FLD18 v Minister for Home Affairs
[2020] FCCA 87
•29 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FLD18 v MINISTER FOR HOME AFFAIRS | [2020] FCCA 87 |
| Catchwords: MIGRATION – Decision by Delegate of the Minister who made multiple findings in relation to the Applicant’s use of counterfeit and “bogus” documents – issues of “materiality” of the Applicant’s taskera said by the Delegate not to have been produced when the transcript for the SHEV interview showed that it had been produced – taskera not relevantly considered – taskera only one among many documents and findings regarding the credit of the Applicant relevant to the Delegate’s decision – Application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.5(1)(a)(vi), 36(2)(a) & (2)(aa), 54, 57, 91WA |
| Cases cited: AIB16 v Minister for Immigration and Border Protection (2017) 254 FCR 457 DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; 93 ALJR 252; 363 ALR 599 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 |
| Applicant: | FLD18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | CAG 76 of 2018 |
| Judgment of: | Judge Neville |
| Hearing date: | 14 May 2019 |
| Date of Last Submission: | 29 May 2019 |
| Delivered at: | Canberra |
| Delivered on: | 29 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenneally |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondent: | Ms Graycar |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Applicant’s Further Amended Application filed on 30th April 2019 be dismissed.
The Applicant is to pay the Respondent’s costs of these proceedings in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 76 of 2018
| FLD18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The contest in this matter is a challenge to a decision by a Delegate of the Minister, dated 3rd October 2018. The Delegate refused to grant the Applicant a protection visa (sub-class XE-790). On 31st August 2016, the Applicant had applied for a Safe Haven Enterprise Visa (“SHEV”).
The Applicant originally lived in Afghanistan but fled to Pakistan, he said, due to his fears of the Taliban. The Delegate found the Applicant to be a citizen of Pakistan and not a citizen of Afghanistan.
A range of adverse findings were made against the Applicant, especially in relation to “bogus documents”.
A particular matter of concern to the Applicant, and which featured prominently before the Court, related to a finding that his taskera was “bogus”, as defined in s.5(1) of the Migration Act 1958 (Cth) (“the Act”). The Applicant contended that the adverse finding against him was predicated upon an erroneous view that he had lost his taskera and that he had made a false statement to the effect that he had forwarded his original taskera to the Afghan Embassy.
The Minister’s contention was essentially that the issue(s) surrounding the Applicant’s taskera were not relevantly “material” to the Delegate’s decision – “material” in the sense discussed by the High Court in Hossain v Minister for Immigration and Border Protection (“Hossain”).[1]
[1] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123.
At the beginning of the Delegate’s decision, he stated:[2]
The Applicant provided a bogus Afghan passport, taskera, driver’s licence, secondary documents, including school documents. The passport meets the definition of a bogus document in subsection 5(1)(c) of the Migration Act: “it was obtained because of a false or misleading statement, whether or not made knowingly”. The other documents meet the definition of a bogus document in subsection 5(1)(b) of the Migration Act: “is counterfeit or has been altered by a person who does not have authority to do so.”
[2] Court Book (“CB”) 419. Unfortunately, the Delegate’s decision is without paragraph numbers, thereby making specific reference rather less precise than one would hope. To facilitate slightly more precise references, in these reasons it should be taken that I will refer to, for example, pars.1-5 at CB 420, and for each subsequent page, pars.1-x as the case may be.
Subject to what is said later in these reasons, it will be immediately obvious that the findings of the Delegate encompassed a not insignificant range of documents - not just the Applicant’s taskera - which were found to be “bogus.” Further, the Delegate held that he was not satisfied that, following the opportunity to address the concerns notified to him, the Applicant had provided “a reasonable explanation for presenting the Department with bogus identity documents.”[3]
[3] Par.1, CB 420.
The Delegate further found that the Applicant “does not have a reasonable explanation for providing a bogus document as evidence of his identity, nationality or citizenship.”[4]
[4] Par.2, CB 420.
For the reasons that follow, I accept the Minister’s submissions. The Application must be dismissed with an Order for costs as per Schedule 1 Part 3 of this Court’s Rules.
Grounds of Review
The Applicant filed a Further Amended Application on 30th April 2019, in which the following Grounds of Review were set out:
Grounds of Application
1. In deciding that the applicant is an “excluded fast track review applicant”, the Delegate erred by: (a) failing to have regard to relevant information that the applicant gave to the officer who interviewed the applicant on 20 February 2017; or (b) by making a finding that was irrational or unreasonable in light of what transpired at that interview.
Particulars
1.1. The Delegate (“Matthew”) found that the applicant provided certain evidence in support of his claimed identity, nationality or citizenship, including a “copy of Afghan Taskera (identity document), #5135709 and English translation”.
1.2. The Delegate also found that the applicant “did not provide the Department with the original Taskera”.
1.3. However, at an interview with a different officer of the Department (“Kim Boyd”) on 20 February 2017: (a) the applicant gave the original Taskera to the officer; and (b) after discussing aspects of the information in it with the applicant, returned it to the applicant.
2. In refusing to grant the applicant a protection visa, the Delegate erred by: (a) failing to have regard to relevant information that the applicant gave to the officer who interviewed the applicant on 20 February 2017 (and thereby breaching section 54 of the Act); or (b) by making a finding that was irrational or unreasonable in light of what transpired at that interview.
Particulars
2.1 The particulars to ground 1 are repeated.
Statutory Provisions
The following provisions of the Migration Act 1958 (Cth) (“the Act”) are the most immediately relevant to the contest before the Court. Other sections as may be required will be referred to later in these reasons:
s.5(1) 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.
s.5(1) excluded fast track review applicant means a fast track applicant:
(a) who, in the opinion of the Minister:
(i) is covered by section 91C or 91N; or
(ii) has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or
(iii) has made a claim for protection in a country other than Australia that was refused by that country; or
(iv) has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; or
(vi) without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or
(aa) who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim:
(i) has no plausible or credible basis; or
(ii) if the claim is based on conditions, events or circumstances in a particular country—is not able to be substantiated by any objective evidence; or
(iii) is made for the sole purpose of delaying or frustrating the fast track applicant’s removal from Australia; or
(b) who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(a)…
s.91WA Providing bogus documents or destroying identity documents
(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 Delegate’s Decision
The Delegate’s decision may be summarised as follows.[5]
[5] Part 1 of the reasons provides a summary of the Application; Part 2 provides “Assessment Details” regarding the Applicant.
At the outset of his reasons, the Delegate stated:[6]
The Applicant provided a bogus Afghan passport, taskera, driver’s licence, secondary documents, including school documents...
[6] Par.3, T 419. A little later in the reasons, the Delegate stated that the Applicant did not provide the Department with the original taskera.
The Delegate next stated that, after giving the Applicant an opportunity on 7th September 2018 to provide a reasonable explanation for providing bogus documents in relation to his identity, citizenship, and nationality, the response that was given by the Applicant on 1st October did not relevantly satisfy the Delegate that the explanation was reasonable.
Part 3 of the Delegate’s reasons discuss the Applicant’s “Identity Assessment.” The reasons are in 6 parts. Aside from a very brief reference to “biometrics”, the six categories of discussion are: Narrative; Inconsistencies and Concerns; s.57 procedural fairness; Assessment under s.91WA – providing bogus documents or destroying identity documents; Identity Finding; and Part 5: Findings of Fact. Summarised, the relevant parts of these sections are as follows.
The “narrative” of the Delegate’s reasons record that the Applicant claimed to be born in the village of Mana, Bak, Khost province in Afghanistan. Next, the Applicant recounted the names and dates of birth of his parents and siblings. The Applicant claimed that his family has since fled to Pakistan; he left Afghanistan in 2013 for Australia. He said that he attended Tarakai High School in the Bak District in Afghanistan. The Applicant maintained that he was a citizen only of Afghanistan.
Next the Delegate discussed “Inconsistencies and Concerns”, which were as follows.
First, the Delegate noted that the Applicant claims his name is “Madee Marjan”, but he conducts a social media account in the name of “Aarman Malik.”
Secondly, he noted that while the Applicant provided detail regarding the dates of birth for all of his extended family, he did not do so for himself. Further, the Delegate said that the birthdays of the Applicant’s relatives are not in the form that is usually used in Afghanistan, but are similar to the style used in Pakistan. These matters caused the Delegate to state that he had concerns that the Applicant has provided inaccurate information regarding his own birthday.
Thirdly, the Delegate said that information before the Department (the provenance of this information was not disclosed) stated that the Applicant is a Pakistani citizen, from Bilyamin in Lower Kurram Tehsil, Kurram Agency in the Federally Administered Tribal Areas (“FATA”) of Pakistan. The “protected source” who provided this information said that the Applicant’s family are Pakistani citizens who hold Pakistan National Identity Cards (“NICs”). A “family number” was given in relation to these NICs.
