Kheirabadi v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1098

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kheirabadi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1098

File number(s):

MLG 1587 of 2018

Judgment of:

JUDGE BLAKE

Date of judgment:

30 November 2023

Catchwords:

MIGRATION – Application to review a decision by an officer to seize a ‘bogus document’ under section 487ZJ(1) of the Act – application dismissed.

Legislation:

Australian Citizenship Act 2007 (Cth) ss 45A, 45B, and 45C.

Freedom of Information Act 1982 (Cth).

Migration Act 1958 (Cth) ss 5, 487ZI, 487ZI(1), 487ZI(2), 487ZJ, 487ZJ(1), 487ZJ(2), 487ZJ(3), 487ZJ(4), 487ZK, 487ZK(1), 487ZK(2), 487ZK(3), 487ZK(4), 487ZK(5), Part 9 Division 1.

Cases cited:

CEW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3121

DTP17 v Minister for Immigration and Border Protection (2019) 343 FLC 121

George v Rockett (1990) 170 CLR 104

Goldie v Commonwealth (2002) 117 FCR 566

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176

MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203

QUD211 v Commonwealth (2019) 164 ALD 500

R v N [2015] QSC 91

R v Rondo [2001] NSWCCA 540

Ruddock v Taylor (2005) 222 CLR 612

SZQCZ v Minister for Immigration andCitizenship [2012] FCA 91

SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442

SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

Division:

Division 2 General Federal Law

Number of paragraphs:

37

Date of hearing:

25 October 2023

Place:

Melbourne

Advocate for the Applicant:

In Person

Solicitor for the Applicant:

None

Advocate for the First Respondent:

Mr Sypott

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

MLG 1587 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

HOSEIN KHEIRABADI

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	30 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The Application filed on 6 June 2018 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BLAKE

INTRODUCTION

1. This is an application to review a decision made by an Officer (‘Officer’) of the Department of Home Affairs (‘Department’) on 8 March 2018. In that decision, the Officer seized an Iranian birth booklet from Mr Kheirabadi under subsection 487ZJ(1) of the Migration Act 1958 (Cth) (‘Act’) (‘Seizure Decision’). 

2. For the reasons that follow, I have decided to dismiss the application for review.

   BACKGROUND

3. Mr Kheirabadi is an Iranian national. He arrived in Australia on 12 August 2012 (CB 51).

4. On 6 February 2018, Mr Kheirabadi asked the Department to amend his personal records. The request was made under the Freedom of Information Act 1982 (Cth) (CB 11). The substance of the request was to amend his date of birth. The request was sent to the Department of Home Affairs.

5. On 9 February 2018, Mr Kheirabadi was asked by the Officer to provide his original National Identification Card, Birth Certificate and Driver’s Licence (CB 21).

6. On 15 February 2018, the Department received an original Iranian Birth Certificate, or Birth Booklet (‘Birth Booklet’) from Mr Kheirabadi (CB 38). The Birth Booklet was sent for document examination to the Department’s Forensic Document Examination Unit.

7. On 28 February 2018, the Document Examination Unit of the Department concluded that the Birth Booklet was a legitimately manufactured document that had been fraudulently altered (CB 44).

8. On 8 March 2018, the Department refused Mr Kheirabadi’s request to amend his date of birth ‘as the departmental records were not incomplete, incorrect, out of date or misleading’.

9. Further, on 8 March 2018, the Officer seized the Birth Booklet provided by Mr Kheirabadi. The Officer advised that she was exercising power to seize the Birth Booklet under section 487ZJ(1) of the Act. In the notification sent to Mr Kheirabadi, the Officer stated:

   This document has been seized under subsection 487ZJ(1) of the Migration Act 1958 (‘the Act’).

   The reason for the seizure is because I reasonably suspect that the document is forfeited under subsection 487ZI(2) of the Act (see subsection 487ZJ(1) of the Act). A bogus document provided in contravention of subsection 487ZI(1) of the Act is forfeited to the Commonwealth (see subsection 487ZI(2) of the Act).

   The reason for my suspicion is that;

   •based on an assessment of the document and other available information, it is reasonably suspected that the document is a ‘bogus document’ as defined in subsection 5(1) of the Act, being a document that has been fraudulently altered.

   Your options

   You have 90 days from the date of this notice to institute proceedings against the Commonwealth in a court of competent jurisdiction to either:

   •recover the document; or

   •seek a declaration that the document is not forfeited.

10. On 6 June 2018, Mr Kheirabadi filed his application in this Court (‘Application’). The Application was accompanied by a supporting affidavit.

