Exp17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 502
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EXP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 502
File number(s): MLG 2400 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 28 June 2022 Catchwords: MIGRATION – judicial review of a decision of a delegate refusing to grant the applicant a Safe Haven Enterprise visa – whether the delegate failed to give proper consideration to take evidence from the applicant’s witnesses – whether the delegate erred by rejecting corroborating documentary evidence – whether the delegate considered the applicant’s explanation about adverse material, being the English translation of the applicant’s Taskera Legislation: Migration Act 1958 (Cth) ss 51A, 54, 55, 56, 57, 58, 91WA, 361, 426, 501CA Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
BZD17 v Minister for Immigration & Border Protection (2018) 263 FCR 292
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 397 ALR 1
EWH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1451
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister For Immigration and Border Protection v Sandhu [2016] FCA 130
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395 ALR 403
Plaintiff M148/2017 v Minister for Immigration and Border Protection [2018] HCATrans 109
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 178 ALR 497
SZSDP v Minister for Immigration and Border Protection [2013] FCCA 1647
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535
Division: Division 2 General Federal Law Number of paragraphs: 112 Date of hearing: 28 February 2022 Place: Sydney Counsel for the Applicant: Ms T Baw Solicitor for the Applicant: Michael McCrudden Solicitors Pty Limited Counsel for the Respondent: Mr J Grant Solicitor for the Respondent: Clayton Utz ORDERS
MLG 2400 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EXP17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
28 JUNE 2022
THE COURT ORDERS THAT:
1.The application, as amended on 7 March 2019, is dismissed.
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 GIVEN:
I have before me an application for judicial review of a decision of a delegate of the respondent (delegate) refusing to grant the applicant a Safe Haven Enterprise visa (SHEV).
It is not in dispute between the parties that Court has jurisdiction to review the delegate’s decision pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act).
The applicant is not a “fast track review applicant” as defined in s 5(1) of the Act because:
(a)he arrived in Australia as an unauthorised maritime arrival on 6 November 2012 (Court Book (CB) 36);
(b)following which he was given written notice by the respondent under s 46A(2) determining that s 46A(1) did not apply to his SHEV application (CB 10-15);
(c)he then applied for a protection visa (see s 35A(3A) and CB 18-78);
(d)the delegate found that the applicant had, without reasonable explanation, provided two bogus documents (as defined in s 5(1) of the Act) as evidence of his identity, nationality or citizenship and therefore refused to grant the visa pursuant to s 91WA of the Act;
(e)as such the applicant meets the definition of an “excluded fast track review applicant” (s 5(1) of the Act) and the delegate’s decision is not a “fast track reviewable decision” as defined by s 473BB of the Act; and
(f)accordingly, the delegate’s decision is not reviewable pursuant to Part 7AA of the Act because it is neither a “Part 7-reviewable decision” (see s 411(2)(c)) or a “Part 5-reviewable decision” (see s 338(1)(d)), and it is also not a “primary decision” (see s 476(4)).
The applicant must therefore demonstrate jurisdictional error in the decision of the delegate: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83].
BACKGROUND
The applicant is a 27 year old male who claims to be a citizen of Afghanistan. The applicant arrived in Australia as an unauthorised maritime arrival on 6 November 2012 (CB 36).
In a Statutory Declaration made on 30 August 2015, and which accompanied his SHEV application (CB 83 to 88), the applicant made (inter alia) the following claims:
(a)he was born in Kandahar, Afghanistan;
(b)he is a Shia Muslim and of Sayed ethnicity;
(c)in 2002 at the age of 7 he, together with his family, fled Afghanistan for Pakistan. He was smuggled out of Afghanistan and did not have any identity documents at the time that they fled;
(d)his father worked as an aid worker in Afghanistan. The family fled at the time the Taliban were in power and their family had been in danger from the Taliban for being Shia Muslims and because of the father’s work;
(e)in Pakistan, the family lived in Quetta. The applicant’s father worked for a non-government organisation (NGO) for disaster relief. The applicant did not have any right to live in Pakistan and he was never granted permanent residency or citizenship;
(f)while in immigration detention on Christmas Island he was asked to provide his national identification card and called his mother to ask her to send it to him;
(g)the applicant’s mother paid someone to send the card but it never arrived and the applicant believes that it was lost in the mail while en route from Pakistan; and
(h)accordingly, the only identity document the applicant has is a photograph of his Afghan identity document (Taskera) which he and his mother obtained together 5 years ago while in Afghanistan for his grandfather’s funeral.
The applicant provided an electronic version of a photograph of a Taskera with his SHEV application (CB 79). The Department assigned this document a reference number: Ref 973770 (Taskera Photograph).
A copy of the Taskera Photograph was provided again under cover of a letter which, while undated, falls in the Court Book between the date on which the Department acknowledged receipt of the SHEV application (7 September 2015) and a letter from the Department dated 27 October 2015 to the applicant inviting him to attend an interview (CB 103). By the undated covering letter the applicant stated (before listing his personal identifiers which have been omitted here):
To whom in may concern
I would like to inform you that I am unable to provide the original document of my Afghan National ID. I have the copy which I have already submitted to you along with my application for a protection visa. My particulars are as under,
[Handwritten] I dont have original Afghan National ID
On 4 February 2016, the applicant attended an interview with the Department’s Identity Business Support (IDBS) section following which, between 4 and 18 February 2016, he provided to the Department a number of documents by email (CB 126 to 169) including an expired employment ID card for a particular NGO called “Guardians”, pertaining to his father (2002 NGO Card) (CB 143).