The Delegate accepted the information from the “protected source.” This also included the Delegate accepting that the Applicant attended high school in Pakistan and the Institute for Management Sciences in Peshawar in Pakistan in 2012. He rejected the Applicant’s claim to have operated a mobile phone business in Khost in that same year. The Delegate further confirmed his finding that the Applicant’s Father was a “subedar” (officer) in the Kurram Levy Force, the equivalent of the police in the Federally Administered Tribal Areas of Pakistan.
The Delegate held that the Applicant was is a member of the Bangash Pashtun tribe, which is indigenous to Lower Kurram. The Delegate said in this regard:[7]
These assessments are supported by strong photographic and documentary evidence … [which] was put to the Applicant in a series of three s.57 procedural fairness letters and he was invited to comment. The Applicant’s responses were assessed to be non-credible.
[7] CB 421 par.5.
In the same place, the Delegate stated:
This information supports the assessment that the Applicant’s passport was fraudulently obtained, and that the taskera, driver’s licence, Taliban warning letter, police document, and Tarakai academic transcript provided by the Applicant to the Department are counterfeit. This assessment is reinforced by anomalies in the documents, including: dates that are inconsistent with claimed school attendance; documents that bear no resemblance to genuine specimens; the use of the same photograph on all primary and secondary documents (with the exception of the 2017 passport); production features on the primary and secondary documents not consistent with genuine specimens; and the exclusive use of the western Gregorian calendar on a document purportedly produced by the anti-western Taliban…
Under the heading “s.57 Procedural Fairness”, the Delegate noted the three “procedural fairness letters” sent to the Applicant, dated 13th November, 8th December 2017, and 31st January 2018. The responses to these letters were dealt with later in the reasons under the heading “Findings of Fact.”
The principal matter dealt with in this section of the Delegate’s reasons concerned the operation of the Applicant’s social media account under the name “Aarman Malik.” The Applicant said that this name was a pseudonym. He said he used this name rather than his own because of an extortion bid directed against his family and friends. He provided evidence of money transfers to a name (“Andreas Saros”) and address on the Ivory Coast. This name was said, by the Applicant, to be that of his Mother. The Delegate noted however that information “located by the Department” (no other information was given in this regard) “indicates that an ‘Andreas Saros’ in Ivory Coast is associated with extortion of men on social media.”[8]
[8] CB 422 par.2.
The next heading was “Assessment under s.91WA – providing bogus documents or destroying identity documents.” Without going through all of the reasons here, it is sufficient to note the following assessments by the Delegate.
Contrary to the Applicant’s assertions, the Delegate said that he was not satisfied that a relative of the Applicant travelled to Bak from Peshawar for the purpose of (a) photographing a government document, and (b) being granted access to government documents. The Delegate noted that the photography of the government document included personal details of persons other than the Applicant. The Delegate found the claim in this regard to be “far-fetched.”[9]
[9] CB 423 par.2.
Next the Delegate set out a range of features of the “register page” allegedly relating to the Applicant’s original taskera. The features of the page included: (a) the Delegate said that it was “pristine”, which was remarkable and not consistent with the age of the six-year-old document, and (b) the same handwriting and the use of the same pen, indicated to the Delegate that the document was counterfeit, and that the Applicant’s account of how it was acquired was “contrived.”[10]
[10] CB 423 par.3.
The next documents assessed to be without reliability were (a) an “attestation” by the Malik of Mana village, the district Governor of Bak, and several village elders, together with “low resolution copies” of their taskeras and translations. The Delegate determined that because the Applicant had previously provided multiple counterfeit documents, as well as a fraudulently obtained passport, he was satisfied that the Applicant has a demonstrated history of providing the Department with bogus documents. He said that he could not be satisfied that the documents provided by the Applicant regarding his “claimed Bak district origins” were authentic.[11] Further, the Delegate was not satisfied that the Applicant had provided a reasonable explanation for providing the Department with the bogus documents just referred to.[12]
[11] CB 423 par.5.
[12] I need not set out what the Delegate recorded under the heading “Identity finding” because the same facts/matters were recorded earlier in the Delegate reasons. See CB 420 par.4.
Part 4 summarised the Applicant’s protection claims. Summarised here further, they were:
(a) he was an Afghan citizen, born in the Bak District, Khost province in 1991; he lived in that province until his departure for Australia in 2013;
(b) his parents fled to Pakistan in the early 1980s, but returned to the Khost province in 1988 after the Soviet withdrawal;
(c) he attended Tarakai School in Bak between 2002 and 2009 (completing Grade 7);
(d) he opened a mobile phone business in Khost City in 2010;
(e) the Taliban sent him a warning letter in August 2010 about his business, and in 2013 he received a telephone call from the Taliban threatening to kill him for spreading anti-Taliban propaganda;
(f) he obtained his Afghan passport in Khost before travelling to Kabul to get a visa for Pakistan,
(g) he claims the Taliban will seek to harm or kill him if he returns to Afghanistan, and
(h) he faces further risk as a returnee from the West (he will be seen as “wealthy” which will make him a target for extortion and kidnapping). The Applicant also says that no region of Afghanistan is safe for him and that the Government cannot provide “effective state protection.”[13]
[13] CB 424.
The longest and most detailed section of the Delegate’s reasons are under the heading “Part 5: Findings of Fact”. I need only note the following from this section.
The Applicant claimed that he finished school in 2009 at Tarakai High School and opened a mobile phone business in 2010. He provided a document that, he said, showed his results for Year 7. However the translation of the document is for the year 2011.
Next the Delegate noted that the Applicant had provided copies of various Afghani documents, but which curiously all have the same photograph of the Applicant. This indicated to the Delegate that the documents had been “manufactured.” Still further, the Delegate recorded that the Applicant provided images of him attending school in Pakistan. The school photographs show the Applicant wearing a school uniform. The Delegate noted that in Afghanistan, “school uniforms” are not worn but rather “traditional attire.” Details of other persons shown in these school photographs were checked, which showed them to have attended school in Pakistan.
When this information was put to the Applicant in writing, his response was as follows. He said that he fled Pakistan in 2013. The use (by the Department) of social media to check details of alleged school colleagues, was unreliable. He confirmed that attended a school function of a friend (who was named) when he was in Pakistan arranging for his departure for Australia. He said that his friend gave him a school uniform to wear so that he could attend the school function and “feel welcomed within the school community.” The Delegate found the response of the Applicant here to be “far-fetched.”[14]
[14] CB 425 par.5.
I note only, but the Delegate did not, that if the visit to his friend’s school was at the time of his departure in 2013, the Applicant would have been 22 years old. Such a person in school uniform might be a little hard to accept as genuine. Be that as it may, the Delegate also posed the, in my view, not unreasonable question of how the Applicant would/could have become close friends with school colleagues in Pakistan if he was, as he claimed, attending school in Khost province in Afghanistan. The Delegate found, as a fact, that the Applicant attended school in Pakistan, and on the occasion of the photograph did so as an enrolled student, not as a guest.[15]
[15] CB 426 par.1.
In relation to the Applicant’s mobile phone business, the Delegate stated the following.
First, the Delegate noted that social media photographs show the Applicant wearing an “official looking lanyard”, which he said was inconsistent with him being the proprietor of a mobile phone shop. A [named] colleague of the Applicant from Pakistan confirmed the photograph to be genuine.
A second and “more compelling” matter for the Delegate related to records from the Institute of Management Sciences (“the IMS”) in Peshawar. The website for IMS details information regarding present and former pupils. Among these are “Madee Marjan”, son of Syed Marjan, of Kurram Agency. It lists this person not only as a student but also as a scholarship recipient. His academic records for 2012 are documented.
The Department contacted the IMS on 25th January 2018. The IMS responded with details of Mr Marjan’s academic records. It confirmed that this person had attended the Institute but had later dropped out. By letter, the Applicant was asked to comment on this information about him attending the IMS.
The Applicant’s response to the IMS information was simply to say that (a) an agent arranged certain material and information for him, and (b) he denied ever attending the IMS.[16] After noting certain factual irregularities, the Delegate found that the Applicant’s claim that the agent contrived his enrolment at the IMS, without his knowledge, was implausible.
[16] See CB 427.
Regarding the “Taliban warning letter”, the Delegate said that this letter (and a request the Applicant said he made to the police for protection) were not “genuine.” The reasons for this finding included that the same photograph of the Applicant had been used for his driver’s licence, his taskera, his Tarakai high school academic transcript and the police report dated March 2013. The Delegate noted that the document used the Gregorian calendar and not the Shamsi calendar which is employed in all Afghan government departments. Another issue of concern related to irregular perforations on the paper. In short, the Delegate concluded that the Taliban warning letter and the request for protection to the police were counterfeit.[17]
[17] CB 428 pars.1 & 2.
