if there was some jurisdictional error, in the form of non-compliance with section 57, such error could not have possibly made any difference to the outcome of the case.
In effect, given there were two reports – one in respect of the copy document and a second in respect of the actual document, which confirmed the first report, this aspect of error has been corrected. Further, although there should have been a formal section 57 letter in respect of the seized document, the issue raised by it was effectively covered by the 6 May 2019 letter.
Thus, it is submitted, on behalf of the Minister that the court, in this case, is in a position to assess retrospectively the effect of these two breaches and can readily see that the submission of the original document, in the context of the first report, was corrected and ascertain that the applicant was able to put all he wanted to put in respect of the matter in response to the first letter.
In this retrospective fashion, it is submitted that the court should exercise a discretion not to grant the relief sought because, even if the Delegate had complied with the relevant provisions, it could not have made any difference to the outcome of the matter.
THE DELEGATE’S DECISION
The Delegate refused to grant the applicant a SHEV pursuant to the provisions of section 65 of the Act. As indicated above, this section is the central machinery provision of the Act authorising the Minister to either grant or refuse any valid visa application.
In a separate part of the relevant decision, the Delegate also assessed the applicant to be an excluded fast track applicant, on the basis that he had not provided a reasonable explanation for supplying a bogus document in support of the application.
The Delegate refused the application on two bases, which can be summarised as follows:
·She was not satisfied that the applicant was owed by protective obligations pursuant to section 36 of the Act as he did not fall within the definition of refugee contained in section 5H(1);
·The applicant had provided a bogus document, as defined by section 5(1) of the Act without provision of a reasonable explanation for so doing.
All visa applicants are required to provide satisfactory evidence of their identity, existing citizenship or nationality. This is usually done by provision of a current or expired passport; a birth certificate; identity card; marriage certificate; or driver’s licence.
The Delegate was not satisfied that the information supplied by the applicant supported his asserted identity to a conclusive degree. In this context, she considered three distinct categories of information, which were characterised as biometrics, documentation and biographical.
In BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs[18] Mortimer CJ described these criteria as constituting an expression of government policy intended to guide the exercise of the powers of relevant decision-makers.
[18] BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 at [11].
In the present matter, the first was not relevant as there were no other biometric materials available against which a comparison could be made with the applicant.
The Delegate placed little weight on the Taskera provided by the applicant given inconsistences between it and information provided by him in interview.
In respect of the Afghan driver’s licence, the Delegate wrote as follows:
During his SHEV interview, the applicant submitted an Islamic Republic of Afghanistan driver’s licence, number AA7654 (original document) with a non-original English translation to the Department as evidence of his identity. The applicant provided the original of this document subsequent to his SHEV interview. On 18 April 2019, a departmental forensic document examiner undertook an examination of this document. As a result of this examination the examiner concluded that the applicant’s Afghanistan Drivers Licence is a fraudulently generated document.[19]
[19] See Court Book at page 181.
Thereafter, the Delegate went on to refer to the 6 May 2019 letter and then summarised the applicant’s response to it – namely, he had gone through a proper process of obtaining a licence, which he could not read and nor could his father. His father had had conduct of the process with the official concerned.
The Delegate did not accept this evidence as being credible. In this context, it was noted that the applicant had provided evidence at interview that his father had read the threatening letter from the Taliban, which had led to him leaving Afghanistan.[20]
[20] See Court Book at page 182 [9].
The Delegate also placed weight on the country information which indicated that driver’s licences could be readily obtained in Afghanistan illegally for touts or through bribery. In the context of these findings, the Delegate found as follows:
In assessing whether or not the applicant’s Islamic Republic of Afghanistan Driver’s Licence is a bogus document, as defined above, I have placed significant weight on the report provided by a Departmental forensic document examiner and the information published by Al Jazeera, as stated above, and I find that the applicant’s Afghanistan Drivers Licence is a bogus document.[21]
[21] See Court Book at page 182 [9].
Thereafter, the Delegate referred to the 3 June 2019 letter to the applicant which advised him of the seizure of the driver’s licence, in which his explanation had been sought as to why he had submitted what has been assessed to be a bogus document in support of his application.
In this context, the Delegate summarised the applicant’s response, which reiterated his position that it was his father, who had conduct of the relevant transaction and further he had been unable to contact his father, in Afghanistan, to seek clarification.
Again, the Delegate rejected this evidence on the basis of her assessment of the applicant’s credit, particularly in regard to what she regarded a discrepancy between two of his accounts as how often and easily he was able to communicate with his family in Afghanistan. As a consequence, the Delegate found as follows:
I have considered the information above, however, noting the Islamic Republic of Afghanistan Drivers Licence was issued in 2012 at a time when the applicant was 20 years of age, I consider that it is implausible that the applicant was not present when his father was speaking with the official, as in his previous statement he claimed that he was handed the application form from the official and that neither he, nor his father could read the forms, which indicates that he was present during the process that was taken to obtain his licence. During the interview, when the applicant was being questioned about the licence, the applicant stated that “My father was doing everything for me so I was just stay with him you know just standing with him.” I also note that in his SHEV interview, the applicant was asked how often he speaks with his family, he stated "Nah I just like they’re calling me after one and one a half one month or one and a half month or sometime when they have time.” I find it a concern that the applicant has claimed in his declaration dated 12 June 2019 that he hasn’t been able to speak with his family after his SHEV interview in regard to the concerns raised about his driver’s licence, noting that his SHEV interview was conducted on 12 February 2019.
Having regard to all of the information provided by the applicant, in addition to the country information stated above, I am not satisfied that the applicant has provided a reasonable explanation for providing a bogus document as evidence of identity, and in accordance with 91WA(1) I must refuse to grant a protection visa to the applicant.[22]
[22] See Court Book at page 183 [10] – [11].
The Delegate was not satisfied about some aspects of personal biography provided by the applicant. A significant issue being that the year in which the applicant claimed to have left Afghanistan with his family due to the Soviet invasion. Country information available to the Delegate indicated that Russian forces had left the country four years prior to when the applicant said he had left.
The Delegate made a number of other adverse credit findings about biographical details provided by the applicant, which can be summarised as follows:
·The loss of a mobile phone number for his parents with the statement that they were incapable of operating such devices;
·Discrepancies regarding how he came to lose a Pakistani passport;
·Discrepancies regarding how and when his family had moved to Pakistan after his departure from Afghanistan.
