FLD18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

FLD18 v Minister for Home Affairs [2022] FCA 676

Appeal from: FLD18 v Minister for Home Affairs [2020] FCCA 87
File number(s): ACD 4 of 2020
Judgment of: O’CALLAGHAN J
Date of judgment: 10 June 2022
Catchwords: MIGRATION – appeal from decision refusing application for judicial review of a decision of a delegate of the respondent – bogus documents – excluded fast track review applicant – where respondent accepted that delegate made a factual error in finding that the appellant had failed to produce his identity document in his protection visa interview – where primary judge found the identity document was one of five documents found to be bogus or counterfeit by the delegate – where primary judge found there were multiple adverse credit findings against the appellant which had nothing to do with the identity document – appeal dismissed
Legislation:

Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) ss 5, 5(1), 5(1)(a)(vi), 5(9), 5(9)(c), 5H(1), 36, 36(2)(a), 36(2)(aa), 57, 91WA, 91WA(1), 91WA(2)

Cases cited:

Chang v Neill (2019) 62 VR 174

DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 59
Date of hearing: 30 May 2022
Counsel for the Appellant: Ms E Brumby
Solicitor for the Appellant: Hall & Wilcox
Counsel for the Respondent: Ms R Graycar
Solicitor for the Respondent: Clayton Utz

ORDERS

ACD 4 of 2020
BETWEEN:

FLD18

Appellant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

O'CALLAGHAN J

DATE OF ORDER:

10 JUNE 2022

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent’s costs, to be agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

O’CALLAGHAN J:

  1. By an amended notice of appeal, the appellant seeks to set aside the decision of the Federal Circuit Court of Australia in FLD18 v Minister for Home Affairs [2020] FCCA 87, affirming a decision of a delegate of the respondent (the Minister) not to grant the appellant a Safe Haven Enterprise Visa, a class of temporary protection visa.

  2. The appellant claims to be a citizen of Afghanistan, born on 31 December 1991 in Mana village, Bak District, Khost Province, Afghanistan.  His claims were set out in his visa application and were accurately summarised by the delegate as follows:

    •The applicant claims to be an Afghan citizen, born in the village of Mana, Bak district, Khost province, Afghanistan in 1991. He claims he lived in Khost his entire life, until his departure for Australia in 2013.

    •The applicant claims his parents fled Afghanistan in the early 1980s…

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Details
Case
[2022] FCA 676
Decision Date

CaseChat Overview and Summary

In the matter of FLD18 v Minister for Home Affairs, the appellant, a Pakistani national, appealed against the decision of the Federal Circuit Court that refused his application for judicial review of a delegate's decision. The central issue was whether the delegate's failure to recognise that the appellant had produced his Afghan driver's licence, or taskera, during the visa interview constituted a material error affecting the outcome of the decision to refuse his protection visa application. The appellant argued that the delegate's oversight led to an incorrect finding that he had not provided his taskera, which, in turn, affected the assessment of the credibility of his overall application. The Minister accepted that the delegate made a factual error but argued that the error was not material because the delegate had sufficient independent evidence to reach the same conclusion.