The Delegate’s discussion and findings relating to the Applicant’s “family members” focussed primarily on matters concerning his brother, Qamer Jan.
Put shortly, the Delegate had information, primarily from social media, which confirmed the Applicant’s brother to be a medical student at Khyber Medical University in Peshawar, Pakistan. The Applicant had also been transferring money to his brother and other family members, all of whom live in Peshawar.
The Applicant’s brother’s social media account confirmed information that:[18]
… the family are in fact members of the Bangash Pashtun tribe from Lower Kurram. The Bangash tribe is a Pashtun tribe indigenous to Kurram Agency, Orakzai Agency, and neighbouring regions of Khyber Pakhtunkhwa (KPK) province. Sunni clans of the Bangash tribe are the dominant tribe of Lower Kurram. The Bangash are not indigenous to Khgost, nor is there a resident minority. In Bak district, the main Pashtun tribe is the Babakarkhel, from whom the district takes its name.
[18] CB 428 par.4.
The information regarding the Applicant’s brother was put to the Applicant in writing. In response, the Applicant said that his brother was lying about being enrolled in medicine at Khyber Medical College,[19] and that the social media information was not reliable. The Applicant did not comment and or claimed ignorance regarding the other claims by his brother (e.g. the brother was the captain of the Kurram Student Organisation cricket team). The Applicant did concede that his Father possessed a Pakistani National Identity Card (“NIC”), but contended that it was fraudulently obtained. His Father having a NIC begged the question, according to the Delegate, of why the Applicant said it was necessary for him to flee from Khost to Kabul to apply for an Afghan passport and Pakistani visa when he was able to use the details of his Father’s NIC, which was acquired in 2003 or 2004.
[19] There was available to the Delegate further photographs of the Applicant’s brother, which indicated to the Delegate that the brother was in fact a doctor (e.g. the photographs showed him wearing a doctor’s coat, sometimes with, sometimes without, a stethoscope, undertaking work experience at hospitals in Peshawar). According to the Delegate, this attire and activity was consistent with the brother being a doctor, and not consistent, as claimed by the Applicant, of the brother studying pharmacy. CB 429 par.4.
The Delegate found that the Applicant had “knowingly misrepresented his brother’s circumstances” as outlined above.[20]
[20] CB 430.
Under the same general heading, the Delegate found that the Applicant’s Father legitimately held a NIC, and that he was a lawful citizen of Pakistan who was now, or formerly, an employee of the Political Agent in Kurram. Among other things, there are “images” on the Applicant’s brother’s social media account of the Father wearing the uniform of a Kurram Levy Officer, being referred to as “subedar”, and shown sitting behind an official desk in civilian clothes with a Pakistan flag.
When the information and view of the Delegate was put to the Applicant, he changed his account somewhat, saying that his Father was not permanently in Khost and had in fact worked as a camp supervisor, and was paid a salary by the Political Agent to do so. Other inconsistencies in the Applicant’s account of the movements of his Father are recounted by the Delegate, which I need not traverse further here.[21]
[21] See CB 430 par.3.
The Delegate concluded:[22]
… I am not satisfied the Applicant has provided a truthful account as to how his Father acquired a Pakistan national identity card. I am satisfied that the Applicant’s inconsistency regarding his Father’s and brother’s movements and places of residency in response to adverse information indicates that he has changed his narrative in response to strong evidence that his family are Pakistani nationals and members of the Bangash tribe from lower Kurram.
[22] CB 430 par.4.
In the light of the information and material already set out and discussed by the Delegate, and which he summarised again, he found that the Applicant was a Pakistani citizen with a legitimately issued Pakistan NIC. It followed that he was not entitled to Afghan citizenship and a passport from that country.
The Applicant’s response to the matters summarised, and the view of the Delegate, was that the Afghan Embassy issued his passport having conducted appropriate checks. Part of those checks concerned the Applicant providing his original taskera, which he said (in a statutory declaration provided to the Department in August 2016) was lost when it was given to a particular travel agency. To this the Delegate noted that because the original taskera was lost sometime prior to August 2016, it would have been impossible for him to provide the Afghan Embassy with the same document in order to have a passport issued in May 2017.[23]
[23] CB 431 pars.6 – 8.
The Delegate noted in particular the country information before him that “strongly supports the assessment that genuinely-issued Afghan documents are easily obtained using fraudulent documents, fraudulent information, and in exchange for bribes.”[24] It was also noted that, again on the basis of significant country information, there was endemic corruption and document fraud in Afghanistan.
[24] CB 431 (last par.)
The Delegate was satisfied that the Afghan Embassy in Canberra issued the passport to the Applicant on the basis of fraudulent information provided by the Applicant.[25]
[25] CB 432.
In relation to the Applicant’s “mental health”, the Delegate recorded that (a) the Applicant made no mention of any mental health issues in his application for a protection visa, (b) made no mention of mental health issues as a reason why he cannot relocate, and (c) provided copies of medical certificates regarding a car accident in which he was involved and which was said to have occurred in 2014. Notwithstanding these concerns, the Delegate said that he would consider the Applicant’s mental health in relation to the practicability of relocation to Pakistan, in circumstances where the Delegate was satisfied (among other things) that the Applicant is a Pakistani national, his parents and siblings live in Peshawar, and his brother is a medical doctor in that the same city.[26]
[26] CB 433 pars.1-3.
The Delegate summarised his findings.[27] Because they are sufficiently set out above, I need not repeat them here. Part 6 of the Delegate’s reasons dealt with Australia’s protection obligations under s.36(2)(a) of the Act.[28] Because the information and discussion here considers a number of matters earlier canvassed I need only note that the Delegate found the Applicant to be a Sunni Muslim and a Pashtun from the Bangash tribe.
[27] CB 433 pars.4 – 8.
[28] See CB 434 - 435
The Delegate set out extensive country information from the Department of Foreign Affairs and Trade on Pakistan. None of that information (which I need not detail here) caused the Delegate to have any relevant concern regarding the Applicant, as a Sunni Muslim, returning to Pakistan. Any concern, such as for example the Applicant being a Pashtun, was considered to be “low-level”.
For similar reasons regarding his “complementary protection criteria assessment” under s.36(2)(aa), and the lack of evidence regarding any likely risk to the Applicant, the Delegate concluded that there was “no reason to conclude that the Applicant has a real risk of significant harm if he were to return to his receiving country of Pakistan.”[29]
[29] CB 436.
The Applicant’s further evidence
The Applicant filed the following further evidence. No one was cross- examined on it.
This evidence was:
a)An Affidavit affirmed by Ms Thompson, the Applicant’s lawyer, on 1st March 2019. It annexed a copy of the transcript of an interview with the Applicant dated 20th February 2017. There was an interpreter translating throughout the interview;
b)An Affidavit affirmed by the Applicant on 10th April 2019. No interpreter was recorded as being required. This provided an account of (i) the circumstances surrounding what happened to the Applicant’s taskera, (ii) how it came to be lost, (iii) how it came to be found in a drawer of the travel agency, Helloworld, (iv) how he took it with him to the SHEV interview, (v) how later he sent his original taskera to a relative in Afghanistan so that it could be verified by the Afghan authorities before he could be granted an Afghan passport, and (vi) how, after the taskera was verified in Afghanistan, it was sent to the Embassy in Canberra and his passport issued;
c)An Affidavit affirmed by Mr Rokhan Akbar on 1st May 2019. Mr Akbar was the Applicant’s migration agent between August 2016 and 3rd October 2018. He deposed that the Applicant brought his original taskera with him to his office, two days prior to the SHEV interview. He advised the Applicant to ensure that he took his taskera with him to that interview. He confirmed that he saw the interviewing officer inspecting the taskera during the interview.
Written Submissions on behalf of the Applicant
The Applicant filed an Outline of Submissions on 30th April 2019, which was as follows (internal citations omitted):
INTRODUCTION
1. The applicant applied for a protection visa. The applicant claimed to be a citizen of Afghanistan. The applicant claimed he grew up in Mana village in the Bak district of the Khost province. He claimed to have operated a mobile upload and download business. The Taliban threatened the applicant for promoting access to music and video. The applicant fled Afghanistan as a result.
2. A Delegate of the Minister (Delegate) found the applicant was a citizen of Pakistan, not Afghanistan. The Delegate found the documents the applicant submitted in support of his identity – passport, taskera, and school records – were “bogus documents”. Similarly, a warning letter from the Taliban and Afghan police documents were also “bogus documents”. These findings led to two related decisions:
a. The applicant was disqualified from being granted a protection visa by reason of s 91WA of the Migration Act 1958 (Cth) (the Act) (PV decision).
b. The applicant was an “excluded fast track applicant” within the meaning of s 5 of the Act. Accordingly, the decision could not be referred to the Immigration Assessment Authority for review (EFTA decision).