On the 19 April 2016, the applicant attended an interview with the delegate assisted by a Dari speaking interpreter, following which the delegate wrote to the applicant and invited him to comment on adverse information received by the Department and to provide additional information. The applicant replied in writing. A summary of these communications is taken primarily from the applicant’s helpful written submissions:
(a)a letter dated 22 April 2016 from the delegate, concerning an article suggesting that his father is not an undocumented refugee but a Pakistani national (CB 191);
(b)a reply from the applicant attaching his Statutory Declaration (Statutory Declaration) made on 13 May 2016, together with attached identity documents (CB 203);
(c)on 4 July 2016, the applicant sent an email in response to concerns regarding the authenticity of his Taskera (CB 247) which said (errors in original):
Hello
I attached my certified Taskera as I have said on my respond letter that my relative has approached and certified my Takera in Kabul and they are sending me the original translated Taskera and the letter from the Shia mosq through post as soon as I received them I will let u know thanks Regards [EXP17]
the attachment to which was described as “Image.jpg” and is a photograph of a translation of a Taskera (CB 248). The Department assigned this document a reference number: Ref 3820551 (Taskera Translation);
(d)a letter dated 31 August 2016 from the delegate, stating that the applicant’s Taskera and Taskera Translation had been assessed to be bogus documents (CB 250);
(e)a reply email from the applicant to the delegate dated 12 September 2016 (CB 254);
(f)an email from the delegate dated 12 September 2016 requesting further details on how his uncle, in Afghanistan, had obtained the Taskera for the applicant (CB 258);
(g)a reply email from the applicant dated 16 September 2016 (CB 262) which included what is said to be the “original copy” of the Taskera Translation;
(h)a letter dated 9 January 2017 from the delegate stating that the English translation of the Taskera had been assessed to be a bogus document (CB 265); and
(i)a reply letter from the applicant to the delegate dated 22 January 2017 (CB 270).
On 20 October 2017 the delegate notified the applicant of his decision made that day (CB 275 to 279).
DELEGATE’S DECISION
In relation to the circumstances surrounding the destruction of the applicant’s fake Pakistani passport (which he claimed to have given to a people smuggler when it was demanded from him) the delegate found it was plausible that the applicant had done so and was satisfied that there was a reasonable explanation for the destruction of that document. On that basis, the delegate was satisfied that s 91WA(1)(b)(i) did not apply to the applicant in relation to that document.
The delegate explained that due to a visual anomaly he observed in the Taskera Photograph, it appeared the image might have undergone digital manipulation and as a result the Taskera Photograph was submitted to the Department’s Document Examination Unit (DEU) for forensic analysis (CB 281).
The delegate summarised the exchanges between the Department and the applicant in relation to the invitation to comment on the suspicion held by the delegate that the Taskera (which was the subject of the Taskera Photograph) was a bogus document. While making allowance for the plausibility of the explanation that there may have been some errors arising from the translation of information between the Pashto and Dari languages in a local government office, the delegate was not satisfied that the applicant’s explanations adequately addressed the concerns raised (CB 282).
The applicant was found to be a Pakistani citizen (later in the delegate’s findings) despite having consistently maintained that he was a citizen of Afghanistan. The delegate noted that it was not possible under Pakistani law for the applicant to hold dual Afghan-Pakistani citizenship. The effect of this was that, based on the delegate’s finding that the applicant was a citizenship of Pakistan (as was the applicant’s father), the only Taskera the applicant could have obtained would have been an illegal acquisition. Accordingly, the delegate was not satisfied that the applicant had acquired a genuine Taskera (CB 282 and 286).
The delegate summarised the DEU’s findings after review of the Translated Taskera which was first submitted in an electronic form, and the original provided later. The delegate also set out the relevant aspects of the assessment which arose from a review of the original (CB 283 to 285).
In relation to how the Translated Taskera was obtained, the delegate had regard to country information which said that a translation of a Taskera can be obtained through a private translation service or an Afghan government translator and, once produced, the translation would be submitted (together with the original Taskera) to the Minister for Foreign Affairs and Minister of Justice who would attest to the accuracy of the translation (CB 284 to 285). The delegate described inconsistencies between the applicant’s explanation for how the Translated Taskera had been obtained by his uncle and country information about that process, and also that if the applicant was to obtain a replacement Taskera he would need to be personally present in Afghanistan to apply for it (CB 285).
The delegate summarised the anomalies discernible from an examination of the original Translated Taskera and the applicant’s responses to an invitation to comment upon them (CB 285) which included that:
(a)the applicant has extensive Afghan family members; and
(b)the applicant offered to undergo a DNA test to confirm his Afghan nationality.
Ultimately, the delegate placed significant weight on the DEU finding regarding the Translated Taskera namely that it had been altered by persons unauthorised to do so (CB 285 and 286).
The delegate found it was plausible that the applicant could have been a Pakistani national of Afghan heritage which, together with relative porous borders between those two countries, meant that there was limited value in the applicant having volunteered to undergo DNA testing as a method of establishing his citizenship (at CB 286).
After summarising the relevant legislation (CB 287) and the DEU’s findings, the delegate found that each of the:
(a)Taskera the subject of the Taskera Photo (Ref: 973770); and
(b)Taskera Translation (Ref: 3820551);
was a bogus document as defined by s 5(1) of the Act as evidence of his identity, national or citizenship, without a reasonable explanation for doing so, such that s 91WA of the Act applied to prevent the grant to him of the SHEV (CB 288).
