CZO18 v Minister for Home Affairs (No 2)
[2019] FCA 1360
•23 August 2019
FEDERAL COURT OF AUSTRALIA
CZO18 v Minister for Home Affairs (No 2) [2019] FCA 1360
Appeal from: CZO18 v Minister for Home Affairs [2019] FCCA 243 File number(s): QUD 136 of 2019 Judge(s): GREENWOOD J Date of judgment: 23 August 2019 Catchwords: MIGRATION – consideration of an appeal listed for hearing as a result of a grant of an extension of time within which to file the appeal – consideration of the appeal by a single judge of this Court exercising the appellate jurisdiction – consideration of the appeal by the judge who heard the application for an extension of time – the reasons for judgment and orders in relation to the appeal to be read together with the reasons and orders made in the application for an extension of time: CZO18 v Minister for Home Affairs [2019] FCA 1320 Legislation: Migration Act 1958 (Cth), s 473CB(1) Date of hearing: 23 August 2019 Date of last submissions: 23 August 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Applicant: No appearance Counsel for the First Respondent: Mr S Lee Solicitor for the First Respondent: Clayton Utz ORDERS
QUD 136 of 2019 BETWEEN: CZO18
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
23 AUGUST 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the costs of the first respondent (now described as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) of and incidental to the appeal including the costs of the appellant’s application for an extension of time within which to bring an appeal and any reserved costs.
3.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings are concerned with the determination of an appeal from a judgment of the Federal Circuit Court of Australia (CZO18 v Minister for Home Affairs [2019] FCCA 243) which was the subject of an application for an extension of time within which to bring the appeal. On 19 August 2019, the Court granted an extension of time and ordered that the proposed notice of appeal attached to the application for an extension of time, filed on 26 February 2019, be treated as the filed notice of appeal.
The appellant, having obtained an extension of time on that footing, was required to pay a filing fee referable to the appeal. That fee has not been paid. Accordingly, these reasons and the orders made in relation to the appeal are given and made under the Court file reference of QUD 136 of 2019 which is the electronic file number related to the application for an extension of time. Had the appellant paid the filing fee, the Court would have allocated a unique appeal number to the appeal.
These reasons are to be read together with the reasons for judgment on the extension of time application: CZO18 v Minister for Home Affairs [2019] FCA 1320.
The hearing commenced at 10.21am today. The appellant did not appear.
Before embarking upon the hearing of the appeal, the appellant was called by reference to his acronym “CZO18”. There was no appearance after the call. Upon publication of the judgment and orders in relation to the extension of time matter, the Court gave the appellant notice on 19 August 2019, by email, that the appeal would be heard on Friday, 23 August 2019 at 10.15am in the Federal Court of Australia at Brisbane. On 20 August 2019, the Court gave further email notification to the appellant of all the relevant details, as to date, time and place (by address).
In addition to those notifications, the appellant was also given notice of the time and date of hearing of the appeal by emails on 22 August 2019 at 4.24pm and 6.17pm by the solicitors for the Minister (now, according to the Ministerial arrangements, properly described as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs). Those emails also provided the appellant with a sealed copy of the affidavit of the solicitor for the Minister, Ms Hannah Anderson (which provided the appellant with the consolidated documents relevant to the appeal) and, by the second email, the Minister’s submissions.
Of course, the Court had regard to affidavit material, the draft notice of appeal, the reasons of the primary judge and the decision of the Immigration Assessment Authority (the “IAA”), in considering the application for an extension of time.
The hearing of the appeal was listed before me because I had considered the underlying documents thoroughly in considering and formulating reasons in relation to the application for an extension of time.
An extension of time was granted, enabling the appeal, on the footing that the appellant was to be given an opportunity to demonstrate that the documents which were provided to the delegate by the appellant after the SHEV interview and which were not provided to the IAA in contravention of s 473CB(1) of the Migration Act 1958 (Cth) (the “Act”) (a concession made by counsel for the Minister), might be material to the IAA’s decision. The documents in question are the appellant’s driver’s licence and a Family Registration Certificate.
The delegate had also taken steps to obtain certain Facebook screenshots. These were not provided to the delegate by the appellant but had been obtained by the delegate directly. The Minister has not, and does not, concede that the failure to refer these Facebook screenshots to the IAA involves any contravention of s 473CB(1) of the Act.
In the course of submissions from the Minister on the application for an extension of time, it was said that the appellant’s driver’s licence, the Family Registration Certificate and the Facebook screenshots held on the Departmental file, were adduced into evidence by the Minister before the primary judge. That observation was in error and the correct position is that only the Facebook screenshots were put before the primary judge. As to the other two documents, they were not put before the primary judge. The position concerning those documents is that officers of the Department have reviewed the relevant files and made enquiries to try and locate the two documents but despite those efforts they have been unable to be located. Since the orders were made on 19 August 2019 granting an extension of time, further enquiries have been made. However, the Department remains unable to locate either the driver’s licence or the Family Registration Certificate.