3. The applicant seeks judicial review of both the PV decision and the EFTA decision. Ground 1 attacks the EFTA decision, ground 2 attacks the PV decision. The applicant’s position is the Court has jurisdiction in relation to both decisions.
4. The applicant’s complaint in relation to both decisions is that the Delegate proceeded on the assumption that the applicant had not provided an original copy of his taskera to the Department. The Delegate understood the applicant had lost his original taskera. This was incorrect. The error was material to the Delegate’s assessment of the applicant’s credit and identity and therefore material to both the EFTA and PV decision.
STATUTORY CONTEXT
5. The Delegate’s statutory task was to consider if the applicant satisfied the criteria for a protection visa pursuant to s 65 of the Act. The Delegate was required to afford the applicant procedural fairness in determining the applicant’s application. The Delegate must consider all the information provided in the application. This includes additional information provided by the applicant after filing the application.
6. An applicant for a protection visa must satisfy the protection criteria in s 36(2)(a) and (aa) of the Act. The visa must not be prevented from being granted by s 91WA of the Act. Section 91WA provides that the Minister must refuse to grant a protection visa if the applicant provides a bogus document as evidence of identity, nationality or citizenship.
7. A “bogus document” is a document that the Minister reasonably suspects:
(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.
8. The applicant was a “fast track applicant” A fast track applicant has no access to review to the Administrative Appeals Tribunal of a visa refusal decision. Rather, section 473CA requires a “fast track reviewable decision” to be referred to the Immigration Assessment Authority (Authority). The definition of “fast track reviewable decision” in s 473BB includes a “fast track decision”. A “fast track decision” is defined in s 5(1) of the Act as a decision to refuse a protection visa for a fast track applicant.
9. However, the Delegate found the applicant was an “excluded fast track applicant”. A fast track applicant is an excluded fast track applicant if a person:
without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application.
There is no power to refer a decision relating to an “excluded fast track applicant” to the Authority. Nor can the decision that a person is an excluded fast track applicant be reviewed under the Act.
10. The Full Court has held that implicit in the power to refer a fast track reviewable decision to the Authority under s 473CA is an obligation to determine if the applicant is an excluded fast track applicant (AIB16 v Minister for Immigration and Border Protection [2017] FCAFC 163, [21]).
11. Accordingly, the Delegate needed to determine two questions:
a. Was the applicant was disqualified from being granted a protection visa because he had provided a bogus document relating to identity, nationality, or citizenship?
b. Was the applicant an excluded fast track applicant because he gave or presented a bogus document as part of his application for protection?
The Delegate found the applicant was disqualified and was an excluded fast track applicant.
12. Both decisions are privative clause decision pursuant to s 474 of the Act. The Federal Circuit Court has jurisdiction to issue constitutional writs pursuant to s 476(1) of the Act provided a migration decision is not a “primary decision”. A primary decision is one that can, or may be, reviewed (s 476(4)). Each decision is not a primary decision for the following reasons:
a. The EFTA decision cannot be reviewed under the Act.
b. The PV decision cannot be reviewed under the Act, given the EFTA decision.
13. The Delegate’s decisions may only be challenged on the grounds of jurisdictional error.
PROCEDURAL HISTORY AND FACTS
On 3 August 2016 the applicant applied for a Safe Haven Enterprise Visa (SHEV), based on his fear of harm from the Taliban in Afghanistan. In support of his claims the applicant submitted a copy of a warning letter from the Taliban, and a police report. The applicant submitted the following evidence of his identity:
a. A copy of his taskera and translation.
b. A copy of his Afghan driver’s license and translation.
c. An academic transcript and translation of the applicant’s school certificate for 2011 in Tarakai High School in the Bak district, Khost province.
14. On 24 August 2016, the applicant signed a statutory declaration attesting that he no longer had his original taskera. The taskera had been lost by a travel agent. However, in around February 2017, the applicant recovered the taskera from the travel agent.
15. On 20 February 2017, the applicant attended a SHEV interview with the Department of Immigration and Border Protection (Department). An officer of the Department (the officer) conducted the interview. That officer was not the Delegate who made the eventual decision. The applicant provided the officer with a folder of original documents. The officer removed the original taskera for inspection. The officer than discussed the document with the applicant.
16. After the interview the applicant forwarded his original taskera to Afghanistan to be verified by Afghan authorities. Once the taskera had been verified and returned to him, the applicant forwarded it to the Afghan embassy in Canberra to obtain a passport. On 24 May 2017, the applicant’s migration agent sent an e-mail to the Department attaching a copy of the taskera verified as genuine by the Governors provincial office in Khost province, and the applicant’s passport.
17. The applicant received three invitations to comment on adverse information pursuant to s 57 of the Act on 13 November 2017, 8 December 2017, and 31 January 2018. Each letter was sent by the Delegate – Matthew, position number 60023109 – who made the eventual decision. As already noted, the Delegate had not conducted the SHEV interview.
18. Each invitation related to the central allegation that the applicant was not an Afghan national, but a Pakistani national from the Kurram Agency.
19. The adverse information can be summarised as follows:
a. The applicant’s father had been an employee of the political agent in Kurram. The Department obtained a photograph of the applicant’s father in a Kurram Levy Force uniform. This suggested the applicant’s father did not reside in Afghanistan, but was from Kurram.
b. The applicant’s family had Pakistani ID cards.
c. The Department had reviewed the applicant’s brother’s Facebook page. Information on the page indicated that the applicant’s brother had been studying medicine in Peshawar, and was a member of the Bangash Students Society, co-captain of the Kurram Students Cricket team, involved in local politics.
d. The Department had obtained photographs of the applicant attending school in uniform in Kurram.
e. The Department obtained records indicating that following high school the applicant had applied to and attended the Institute of Management Sciences in Peshawar.
20. The applicant provided responses to each invitation to comment. In summary the applicant’s arguments were as follows:
a. The applicant’s father had falsely obtained a Pakistani national ID card to allow the family to work and reside in Pakistan. The applicant’s father had resided in a refugee camp in Kurram Agency until 2003. During that time the applicant’s father was employed by the political agent to ensure the effective operation of the camp.
b. The applicant’s brother is an apprentice pharmacist in Peshawar. The applicant argued the information on his brother’s facebook page was not reliable given people inflate their status on social media. Any images of the applicant in hospital would be associated with his pharmacist training. The applicant’s brother’s participation in student, political, and sporting activities were not relevant to the question of the applicant’s nationality.
c. The applicant did not attend school in Pakistan. The photos were taken from a school event the applicant attended at the invitation of a friend. The uniform was lent to the applicant for the event.
d. The applicant never applied for and did not attend the Institute of Management Sciences. The applicant had obtained the assistance of an agent in Afghanistan to help him leave the country. The applicant argued the agent must have arranged for the application to be recorded to assist the applicant to leave Afghanistan.
21. The applicant emphasised in each of his responses that his original taskera had been certified by the relevant authorities in Afghanistan as genuine. That document had been verified by the Afghan embassy in Canberra in issuing the applicant’s Afghan passport.
22. On 7 September 2018, the Department sent the applicant a letter notifying him that the Delegate reasonably suspected his taskera, school documents, and drivers’ licence were bogus documents.
23. On 1 October 2018, the applicant provided a statement again emphasising that his taskera had been confirmed as genuine by the Afghan embassy. The applicant also attached:
a. a photograph of a page of the Register Book of taskeras at the Bak District Governor’s Office showing the applicant’s registered record of his taskera details; and
b. a letter signed by the Mana village Malik and village elders stating that the applicant is a resident of Mana village, accompanied by the taskeras of the village elders who signed the letter.
THE DELEGATE’S DECISIONS
24. The Delegate found the applicant provided bogus evidence of his identity in the form of his Afghan passport, drivers licence, and school documents. The passport was bogus because it had been obtained through a false or misleading statement – the taskera. The other documents were counterfeit. The Delegate also found that the Taliban warning letter and associated police report were bogus documents. The Delegate found the applicant was ineligible for a protection visa because he had provided a bogus document relating to identity, nationality and citizenship, and was an excluded fast track applicant.
25. The Delegate relied on the information outlined in the s 57 notices, as we well as irregularities in the Afghan warning letter, the use of the Gregorian calendar on the Taliban warning letter, and the use of the same photographs in the applicant’s identity documents. The Delegate concluded the applicant was a citizen of Pakistan.
26. The Delegate noted the applicant’s response on 1 October 2018 placed emphasis on the Afghan embassy having checked his taskera. The Delegate found the applicant had not provided his original taskera to the Department. Rather, the original taskera had been lost. Accordingly, the Delegate could not be satisfied the Afghan embassy received the applicant’s taskera to conduct the necessary checks. Rather, the Delegate was satisfied the applicant had lied about sending his original taskera to the Afghan embassy. The Delegate did not accept that the page from the register of taskeras was genuine. Further, the Delegate concluded that having found the applicant had produced other counterfeit documents, including a false passport, it could not be satisfied that the purported letter from the Malik and village elders was authentic.