In relation to the applicant’s identity, the delegate found that his identity was not as claimed.
Informed by the finding that the Taskera the subject of the Taskera Photograph was a bogus document, the delegate found it to be of limited value in establishing that the applicant’s identity.
As noted at [9] above, the applicant had attended an IDBS interview which the delegate said was because he had presented inconsistent information about his life story and that of his family in his SHEV application (CB 288), following which, on 18 February 2016 the applicant provided his father’s 2002 NGO Card. The 2002 NGO Card included a section for completion of the holder’s nationality, into which had been inserted the handwritten notation “Pak”, which the parties each seem to proceed on the basis is an abbreviation for “Pakistani”. A stamp which says “Guardians” partially occludes the handwritten entry, but it is discernible.
The delegate observed that the nationality stated on the 2002 NGO Card was inconsistent with the applicant’s claim that (like himself) his father was an undocumented Afghan refugee. This inconsistency was explored with the applicant when, approximately nine weeks after the IDBS interview he attended his interview with the delegate at which, in the course of discussing this issue the applicant maintained that his father was an undocumented Afghan refugee and that he must have told Guardians he was Pakistani in order to obtain employment.
At the preceding IDBS interview, the applicant claimed that after working for Guardians, his father had gone on to work for a different NGO. The delegate undertook an internet search which yielded an article written by his father about his work for the latter NGO, a list of emergency contacts from 2007 on which the father was included as being one of two contacts for that NGO and a profile of his father on the NGO’s website which depicted him delivering aid in Haiti in 2010 which the delegate observed would likely have meant he would have had to traverse US immigration controls (CB 289).
The delegate set out having put these inconsistences to the applicant pursuant to s 57 of the Act, together with the applicant’s responses (CB 289).
The delegate was satisfied the applicant is a citizen of Pakistan because of the length of his residence in Pakistan together with his lack of knowledge about Afghanistan, which in the delegate’s view reflected that he was actually born in Pakistan to Pakistani nationals.
While the delegate went on to consider that while it was possible that the applicant’s father may have become a Pakistani citizen and that the applicant had been born prior to that occurring, the delegate considered this scenario to be “less likely”. In any event, the delegate noted that Pakistani law allows for a minor child of a Pakistani citizens to be registered as a citizen also. Given the applicant’s insistence that his father was not a Pakistani citizen, together with the fact that there was nothing to explain why if he had become so by way of naturalisation he would not also have naturalised his otherwise undocumented child, the delegate was satisfied that if the father had become a Pakistani citizen he would have also ensured his son had too.
Accordingly, the delegate found that the applicant was a citizen of Pakistan either by birth or potentially, but less likely, his registration as the minor of a Pakistani citizen (CB 290).
The delegate also assessed the applicant’s protection claims and found that while the applicant did face a real chance of persecution as a Shiite if he were to return to Quetta in Pakistan, he would not face that chance if he were to relocate to Islamabad in Pakistan instead and, accordingly that the applicant did not fact a real chance of persecution in all areas of Pakistan as the receiving country for the purposes of s 5J(1)(c) of the Act.
APPLICATION TO THIS COURT
By an application to show cause filed with this Court on 9 November 2017, the applicant sought review of the delegate’s decision. At the time of the commencement of the proceedings, the applicant was unrepresented. The matter was initially listed for a show cause hearing, which was vacated by consent when, in March 2019, the applicant retained his current solicitor to represent him. An Amended Application was filed for the applicant on 7 March 2019 being the same date upon which his solicitor filed a Notice of Address for Service. By reference to earlier (self-executing) orders made on 25 July 2018, the applicant was granted leave to file an amended application up to 28 days before the hearing and, accordingly, the Amended Application was filed within the scope of that grant of leave.
The matter was transferred to the central migration docket upon the elevation of the Judge to whom the matter was initially docketed as a Justice of the (then) Family Court of Australia.
The grounds of review which arise for consideration (omitting particulars) are therefore:
1.The Respondent (the Delegate) erred by failing to give proper consideration to the applicant’s request to take oral evidence from witnesses.
2.The Delegate erred by rejecting corroborating documentary evidence on an irrational or illogical basis.
3.The Delegate erred by failing to consider the Applicant’s explanation to adverse material about the official English translation of the Applicant’s Taskera.
On 22 December 2021 the matter was docketed to me and listed for hearing. At that hearing, which was held by Microsoft Teams, each of the parties was represented by Counsel who prepared written submissions and also made oral submissions at the hearing. I have been assisted by those submissions.
At hearing the Court Book and Supplementary Court Book were received into evidence and collectively marked Exhibit “1R”.