These factors led the Delegate to have serious concerns that the applicant had not provided genuine information about his life.
The Delegate also rejected the applicant’s claims that he was at risk of suffering serious harm, if returned to Afghanistan on the basis of his ethnicity, religion or that he would come to the adverse notice of the Taliban. She also considered an implied claim on the basis of any perception that the applicant would be viewed as failed asylum seeker if returned to Afghanistan.
The Delegate did not accept as credible the applicant’s claim that he had been sent a letter by the Taliban because of his report of finding a bomb and that he had travelled to Pakistan to avoid the meeting. One area of discrepancy indicated by the Delegate was between when the applicant had indicated he had left his village, on his entry to Australia (4 days) and in interview with her (20–25 days). The Delegate considered that his had occurred to enhance his claim for protection.

In this context, the Delegate found as follows:
I have considered the applicant’s claim that his father was the recipient of a letter from the Taliban that requested his father bring the applicant to them for a meeting. I also note the applicant’s claim that his father chose to ignore this request, I further note the applicant’s claim that his family were quite wealthy in Afghanistan. Overall, I do not consider it to be credible that his father ignored a request from the Taliban and despite this, he decided to remain in Afghanistan with his wife and two other children after this time, only sending the applicant to Pakistan.
Having regard to the information above, in conjunction with other information provided by the applicant, as noted under my assessment of the applicant’s identity, I do not find the applicant to be a credible witness. I am not satisfied that the applicant’s father was sent a letter from the Taliban because the applicant reported an unattended bag to the police. I am also not satisfied that the applicant departed Paktiya province, Afghanistan by coach to travel to Peshawar, Pakistan, to escape a meeting with the Taliban.[23]
[23] See Court Book at page 186 [29] – [30].
On the basis of country information, the Delegate did not consider that the applicant faced a real risk of persecution on the basis that he was either a Sunni Pashtun man or as a returnee from the West. Given all these findings, primarily on the basis of a rejection of the applicant’s account of being at risk of being targeted by the Taliban, the applicant’s claim for protection was rejected.
In a separate part of the decision, the Delegate also assessed the applicant to meet the definition of excluded fast track applicant, which had the consequence of disqualifying him from an automatic right of review by the IAA. As indicated above, it is only this aspect of the decision which is subject to these proceedings.
Necessarily, there is an overlap in the credit findings made by the Delegate in respect of the protection claim, which turned on issues relating to the account of how the applicant had what was found to be a counterfeit document and the application of section 5(1)(a)(vi) to his case.
In this context, the formal findings of the Delegate were as follows:
In assessing whether or not the applicant’s Islamic Republic of Afghanistan Driver’s Licence is a bogus document, as defined above, I have placed significant weight on the report provided by the Departmental forensic document examiner, and the information published by Al Jazeera, [24]as stated above, and I find that the applicant’s Afghanistan Driver’s Licence is a bogus document.
…
I have considered the information above, however, noting the Islamic Republic of Afghanistan Drivers Licence was issued in 2012 at a time when the applicant was 20 years of age, I consider that it is highly unlikely that the applicant was not present when his father was speaking with the official, noting in his previous statement he claimed that he was handed the application form from the official and that neither he, or his father could read the forms, indicating that he was present during the process that was taken to obtain his licence. I also note that in his SHEV interview, the applicant stated that he speaks with his family every month, I find it a concern that the applicant has claimed in his declaration dated 12 June 2019, that he hasn't been able to speak with his family after his SHEV interview in regards to the concerns raised about his driver's licence, noting that his SHEV interview was conducted on 12 February 2019.
Having regard to the information provided by the applicant, in addition to the country information stated above, I am not satisfied that the applicant has provided a reasonable explanation for providing a bogus document as evidence of identity.
I am satisfied that [the applicant] meets the definition of excluded fast track review applicant in s5(1) of the Act, specifically s5(1)(a)(vi), as stated above.[25]
[24] This information in summary was that driver’s licences in Afghanistan could be readily purchased on the black market or acquired through bribery. In this context, forgeries were prevalent. See [57].
[25] See Court Book at pages 191 – 192 [58], [60] – [62].
THE GROUNDS FOR REVIEW
In his amended application filed on 12 October 2023, the applicant advances the following grounds of review:
1.The delegate failed to comply with s 57 of the Migration Act 1958 (Cth), and thereby committed jurisdictional error in relation to the decision to refuse the applicant's application for a protection visa, and the decision as to whether the applicant was an "excluded fast track review applicant", in that:
1.1. the delegate failed to:
1.1.1.give the applicant particulars of relevant information within the meaning of s 57(2), being:
1.1.1.1.the reasons of the Departmental document examiner for concluding that the Afghan driver's licence produced by the applicant was "a fraudulently generated document" or "counterfeit";
1.1.1.2.the features of the driver's licence that caused the Departmental document examiner to form that opinion: and/or
1.1.1.3."the information provided by the forensic document examiner in their report" referred to in paragraphs 8 and 55 of the decision of the delegate;
1.1.2.ensure, so far as far as was reasonably practicable, that the applicant understood why the information referred to in subpar 1.1.1 was relevant to consideration of the application; and/or
1.1.3.invite the applicant to comment on the information in subpar 1.1.1; and
1.2.the information referred to in subpar 1.1.1 was information which the delegate considered would be the reason, or part of the reason:
1.2.1. for refusing to grant a visa; and/or
1.2.2.for deciding that the applicant was an excluded fast track review applicant; and
1.3.the information to which the particulars referred to in subpar 1.1.1 related was information specifically about the applicant or another person and not just about a class of persons of which the applicant or other person was a member, and was not given by the applicant for the purpose of the application.
2.The decision of the delegate is affected by legal unreasonableness, because reliance upon the bare opinion of another person about the provenance of documents, without any supporting explanation or reasons for that opinion is not to act on probative material.
Paragraphs 8 and 55 referred to above were the portion of the Delegate’s decision dealing with the 6 May 2019 letter and the information arising from the first document examination.
THE APPLICANT’S SUBMISSIONS
The first ground relies on the assertion that the Delegate failed to give the applicant sufficient particulars of information which might have been relevant to the decision subsequently made to exclude him as a fast-track applicant and therefore breached the provisions of section 57.