GROUNDS OF REVIEW
27. The Delegate failed to consider relevant information: the applicant had presented his original taskera at the SHEV interview. The error was material to the Delegate’s conclusion that the applicant had submitted bogus documents. Both the EFTA decision and PV decision are affected by jurisdictional error.
Ground 1: EFTA decision
28. Ground 1 relates to the EFTA decision. In making this decision the Tribunal failed to have regard to relevant information. The failure to consider information that is significant to a decision may constitute a jurisdictional error. In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [112] – [113], Robertson J held that the issue is the importance of the information in the context of the application, the cogency of the material, and its place in the process of assessment. The provision of the original taskera to the Delegate, and to the Afghan embassy was critical to the assessment of the applicant’s identity and credit.
29. Alternatively, a decision-makers ultimate conclusion may be affected by jurisdictional error if it is based on irrational or illogical reasoning (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, [130] – [132] per Crennan and Bell JJ; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, [54] – [56]). The Delegate made a finding that lacked a logical or probative basis – that the applicant had not presented his original taskera to the Department, and therefore the Afghan authorities could not have reviewed and verified the applicant’s original taskera. That finding was material to the Delegate’s adverse credibility finding that the applicant had lied about his identity, and therefore had submitted bogus documents.
Ground 2: PV decision
Ground 2 relies on the same facts as ground 1. Ground 1 contends that in making the PV decision the Delegate failed to have regard to all relevant material in the application in contravention of s 54 of the Act, and as a result made a decision based on an irrational or illogical basis.
The errors in ground 1 and ground 2 were material to the decisions
30. An error is only jurisdictional if it affected the ultimate decision. The common issue between both grounds is whether the failure to have regard to the applicant’s provision of his original taskera was material to the Delegate’s conclusions. The question is whether there is a realistic possibility the Delegate’s decision could have been different had the error not been made (Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, [48] – [49] per Bell, Gageler and Keane JJ; Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40, [32])
31. In substance, the EFTA and PV decision both relied on the same conclusion: the applicant submitted bogus documents. The distinction between the EFTA decision and the PV decision, is that the EFTA decision did not require that the bogus documents relate to identity, nationality, and citizenship. As a result, the EFTA decision could rely on the finding the Taliban warning letter and Afghan police report was a bogus letter as well as the identity documents. The PV decision could not. The issue of materiality can generally be addressed in relation to grounds 1 and 2 together. However, it is necessary to specifically address the impact of the error on the EFTA decision, in particular the conclusion that the Taliban warning letter and police report were bogus documents.
32. The failure to consider the information regarding the taskera was material to both the EFTA and PV decision for the following reasons.
33. First, the applicant’s primary argument in relation to his identity was that his original taskera was genuine and had been verified in the issuance of his passport. The applicant argued that the verification process outweighed the evidence that suggested his family resided in Pakistan. The Delegate dismissed this argument based on the belief the original taskera had been lost and not recovered.
34. Second, the Delegate reached made an adverse credibility finding based on the understanding that the applicant had lost his taskera. The Delegate found the applicant made a false statement in stating that he had forwarded his original taskera to the Afghan embassy.
35. Third, the Delegate’s error led it to give no weight to the corroborative evidence regarding the applicant’s identity. The Delegate gave less weight to the letter from the Manna village elders because of it had already formed the view the applicant had provided false documents including the Afghan passport.
36. Fourth, assessments of credit are impressionistic. Aspects of the Delegates reasoning cannot be placed in “hermetically sealed boxes” (SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562, [44]). The Delegate must be assumed to have had an open mind to any information provided by the applicant (BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40 at [88] – [96]). Had the Delegate been aware the applicant had provided his original taskera to the Department, the Delegate could have reached a different view regarding the genuineness of the applicant’s passport. This, in turn, could have affected the weight the Delegate gave to contrary adverse information relating to the applicant’s studies, brother, and father.
37. In relation to the EFTA decision, had the Delegate accepted the applicant was in fact an Afghan national, it may have taken a different view of the applicant’s credit overall. This could have led the Delegate to reach a different conclusion as to whether the Delegate was satisfied the Taliban warning letter and police report were bogus documents.
The Delegate’s two decisions – the EFTA and PV decision – are affected by the failure to consider relevant information. That failure was material to each decision and as a result the error is jurisdictional.
RELIEF SOUGHT
38. The application should be granted.
39. The applicant seeks a writ of certiorari to quash the EFTA decision and the PV decision. The applicant seeks a writ of mandamus requiring the Minister to consider the applicant’s SHEV application according to law.
40. The respondent should pay the applicant’s costs.
Written Submissions on behalf of the Respondent
The Respondent filed an amended Outline of Submissions on 28th May 2019, which was as follows (internal citations omitted):
Introduction and background
1. The applicant is seeking judicial review of a decision made by a delegate of the respondent on 3 October 2018 to refuse to grant him a protection visa. The applicant had applied for a Safe Haven Enterprise Visa (SHEV) on 31 August 2016 after he was advised by letter dated 6 July 2016 that the Minister had lifted the bar under s 46A of the Migration Act 1958 (the Act) which otherwise prevented him, having arrived in Australia as an unauthorised maritime arrival, from applying for a protection visa.
2. The applicant’s claims to fear harm were set out in his application at CB 38-42 and were summarised by the delegate at CB 424. In summary, the applicant claims to be a citizen of Afghanistan, born on 31 December 1991 in Mana village, Bak District Khost Province, Afghanistan. His family originally fled the village during the Soviet invasion but returned to Mana village in 1988 where he claims he lived from birth until 2010. He claims to have owned a mobile phone business from 2010 to 2013 in Khost, Afghanistan, in which he also sold music and videos (CDs and DVDs). In August 2012, he stated that he received a written warning relating to these activities (the music/videos) from the Taliban (see CB 50-51), followed by a phone warning in March 2013. He claims that it was only after the latter that he took the threat seriously, and shortly after that phone call, he obtained an Afghani passport before leaving Afghanistan for Pakistan, where he remained for less than one month, before coming to Australia.
3. His claims for protection are twofold: he fears harm from the Taliban in relation to the work he was previously doing (the subject of the claimed warnings) and he also claims to fear harm as a failed returnee asylum seeker from the West.
4. On 3 October 2018, the delegate refused his application for a protection visa and determined that:
4.1. Section 91WA(1) of the Act prevented the applicant from being granted a SHEV;
4.2. by reason of s 5(1)(a)(vi), the applicant was an excluded fast track review applicant (EFTRA) as the applicant was found to have provided a “bogus document” without reasonable explanation; and
4.3. in any event, the applicant did not satisfy s 36(2)(a) or s 36(2)(aa) and thus would not otherwise be eligible for a protection visa.
5. A consequence of being found to be an EFTRA is that the decision to refuse the applicant’s application for visa is not amenable to merits review. It was not amenable to review under Part 7 as he was a fast track applicant, but, as an EFTRA, he is also not entitled to seek merits review which would otherwise be available to a fast track applicant under Part 7AA (see definition of “excluded fast track review applicant” in s 5, para (a)(vi)).
The delegate’s decision
6. The delegate made a number of findings adverse to the applicant. Key among these was rejecting the applicant’s claim to be an Afghani citizen. Rather, the delegate found (having referred, inter alia, to information provided to the department (see CB424; CB 432)) that the applicant was a Pakistani national. Among the reasons given for so finding were the following:
6.1. The Department had received information that the applicant’s family were Pakistani nationals issued with Pakistan National identity cards (see CB 424); and that information also indicated that the family’s original residence is the village of Bilyamin in Lower Kurram, Kurram Agency, Pakistan;
6.2. The applicant attended school and commenced higher education in Pakistan: see CB 425 and 426. The delegate relied on social media records of the applicant photographed with school friends in school uniform (worn in Pakistan but not in Afghanistan), and did not accept the applicant’s account of having borrowed a uniform to attend a function at his Pakistani friend’s school: CB 425. The delegate also did not accept that the record provided by the applicant of his school results purportedly obtained in Afghanistan was a valid record, both because it was said to be for 2011 (which was inconsistent with the applicant’s claim to have been operating his mobile phone store since 2010) and also because the document purporting to be a school record from 2011 contained a photograph that was the same photograph as used on his other identity documents: CB 425.