Ground 1
By this ground the applicant alleges that the delegate failed to given proper consideration to what is said to be a request by the applicant that the delegate “take oral evidence from witnesses”. The particulars to the ground say that the request was made by the applicant in his letter of 22 January 2017 (CB 270 to 274) (January Letter) which was sent in relation to the delegate’s invitation to comment dated 9 January 2017. The January Letter made some general statements about the applicant’s neighbours and relatives as potential sources of information and later said the following at the last bullet point of CB 272 which goes over to CB 273 (omitting identifiers and with errors otherwise in original):
…
·I am also provided you the contact details of my family members, relatives, our business union and members of the gold market in Kandahar where we have been doing business since more than 50 years and they know me, my father, my uncles and my grandfather and his relatives and you can call them through translator and talk with them about my nationality and also about my family as following detail;
1. [Name] my uncle (brother of my father living in Kandahar) +93 XX XXX XXXX
2. [Name 2] my uncle (brother of my father living in Kandahar) +93 XX XXX XXXX
3. [Name 3] my aunt (elder sister of my father living in Kandahar) +93
4. [Name 4] my aunt (sister of my father living in Herat) +93 XX XXX XXXX
5. [Name 5] my aunt (sister of my father living in Iran as refugee) +98 XXXbXXX XXXX
6. [Name 6] my uncle (brother of my mother living in Kandahar) +93 XX XXX XXXX
7. [Name 7] my aunt (sister of my mother living in Kandahar) +93
8. [Name 8] ([job title] in Kandahar) +93 XXXXX XXXX
·I am also request to you to contact and check with fellow citizens (Shia community members coming original from Kandahar) and they are now living here in Australia so if you wish I can share their contact numbers.
…
The applicant relies on Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304 for the proposition that the delegate failed to genuinely apply his mind to whether he should take oral evidence from “the nominated individuals” and that failed to “not decline the request capriciously”.
Further, in reliance on Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 the applicant says the delegate failed to make an obvious inquiry about a critical fact the existence of which was easily ascertainable, namely whether the applicant was a citizen of Afghanistan.
The respondent makes 3 responses to ground 1. Firstly, that the statutory context is key: in particular, the fact that the main authorities relied on by the respondent relate to the Administrative Appeals Tribunal (Tribunal) review under Parts 5 or 7 of the Act and that the present case is a delegate’s decision which is undertaken under Part 2 of the Act. There are various relevant distinctions arising from these respective regimes which are detailed below. For this reason, the respondent says that reliance on decisions such as Maltsin is inapposite because those decisions consider the duty through a prism of the relevant statutory regime/s which apply to Tribunal proceedings. The respondent says that the applicant’s request, even so construed, can only be considered as being a request for the respondent to exercise its power arising from s 56 to get any further information which the respondent considers relevant: Cf Maltsin (supra) at [37] – [38].
Secondly, the respondent says that the applicant did not in fact request that the delegate take evidence from “eye witnesses”.
Thirdly it is contended for the respondent that even if the applicant were taken to have made such a request, there is nothing to demonstrate that the delegate did not in fact consider the request.
Consideration
Part 2, Division 3, Subdivision AB of the Act provides the code of procedure by which a delegate is to deal fairly, efficiently and quickly with visa applications.
Subdivision AB of the Act commences which s 51A which provides:
Exhaustive statement of natural justice hearing rule
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
Also within Subdivision AB of the Act is s 56, upon which the applicant relies, which provides:
Further information may be sought
(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
Since some of the earliest days of the present migration regime it has been accepted that s 56 of the Act is permissive and facultative: see Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57 per Gaudron J at 85 and McHugh J at 97.
Other sections of Subdivision AB relevant to this ground are as follows.
Section 54(1) of the Act requires that the respondent must have regard to all the information given by an applicant in relation to the visa application although there is no obligation to invite the applicant to attend an interview or hearing before the respondent: see Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 178 ALR 497 per Kirby J at [22] and [25]-[27] and Plaintiff M148/2017 v Minister for Immigration and Border Protection [2018] HCATrans 109 per Bell J at 1163-1164. Sub-section 54(3) permits the respondent to make a decision on a visa application without giving an applicant an opportunity to make oral or written submissions.
Section 57 requires the respondent to give an applicant particulars of information which the respondent considers would be the reason, or part of the reason, for refusing the grant of a visa (or specifically pursuant to s 57 (1)(a)(ii) for deciding that an applicant is an excluded fast track applicant), and s 58 requires the respondent to invite the applicant to comment upon information given pursuant to s 57 of the Act.
As the respondent has submitted, this regime differs from the procedures to which a Tribunal is required to adhere under either of Parts 5 or 7 of the Act (which are relevantly identical in their terms), and in particular to s 361 of the Act (which comes within Part 5 of the Act and has an analogue in s 426 of the Act) which provides:
Applicant may request Tribunal to call witness and obtain written material
(1) In the notice under section 360A, the Tribunal shall notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(b) of the effect of subsections (2) and (2A) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(2A) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:
(a) written evidence from a person or persons named in the notice; or
(b) other written material relating to the issues arising in relation to the decision under review.
(3) If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.
(4) This section does not apply to the review of a decision covered by subsection 338(4) (certain bridging visa decisions).
It is a matter of moment that there is no equivalent to ss 361 or 426 of the Act within Subdivision AB. The effect of this is that the applicant did not have a right to request that the delegate take evidence from witnesses, nor is there power reposed in the respondent under Subdivision AB to compel a witness to attend at an interview (hearing): Cf ss 363(3) and 427(3) of the Act.
There being no statutory entitlement to allow the applicant to make such a request, nor provision requiring the delegate to consider the same, the applicant relies on a common law duty to inquire.
As noted previously, the cases in this regard are primarily directed to the review regime to which Tribunals are subject. The decision in SZIAI upon which the applicant relies, is one such case. In SZIAI, the High Court found as follows at [25]:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
That this duty is most frequently considered in a Tribunal context does not preclude it from applying to a delegate: see Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22.