As I understand these breaches encompass the fact that there was an omission as to the fact that it was actually a copy of the driver’s licence which was the subject of the first report and no formal invitation was made to provide comment in respect of the second report.
A more significant criticism was that the applicant was not provided with either the first or second reports on which to comment. If he had been so provided, he would have conceivably been able to make more extensive submissions to what he actually did, in his two statutory declarations, which was to assert that he personally had no ground to believe that the document was bogus.
In the 6 May 2019 letter to him, the only gloss on this process is that it has revealed unfavourable information which does not support your application. In essence, it is submitted that the applicant was not provided with the material facts and / or observations, which had caused the document examiner to reach this conclusion.
In these circumstances, it was impossible for the applicant to comment on the conclusion in any meaningful way. He could have had on conception of why the driver’s licence was said to be fraudulent other than some person had asserted it be so. Otherwise, in Mr Aleksov’s phraseology, the process of reasoning leading to this conclusion was entirely obscure.
In particular, the first report indicates that the examiner was of the opinion the document examined exhibited evidence of production irregularities or intentional alteration / manipulation in its generation. Mr Aleksov is critical that, even if this information had been provided, it does not provide what were the reasons or actual evidence, which caused the examiner to reach such a conclusion. As I understand it, any person reading this statement could have no idea what had actually been done to the document to evidence its intentional alteration or manipulation.
In the second report, it is asserted that the document’s manufacturing security characteristics have been simulated. Mr Aleksov submits that these two conclusions are semantically different. However, it is the main thrust of his submission that his client should have been given both such reports, which would have enabled him to see firstly, the brevity of each report; secondly, the absence of reasoning; thirdly, the fact that the examiner had provided the gloss that it was open for a more detailed case report to be provided; and fourthly, other than the anonymous expert was employed as a forensic document examiner, no details were provided as to specific qualifications or experience.
In this context reliance is placed on what the High Court said of section 57, in Plaintiff M174/2016 v Minister for Immigration & Border Protection[26] as follows:
Section 57(2) imposes obligations on the Minister to give to the applicant particulars of relevant information, to ensure as far as is reasonably practicable that the applicant understands why the relevant information is relevant to consideration of the application, and to invite the applicant to comment on it. Compliance with s 57(2) is a condition of the valid performance of the duties of the Minister to consider a valid application and, if not satisfied that the criteria prescribed for the visa have been met, to refuse to grant the visa, with the consequence that non‑compliance renders a decision to refuse to grant a visa invalid in the sense that the decision is ineffective in law to achieve that result. Non‑compliance with s 57(2) can therefore result in the Minister being restrained by a constitutional writ of prohibition from taking further statutory action on the basis that the decision to refuse to grant the visa is valid and can also mean that the duties of the Minister to consider and determine the application remain unfulfilled so that their performance is able to be compelled by a constitutional writ of mandamus.
[26] Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217 at 224 [11] as cited by Gordon J in Plaintiff M7/2021 v Minister for Home Affairs (2021) 389 ALR 1 at 11 [33].
In Plaintiff M7/2021 v Minister for Home Affairs Gordon J said of the obligation imposed on a decision-maker by section 57 was that it required the particulars of information to be given in such a way that the applicant concerned understood why the information concerned was relevant and this in turn would enable there to be a meaningful response to the adverse material so disclosed.
In this context, it was accepted that what was required to discharge this obligation must depend on the facts and circumstances of the case concerned and the context in which it arose, ranging from an obligation to provide the whole of the document in question to others in which the substance of the document was sufficient. The degree of disclosure being required depending on what was needed to ensure that the relevant applicant could understand why the information was relevant and could respond to it meaningfully.
Essentially, Mr Aleksov submits that his client was required to receive each of the documents in their entirety not merely to be informed of their substance or bald conclusion. Thus, the applicant was not in a position to respond to the material said to be adverse to his claim for protection in any meaningful way.
Mr Aleksov characterises this lack of information being provided to the applicant as resulting in his client suffering a level of practical injustice, which is irremediable error of jurisdiction regardless of the other findings of fact made by the Delegate in respect of the applicant’s claim for protection, arising under section 36 of the Act, which was rejected on other grounds relating to the Delegate’s assessment of his substantive claim for protection.
Essentially, Mr Aleksov submits that any departure from the degree of procedural fairness required by section 57 is to be characterised as an error of jurisdiction leading to the illegality of the resulting decision and the materiality of such error, in terms of its effect on the outcome of the matter in question is irrelevant.
Counsel for the Minister, Ms Hooper has a different view. In this context, controversies arise between the parties as to effect of authority of the Federal and High Courts on my jurisdiction as a court of lower federal jurisdiction regarding this issue of the application of the doctrine of materiality of error to this particular matter. I will return to this issue in due course.
Mr Aleksov also categorises the decision reached by the Delegate as being one being vitiated by legal unreasonableness, in the sense that the Delegate has exercised no independent judgment in respect of the document in question. Rather she just relied uncritically on the conclusions reached by the document examiner without question. Thus, she has not exercised the jurisdiction conferred upon her.
THE MINISTER’S SUBMISSIONS
The primary submission of Ms Hooper is that section 57 imposed no obligation on the Delegate to disclose the totality of the first and second document examinations undertaken in this matter to the applicant for comment.
Essentially, in this particular matter, she submits what section 57 required was for the applicant to be informed that the relevant document had been examined and assessed as bogus. This was what occurred and provided the applicant with sufficient particulars to which he could respond. Thus, the Department discharged its procedural fairness obligations.
In this context, it is her contention, which is not disputed by Mr Aleksov, that the third examination, occurring as it did after the relevant decision had been made, can have no bearing upon the matter.
However, Ms Hooper concedes that there were errors in how information about the documents in question was conveyed to the applicant. These errors are as follows:
·firstly, the 6 May 2019 letter should have expressly indicated that it was a copy of the driver’s licence, which had been examined;
·secondly, after the formal seizure of the original driver’s licence produced during interview, the applicant should have been provided with a further invitation to comment on it pursuant to the provisions of section 57.
