Cew18 v Minister for Immigration - [2020] FCCA 3121

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEW18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3121

Catchwords:
MIGRATION – Visas – Bogus documents – whether the seizing of an Afghan national identity card (Tazkira) by the Minister amounted to jurisdictional error – whether the Minister has erred in failing to give relevant consideration to further evidence – whether the Minister has fallen into jurisdictional error in the formation of suspicion in regards to a bogus document as defined in s 5(1) of the Migration Act 1958 (Cth) – whether jurisdictional error is made out – no jurisdictional error arises – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 65, 476, 477, 487ZI 487ZJ, 487ZK, 487ZL.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.6, 16.

Cases cited:

CEW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 10.

DTP17 v Minister for Immigration and Border Protection (2019) 343 FLR 131.

DVY17 v Minister for Immigration and Border Protection (2018) 340 FLR 403.

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114.

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

Applicant:

CEW18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

COMMONWEALTH OF AUSTRALIA

File Number:

CAG 19 of 2020

Judgment of:

Judge Humphreys

Hearing date:

6 November 2020

Date of Last Submission:

6 November 2020

Delivered at:

Parramatta

Delivered on:

19 November 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Kikkert

Counsel for the Respondents:

Mr Kaplan, HWL Ebsworth Lawyers

ORDERS

The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 19 of 2020

CEW18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant claims to be an Afghan National. The applicant is currently within Australia pursuant to a bridging visa. On 6 February 2018, a letter was issued to the applicant in the name of “MH”, advising him that an Afghan national identity card (Tazkira) Number XXXXX X (redacted by him) had been seized pursuant to s 487ZJ(1) of the Migration Act 1958 (Cth) (“the Act”) because it was reasonably suspected the document was a “bogus document” as defined in s 5(1) of the Act, being a document that was counterfeit. A bogus document provided in contravention of

s 487ZI(1) of the Act is forfeited to the Commonwealth .
The applicant now seeks the following orders and directions as listed below.
It is to be noted that a challenge to a decision of the first respondent to refuse to grant the applicant a protection visa pursuant to s 65 of the Act was dismissed by Judge Driver of this Court on 20 March 2020: (see CEW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 10).

Interim and Final Orders Sought

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3121
Decision Date: 19 November 2020

CaseChat Overview and Summary

The applicant, Cew18, an Afghan national, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's assessment of an Afghan national identity card (Tazkira) presented by the applicant, which the Minister suspected was a bogus document. The matter came before Judge Humphreys in the Federal Circuit and Family Court of Australia.

The court was required to determine several key legal issues. These included whether the Minister's seizure of the Tazkira constituted jurisdictional error, whether the Minister had failed to give relevant consideration to further evidence provided by the applicant, and whether the Minister had erred in the formation of suspicion regarding the document being "bogus" as defined by section 5(1) of the *Migration Act 1958* (Cth). Ultimately, the court had to decide whether any of these alleged errors amounted to jurisdictional error.

Judge Humphreys found that no jurisdictional error had been made out. The reasoning focused on the Minister's assessment of the evidence and the formation of suspicion. The court concluded that the Minister had properly considered the relevant evidence and that the suspicion regarding the Tazkira being a bogus document was lawfully formed in accordance with the *Migration Act*. Consequently, the application was dismissed.

The orders of the court were that the application be dismissed and that the applicant pay the first respondent's costs, fixed at $7467.00.

Orders

Orders of the court

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $7467.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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