The parameters of the duty to inquire in the sense discussed in SZIAI require the applicant to establish that there was an obvious inquiry about a critical fact the existence of which is easily ascertained. The High Court’s decision in Wei also applied this test in circumstances where the question was whether the applicant was enrolled in a course of study. This was a critical fact to the determination of whether his visa should be cancelled. At [51], Nettle J stated:
Hence, one obvious way of ensuring, or at least being more certain, that the plaintiff had ceased to be enrolled was to make a telephone inquiry of the University, the direct and authoritative source of confirmation of the plaintiff’s enrolment, just as the delegate had done on 20 February 2014 to check the plaintiff’s address. Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so – by picking up the telephone and requesting the University to check whether the plaintiff’s enrolment status as shown in PRISMS was in fact correct – and the clear link between the delegate’s failure to make that inquiry and the delegate’s determination to cancel the visa, I consider this to be a case in which the delegate’s failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.
In the instant case, while the issue of the applicant’s nationality was undeniably a critical fact, the circumstances do not otherwise satisfy the relevant test.
As noted above, the respondent says that the applicant did not, as a matter of fact, make a request. It is convenient to deal with this issue first. Rather, the respondent says that by the parts of the January Letter extracted above at [37] the applicant:
(a)provided the contact details of relations in Afghanistan, including his uncle;
(b)“offered” for the delegate to contact them;
(c)stated “you can call them through translator”; and
(d)separately, requested the delegate contact Shia Afghans from Kandahar in Australia (no contact details were provided, and the applicant does not appear to take issue in this case with this particular request not having been acceded to).
To the above list I add the following observations. The applicant did not limit the request to his relatives. He also generally suggested that the delegate also speak to his neighbours, and a person from the gold market in Kandahar, although these aspects are omitted from the manner in which this ground is pleaded. Next, the applicant did not provide contact details for all the persons he requested be contacted.
In relation to the persons who are said to be his aunts, only an area code has been provided for persons 3 and 7 on the list, but no other details. The telephone number which is given for his aunt in Iran (person 5) also seems to be incorrect insofar as it has an errant letter ‘b’ in its midst.
To the extent that there were further contact details which the applicant suggested could be provided, he contends that this was in essence an offer to provide contact details on request. However, it is also possible to interpret the offer on a plain reading as meaning that the applicant intended to provide them in due course. If that was the case, s 55(2) did not require the delegate to wait until he did so before making a decision.
Having regard to the fact that English is not the applicant’s first language and that it is open to interpret the passage relied upon by him from the January Letter as constituting a request, I am prepared to accept, for the purposes of this ground, the applicant was intending to request that the delegate contact specific persons and also made a general request that neighbours in Kandahar be contact (without providing details). I also accept that by the first bullet point on page CB 273, the applicant asked the delegate to contact members of the Shia community in Australia whose details might be provided on request, in respect of whom the information they would proffer was not specified.
Despite being a request, for the reasons set out above at [43] to [51] the delegate was not required by the terms of the statute to necessarily consider it and, even taken at its highest, I am not satisfied that the request gave rise to a duty to inquire on the part of the delegate.
In contrast to a scenario such as Wei, where the Court described the relative ease of ascertaining information from a relevant source (namely from an independent third party education provider who held such records) and that the method by which this could occur was obvious, there are no such factors here.
The exact nature of request and the context in which it was made is relevant to assessing whether the denial to accede to it by a decision-maker constitutes a denial of procedural fairness: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gleeson CJ at [4]; Minister For Immigration and Border Protection v Sandhu [2016] FCA 130 at [28] per Siopis J (albeit in the context of an adjournment request).
What constitutes an obvious inquiry and the ease with which a critical fact could be ascertained will inevitably turn on the facts of each case.
In this sense, I agree with the submission of the respondent that to the extent the applicant requested the delegate obtain an interpreter (or possibly several), and begin a process to “talk with them about my nationality and also about my family”, it is highly relevant in two respects.
The first is that it informs the nature of assessment of whether there is a duty to inquire in the sense established in cases such as SZIAI.
It may be that neighbours or relatives may, in some situations, be the best sources of particular information. However in the instant case, the most beneficial reading of the applicant’s request is that his relatives (and one another named person from the gold market) be contacted in relation to establishing his nationality. Quite how said people could do that in a manner more probative than the applicant himself, than by documentation or from official sources, is unknown. In this sense the inquiry was not obvious because there was a probative disconnect between the source/s of information and the critical fact sought to be established: Cf Wei (supra).
Further, even if the contact details for some persons were readily offered up, because of that above-mentioned lack of probative correlation, the critical fact was also not easily ascertainable. Even if I accept that the act of dialling international numbers is itself not difficult, and even though the applicant was also suggesting that the delegate would have to arrange an interpreter in order to do so (having not specified which languages or dialects might be required for each person), the question of whether a source can provide information which will establish the fact is also relevant to the assessment of whether it is easily ascertainable. In this sense, third party or official information from records kept (for example the enrolment records kept by a university such as in Wei) is significantly disparate from asking a relative about what could (at best) be hearsay or their opinion about the applicant’s citizenship status. A decision-maker is not required to proceed on a fishing expedition and, by definition, to do so would not constitute an obvious enquiry about a critical fact which could be easily ascertained.