Although conceding these errors, it remains the Minister’s position that the application for review should be dismissed in the exercise of the court’s discretion to refuse relief in appropriate cases, if the error in question would have made no material difference to the ultimate outcome. However, in this context, Ms Hooper acknowledges that there are authorities, binding on me, which take a different view.
In support of her primary submission, Ms Hooper relies on DVH16 v Minister for Immigration & Border Protection[27] which threw up a factual situation broadly analogous to the current matter. It related to an applicant who supplied a certificate of nationality in support of an application for protection.
[27] DVH16 v Minister for Immigration & Border Protection [2020] FCCA 131.
This had been forensically examined with the relevant expert reported to have concluded. In the letter inviting comment, it was merely asserted that it met the definition of bogus document contained in section 5(1), in the sense that it was counterfeit, and therefore the provisions of section 91WA were engaged. In this context only the applicant was invited to comment. He was not provided with the expert’s actual report, which was a matter for criticism, as in the present matter.
It was submitted, on behalf of the applicant concerned, that this letter did not provide him with sufficient detail – in what particular aspect was the document counterfeit – to enable him to comment in a meaningful way. Accordingly, its factual situation was on all fours with the current matter.
In this context, Judge Nicholls noted that the application of section 57 is mandatory not discretionary. The duty being to provide all relevant information to which the following characteristics apply:
·It is information relevant, either fully or partially, for refusal of the visa or excluding a fast track review applicant;
·It is information specifically about the applicant;
·It had not been previously given to the applicant;
And, so far as its provision is concerned;
·It is provided in an appropriate way; and
·Most significantly, in a manner which allows the applicant to comprehend its moment so that comment can be provided.
The issue arising being whether the section 57 letter provided sufficient particular to satisfy the mandatory provisions of the section. In this context, Judge Nicholls rejected the proposition that the information required to be given needed to include sufficient particulars so as to [enable him] to test for himself the methodology employed by the [document examiner along with] his observations of the physical characteristics of the documents.[28]
[28] DVH16 v Minister for Immigration & Border Protection [2020] FCCA 131 at [64].
In this context, Judge Nicholls found that the applicant had been given a sufficient level of information to respond to the adverse information constituted by the document by being informed that it had been forensically examined and assessed as being bogus.
In Judge Nicholls’ reasoning, the level of information to be provided was to be determined by reference to the statutory context in which the issue arose.[29] This context was section 91WA namely the provision of a bogus document in connection with a protection visa application.
[29] See SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [17] – [18].
As I take it, the emphasis being on a capacity to comment on why the bogus document was tendered rather than an opportunity to challenge the assessment of its falsity per se being the indicia of the required level of satisfaction of the provisions of the section.
In these circumstances the fact that the applicant had been informed that an expert examination had revealed the document to have been fraudulent altered was sufficient to discharge the obligation arising under section 57.
In DVH16 it was held as follows:
[I]n the current case the “relevant information”, that is the information that was the reason or a part of the reason for refusing the grant of the visa and deciding that the applicant was an excluded fast track applicant, was that both documents were “bogus documents”.
The delegate’s letter of 8 September 2016 made that clear. The letter, with specific reference to s.57 of the Act, gave the applicant the opportunity to provide a reasonable explanation for producing these bogus documents.[30]
[30] DVH16 v Minister for Immigration & Border Protection [2020] FCCA 131 at [71] –[72].
In these circumstances, in what the Minister would characterise as the analogous circumstances, it submits that the applicant was informed, in the 6 May 2019 letter, that the Islamic Republic of Afghanistan driver’s licence had been examined by a document examiner and found to be fraudulently generated. Thus, it fell within the definition of bogus document.

It follows from this the applicant had sufficient information to comment on the statutory context in which the issues arose, namely whether the document was or was not fraudulently generated, which was not congruent with a capacity to actually personally test the document himself. He was therefore provided with sufficient information about why the document had been characterised as bogus and why section 91WA was enlivened.
In reaching this conclusion, Judge Nicholls applied the following reasoning of Burley J in BES16 v Minister for Immigration & Border Protection[31]
The statutory context in the present case is s 91WA of the Act, which relevantly provides that the Minister must refuse to grant a protection visa to an appellant if the appellant provides a bogus document as evidence of the appellant’s identity unless the Minister is satisfied that the appellant has a reasonable explanation for providing the bogus document. The reason, or a part of the reason, for affirming the decision that is under a review in the present case was that the appellant had provided a bogus document as evidence of the appellant’s identity and that the appellant had failed to provide a reasonable explanation for failing to provide the bogus document.
[31] BES16 v Minister for Immigration & Border Protection [2018] FCA 78 at [23].
In these circumstances, Ms Hooper submits that the only information which engaged with section 91WA, in the current matter, was the forensic examiner’s conclusion – the document had been fraudulently generated and had been assessed as bogus. This conclusion was provided to the applicant for his comment in the context of him being informed that the issue was potentially dispositive of his application.
In this context, in the 6 May 2019 letter, he was informed that the bogus nature of the document was a basis on which he could be prevented from being granted a protection visa and from being able to have a review of his application, if unsuccessful before the Delegate, in the IAA.
It was not necessary for the applicant to be informed in respect of the nature of the expert opinion as to how such fraudulent generation of the document had been done or what was the name of the examiner concerned. Such matters are not to be considered relevant information for the purposes of section 57(1)(a).
What is relevant information is the fact that a document had been assessed to be bogus had been produced in connection with a protection visa application, which enlivened section 91WA. In the present matter, this information was provided in the letter of 6 May 2019. This was the reason why the applicant was excluded as a fast track visa applicant and in respect of which he was given an opportunity to comment.
The Delegate’s reasons do not make specific reference to the second document examination report. This only came to the applicant’s attention as a result of his freedom of information request. The second report characterised the document as being counterfeit. He was, however, advised in the context of the letter sent to him on 3 June 2019, following the seizure of the original document, that the Delegate had reason to believe the document was bogus.
As a consequence, he was not asked to comment on this information, in terms of section 57(2), rather he was asked to provide an explanation for its provision, in terms of section 91WA(2). In practical terms the comment and the explanation may be the same. In this case, the applicant provided an explanation to the section 91WA letter which was largely an expansion on the comment provided by him to the 6 May 2019 letter.