11. Procedural orders were subsequently made by a Registrar of this Court that permitted, inter alia, Mr Kheirabadi to file any amended application and written of submissions. Mr Kheirabadi did neither of these things. He did, however, file an affidavit made 19 October 2023 that attached ‘argument points’, copies of his updated National ID and a translation, and a copy of his father’s birth booklet with translation. The Minister filed a Court Book, a bundle of authorities and an outline of submissions.

12. Mr Kheirabadi appeared before me unrepresented, and relied on the documents he had filed that are noted above.

13. At the outset, I explained to Mr Kheirabadi that there were at least two decisions that appeared to have been made, and that had affected him. The first was the decision to refuse to amend Mr Kheirabadi’s birth date on Departmental records. The second decision was the decision to seize the Birth Booklet under section 487ZJ(1) of the Act. Mr Kheirabadi confirmed that he was seeking to review the second decision, and that he wanted the Birth Booklet returned to him.

14. The Minister accepted that this Court was competent to conduct the review that was asked of it. See also DTP17 v Minister for Immigration and Border Protection (2019) 343 FLC 121 at [55], and CEW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3121. The Minister also submitted that in the circumstances of this case, it was appropriate for the Commonwealth to be added as a Second Respondent to the proceeding.

    APPLICATION TO EXTEND TIME

15. The Application by Mr Kheirabadi was filed out of time. Mr Kheirabadi did not make any application to extend time when he filed the Application. The Minister consented to a grant of leave for Mr Kheirabadi to amend his application to seek an extension (and such order was made). The Minister submits, however, that the Application does not raise an arguable case. For that reason, the Minister submits that the Court should not grant an extension of time, and that the Application should be dismissed.

16. Pursuant to section 477(2) of the Act, this Court may extend the 35-day time period for the filing of an application where the Court considers it is in the interests of the administration of justice to do so. The expression 'in the interests of the administration of justice' is not defined in the Act. This Court has, however, adopted the non-exhaustive principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (see also SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6], SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46-48], SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] - [19]) when determining whether an extension of time should be granted. The principles to be considered include the extent of the delay, any explanation for the delay, any prejudice to the Respondent, the impact on Mr Kheirabadi, the interests of the public at large and whether the substantive case is ‘sufficiently arguable’ to warrant the extension of time. It is seldom in the interests of justice to exercise the discretion to extend time where an appeal has little or no prospects of success: see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48].

17. The extent of the delay in this matter is 55 days. The reason for the delay appears to be that Mr Kheirabadi thought he had 90 days to seek a review, having regard to the content of the letter received from the Department on 8 March 2018 (set out earlier). In those circumstances, the Minister accepted that the Court’s attention needed to be focused on whether Mr Kheirabadi had a sufficiently arguable case to warrant an extension of time.

    WHETHER THE APPLICATION IS SUFFICIENTLY ARGUABLE

    Mr Kheirabadi’s case

18. Mr Kheirabadi seeks the following orders from the Court:

    1.        Costs.

    2.        Recovery of the document.

    3.        Seek a declaration that the document is not forfeited.

    4.        Such further order or other Relief as the Court deems appropriate.

19. The grounds of review are as follows:

    1.The Department’s suspicion was not reasonably constructed, therefore the seizure under s 487ZI constitutes jurisdictional error.

    Particulars

    a.The delegate in their decision acknowledged that the applicant had provided evidence and explanations in regards to the previous further information request.

    b.        The Department failed to consider that there were errors in the translations.

    c.The Department failed to consider that the applicant on his own accord disclosed to the department that his birth date was incorrect.

    d.The Department failed to consider that the applicant's conduct of maintaining an up to date record of his details with the department.

    e.The Department failed to consider whether the error in translation of the birth document infected the applicant's additional documents.

    f.As per particulars 1(b)-( e) the department failed to take into consideration any of the factors above and displays a failure to intelligibly engage with the evidence before them in order to justify a reasonable suspicion.

    g.Neither of the factors in particulars l(b)-(e) were weighed against the concerns raised by the delegate.

    h.Therefore the decision was unreasonably concluded to impute suspicion that the documents were bogus.

    i.        Therefore the Department engaged in jurisdictional error.

    2.The Department did not holistically engage with the evidence before them when making an assessment of suspicion that the document is bogus, therefore resulting in a decision affected by jurisdictional error.

    Particulars

    a.The applicant repeats Particular 1(a)-(e)

    b.As per particulars 1(a)-(e) the department failed to holistically take these into consideration when determining suspicion that the document is a bogus document.

    c.The department omitted this consideration from the decision record resulting in jurisdictional error.

