FLD18 v Minister for Home Affairs - [2020] FCCA 87

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
Attorney-General (NSW) v Quin (1990) 170 CLR 1

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; 92 ALJR 780; 359 ALR 1
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

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
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1

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 3^rd October 2018. The Delegate refused to grant the Applicant a protection visa (sub-class XE-790). On 31^st 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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] FCCA 87
Decision Date: 29 January 2020

CaseChat Overview and Summary

The applicant, FLD18, challenged a decision made by a delegate of the Minister for Home Affairs concerning the use of counterfeit and "bogus" documents. The dispute arose from the delegate's findings regarding the applicant's credibility, which were influenced by the alleged non-production of certain documents. The matter was heard before Judge Neville in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the delegate had adequately considered all relevant evidence, specifically a document referred to as a "taskera," which the applicant contended had been produced during a Significant Economic and Humanitarian Visa (SHEV) interview. The applicant argued that the delegate's finding that this document was not produced, and therefore not considered, was erroneous and impacted the overall assessment of the applicant's creditworthiness.

Judge Neville reasoned that while the delegate had made multiple findings regarding the applicant's use of counterfeit documents, the "taskera" was only one piece of evidence among many that informed the delegate's assessment of the applicant's credit. The court found that the transcript of the SHEV interview indicated the "taskera" had indeed been produced. However, the delegate had not relevantly considered this document in their decision-making process. Despite this oversight, the court concluded that the delegate's ultimate decision to refuse the application was not vitiated by this error, as the "taskera" was not material to the overall findings regarding the applicant's credit and the use of other bogus documents.

The application was dismissed, and the applicant was ordered to pay costs.

Orders