Neither of his statutory declarations were directed towards providing a rebuttal of the assertion made by the Delegate that the document provided was bogus in the sense envisaged by section 5. Rather the applicant reiterated his position that he had not been privy to the discussions between his father and the official who issued the document and he had no personal reason to believe it to be fraudulent.
Although the second report was not mentioned in the reasons, the Minister acknowledges that it should have been the subject of its own discrete section 57 obligation to seek specific further comment, which was not done in formal terms. However, Ms Hooper characterises this breach and the failure to reference a copy document in the letter of 6 May 2019 as technical breaches of section 57, which have not resulted in any appreciable denial of procedural fairness to the applicant. As such, the application for relief should be refused on discretionary grounds.
In contrast, as indicated above, Mr Aleksov characterises each of these breaches, but more significantly the failure to give more particulars of why the primary document was bogus, in the form of provision of either report (one of which remained unknown to the applicant) as creating a situation of fundamental and irremediable procedural unfairness to his client.
The starting point in Ms Hooper’s submission is Re Refugee Tribunal; Ex parte Aala[32] in which the High Court recognitive that the issue of prerogative writs to quash administrative decisions pursuant to the provisions of the Constitution remained discretionary, albeit that their refusal in cases where error had been established was one to be utilised judicially and with care.
[32] Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82.
In reply, Mr Aleksov cites SAAP v Minister for Immigration & Multicultural & Indigenous Affairs.[33]The case concerned a comparable provision which required adverse information to be provided to an applicant in writing. In the case evidence was taken from a particular witness, during the course of the actual hearing. The relevant decision-maker referred these matters to the applicant concerned as the hearing continued for comment. Thus the relevant procedural fairness provisions were breached.
[33] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294.
The language of the relevant provision, as with section 57(2) was imperative in nature. In SAAP McHugh J characterised it as anomalous if it could be found that a relevant decision could be considered valid if there had been a breach of a mandatory natural justice provision. Justice Kirby considered such a breach to constitute of itself a jurisdictional error. Whilst Hayne J indicated that a breach of such a procedural fairness provision pointed inexorably to the conclusion that any resulting decision was invalid.
Essentially, Mr Aleksov submits that a legal error is a legal error and given the Minister has conceded that there was such an error, its magnitude and indeed its materiality can be of no moment. Once it has been found that a decision is infected by some species of jurisdictional error it cannot be regarded as a valid decision because it was made in the absence of jurisdiction. In his submission SAAP has not been over-ruled and is binding on me.
In my view, the distinction between a jurisdictional error arising from a lack of procedural fairness which necessarily results in the decision arising being void and one which has no material effect and so has no implications for its overall validity of the resulting decision is a fine one, which must depend on both the nature of the error and the legislative context in which it arises.
The latter circumstances were described in Hossain v Minister for Immigration & Border Protection[34] by the plurality of the High Court (Kiefel CJ, Gageler and Keane JJ) as follows:
[T]he threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome" or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.
… [O]rdinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision. (Citations removed)
[34] See Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123 at 134 [30]–[31].
In MZAPC v Minister for Immigration & Border Protection[35] the High Court provided some guidance in respect of the distinction between the two. In respect of jurisdictional error it said as follows:
The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid.
[35] MZAPC v Minister for Immigration & Border Protection (2021) HCA 17 at [29].
As I take it, in simple terms, jurisdictional is concerned with the legislative authority to make a decision within jurisdiction and so legally, is a decision within jurisdiction. On the other hand, issues of materiality relate to how a statute is to be constructed in order to give it the effect it was intended to have.
In MZAPC the High Court went on to say the following:
…[T]he principle enunciated (in Hossain) is that a statute conferring decision-making authority is not ordinarily to be interpreted as denying legal force to every decision made in breach of a condition which the statute expressly or impliedly requires to be observed in the course of a decision-making process. The statute is instead ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
The principle of statutory interpretation enunciated in Hossain reflects what was there described as a qualitative judgment about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. The principle might equally be described as a commonsense guide to what a Parliament in a liberal democracy is likely to have intended. The principle accommodates determination of the limits of decision-making authority conferred by statute to the reality that [d]ecision-making is a function of the real world by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no practical injustice will deprive a decision of statutory force. Having been enunciated, and subject always to being revisited, the principle can be treated as a working hypothesis ... upon which statutory language will be interpreted. (Citations removed)[36]
[36] MZAPC v Minister for Immigration & Border Protection (2021) HCA 17 at [31] – [32].
Accordingly, in the latter approach the court is entitled to take a commonsense or qualitive approach to the error in question. What was the outcome of the error? Did it result in some species of practical injustice or not.
In this context, Ms Hooper relies on a case cited by McHugh J in SAAP (supra) VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[37] where the Full Court of the Federal Court held that, in some circumstances, it was appropriate for the court to exercise its discretion to refuse prerogative writ relief if a particular applicant had not been disadvantaged by the failure in question or had been given an opportunity to address the information provided by the decision maker. It was also said that issues potentially relevant to the exercise of the discretion included whether the breach in question was merely technical and did not affect the outcome or could make no difference.
[37] VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 131 FCR 7.
Similar issues arose in Minister for Immigration & Border Protection v SZMTA[38] where the majority of the High Court said as follows:
Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
[38] See Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 at 445 [45] – [46] per Bell, Gageler & Keane JJ.
It would seem to be the position from SZMTA that a jurisdictional error must have a material effect to result in the issue of prerogative relief and this is to be assessed as a question of fact in each particular case. This has been referred to as a threshold of materiality.
As Wigney J sagely observed in Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Antoon[39] there is a degree of tension between SAAP on the one hand and the reasoning in Hossain, SZMTA and MZAPC on the other. In the case, he observed that it was not for him to resolve these tensions, it was for the High Court. It is certainly not a matter for this court.
[39] Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Antoon (2023) 298 FCR 400 at 419 [92].
In Antoon Wigney J found that it was still incumbent on the court to consider whether to exercise its discretion to refuse to grant prerogative writs in a particular mater, if to do so would service no useful purpose. This is characterised as a different slant on the issue of materiality as posed by Hossain and necessarily engages a different analytical approach for the court, namely how is no useful purpose of remission to be assessed.