20. In his affidavit sworn 6 June 2018, Mr Kheirabadi deposes that, among other things:

    (a)he has always been honest with the Department and has tried to do the right thing and complied with all requests;

    (b)the Birth Booklet is genuine;

    (c)the Department has failed to take account of his explanations when assessing the Birth booklet.

21. In his written argument attached to his affidavit of 19 October 2023 (‘Affidavit’), Mr Kheirabadi states he does not believe the assessment by the Document Examiner, or that the reason for seizing the Birth Booklet is reasonable, because the Department is relying on a decision of its own officer as to the authenticity of the document and that is not fair. He also contends that the Document Examination Report does not contain any reasons or explanation as to why the assessor considers the Birth Booklet to be fraudulently compromised. He says that the Birth Booklet was obtained by his mother in Iran.

22. Mr Kheirabadi also makes the following submissions:

    (a)he takes issue with the Department stating that translations had been provided but the originals had not been seen. He claims to have attached copies of the originals and has attached them again to the Affidavit. He says it is unreasonable for the Department to decide that just because a translation was provided, the translation will not be given any weight because the Department has not sighted the original. He also claims the Department did not give him a chance to provide the documents.

    (b)he does not understand why someone cannot legally change their date of birth, and provides an explanation of the circumstances in Iran around the time of his birth;

    (c)that he wants the Court to hear his case because of serious hardship to him. He says that he needs to carry on his father’s name and without his Birth Booklet, he does not have proof of identity and heritage from his father;

    (d)says he has an illness that is out of control (it would appear to be epilepsy), that he does not know how long he will live, and he simply wants to have all his personal details how they should be.

    Relevant Principles

23. Section 5 of the Act defined a ‘bogus document’ 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.

24. Sections 487ZI, 487ZJ and 487ZK of the Act deal with the forfeiture and seizure of bogus documents. Those sections provide as follows:

    487ZI Prohibition on, and forfeiture of, bogus documents

    (1) A person (whether a citizen or non-citizen) must not give, present, produce or provide a bogus document to an officer, an authorised system, the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official), or cause such a document to be so given, presented, produced or provided.

    (2)A bogus document given, presented, produced or provided in contravention of subsection (1) is forfeited to the Commonwealth.

    487ZJ Seizure of bogus documents

    (1)If an officer reasonably suspects that a document is forfeited under subsection 487ZI(2), then the officer may seize the document.

    (2) As soon as practicable after seizing the document, the officer must give written notice of the seizure to the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1).

    (3)       The notice must:

    (a) identify the document; and

    (b)state that the document has been seized; and

    (c) specify the reason for the seizure; and

    (d) state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice:

    (i)         to recover the document; or

    (ii)        for a declaration that the document is not forfeited.

    (4)       For the purposes of paragraph (3)(d), the period must:

    (a)       start on the date of the notice; and

    (b)       end 90 days after that date.

    487ZK Document condemned as forfeited

    (1) If a document is seized under subsection 487ZJ(1), then:

    (a) the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1); and

    (b) if that person is not the owner of the document—the owner; may subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction:

    (c)       to recover the document; or

    (d)       for a declaration that the document is not forfeited.

    (2)       The proceedings:

    (a) may be instituted even if the seizure notice required to be given under subsection 487ZJ(2) in relation to the document has not yet been given; and

    (b) may only be instituted before the end of the period specified in the seizure notice.

    (3) If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period.

    (4) If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:

    (a)       an order for the person or owner to recover the document; or

    (b)       a declaration that the document is not forfeited.

    (5)       For the purposes of subsection (4), if the proceedings go to judgment, they end:

    (a) if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or

    (b) if an appeal against the judgment is lodged within that period—when the appeal lapses or is finally determined.  

25. In QUD211 v Commonwealth (2019) 164 ALD 500 (‘QUD’), Logan J in the Federal Court was asked to determine whether a passport should be returned to an applicant for citizenship under the Australian Citizenship Act 2007 (Cth) (‘Citizenship Act’). Sections 45A, 45B and 45C of the Citizenship Act are in similar terms to sections 487ZI, 487ZJ and 487ZK of the Act.

26. At [26] – [27] of his judgment, Logan J set out a summary of what constitutes ‘reasonable suspicion’ as follows:

    [26]     As to what constitutes a reasonable suspicion, a helpful summary of authority notably including reference to George v Rockett (1990) 170 CLR 104 at 115–16; 93 ALR 483 at 490–1, and Goldie v Commonwealth (2002) 117 FCR 566; 188 ALR 708; [2002] FCA 433, was offered by Carmody CJ (as his Honour then was) in R v N [2015] QSC 91 at [35]–[39] (R v N):

    35. In forming a reasonable suspicion a police officer must, at least, at the time he or she conducts a search, act in good faith on information he or she bona fide believes to be true, even if it if it is only hearsay, such as an anonymous tip off, and later turns out to be false.