6.3. The delegate also relied on information from the Institute of Management Sciences, Peshawar, showing that the applicant had been enrolled in the 2012 academic year in a Bachelor of Business Administration: see CB 426. The applicant’s response when this was put to him pursuant to s 57 of the Act was that he had paid an agent to assist him in leaving Afghanistan and he was unaware of what his agent did after he sought help to leave Khost after receiving the threat in August 2012: CB 427. The delegate noted that this contradicted his original statement not to have taken the threat received from the Taliban (initially by letter of August 2012) seriously until he received the follow up phone call in March 2013: CB 427.
6.4. When asked for information about his family members, the applicant provided actual dates of birth for each of his siblings and parents (consistent with how they would be recorded in Pakistan), while for himself, he provided only a year, relying on the fact that Afghanistan does not record precise birth data: CB 421; 423. ;
6.5. The delegate found that, relying on social media, the applicant’s brother Qamer Jan was a doctor who had studied in Pakistan and was an active member of various Pakistani student organisations, and this was inconsistent with the applicant’s claims: CB 428. This was disputed by the applicant who claimed that what was on his brother’s facebook page was inaccurate/exaggerated: CB 429-430.
The delegate found, also relying inter alia on social media posts, that the applicant’s father worked for the Pakistan government. 6.6. When this was put to the applicant (who had claimed his father was a farmer) via a s 57 letter, he revised what he had said about his family returning to Khost in 1988 and stated that his father had remained in Kurram where he worked as a camp supervisor, relying on an unlawfully obtained Pakistani identity card so he could move between the two countries and he worked both in Pakistan and continued to manage a farm in Khost: see CB 430.
7. The delegate found that the Afghan passport that the applicant had obtained was “fraudulently obtained, and that the taskera, driver’s licence, Taliban warning letter, police document and Tarakai academic transcript provided by the applicant to the department are counterfeit”: CB 421. The delegate referred to what were described as anomalies in the documents, described in some detail at CB 421 which included the exclusive use of the western Gregorian calendar on a document purporting to be from the Taliban; and the use of the same photograph on all documents (including school record).
8. The applicant had been informed by the delegate of doubts as to the authenticity of his documents, including his Taskera, by way of a series of s 57 letters: see CB 280; CB 313; CB 332. He had also been requested (at CB 341) to provide a reasonable explanation for having obtained his Afghan passport because of a false or misleading statement and for providing documents in support of his claim that were counterfeit (cf s91WA of the Act). In response he provided a statutory declaration of 28 September 2018 which enclosed further documents and referred to a claim that one of his relatives in Afghanistan had taken a photo of the record of his original Taskera in the District Office of Bak. The delegate placed no weight on that document (the photo of the purported record page), nor on other documents provided with it, for detailed reasons set out at CB 423. The delegate indicated that the explanation provided in response to the letter of 7 September 2018 was not sufficient and the delegate continued to reasonably suspect that he was a Pakistani national who had provided the Department with several bogus documents as part of his application for a protection visa.
9. The delegate concluded that he was not satisfied that the applicant had provided a reasonable explanation for the provision of bogus documents and had accordingly not satisfied s 91WA(2) as a consequence of which s 91WA(1) prevented him from being granted a protection visa.
Findings on the claims for protection
10. After summarising the findings about the applicant’s claims to be an Afghan national (at CB433) and having found him to be a Pakistan national, the delegate went on to assess whether he faced a real chance of persecution as a Pashtun in Pakistan (see CB 434). The delegate found that country information did not support finding that Sunni Muslims are persecuted on account of their religion, nor that failed asylum seekers returning to Pakistan are imputed with political opinions and persecuted: CB 435. Nor did the delegate find that country information supported a finding that he would be imputed with pro-western or anti-Taliban views, or anti-government opinions: CB 436. Accordingly, the delegate was not satisfied that he was a refugee as defined in s 5H(1). Thus, aside from any issue that might arise in relation to s 91WA, the delegate was not satisfied that he met the criteria in s 36(2)(a).
11. The delegate similarly found that he did not meet the criteria for a protection visa set out in s 36(2)(aa): complementary protection: CB 436-437.
The application for judicial review
12. The applicant, who is legally represented, filed an application for judicial review on 17 October 2018. On 1 March 2019, he filed an amended application and an affidavit of his instructing solicitor, annexing a transcript of his interview with the delegate, on which he seeks to rely.
13. On 30 April he filed a further amended application on which he now seeks to rely which has two grounds:
13.1. Ground One: In finding that the applicant is an EFTRA, the delegate erred by failing to have regard to relevant information or by making a finding that was irrational or unreasonable “in light of what transpired at the interview” of 20 February 2017, ie that the applicant gave what he claimed to be an original taskera to the person who interviewed him, who then returned it.
13.2. Ground Two: in refusing to grant a protection visa, the delegate erred by failing to have regard to relevant information (in breach of s 54) and making a finding that was irrational or unreasonable in light of what transpired at the interview.
14. The relevant legislative provisions are, as previously noted, s 5, in which is found the definition of excluded fast track review applicant (EFTRA). That excludes from the fast track review process (Part 7AA) a person who, “without reasonable explanation gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application”.
15. “Bogus document” is defined in s5 as follows:
"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.
16. Also relevant is s 91WA which provides that the Minister must refuse to grant a protection visa to an applicant for a protection visa if the applicant provides a bogus document as evidence of the applicant's identity, nationality or citizenship and (see s 91WA(2)), the Minister is not satisfied that the person has provided a reasonable explanation for doing so.
17. As the applicant notes in his submissions (AS) at [25], the delegate both determined that the applicant had provided a bogus document, thus rendering him an EFTRA; and had provided a bogus document as evidence of his identity, nationality or citizenship, thus making him ineligible, pursuant to s 91WA for the grant of a protection visa.
18. The applicant now seeks to challenge both of these findings on the basis that the delegate made a factual error in relation to a matter that was determinative of the application. Specifically, the applicant, who had provided a statutory declaration stating that he had lost his original taskera (CB 58), later claimed to have found it again and to have produced it at the interview with the delegate (see affidavit of Sarah Ainslie Thompson, affirmed 1 March 2019, SAT-1 (Transcript), pages 5-6 ).
19. The respondent is prepared to accept as a matter of fact that the applicant produced at that interview a document that purported to be his original taskera (of which a copy appears at CB 46-47), and that that fact appears to have been overlooked by the decision maker.
20. However, the factual error made by the delegate does not constitute a jurisdictional error. This is because the absence of an original taskera was in no way determinative of the decision to find that he had presented a bogus document, inter alia, for the following reasons:
20.1. As the transcript indicates, the interviewer advised the applicant that he was aware that “something like 50% of them are fake” and that they are not secure (Transcript at page 6, line 10);
20.2. .At the interview, the applicant was asked a number of questions about the taskera: see page 11 (asking why he obtained the taskera in 2012); and about other documents: see page 15 (asking why the school record has a photo of him as an adult; and why he obtained the drivers licence (see page 17). He was also questioned about irregularities in the letter he claimed to have received from the Taliban in August 2012 (see page 19-20);
20.3. The interviewer also raised with him concerns about the inconsistency between his claims not to know his actual birthdate and the fact that he knows the dates for each of his siblings and his parents: see page 26;
20.4. The letter he was sent pursuant to s 57 of the Act on 13 November 2017 made clear that it was the fact he was considered to hold Pakistani nationality that led to the assessment that the Taskera he had provided was bogus and that he may have provided the department with false or misleading information regarding his identity: see CB 280-281;
20.5. In a further s 57 letter of 8 December 2017, the Department again wrote, this time with further information that supported the view that he and his family were Pakistani: CB 313-314. What was put about the passport he obtained from the Canberra Embassy was that he had obtained it either as a dual citizen of Afghanistan and Pakistan, or he may have obtained it “by fraudulent means”.
20.6. And in a third s 57 letter, it was put to him that the passport he had obtained met the definition of being a bogus document because it was obtained because of a false or misleading statement, which, the letter went on to explain, was that he was an Afghan citizen whereas the evidence before the Department showed that he was in fact a national of Pakistan;
20.7. Finally, in the letter sent pursuant to s 91WA (CB 341), it was put to him that a delegate reasonably suspects that the passport was obtained “because of a false or misleading statement … and the Afghan driver’s licence, Afghan taskera, and Afghan school documents you provided as evidence of your identity, nationality or citizenship are counterfeit and therefore meet the definition of a bogus document”.
21. As a factual matter it is clear that the underlying rationale for the assessment that the documents provided, including the taskera (copy or original) were bogus was that there was a plethora of evidence before the department that the applicant was a national of Pakistan. That was the basis for the belief that all the documents were counterfeit as they all purported to describe him as Afghani when the department had evidence that indicated that he was Pakistani.
22. While it is certainly the case that the delegate stated in the decision record that the applicant had not provided an original taskera, nothing in the delegate’s decision suggests that had he not made that factual error, a different conclusion could have been reached. This is why, while conceding the factual error on which the applicant’s case is based, the respondent nonetheless contends that an error of this kind could not constitute a jurisdictional error.