In this context, it is Ms Hooper’s submission that although I am bound by the High Court authority of SAAP, as I understand it, the question of the court’s discretion to refuse to grant the prerogative relief sought remains unaffected and is subject to considerations such as the utility of there being further proceedings as detailed in VCAT (supra). This being a factor influenced by the nature of the breach and what its consequences would be in both prospective and retrospective terms. Both approaches are valid and which is adopted must depend on the circumstances of the case concerned.[40]
[40] See Kabir v Minister for Immigration & Citizenship [2010] FCA 1164 at [47] per Siopis J.
In Hossain Edelman J described the discretion as residual and remaining even in cases where jurisdictional error has been established. He further indicated one such incident might be if no useful result could ensue from a further hearing. This is described as a forward looking approach to the jurisdictional error, which is contrasted with looking backward to assess whether the error would have made any difference.[41]
[41] Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123 at [74].
In the current matter, Ms Hooper asserts that this court finds itself in the unusual position of being able to assess, in a retrospective manner, the effect of the two acknowledged errors and ascertain the error in question would have had no consequence and thus ascertain that a further hearing, resulting from the issue of the writs sought, could have no useful purpose.
In her oral submissions she said as follows:
That brings me then to the errors that the Minister has conceded. Factually, this is quite an unusual case in that your Honour can clearly assess the effect of the breaches on the fairness of the delegate’s procedure. As I’ve said, the section 57 letter that was sent ought to have said expressly that a copy of the licence was examined. But as it happens, the original licence was later examined, and the forensic document examiner reached precisely the same conclusion, noting that it’s the conclusion that is relevant. Now, there ought to have been a section 57 letter sent after that second report, but there was not. However, the letter that had been sent earlier did precisely the job that that second invitation needed to do – that is, it put to the applicant that his driver’s licence, interposing that at this point in time it was the original, had been assessed by a document examiner, who had found that the document was effectively counterfeit or fraudulent.
Now, the second report, in my submission, added nothing – the second Examination Unit report added nothing significant to the first save for making it apparent that the original had been examined. The applicant had the opportunity to put all he wished to the delegate in support of his argument that his licence was not a bogus document. It is permissible, when your Honour is considering your discretion to refuse relief, for you to look back at the effect that the breach had on the decision-making process.[42]
[42] Transcript at page 18.
Necessarily, it is her position that in this case to issue a prerogative writ to quash the decision of the Delegate to exclude the applicant from the fast track review purpose on the basis of his failure to provide a reasonable excuse for the provision of a bogus document in support of his application for protection would serve no useful purpose and so such relief should be refused in the exercise of the court’s discretion.
In Dau v Minister for Immigration, Citizenship & Multicultural Affairs[43] Chief Judge Alstergren determined that he had to be positively satisfied that the relevant breach could not have, nor could make, if the matter is remitted, a difference to the outcome. Thus, he adopted both a forward and backward looking approach, with the gloss of a high level of satisfaction that the outcome would be the same, if the matter is remitted, namely a failure of the relevant application.
[43] Dau v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FedCFamC2G 413 at [92].
In Antoon, Wigney J considered that the issue was a question of fact with each case to be considered having regard to its unique facts and circumstances. A similar approach was taken in SZOOR v Minister for Immigration & Citizenship[44] in which it was said that the grant of relief under constitutional writs is a matter for discretion, much depending on the facts and circumstances of each case.
[44] SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 at [96] per McKerracher J.
Again, in Antoon, Wigney J characterised the relevant breach of process against which it was necessary for the court to weigh its discretion to refuse the grant of the relevant writs to be one which was technical and immaterial and as a consequence, had resulted in the applicants concerned suffering no unfairness or practical injustice. Thus the remission of the matter and its reconsideration could not have made a difference to the outcome.[45]
[45] See Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Antoon (2023) 298 FCR 400 at [142].

Ms Hooper takes up this approach in her submissions, with the breaches in the current matter. She characterises the breach of the natural justice hearing rule as being technical in nature. The failure to advise the applicant in the 6 May 2019 letter that the document provided to the examiner was a copy being remedied by later events. The failure to send a second section 57 letter not resulting in any practical unfairness to the applicant.
Most significantly of all, she asserts that the applicant was told all the salient matters in respect of which comment was sought from him, in a combination of the 6 May 2019 letter and the seizure letter of 3 June 2019, in the context of a possible adverse outcome for him, namely the document submitted by him had been examined and assessed as being bogus, in the sense that it was counterfeit. A definition of which was contained in the 6 May 2019 letter.
In her written submissions, Ms Hooper wrote as follows:
The applicant had the opportunity to put all he wished to the delegate as to the genuineness of the licence. He was not precluded from having his own expert examine the licence (prior to its seizure) or the copy, noting also the applicant took no action to recover the licence after its seizure. The two section 57 breaches above were technical, occasioned no practical injustice to the applicant and could have made no difference to the outcome of the review.[46]
[46] See Respondent’s Written Submissions filed 24 April 2024 at [38].
On this basis, she seeks that the application be dismissed in the exercise of the discretion described in Antoon not on the basis of the application of Hossain and issues of materiality. As I understand her case it is that the remission of the matter back to the Delegate to assess whether the applicant should be excluded from the fast track review process because of his production of a bogus document could not, in the idiosyncratic circumstances of this case made any conceivable difference.
CONCLUSIONS
I accept the submissions of the Minister in respect of this matter. On the basis of Aala and the cases which follow it, it is clear that a discretion exists to not grant prerogative relief, notwithstanding the existence of breaches of the natural justice provisions of the Act, which in other contexts are to be regarded as fundamentally vitiating the jurisdiction of the relevant decision maker. One such incident is if the issue of the writs would serve no useful purpose. I agree this is one such case.
I acknowledge that the discretion is to be exercised carefully and by reference to the individual circumstances of each case. The relevant decision was the automatic exclusion of the applicant from the fast track review process. The trigger for this exclusion being that a finding could be made that a document supplied by him was bogus as it fell within one of the three inter-related concepts of what is such a document as defined by section 5 of the Act.
These concepts can be summarised as follows:
·The document purported to be issued to a person who was not its actual holder;
·The document was counterfeit or had been altered;
·It had been obtained by false or misleading information.
The Delegate was entitled to refer the document to an examiner for comment and then rely on what was said to her to form any subsequent finding as to its bona fides. This finding that the document was bogus was informed not only by the document itself but also the reasons proffered by the applicant himself for producing it connection with his application.