    36. Whether a suspicion is reasonably open on the available information is a matter of logic, judgment and degree. All of the circumstances must be considered, including circumstances dependent on conflicting or contradictory considerations. If facts give rise to conflicting inferences of approximately equal probability and the choice between them is no more than a matter of idle speculation or imagination, the suspicion in question may not be reasonable. However, an authentic conclusion will not be unreasonable merely because different interpretations or impressions may be produced from the same set of facts. Thus, the same body evidence may be capable of sustaining opposite but equally plausible and rational conclusions neither of which is demonstrably right nor manifestly wrong.

    37. Facts capable of grounding a reasonable suspicion may fall well short of supporting a reasonable belief but be more cogent than those capable of meeting the benchmark expressed by “reason to suspect.”

    38.The more objectively unreasonable a suspicion is the less likely it is to be a genuine one. Moreover, a suspicion that is not grounded in fact to the point of being reasonable is no more reasonable because of a sense of urgency.

    39. In R v Rondo [2001] NSWCCA 540 Smart JA summarised the position thus:

    (a)A reasonable suspicion involves less than a reasonable belief, but more than a possibility. There must be something, which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by section 357E (the section at that time relating to the powers to stop search and detain). A reason to suspect that a fact exists is more than a reason to consider a look into the possibility of its existence.

    (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material, or materials which may be inadmissible in evidence. The materials must have some probative value.

    (c)What is important is the information in the mind of the police officer [at the time]… Having ascertained that information, the question is whether the information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question, regard must be had to the source of the information and its content seen in the light of the whole of the surrounding circumstances.

    [Sic. Emphasis in original. Footnotes omitted.]

    As the Chief Justice observed, whether a suspicion is reasonably open on the available information is a matter of logic, judgment and degree.

    [27] In Ruddock v Taylor (2005) 222 CLR 612; 221 ALR 32; 87 ALD 264; [2005] HCA 48, Gleeson CJ, and Gummow, Hayne and Heydon JJ observed in their joint judgment at [40]:

    40.The short answer to the contention is that, what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known, or reasonably capable of being known at the relevant time …

1. The case before Logan J was similar to the matter that is presently before the Court — the seizure of the passport in that matter occurred following the receipt of a forensic document examiner’s report; the seizure of the Birth Booklet in this matter also occurred after receipt of a forensic Document Examiner’s report. As to the nature and content of that report, and whether it could form the basis for an officer forming a ‘reasonable’ suspicion, Logan J stated at [28]-[29] as follows:

   [28] So one asks in this case, what was known or reasonably capable of being known on 21 December 2018 by “Daniel”? What was known—and this is made explicit if not in the decision itself, in a follow up response to a request for particulars made by the applicant’s migration agent — is a forensic document examiner’s report given in May 2018 for the purposes of, materially, informing officers of the Minister’s department of an opinion in respect of the impugned passport. As to that, the forensic document examiner opined:

   I have examined the [impugned passport] and determined that one or more of the following has occurred: the document’s manufacturing or issuing security characteristics are fraudulently compromised or personal data is fraudulently altered. Therefore, it is my opinion that this is a legitimately manufactured document that has been fraudulently altered.

   [Emphasis in original]

   [29] The opinion does not descend to particulars of characteristics which had formed the formation of that opinion, unsupported by a foundation which detailed such particulars. The admissibility of the opinion in relation to whether the document was or was not genuine in a judicial proceeding may be moot. However, it is a very different thing to hold that the document had no persuasive quality whatsoever in relation to the formation, in the exercise of an administrative function, of a reasonable suspicion. The forensic document examiner’s report, in my view, having regard to the authorities summarised in R v N, was well capable of supporting reasonably the formation of a suspicion that the impugned passport was bogus. The definition of bogus document does not require that any particular person be identified as the author of a particular alteration. It is a necessary inference flowing from the use by forensic document examiner of the adverb “fraudulently” governing “altered” that the alteration, in the examiner’s opinion, has occurred by the act of a person not authorised to make such an alteration.

   Consideration

2. A critical part of Mr Kheirabadi’s case is that the conclusion by the Officer that the Birth Booklet was a bogus document was not reasonably reached (or ‘constructed’ as Mr Kheirabadi puts it). A further part of Mr Kheirabadi’s case is that the Department did not engage with other evidence before it, when it reached its conclusion that it reasonably suspected the Birth Booklet was bogus.