In the present case I am not satisfied that the request that the delegate contact the applicant’s relatives, even accompanied in some cases by telephone numbers, gave rise to a duty to inquire. That position is a fortiori in respect of the person from the gold market and even further in contrast to unnamed Shia community members who now live in Australia. To the extent that the list included the applicant’s uncle (name 1 in the list contained in the January Letter), who was the same uncle who had allegedly obtained the Taskera Translation, the applicant did not expressly request that his uncle be contacted in relation to that process. Rather, he was included in the generic list of people who might discuss the applicant’s nationality and family.
The second aspect arising from the context and nature of the request is that it also informs the assessment of whether the request was considered (even if the statute does not expressly require this to occur).
The following well-established principle from Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French J (as his Honour then was), Sackville and Hely JJ at [47] albeit again in a Tribunal context is, nevertheless, of relevance:
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The respondent submits that a request to exercise a procedural power, such as to get information is not a claim or critical evidence, and the delegate was not required to set out in his reasons for decision the reasons for his disposition of any request to exercise a procedural power, relying on Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [32] per French CJ and Kiefel J (as her Honour then was) and Gummow J at [69].
In the present case, given the nature of the request and the statutory context, I am asked to infer by the respondent that the delegate considered any request to call the “witnesses” identified and I am prepared to do so. The present case is analogous to the facts considered by the High Court in SZGUR (supra) in particular [33] and [73] and I find that the statement by the delegate at CB 286 that he did not consider the possibility that the applicant had relatives in Afghanistan to be proof of the applicant’s nationality.
Lastly, and to return to the decision in Maltsin upon which the applicant places reliance, quite aside from its limitations of analogy having regard to the fact it was a case in which s 361 of the Act applies, there are other relevant distinctions. The matters which have been considered above in relation to the probative value of the material are also relevant to this case. The following aspects of Maltsin further limit its relevance to the present case:
(a)the visa in question was a partner visa and the question to which the evidence of witnesses was said to go was their subjective impressions about the genuineness of the relationship between the applicant and the sponsor;
(b)witness statements had been provided for the witnesses sought to be called;
(c)the Tribunal limited the taking of oral evidence because the member had at the outset allotted only 2 hours for the hearing because the member needed to leave at a certain time to attend to their “own commitments”; and
(d)the Tribunal also declined to hear from the witnesses because it found that the evidence before it appeared to disclose “a web of deceit” and as such the Tribunal was not satisfied that the family and social connections being proffered as witnesses were witnesses of truth.
Against that background, the assessment in Maltsin that the Tribunal’s decision was capricious is distinguishable from the instant case. The present applicant provided no summary of evidence or witness statements in advance to give any indication of the probative nature of the proposed evidence. Further the question of the applicant’s nationality was not one which had a qualitative nature (unlike subjective views about the genuineness of a relationship). There is nothing to suggest that the delegate arbitrarily cut short the decision making process or otherwise declined to call the witnesses because he had made adverse credibility findings about the applicant or them. Accordingly, in my view there was no relevant capriciousness or arbitrariness in the delegate’s approach.
For the foregoing reasons, it is open to infer, and I do, that the delegate did not consider the applicant’s request that it speak to specific persons would assist in any probative sense in the assessment of the question of the applicant’s nationality and, for this reason, decided not to contact them. Subsumed within that finding is that for the same reasons the delegate elected not to pursue less relevant and/or unnamed persons even further removed from question at hand, and from the applicant.
Accordingly, ground 1 is not made out.
Ground 2
By this ground the applicant alleges that the delegate’s findings about the intersection of the nationality of the applicant and his father lack a rational, logical or probative connection to the evidence.
Specifically, the amended application is cast in terms which allege that the delegate committed jurisdictional error by rejecting a document, being an identity card issued to the applicant’s father in 1997 which recorded his nationality as Afghan (CB 228) (1997 NGO Card), and instead finding him to be a Pakistani national in line with the 2002 NGO Card (CB 143 and 229) which was issued later in time. As the respondent observes, while the ground was initially cast in that way, the applicant’s written submissions instead takes aim at the delegate’s finding at CB 290, by reference to the following parts of the applicant’s Statutory Declaration which stated:
4. In your letter you say that you may decide that I am a Pakistani citizen and a not a citizen of Afghanistan because of my father's work in Pakistan and overseas for Pakistani NGOs. I have now asked my father about how he has been able to do this as an Afghan living in Pakistan. I was very young when I left Pakistan and had not really thought to ask him about these things before I left. From what he has now told me, I understand that he has been travelling overseas to work with NGOs using a Pakistani travel document.
5. My father says he doesn't want to give me the document he uses because he is afraid this information about him may be disclosed publicly through a data breach as has happened before in Australia. My father says he is not a Pakistani citizen and has a legal travel document. He says he is issued visas to travel on that document. I cannot make my father give me his travel document and I have been told I am not supposed to give you documents that are not genuine. Without knowing and seeing what the document is, I'm not sure that I would be able to provide it even if I had it for that reason.
6. All I know is that my family and I are Afghan citizens and as far as I know I am not a Pakistani citizen. I have never had a Pakistani passport. But I have many documents that show that I and my family members are Afghan citizens. I have already given you my taskera and now provide a certified translation of it. I also now provide a copy of my father's taskera and a certified translation of that, and taskeras for my mother and paternal grandfather. i have also provided you with my uncle's Afghan passport. I now provide you with a number of other identity documents for my uncle and his family. They are Afghan citizens living in Iran. Even if my father has somehow become a Pakistani citizen because of his work with NGOs, it doesn't mean that I have as well. Again, as far as I know, I haven't. I am trying to get more identity documents from my family in Afghanistan but this may take some time so I request that you do not make a decision until I have provided what I can.