It was in this context that the first document examination report dated 18 April 2019 came into existence. Its conclusion was that the document provided for forensic examination had been fraudulently generated. This was the first step in exercising the jurisdiction arising under section 91WA(1).
The second step being the Delegate’s assessment of the reasonableness of any explanation for providing a bogus document or other satisfactory evidence of identity, nationality or citizenship under section 91WA(2). The two steps are necessarily interconnected.
The examiner concerned indicating that it exhibited production irregularities or intentional alteration/manipulation from the only reasonable conclusion was that it had been either counterfeited or fraudulently altered. The Delegate, given the jurisdiction conferred upon her by section 91WA, was obliged to act upon the suspicion necessarily precipitated by this report and seek an explanation for its production from the applicant.
In these circumstances, section 57 of the Act was engaged and the Delegate was required to provide to the applicant relevant information which satisfied three considerations;
·It would form the basis for refusing the application;
·It was about the applicant;
·It had not been previously given to the applicant.
In order to satisfy the provision of the section, such information has to be provided in an appropriate manner so that the applicant in question can comment upon it in a meaningful way.
In compliance with section 57, a letter was sent to the applicant on 6 May 2019 inviting him to comment on the Delegate’s suspicion that the licence submitted by him was bogus. In error, the applicant had not been informed that her suspicion had attached to a copy of the document. I must assess whether that error has deprived the applicant of his procedural fairness entitlements and has resulted in him suffering a level of practical injustice.
In the circumstances I do not believe that it has done so and, in practical terms, what I regard as a technical failure was remedied by subsequent events. In simple terms, it seems to me to be the case that the applicant was given a proper opportunity to comment upon what was the gravamen of the Delegate’s suspicion in a procedurally fair and appropriate manner.
Essentially, the applicant was told in clear terms that the Delegate had reason to believe the document was a counterfeit and was informed what this meant in common parlance – essentially a non-genuine fabrication of the real thing.
In this context, he was advised that he was required to provide a reasonable explanation for providing the document in question. The emphasis being on the document itself not on where it had been obtained. In my view, it is difficult to see what further information could have been given to the applicant in this context. He was provided with the effect of the document examiner’s report, the licence provided had been fraudulently generated.
This fraudulent aspect of the document’s generation was the issue on which the applicant was clearly asked to comment and, in my view, was given every opportunity to do so. I do not consider it was necessary for the applicant to be given technical details in this regard, even if such details could have been given.
All that was required, in my view, for the Delegate to discharge her obligations under section 57 was for the applicant to be informed that a suspicion had attached to the document provided and the nature of this suspicion. In my assessment this was done by the information that the document had been assessed to be fraudulent generated and so counterfeit.
In any event, it was not necessary for the Delegate to provide all the information potentially available to her concerning the level of her suspicion. The onus being to provide relevant information. The relevance of information is to be determined by the statutory authority being utilised – in this case the power to exclude a fast track applicant for providing a bogus document.
In my view, the necessary and relevant information was supplied in the letter concerned, namely that an expert has assessed the driver’s licence to be counterfeit.[47] In so doing, I am satisfied that the applicant was given sufficient information to enable him to comment in respect of the material authenticity of the document which he had provided.
[47] See Minister for Immigration & Border Protection v SZMTA [2019] HCA 3 at [10] per Bell, Gageler and Keanne JJ and at [102] per Nettle J.
In my view, the concept of information, in the context of section 57 is analogous to that described by the High Court in SZBYR v Minister for Immigration & Citizenship.[48]It does not include the reasoning processes of the decision maker. The majority in SZBYR indicating as follows:
However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.[49]
[48] SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [15] – [17].
[49] SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [18].
I agree with Ms Hooper’s submission that, if he had wished to do so, it would have been open to the applicant to have conducted his own document examination, given that he had been informed that the Delegate’s suspicion attached to how the licence had been produced, not necessarily how it had been obtained by him.
In this context, it is important to note that, pursuant to the relevant definition, a document can also be characterised as bogus, if false particulars are provided or a person masquerades as its holder. These being matters which go to how the document was obtained. In my view, the applicant was given relevant information regarding the counterfeit nature of the document.
The Minister concedes that the section 57 letter omitted to indicate that the examiner had reached his conclusion in respect of the copy document which had been submitted. However, in my view, nothing in practical terms flowed from this, particularly in terms of whether this resulted in the Delegate conveying a central aspect of her suspicion to the applicant and thus providing him with the opportunity to respond.
The evidence available indicates that the original licence was in fact examined, albeit at a later stage, with the same conclusion being reached. In these circumstances, in material terms, the applicant was not misled or led into error by the contents of the 6 May 2019 letter – he was asked to comment in respect of a counterfeit document. Further he was given an opportunity to provide additional comment, in the seizure letter of 3 June 2019. This was not expressed as a letter based on section 57 but had the same practical effect, which the applicant took up.
In all these circumstances, I agree with Ms Hooper’s contention that the two breaches of process, acknowledged by the Minister, are technical in nature and have had not deprived the applicant of his natural justice rights as contained in section 57 as no incident of practical injustice has arisen. In essence, in my view, the applicant was given the required information to comment on regarding why the Delegate was considering excluding him as a fast track applicant.
It is a further element of the applicant’s case that in accepting the document examiner’s opinion uncritically or without her own scrutiny or independent analysis, she has acted in a legally unreasonable manner and failed to exercise the jurisdiction conferred upon her.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[50]
[50] See Craig v South Australia (1995) 184 CLR 163 at 179.
The classic description of an error, which goes to the jurisdiction of an administrative body, was described in the following terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[51]
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[52]
[51] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[52] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82].
In Minister for Immigration & Citizenship v Li[53] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked an evident and intelligible justification was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[53] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75]–[76].
The jurisdiction conferred on the Delegate by section 91WA required her to conduct a two step inquiry. Firstly, had a bogus document been produced; Secondly, what was the explanation for such production. In his respective statutory declarations, the applicant attempted to provide evidence regarding the second limb.
Essentially, he indicated that he had not been present when his father had attended to the administrative steps to obtain the licence, after he had done his proficiency test and as far as he was concerned, the document produced to him was genuine.