The court considered whether the delegate's error in not acknowledging the production of the taskera was material to the outcome of the decision. The court noted that the delegate had relied on multiple adverse findings, including that the appellant provided several counterfeit documents and that his evidence was not credible. The court held that the delegate's findings about the taskera did not inform the conclusions about the other documents being counterfeit. The appellant's provision of the taskera did not change the outcome because the decision was based on other substantial evidence.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs. The court found that the primary judge did not err in his assessment of the materiality of the delegate's error, and the overwhelming evidence supported the delegate's decision. The court concluded that the appellant's argument did not demonstrate that a different decision would have been made had the error not occurred.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs, to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As I say, the delegate also found that the appellant was an EFTRA by operation of s 5(1)(a)(vi) because he had, without reasonable explanation, provided a bogus document in support of his application. After noting that the appellant had provided a copy of his taskera, an Afghan driver’s licence, the Taliban warning letter, police document, and school results, the delegate reasoned as follows:For reasons outlined in the protection visa refusal decision record, I am satisfied the applicant is a Pakistan national, a member of the Bangash tribe from Lower Kurram, and a long‑term resident of Lower Kurram. I am satisfied the applicant has never lived in Afghanistan, nor is he lawfully entitled to Afghan citizenship. The applicant provided a statutory declaration to the department as part of his application for a Safe Haven Enterprise Visa that he lost his original taskera in 2016, and that he also lost his documentary evidence regarding his claimed application for an Afghan passport in Kabul in 2013. I am therefore satisfied that the 2017 Afghan passport was fraudulently obtained by the applicant from the Embassy of Afghanistan in Canberra. I am satisfied the passport meets the definition of a bogus document as defined in section 5(1) of the Migration Act 1958, for the reasons set out previously.The decision of the Federal Circuit Court The appellant sought judicial review of the delegate’s decision. At the hearing before the primary judge, the appellant relied on a further amended application dated 30 April 2019 alleging two grounds. They related to the delegate’s finding that the appellant was an EFTRA and the decision not to grant the appellant a protection visa, respectively. Both grounds alleged that the delegate erred in making those findings on account of his factual error that the appellant had not provided a copy of his taskera to the Minister’s delegate who conducted the visa interview with him, being a delegate other than the delegate who made the decision (see [18] above). In fact, the appellant showed the interviewing delegate the document that he claimed to have been his original taskera, and the Minister agreed below that that fact appeared to have been overlooked by the delegate decision maker. After summarising the findings of the delegate at [12]–[57], the primary judge at [59] referred to the further evidence filed by the appellant, which post‑dated his visa interview. This comprised:(1)an affidavit affirmed by the appellant’s lawyer annexing the transcript of the visa interview;(2)an affidavit affirmed by the appellant, recounting how he had lost his taskera when he had provided it to the travel agency that assisted him, and how it had later been found; and(3)an affidavit affirmed by the appellant’s former migration agent deposing that he saw the appellant hand his taskera to the interviewing delegate. After setting out the parties’ written submissions, the primary judge at [62] identified factual and credit findings made by the delegate, including the finding that the appellant had provided at least five bogus documents; that his evidence and his responses to the adverse information put against him and to the s 57 letters were disbelieved, far‑fetched or implausible; and that the documents relating to the Taliban warning letter were counterfeit.

Ratio Decidendi

Legal Principle Established

As to materiality, the Minister accepted that the correct test was whether there is a realistic possibility that a different decision could have been made, rather than would, but submitted that when primary judge’s reasons are “reviewed in substance”, it is apparent that his Honour did not err merely by using the incorrect word. And in any event, the Minister submitted, because an appeal to this court is an appeal by way of rehearing under s 24 of the Federal Court of Australia Act 1976 (Cth), it is open to this court, after review of the delegate’s decision, to reach the same conclusion on materiality as the primary judge.Consideration In DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525, Beach J referred to that category of case which he described as one “where the finding can still stand with no jurisdictional error if other reasons singularly and cumulatively can in any event be independently drawn upon and were drawn upon to justify the … finding”. In my view, this is one such case. There was a wealth of material before the delegate, including information from protected sources, that the appellant (and his family) are Pakistani citizens with Pakistani national identity cards; that he attended Bilyamin Government High School, in Pakistan, not Tarakai village school in Khost, Afghanistan; that his father worked for the Pakistan government; that he attended the Institute for Management Sciences in Peshawar, Pakistan in 2012, and did not operate a mobile phone business in Khost; and that he is a member of the Bangash Pashtun tribe, a tribe indigenous to Lower Kurram, Pakistan. It was these facts, among others (including his non‑credible responses to the s 57 letters), that the delegate relied upon in concluding that the appellant’s Afghan passport was fraudulently obtained, and that the taskera, driver’s licence, Taliban warning letter, police document, and Tarakai academic transcript provided by the appellant to the department were counterfeit – a finding that was “reinforced by [the] anomalies in the documents” referred to above at [16]. Contrary to the appellant’s submission, it is clear that the delegate’s findings about the taskera did not “inform” these findings about the other documents. It seems to me that those findings, and the factual matters underpinning them, constitute an overwhelming case justifying the delegate’s conclusion that the appellant is a citizen of Pakistan, not Afghanistan, and that one or more of the Afghan passport, taskera, driver’s licence, and secondary documents, including school documents, were bogus documents within the meaning of s 5(1) of the Act. Critically, the definition of EFTRA under s 5(1) and the requirement that the Minister must refuse to grant a protection visa under s 91WA are engaged if an applicant provides even a single bogus document. As the extracts of the delegate’s reasons make clear, and as the primary judge found, the taskera was but one of five documents which the delegate found to be bogus documents.