Failure to refer to an item of evidence does not constitute jurisdictional error
23. It is well established that of itself, a failure to refer to an item of evidence will not amount to jurisdictional error merely on the basis that some particular item or document appears to have been overlooked. Rather, to amount to jurisdictional error, it must be found that not only was there relevant evidence that was overlooked, but more importantly, that that evidence was of critical import when regard is had to its cogency and its significance to the decision-maker's reasoning. That principle has been the subject of a number of significant decisions of the Federal Court: see for some examples Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT); Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114 (MZYTS), and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 [2014] FCAFC 16 (SZSRS). As the Full Court noted in the latter case at [54], [56] and [58], it is always a case of determining how central to the issues under consideration is the matter said to have been omitted from consideration, or to use the language employed recently by the High Court in Hossain v Minister (2018) 92 ALJR 780 at [30]-[31]; [72], and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 (SZMTA) at [45]-[50], was it material to the outcome (and see further below at para 26). A similar analysis was adopted by the Full Court in MZYTS.
24. Each of the cases referred to in the previous paragraph is distinguishable from this case. This is because the provision of an original vs copy taskera was not critical to any issue in the case. By contrast, in each of the cases referred to above, the omitted matter/item of evidence was found, on the particular facts of the case, to be central to the exercise of the Tribunal’s jurisdiction. Even so, in none of those cases did the Court find that a mere failure to have regard to relevant material constitutes jurisdictional error: something more is always required. As Robertson J put it in SZRKT at [122]: “The proposition that it is always a jurisdictional error to ignore “relevant material” is too widely expressed” (and see also SZSRS at [58]–[59]). Those principles were recently reaffirmed by the Full Court in CWP16 v Minister for Immigration and Border Protection [2018] FCAFC 28 at [51]-[53].
25. As noted above, the omission in this case is the fact that the applicant provided what he claimed was the original taskera; whereas the decision maker stated (see CB 421) that he had not provided the original taskera as he claimed it had been lost. For reasons elaborated upon above, it is apparent from a reading of the full decision record, taking into account all the findings of the delegate (particularly the key finding that the applicant was a Pakistani national), that had the delegate correctly identified that the document was produced at interview, no different result could have ensued.
26. This is critical: there is no dispute between the applicant and the respondent that ultimately the question in this case turns on the materiality of the factual misstatement: see AS 32 where the applicant refers to SZMTA. In that case, the High Court made clear that not only is materiality central to the concept of jurisdictional error, but the applicant also bears the onus of establishing materiality: SZMTA at [4], [41]. As the plurality put it at [46] “… 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”.
27. In the first respondent’s submission, the applicant has not met his burden of proving that the delegate's factual error was material to the decision. Thus no jurisdictional error is established.
Irrationality/unreasonableness
28. As for the contention that the finding that the applicant had provided a bogus document (ground one) was irrational or illogical, while the applicant refers at AS 30 to the decision of the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) and the decision of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (SZUXN), he does not acknowledge the very high threshold required to establish this ground, ie that in order to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme illogicality must be demonstrated”: see DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 1 (DAO16)at [30 (5)]; SZUXN at [52] and see also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [34]-[36].
29. Crennan and Bell JJ stated in SZMDS at [135] that
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
30. As the Full Court explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (2014) 231 FCR 437, the process of consideration of legal unreasonableness in any case “will inevitably be fact dependent” (at [48]). “… [I]n any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the Court, including any inferences which may be drawn from that evidence” at [42].
31. It is certainly the case that fact findings (including credibility assessments) are not immune by virtue of being “fact determinations” from findings of jurisdictional error. DAO16 is one of a small number of cases (for others see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [38]; (2016) 70 AAR 413, Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [60]; and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]) in which the Full Court has discussed the limited circumstances in which findings of credibility might constitute jurisdictional error on the basis of legal unreasonableness, or irrationality/illogicality. None of these are analogous to the case before the Court where the delegate referred extensively to the probative evidence that was relied on in support of the ultimate findings of fact. The existence of a small number of cases where it has been held that a fact finding, in particular, a credibility finding, might in certain circumstances constitute jurisdictional error does not negate the fact that ultimately findings of fact (and in particular credibility findings) are matters within the jurisdiction of the finder of fact (here, the delegate) to make. Moreover, nothing said in ARG15, CQG15, nor in DAO16 challenge the central distinction between merits review and review for jurisdictional error.
32. The delegate was clearly persuaded by the information provided about the applicant being a Pakistani national (such as the Facebook posts, and the records from the college that the applicant had studied in in Pakistan) and the applicant has not put anything to suggest that this material was wrong, relying instead only on the factual error about the provision of the purported original taskera, which was not itself central to the findings in the case. As Wigney J put it in SZUXN at [55] (which the applicant relies on at AS 30), “Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out” (referring to SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67]). It is for the applicant to demonstrate why he contends that the findings were not open to the delegate, or lacked any “logical connection” between the evidence and the conclusions. He has not met that burden.
33. In summary, in response to the way in which the applicant’s case has been put:
33.1. So far as the EFTRA decision is concerned (Ground One), independently of any finding about an original taskera, the delegate found that in addition to all the identity documents being counterfeit, the delegate did not consider the letter purporting to be a written threat from the Taliban to be authentic: CB 428. Thus the finding on the EFTRA could not have been any different, even if the delegate had correctly identified that what was presented as the original taskera had been provided at interview;
33.2. In relation to the finding pursuant to s 91WA (the identity documents), the delegate did not accept as accurate the applicant’s school record (Tarakal transcript): CB 428, identifying it as counterfeit. Independently of any other findings (eg relating to the Afghan drivers’ licence, or the taskera or passport), that is sufficient basis for the power to refuse a visa to be enlivened pursuant to s 91WA. Thus quite independently of any findings about the taskera (or the passport), the finding re s 91WA(1) and also the finding about s 91WA(2) was open to the delegate. It follows that an error about whether an original of what purported to be the applicant’s taskera had been provided could not have made a difference to the outcome.
Consideration and disposition
As summarised above, the Delegate made the following factual and credit findings:
a)The Applicant provided at least five bogus Afghan documents: passport, driver’s licence, taskera, school/education documents, and police records;
b)The Applicant’s account regarding (i) his and (ii) his family’s citizenship and living circumstances was disbelieved;
c)The Applicant’s response to three s.57 letters were disbelieved;
d)The Applicant’s accounts of his schooling, and in particular his explanation for a photograph of him in the school uniform at a school in Pakistan, were determined to be “far-fetched”;
e)The Applicant’s account and response regarding his “attendance/enrolment” at the Institute of Management Sciences (“IMS”) was disbelieved;
f)Likewise, the Applicant’s claim that an agent contrived his enrolment at the IMS was “implausible”;
g)The documents in relation to the Taliban warning letter were held to be counterfeit (e.g. the same photograph used in multiple documents over a number of years; use of Gregorian calendar used in official documents allegedly from Afghanistan, where a non-Gregorian calendar would usually be used);
h)The information obtained from social media, particularly from the Applicant’s brother in Pakistan, was sought to be discredited by the Applicant. The Applicant’s attempts to explain such information were not believed by the Delegate;
i)The Applicant’s explanation for photographs showing his Father in a uniform worn by a Kurram Levy Officer, and the circumstances surrounding his Father obtaining a Pakistani National Identity Card, were disbelieved.
In my view, two things are clear from the Delegate’s reasons:
a)The provenance of what might be called “the taskera issue” (i.e. whether the original produced at the Applicant’s SHEV interview, which the Minister now concedes likely occurred) was but one of five documents that were found to be bogus or counterfeit by the Delegate. The Delegate plainly did not place any “extra” weight or significance on “the taskera issue” compared to all other documentary considerations;
b)Similarly, as outlined above, there were multiple adverse credit findings against the Applicant which, of themselves, had nothing to do with the taskera issue.
I note the following statements of principle that are relevant to the determination of the current matter.
In Hossain v Minister for Immigration and Border Protection (“Hossain”), the plurality (Kiefel CJ, Gageler and Keane JJ) said, at [30] (internal citations omitted):[30]
Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the 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.
[30] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123.
In the same case, Edelman J said, at [72] (internal citations omitted; emphasis added):
In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion…
In Minister for Immigration and Border Protection v SZMTA (“SZMTA”), the majority (Bell, Gageler and Keane JJ) said, at [44] – [46] (internal citations omitted):[31]
[31] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
[44] … Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.
Materiality
[45] 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.
[46] 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.