In her reasons, the Delegate did not accept this explanation to be a reasonable one. In my view, she was entitled to reach such a conclusion firstly, given the content of the document examination report provided to her and secondly, her overall assessment of the credibility of the applicant’s explanation. The two factors are related and together supported the decision to exclude the applicant from the fast track assessment process.
As Colvin J explained in HZCP v Minister for Immigration & Border Protection[54] an administrative decision maker is not engaged in an analogous fact-finding exercise to that conducted by a court. As such it may act on any probative material. It need not reason from that material in the way a court would reason.
[54] HZCP v Minister for Immigration & Border Protection (2019) 273 FCR 121 at [184].
In this case, it does not seem to me that the acceptance by the Delegate of that there were questions to be answered, in the sense of explanation to be sought, by and from the applicant given the content of the document examination report. In my view, this cannot be characterised as an approach which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility.
Given the opinion of the examiner, to which the Delegate was entitled to attach what weight she considered appropriate, she turned to the second step of the process envisaged by section 91WA, namely seeking an explanation from the applicant in respect of what he had to say about the provenance of the document.
Essentially, the court is called upon to determine whether the outcome of the Delegate’s decision to seek further information from the applicant can be considered legally unreasonable, in the sense that it was arbitrary or capricious in some way or otherwise inimical with the jurisdiction conferred.[55] I do not consider that it can.
[55] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
In my view, it was clearly legally reasonable and justifiable for the Delegate to have sought an explanation from the applicant in regard to the licence provided by him. This was not a slavish acceptance of someone’s else assessment of the evidence. Rather, in my view, it was a probative piece of evidence, which the Delegate was obliged to consider before proceeding, if she deemed it appropriate, to the application of the second aspect of section 91WA in respect of her potential decision to exclude the applicant from the fast track process.
In my view, the oft quoted passage from Minister for Immigration & Ethnic Affairs vWu Shan Liang[56] remains apposite in which the High Court warned that a court, such as this one, called upon to review an administrative decision making process:
…must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.[57]
As such, this court is required to give the reasons of the Delegate a beneficial construction, which does not involve a degree of over-zealous scrutiny, which searches out error.
[56] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259.
[57] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at [31].
In my view, it is clear from the portion of the Delegate’s decision, which deals with the exclusion issue, that she considered many other factors, in addition to the document examiner’s report, to reach her conclusions regarding her characterisation of the document in question and whether its production activated the mandatory application of section 91WA(1) to the relevant application.
These factors can be summarised as follows:
·Country information which distinguished between the official rigours required to be followed to obtain a driver’s licence – eye exam, a lengthy course and successfully passing a written and practical test – with the ease with which licences could be bought on the black market in Afghanistan – the Al Jazeera country information;
·Her rejection of the credibility of the applicant’s evidence that he had not been present when his father was speaking with the relevant official; and
·Inconsistencies as to his ability to contact his family in Afghanistan to provide clarity about this evidence.
In my view, a fair reading of these aspects of the decision in question indicate that it was these factors, including other aspects made in respect of the applicant’s credibility arising from his protection claim, which caused the Delegate to conclude the document was bogus, not solely the document examination report. In these circumstances, I do not consider that this aspect of the decision can be characterised as being legally unreasonable.
Finally, it falls to determine whether the court should exercise its discretion to decline to make the orders for relief, as sought by the applicant, notwithstanding the two irregularities acknowledged by the Minister in the decision making process.
Again, I acknowledge that it is a discretion to be carefully exercised. However, given the idiosyncratic circumstances of this case and the nature of the two errors in question, the effect of which was remedied quickly causing no prejudice to the applicant’s ability to place whatever information he wanted to do so before the Delegate, I do not think the referral of the matter back to the Delegate can serve any useful purpose.
In my view, it is inconceivable that the Delegate could reach any other conclusion, if the case is remitted back for reconsideration, than that the applicant should be excluded from the fast track review process because of his failure to provide a reasonable explanation for providing a bogus document in support of his protection visa application.
Given this reasoning, the application must be dismissed. The first respondent seeks that the applicant pay the first respondent’s costs of the proceedings. The amount allowable pursuant to the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021 is $8,371.30. I will make an award of costs in this amount.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.
Associate:
Dated: 2 October 2024

File number:	ADG 66 of 2020
Judgment of:	JUDGE BROWN
Date of judgment:	2 October 2024
Catchwords:	MIGRATION – Application for judicial review – Citizen of Afghanistan – Excluded fast track applicant – Where the Delegate found the applicant submitted a bogus identity document in support of visa application – Denial of procedural fairness – Legal unreasonableness –– Opportunity to comment on document in meaningful or effective way– Particulars of why document was considered to be bogus – Practical injustice – Minister concedes error in matters referred to applicant for comment – Is this jurisdictional error – Or can it be characterised as technical error – Is any failure to provide comment jurisdictional error leading to relevant decision being vitiated – Materiality – Conflict of authority – Minister submits discretion not to grant constitutional writs should be granted – Matters to be considered – Application dismissed
Legislation:	Freedom of Information Act 1982 (Cth) Migration Act 1958 (Cth) Pt 7AA, ss 5, 5AA, 5H, 5J, 36, 57, 65, 91WA, 473BA, 476, 487ZJ Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Migration Regulations 1994 (Cth) Sch 2
Cases cited:	BES16 v Minister for Immigration & Border Protection [2018] FCA 78 BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 Craig v South Australia (1995) 184 CLR 163 Dau v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FedCFamC2G 413 DVH16 v Minister for Immigration & Border Protection [2020] FCCA 131 Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123 HZCP v Minister for Immigration & Border Protection (2019) 273 FCR 121 Kabir v Minister for Immigration & Citizenship [2010] FCA 1164 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Antoon (2023) 298 FCR 400 MZAPC v Minister for Immigration & Border Protection (2021) HCA 17 Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217 Plaintiff M7/2021 v Minister for Home Affairs (2021) 389 ALR 1 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 131 FCR 7
Division:	Division 2 General Federal Law
Number of paragraphs:	203
Date of hearing:	9 May 2024
Place:	Adelaide
Counsel for the Applicant:	Mr Aleksov
Solicitor for the Applicant:	Camatta Lempens
Counsel for the Respondent:	Ms Hooper
Solicitor for the Respondent:	Australian Government Solicitor

ADG 66 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AOJ20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	2 OCTOBER 2024