The applicant then relies on the delegate’s finding at CB 290 that:
… Furthermore I find his length of residence in Pakistan and his lack of demonstrated familiarity with Afghanistan to be reflective of him actually being born in Pakistan to Pakistani nationals. However, in giving regard to the possibility the applicant's father became a Pakistani citizen, I note it is possible (although, given the credibility concerns outlined above, less likely) the applicant was born prior to his father obtaining Pakistani citizenship. I note, however, the Pakistani Citizenship Act allows for the minor child of a citizen of Pakistan to register the child as a citizen of Pakistan.15 The applicant's claim to have migrated to Pakistan as a child and to have departed for Australia as an unaccompanied minor raises the possibility that the applicant also became a citizen of Pakistan. Given the applicant has consistently claimed his father is not, nor has become, a Pakistani citizen, it is difficult to determine if this is the case. Combined with the absence of any evidence before me suggesting why a naturalised Pakistani citizen would not naturalise his undocumented, underage, Afghan children in Pakistan given the opportunity to do so, there is nothing before me to suggest the applicant's father became a Pakistani citizen, but did not avail the applicant of the same opportunity. Given the outlined credibility concerns I am unable to extend the benefit of the doubt to the applicant in accepting his claimed Afghan nationality. I am therefore satisfied that if the applicant's father was naturalised as a Pakistani citizen, the applicant, as the minor son of a Pakistani citizen, would also have acquired Pakistani citizenship.
By the written submissions filed for him, the applicant contends that the delegate engaged in “speculation” by finding that one explanation was more likely than another and that the delegate’s use of a double negative by saying that in the absence of evidence as to why, if the applicant’s father had become a naturalised Pakistani he would not have also ensured his son was to erroneously shifts the onus to the applicant to rebut a presumption the delegate had made and that a belief cannot be converted to fact simply because there is no evidence to counter it.
While expressed as an allegation of illogicality on the part of the delegate by having reasoned that, because the applicant’s father might have acquired Pakistani citizenship he would have also naturalised the applicant, the ground shifted again when at hearing Counsel for the applicant conceded that illogicality was not available and, rather, this ground should now be understood as being that the delegate made a finding without evidence.
The respondent says that the allegation made by this ground is not borne out by proper consideration of the delegate’s reasoning, raising the general caution that the Court should not should not over-zealously scrutinise the reasons of an administrative decision-maker to find error.
The respondent submits that findings of the delegate in relation to the potential naturalisation of the applicant’s father being at odds which the applicant not then having been so naturalised, proceed rationally and “based on ordinary human experience” and that the finding was not one “at which no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [130] to [131].
Jurisdictional error will be established where a decision is irrational, illogical and not based on findings or inferences of fact supported by logical grounds and can be demonstrated by “findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational”: see BZD17 v Minister for Immigration & Border Protection (2018) 263 FCR 292 at [34] citing SZMDS (supra) at [132] per Crennan and Bell JJ. Relevant error will exist if the finding of fact “was simply not open on the evidence or … there is no logical connection between the evidence and the inferences or conclusions drawn”: SZMDS (supra) at [135] per Crennan and Bell JJ.
Further, it is accepted that as part of an assessment process, a decision-maker can make assumptions or draw on their own common sense, a reasonable appreciation of human experience and personal or specialised knowledge: see Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 397 ALR 1 at [39] per Allsop CJ, Besanko and O’Callaghan JJ (citing Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395 ALR 403 at [17] to [21]) and SZSDP v Minister for Immigration and Border Protection [2013] FCCA 1647 per Judge Manousaridis at [45], upon which the respondent relies.
In Viane (supra) at [17], the High Court observed (in the context of the Minister’s exercise of the power conferred by s 501CA(4) of the Act) that:
…in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known. By “no evidence” this has traditionally meant “not a skerrick of evidence: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; 228 ALR 28; [2005] FCA 1707 at [575] per Weinberg J, quoting Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed, 2004, p 239.
It is also well established, from the oft-cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and recently reiterated in XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535 per Perry, Banks-Smith and Anderson JJ at [27] that a beneficial construction is to be adopted in construing the reasons of the decision-maker:
In this regard, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 –272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287 )). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] –[15] (Allsop J (as his Honour then was)).
Turning then to the reasons for decision, the delegate considered the evidence before him which included two seemingly conflicting identity cards pertaining to the applicant’s father. Despite being dated/issued later in time that the 1997 NGO Card, the 2002 NGO Card was provided by the applicant to the Department first, shortly after the IDBS interview in February 2016 (CB 143). It was only later, in response to an invitation to comment, that the 1997 NGO Card which bears a handwritten entry “AFGHAN” next to the space provided to enter the holder’s nationality, was submitted (CB 228).
The delegate considered the 1997 NGO Card where (at CB 289) the delegate noted:
Following the interview, the applicant submitted a copy of an older expired Guardians employment ID which stated his father was Afghan. I note the document predates the Guardians employee identity card which states he is Pakistani, raising the possibility the applicant’s father became a Pakistani citizen.
Accordingly it was the applicant’s provision of the 1997 NGO Card which, inter alia, gave rise to the delegate allowing for the possibility at the top of CB 290 that:
the applicant's father is now a Pakistani citizen with the right to work and reside in Pakistan.