3. The Department had before it the report of the Document Examiner. The Officer clearly had regard to the content of that report in forming the reasonable suspicion that the Birth Booklet was forfeited under section 487ZI(2). In the letter notifying Mr Kheirabadi about the seizure, the Officer states clearly that she has formed the suspicion based on an assessment of the document. That is plainly a reference to the assessment by the Document Examiner. It was open to the Officer to place weight and rely on the Document Examiner’s report. The report was in the circumstances of this case, and to quote Logan J, ‘well capable of supporting reasonably the formation of a suspicion’ that the Birth Booklet was bogus. There is nothing in Part 9, Division 1 of the Act that requires a document examiner to provide reasons for the view expressed, or that required the Officer to request reasons from the Document Examiner prior to forming the requisite reasonable suspicion. There is nothing in the Act that prevents an officer from relying on the report of a Document Examiner, even if that report is produced by a person from a unit that sits within the Department.

4. Part of Mr Kheirabadi’s complaint is that the Officer ought to have considered and then further, placed weight on the evidence he had provided. That contention cannot be accepted. There is nothing in Part 9, Division 1 of the Act that requires an officer to consider certain matters prior to forming a reasonable suspicion. To the extent that I am wrong about that conclusion, I note that the Officer nevertheless appeared to take account of other information: in setting out her reason for suspicion, she referred not only to the assessment of the Birth Booklet (being the Document Examiner’s report) but also ‘other available information’. The reference to ‘other available information’ can only be a reference to the information that had been provided by Mr Kheirabadi, including the translations he provided. While the ‘other available information’ is not listed in the notification of seizure, the information is fully set out in the decision to refuse the amendment to Departmental records (CB 51-6). That decision was made on the same day as the Seizure Decision, by the same Officer.

5. There are two other matters not raised by Mr Kheirabadi, but are appropriate to consider.

6. First, I have considered whether the notice of seizure is a valid notice, given the terms of subsection 487ZJ(3). I am satisfied that the seizure notice meets the requirements of subsection (3).

7. Second, the power invested in an officer in section 487ZJ(1) is a discretionary power. An officer ‘may’ seize the document if the officer forms a reasonable suspicion. The Act does not set out any matters that an officer is to consider in exercising the discretion. In the present matter, the Officer had the report of the Document Examiner. It is also plain that the Officer considered other available information. It was open as I have noted earlier, to the Officer, given the content of the Document Examiner's report, to form the reasonable suspicion. In those circumstances, that appears to have been a sufficient basis on which to exercise the discretion.

   CONCLUSION AND DISPOSITION

8. When all of these matters are considered, I am of the view that Mr Kheirabadi’s case is not sufficiently arguable. Accordingly, and for that reason, the extension of time should be refused, and the Application be dismissed.

9. The conclusion I have reached may distress Mr Kheirabadi. Mr Kheirabadi appeared personally before me. I formed the impression he was trying to do the right thing when he applied to change his date of birth. It may well be that part of the motivation for him challenging the decision was to ensure there was no stain on his character, or to ensure that he was not seen as dishonest, or as the creator of a bogus document. Less there be any doubt about these matters, I make it clear for the benefit of Mr Kheirabadi, that nothing in this decision or the documents that I have read, call into question the character of Mr Kheirabadi. There is no evidence or suggestion that he was involved in the alteration of the Birth Booklet.

10. Mr Kheirabadi made it clear before me that he is distressed because the Birth Booklet that has been seized provides a link to his father’s name, and is part of his identity and heritage. During the course of the hearing, Mr Sypott for the Minister made clear that Mr Kheirabadi could nevertheless ask for the document to be returned to him. I suggest Mr Kheirabadi write respectfully to the Department, noting the importance of the document to his individual name, identity and heritage, and ask for it to be returned. He may choose to attach a copy of this decision. It is to be hoped that an accommodation can be made, and the document returned to Mr Kheirabadi. In the unfortunate event no accommodation can be made, I encourage Mr Kheirabadi to accept the decision and move on with his life. He seems to have made a good fist of settling in this country, and is awaiting his permanent visa. He has much to offer this country and it would be a shame if he harboured any resentment about the non-return of the Birth Booklet, should that be what occurs.

11. The Minister in written submissions sought costs but did not expand upon the costs sought in oral submissions. In the circumstances of this matter, I am not inclined to order costs, but will reluctantly hear an application if I am asked to do so.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       30 November 2023