In AIB16 v Minister for Immigration and Border Protection, the Full Court (Tracey, Mortimer and Moshinsky JJ) commented on s.91W of the Act in relation to “bogus documents” and said, at [91] – [93]:[32]
[91] Without wishing to state the obvious, the provision requires there to be an explanation for the provision of a bogus document: that is, the narrative told must explain, and connect to, the provision of the bogus document. Second, the delegate must be satisfied the explanation is “reasonable”. The word reasonable connotes an explanation that is not fanciful, that is believable in the circumstances and which has sufficient rational connection to how and why the bogus document was provided. Reasonable minds between delegates may differ on this: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ.
[92] It is also obvious that for an explanation to be reasonable, it must first be accepted as genuine. Not all genuine explanations will be reasonable, but all reasonable explanations will be genuine.
[93] We accept the Minister’s submissions about the delegate’s reasoning. In the appellant’s explanation, which he volunteered, there was a common substratum of facts between his claim to fear persecution and his explanation for the provision of a bogus document. In order for the delegate to determine whether he was satisfied the appellant had given a reasonable explanation about the bogus document, it was open to the delegate to examine and assess the appellant’s claims to protection. Had the appellant’s narrative about what happened to him in Iran been accepted, it is likely the delegate would have found there was a reasonable explanation for the purposes of s 91W. However, if the delegate found the appellant’s protection claims not to be credible, it was almost inevitable the appellant’s explanation would not be accepted as reasonable. The structure of the delegate’s reasoning reflects an approach that was plainly open to him.
[32] AIB16 v Minister for Immigration and Border Protection (2017) 254 FCR 457. See the Full Court’s comments at [69] – [75] regarding the intent and operation of s.91W in the context of the importance of proper evidence of identity.
It is sufficient to note briefly the comments of the Full Court (Rares, McKerracher and Reeves JJ) in SZOOR v Minister for Immigration and Citizenship in relation to the “intersection”, so to speak, of considerations relating to a claim that a decision is illogical and whether it thereby constitutes jurisdictional error.[33] At [12], Rares J said (internal citations omitted):
[12] Irrationality and illogicality as grounds for judicial review are distinct from an assertion that the decision-maker merely made a wrong finding of fact. Ordinarily, a decision-maker will not make an error of law or a jurisdictional error simply by making a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 153-154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. After all, the jurisdiction so exercised, is to make findings of fact not to make findings of fact that are necessarily correct. However, if the fact wrongly found is a jurisdictional fact, the decision will be amenable to judicial review. That is because the decision-maker cannot create or negate the existence of his, her or its jurisdiction by an erroneous finding or supposition that the jurisdiction exists or does not exist…
[33] SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1.
In the same case, McKerracher J said, at [82] – [84] (Rares and Reeves JJ agreeing; emphasis added):
[82] It is well established that not all errors of law made by a decision-maker will be jurisdictional errors. A court reviewing for jurisdictional error must not stray in to the area of merits review rather than jurisdictional review. Nevertheless, there are various categories of error which have been held to constitute jurisdictional error and illogicality, as argued in this appeal, is one of those areas. The meaning of illogicality in SZMDS has been discussed in [54] above.
[83] The appellant is correct in observing that the remarks made by Crennan and Bell JJ in SZMDS (at [124]) concerning Wednesbury unreasonableness are part of their Honours’ analysis of the extent to which the process of fact finding might be regarded as unreasonable. As the appellant also notes, it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’. This is the test developed from s.20 (at [52]) per McHugh and Gummow JJ and with whom Callinan J agreed.
[84] In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (Crennan and Bell JJ at [131]). As stated subsequently (at [135]):
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
Finally, I note comments from two further Full Court decisions.
First, in Minister for Immigration and Border Protection v MZYTS, the Full Court (Kenny, Griffiths and Mortimer JJ) said, firstly in relation to a claim of unreasonableness, at [54] (emphasis in original):[34]
We also accept that a line must be maintained between a court’s emphatic disagreement with the merits of a tribunal’s reasoning process, and the identification of a level of irrationality, unreasonableness or lack of proportionality which reveals a constructive failure to exercise jurisdiction by a tribunal. That is the distinction identified in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (SZJSS) at [34]. This distinction is not, however, relevant to our analysis of the Tribunal’s failure in this case to address a claim made by the visa applicant, and therefore to perform its statutory task.
[34] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.
Secondly, in the same case regarding the proper consideration of evidence, by reference to Robertson J’s signal judgment in SZRKT, the Full Court said, at [70] (emphasis added):[35]
… Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the Tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.
[35] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.
Finally, there is the following helpful summary of principle by the Full Court (Yates, Murphy and Moshinsky JJ) in Minister for Immigration and Border Protection v CPA16 at [32] (accepting the slightly different legislative context of that decision to the matter currently before this Court) (emphasis in original):[36]
[36] Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40.
[32] We consider the following principles to be applicable:
(1)Section 473CB(1) of the Act is mandatory in its terms. It provides that the Secretary must give the “review material” to the Authority. The Authority is required to undertake a de novo consideration of the merits of the decision referred to it rather than to correct error in the delegate’s decision. That the Authority must consider the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance with s.473CB(1), such that the Authority has all of the material before it that was provided by the applicant to the delegate: EVS17 at [32]-[34].
(2) Where the Secretary fails to give review material to the Authority in breach of s.473CB(1) that will result in jurisdictional error where the review material that was not provided could have resulted in the making of a different decision. A contravention only results in jurisdictional error if the error is material in the sense that it operates to deprive the applicant of the possibility of a successful outcome: EVS17 at [42]; Hossain at [30]-[31]; SZMTA at [2], [3], [48], [49].
(3) Whether the document or information which was not given to the Authority could have resulted in it making a different decision must be assessed “realistically”: SZMTA at [45], [49] and [50].
(4) In order for the Court to decide whether the Authority’s decision could realistically have been different evidence of the content of the document or information is relevant and admissible, and it is appropriate to have regard to the Authority’s decision: SZMTA at [50] and [71].
(5) The applicant for judicial review has the onus of proof to show that the missing document or information is material: SZMTA at [4], [41].
(6) Speculation as to how the missing document or information “may” have affected the decision is not enough to discharge the onus of demonstrating materiality. The Court must decide whether non-compliance with s.473CB(1) has operated to deprive the applicant of the possibility of a successful outcome; i.e. whether the Authority’s decision could realistically have been different: SZMTA at [68], [69] and [71].
In the light of the principles to which I have referred, and the factual matters summarised, in my view, the Ground of Review pressed by the Applicant in relation to the provenance of the taskera issue was but one among many factual and credit issues considered by the Delegate and which clearly informed his decision. Whether considered appropriately or not, the overwhelming weight of all of the other matters considered by the Delegate, in my view, must mean that due consideration of the taskera having been produced at his SHEV interview, would not have made any material difference to the conclusion reached by the Delegate. The basal principles outlined in Hossain and SZMTA, applied to the facts of the current matter, must relevantly apply here, which leads to the result that Ground 1 must fail.
It must also fail by reference to the relevant particular of Ground 1, namely that the Delegate’s decision was “irrational or unreasonable.” Having regard to the principles set out by the High Court in SZMDS, noted earlier in these reasons, the range of evidence considered in detail by the Delegate, in my view, was properly and reasonably considered, indeed, in a quite measured way.
In this regard I remind myself of the important comments by the Full Court (Kenny, Kerr and Perry JJ) in DAO16 v Minister for Immigration and Border Protection.[37] In the course of summarising principles of “legal unreasonableness”, the Court there said, at [30](5) (emphasis added):
A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
[37] DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175.
Given the Minister’s concession that the original taskera was produced at the Applicant’s SHEV interview, the issue is whether, in the light of the principles outlined, the ultimate finding by the Delegate in relation to that matter was “irrational or unreasonable.”
In my view, in the light of all the other evidence considered by the Delegate, as already recorded, the relevance, actions and ultimate decision in relation to the Applicant’s taskera, would not have made any material difference to the ultimate result. Further, in the light of the principles regarding “irrational and illogical” decisions, in my view the decision of the Delegate does not approach such a description. Not only was the Applicant provided a number of opportunities to provide comment on concerns highlighted by the Delegate, but also each strand of the detailed evidence, across a wide range of matters, was properly weighed and determined. There was nothing irrational or unreasonable, in my view, in either the Delegate’s processes, the weighing of the evidence, or in his decision.
For the same reasons, Ground 2 (which essentially repeats the claims under Ground 1 but against the terms of s.54 of the Act) must also fail.
Further, in my view to inquire further into the Delegate’s decision, in the light of the detailed factual and other findings made, would amount to impermissible merits review.[38]
[38] See Attorney-General (NSW) v Quin (1990) 170 CLR 1.
In addition to these reasons, I agree with and accept the Minister’s submissions.
For the reasons given, the Further Amended Application, filed 30th April 2019, must be dismissed. An Order for costs in the Minister’s favour, pursuant to Schedule 1 Part 3 of this Court’s Rules, must also follow.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 29 January 2020
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