(emphasis added)
The delegate’s use of the term “now” in the sentence which precedes the relevant finding at CB 290 does no more than say that whatever inference might be drawn from the 1997 NGO Card, the 2002 NGO Card evidenced at a later time that the applicant’s father was a Pakistani citizen, by whatever means so acquired.
What seems to have been somewhat overlooked by the applicant in relation to this ground is that the findings of the delegate in relation to the issue of why if the applicant’s father had acquired Pakistani citizenship the applicant had not also acquired it, is an alternate finding to the delegate’s primary conclusion that on the evidence before him, which included the applicant’s own unfamiliarity with Afghanistan and the length of time in which he had lived in Pakistan, he was actually born in Pakistan to Pakistani nationals.
Assuming that, as the applicant claimed, he was an undocumented, under-age, Afghan citizen then (notwithstanding use of a double negative) by finding that:
(a)if the applicant’s father had become a Pakistani citizen;
(b)a parent with citizenship of a country would ordinarily be expected to register their undocumented, under-age child as a citizen of that country also if possible; and
(c)in the absence of evidence explaining why the applicant’s father did not do so;
the delegate found that the likelihood that the applicant was always a citizen of Pakistan by birth was reinforced or, alternately, the applicant had also been so naturalised.
In relation to the suggestion by the applicant that the delegate could not simply convert his belief into a finding because there was a lack of evidence to counter it, then, again allowing for the inelegance of expression that can sometimes come from the use of a double negative, I do not accept the onus was shifted in some way to make the applicant disprove a belief held by the delegate. A decision-maker is not obliged to uncritically accept an applicant’s evidence and does not require rebutting evidence before holding that a factual assertion is not made out: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 per McKerracher, Griffiths and Rangiah JJ at [65].
Either way, there is no illogicality in the sense considered in SZMDS, at the requisite extreme level or at all. Nor was the finding made without evidence. It was open to the delegate to conclude on the basis of the material before him, the assessment of the 1997 and 2002 NGO cards and a reasonable understanding of the human experience, as he did.
Accordingly I am satisfied there is no jurisdictional error in relation to the finding in question and ground 2 is not made out.
Ground 3
As with ground 2, this ground has evolved somewhat from the manner in which it is expressed in the Amended Application where it is alleged that an explanation, given in response to an invitation to comment, was overlooked.
Understood with the benefit of the applicant’s submissions the allegation is, in essence, that the delegate failed to undertake an active, intellectual engagement with a statement in the January Letter (CB 271) which said:
… when you apply for the copy or attestation keeping in view of the displacement of million people (sic) it has been relaxed to allow the close relatives or family members to apply or attest to the copy of the national identity cards in order to facilitate the Afghan refugees living in their host countries.
The applicant says that by summarising the January Letter in bullet point form at the bottom of CB 285, the absence of a reference to the claimed “relaxation” of rules, is a matter of moment.
The respondent again says that the inference that a decision-maker has overlooked an issue should not too readily to be drawn and the applicant has failed to establish that the delegate did not consider the passage from the January Letter relied upon.
The case of Applicant WAEE has long been cited for the proposition that the decision-maker is not required to refer to every piece of evidence and remains so. The jurisprudence on this proposition was recently summarised in EWH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1451 per Halley J at [59]:
Although the Tribunal is required to give reasons for its decision, it is not required to refer to every piece of evidence before it. Further, the absence of any express reference does not necessarily mean that the evidence, or an issue raised by it, was not considered by the Tribunal: ETA067 v The Republic of Nauru (2018) 360 ALR 228; [2018] HCA 46 (ETA067) at [13] (Bell, Keane and Gordon JJ). There is a distinction between a failure to advert to evidence that, if accepted, might have led the Tribunal to make a different finding of fact, and a failure to address a contention that, if accepted, might establish that an applicant had a well-founded fear of persecution for a Convention reason: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (WAEE) at [46] (French, Sackville and Hely JJ). Further, as the High Court explained in ETA067 at [14], there is a distinction between an omission to refer to evidence indicating that the Tribunal did not regard it as material to an applicant’s claims, and an omission to consider a matter that was material, including a matter that was an essential ingredient to an applicant’s claim or a matter that would be dispositive of the Tribunal’s review.
Further, the allegation made by ground 3 is not that the passage of the January Letter would, if accepted, have been dispositive of the delegate's decision: Cf Applicant WAEE (supra) at [47].
The respondent says that the applicant has failed to establish that the delegate did not consider the above excerpt of the applicant’s January Letter on the face of the delegate’s decision record.
A review of the delegate’s reasons reveals that the delegate took into account country information regarding the ability of persons to obtain a replacement Taskera and the process of translation of a Taskera. The country information was not particularly recent, a fact about which the delegate was candid, and also noted it was the most up-to-date information he had.
The extract from the January Letter relied upon in relation to this ground was a submission which contradicted the independent material. It was not evidence, let alone independent evidence. It was a bare assertion on the part of the applicant.
The delegate did not overlook the January Letter. He summarised it broadly and considered it as part of the reasons for decision. The fact that there was not a specific reference to this claimed relaxation of rules does not speak to it having not been considered, nor to the delegate having failed to actively and intellectually engage with it.
Rather, I accept the submission of the respondent that the absence of a reference to it is explicable by reason of the limited probative weight of it in contrast to country information (even if it was not especially current), which the delegate preferred.
For this reason ground 3 is not made out.
Accordingly, the applicant has failed to establish jurisdictional error in the delegate’s decision and the application, as amended, must be dismissed.
I will hear the parties as to costs.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 28 June 2022
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