As mentioned in the earlier reasons for judgment published on 19 August 2019, the notice of appeal is in very sparse terms and, relevantly for present purposes, asserts that the IAA “failed to exercise its jurisdiction by failing to consider all aspects of my claims”. In the judgment published on 19 August 2019, the nature of those claims made before the IAA is examined and so too is the basis upon which the IAA reached its decision. The IAA reached its decision for two essential reasons. First, it was concerned about a sequence of inconsistencies and discrepancies relating to the factual foundation for the claims made before the IAA. Secondly, in evaluating the substratum of the claims and ultimately addressing the decisional matters, the IAA had regard to country information. The reasons for decision examine carefully each of the various claims and the scope and content of the discrepancies and inconsistencies. Aspects of those matters are examined in the reasons published on 19 August 2019.
The question for consideration now is whether the documents which were not provided to the IAA are material to the decisional matters of the Tribunal. In the proceeding on the application for an extension of time, the appellant was self‑represented although assisted by an interpreter. The appellant, in order to demonstrate that the failure to comply with the statutory obligation contained in s 473CB(1) was material to the decisional matters, was required to put those documents before the Court and demonstrate their materiality. Because the appellant is self‑represented, the appellant was provided with an opportunity to demonstrate how the documents might be material to the decisional matters. However, the appellant has not sought to do so.
Accordingly, the Court has examined the question of whether the appellant’s driver’s licence, the Family Registration Certificate and/or the Facebook screenshots are material to the decisional matters.
In the course of the IAA’s reasons, there are references to concerns about the evidence provided by the applicant regarding his identity and life in Pakistan. In the decision of the delegate, there is a section under the heading “Identity Assessment” in which there is a reference to the appellant’s driver’s licence (in English) and his Pakistani Family Registration Certificate (also in English). There is also a reference to the appellant’s “Pakistani Computerised National Identity Card”. The delegate finds that the authenticity of the appellant’s driver’s licence is “indeterminate” and little weight was placed upon it, as evidence of identity, by the delegate. However, the delegate found that the driver’s licence was not a bogus document for the purposes of the Act. The delegate was unable to “attest to the authenticity” of the Family Registration Certificate.
Although there are references in the IAA’s reasons to questions about the identity of the appellant and an observation at para 23 of the IAA’s reasons that issues concerning the appellant’s evidence, taken as a whole, led the IAA to question whether the appellant “has been entirely forthcoming in his evidence concerning his identity and life in Pakistan”, it is clear that the IAA proceeded to evaluate in detail the factual foundation for each of the claims of the appellant and weighed in the balance references to country information. The IAA did so on the footing that questions in relation to the “identity” of the appellant would be put to one side and his claims would be evaluated in context both as to the facts and the relationship those facts might have to the questions in issue having regard to country information. No finding was made by the IAA that the appellant was not who he claimed to be. It is clear that the IAA evaluated his claims, in the way just described, on the assumption or footing that the appellant was who he claimed to be.
It is perfectly clear from a reading of the IAA’s reasons that the decisional matters of the IAA did not turn upon or even involve any question of the identity of the appellant. The observational matters about concerns relating to the identity of the appellant were, in substance and effect, put to one side. The matters which determined the decision of the IAA were matters going to the factual foundation for the claims of the appellant and whether they could or could not be accepted and the relationship between those matters, the questions in issue and country information. Neither the appellant’s driver’s licence nor the Family Registration Certificate were relevant to the decisional matters.
So far as the Facebook screenshots are concerned, very little needs to be said about them. They have now been provided to the Court. They are screenshots sourced by the delegate prior to making the decision and placed on the file following the decision but not referred to the IAA. There seem to be, in essence, four screenshots. They were not put to the delegate or the Department by the appellant and thus they are not explained by the appellant. They tell any person looking at them virtually nothing. They were not referred to the IAA. They were not taken into account in the decision‑making of the IAA. They are not relevant to the matters which form the basis for the IAA’s decision, let alone material to those matters.
Accordingly, the appellant having been given an opportunity to identify, any way in which any of the three classes of documents might be said to be material to the decisional matters, has failed to do so. The Court’s examination for itself of these documents results in the conclusion that the documents are not relevant in any way to the decisional matters of the Tribunal, that is to say, the factors which are the foundation of the IAA’s decision.
Accordingly, the appeal must be dismissed with an order that the appellant pay the costs of the Minister for Home Affairs of and incidental to the appeal, the application for an extension of time and any reserved costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 23 August 2019
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