FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FOE17 [2020] FCAFC 73

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The Orders made on 4 September 2019 in proceeding SYG3919/2017 be set aside and, in lieu thereof, the following orders be made:

(a)    The amended application be dismissed.

(b)    The applicant pay the first respondent’s costs as agreed or taxed.

3.    The first respondent pay the appellant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

NICHOLAS AND MARKOVIC JJ:

1    This is an appeal brought by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) quashing a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 November 2017 and ordering that the Tribunal redetermine the matter according to law: FOE17 v Minister for Immigration & Anor [2019] FCCA 1861. The Tribunal had affirmed a decision of a delegate of the Minister refusing the first respondent (Respondent) a protection visa.

2    The Respondent has filed a notice of contention which raises three grounds on which he contends that the orders made by the primary judge should otherwise be affirmed.

3    For the reasons that follow the appeal should be allowed.

Background

4    The following background facts are taken substantially from the reasons of the primary judge.

5    On 28 July 2010 the Respondent applied for a protection (class XA) visa. In his application the Respondent claimed to be a Sri Lankan national and recorded his name, which we will refer to as KA, and his date of birth, 25 June 1970.

6    In his application the Respondent said that he arrived in Australia on 24 June 2010 and claimed that his Sri Lankan passport was retained by people smugglers in Malaysia and that he travelled to Australia using a false passport which was, in turn, retained by the person who travelled with him, arranged by an agent.

7    The Respondent also included a statutory declaration with his application in which he set out his claims for protection, the details of which are not relevant to issues before this Court. In summary, the Respondent claimed that he would face harm if he returned to Sri Lanka as a Tamil who had been forced to assist the Liberation Tigers of Tamil Eelam (LTTE).

8    On 7 October 2010 the Respondent attended an interview with a delegate of the Minister. During the course of that interview the delegate asked the Respondent for the name on the false passport he received in Malaysia. The Respondent provided a name, which we will refer to as RV, and confirmed that the passport was taken from him by the agent at Melbourne Airport.

9    On 26 August 2011 the Minister’s delegate concluded that the Respondent was owed protection obligations for the purposes of s 36 of the Migration Act 1958 (Cth) (Act) and noted that the prescribed criteria in Sch 2 to the Migration Regulations 1994 (Cth) “will now be considered prior to the grant of a Subclass 866 (Protection) visa”. In his reasons, the delegate recorded that he was satisfied that the Respondent is KA as claimed and that he had “arrived in Australia on 24 June 2010 at Melbourne Airport on a false passport, which was taken by his ‘agent’ upon clearing customs”.

10    In the period that followed the Department of Immigration and Border Protection (as the Minister’s Department was then known) (Department) sought further information from the Respondent including requiring him to undergo health examinations and to provide a digital photograph (face and shoulders) and fingerprints at an office of the Department.

11    An “Identity Resolution Centre – Five Country Conference (FCC) Fingerprint Match Report” dated 1 May 2015 (FCC Report) identified the Respondent from a “FCC Country Match” by the United States of America (US) as a British national born on 26 July 1971 and recorded that person’s name, which we will refer to as SV. The FCC Report also recorded that SV’s fingerprints were taken at “WJFK03C” on 14 October 2008 and included a photograph of SV taken on that date.

12    The FCC Report is what might be described as a standard form or pro forma document. It is expressed to have been prepared “for [the Department’s] internal use only” and includes the following:

CAVEAT

Clients and Detainees

Information received from the providing country that has been verified as a match with fingerprints held in that country’s database has not been validated by DIBP based fingerprint experts. If travellers dispute information revealed by their match, decision makers are encouraged to investigate further. For further information please contact the IRC.

For the interpretation and advice guide for FCC fingerprint match report abbreviations please refer to the FCC Fingerprint Match Report Simple Interpretation Guide and Advice document available at TRIMreference ADD2014/784525.

Onshore Clients and Detainees

FCC referral status information including countries searched for a client can be obtained by checking the information available at TRIMreference ADD2015/301043. To obtain further information regarding an onshore client or detainee a request can be made to the providing country. Please refer to the guidance at TRIMreference ADD2014/590548 for further information.

…

LIMITS ON USE AND DISCLOSURE

There are limits as to what you may do with information provided by FCC countries under the FCC High Value Data Sharing Protocol (The Protocol). Any use or disclosure of information received is to comply with applicable domestic laws and international obligations.

…

For immigration and nationality purposes

Information received through FCC arrangements may be used for immigration and nationality purposes, including in related judicial proceedings. For the purposes of the Protocol, immigration and nationality purposes are defined as “the consideration, regulation and enforcement of whether, and on what basis, any person may enter or remain in the territory of one of the Participants”.

…

For removal purposes

In cases when information received through FCC arrangements indicates that the subject has nationality or other status in a third country, the information may be disclosed to the relevant authorities in that third country for the purposes of verifying their identity, checking their travel and identity documentation, and/or in connection with making arrangements for their return to that country.

(Original emphasis.)

13    On 14 October 2015, following receipt of the biometric information, the Respondent attended a second interview with a second delegate of the Minister.

14    On 8 December 2015, following the second interview, the Respondent’s advisors informed the Department that they were instructed that the Respondent “maintains that his identity is as he initially stated in his protection visa application and reiterates that he does not hold British citizenship” and that the Respondent had “previously provided his Sri Lankan birth certificate and identity card as evidence that his identify is as claimed”.

15    On 10 December 2015 the second delegate notified the Respondent of his decision that he was not satisfied that the Respondent met the relevant criteria for the grant of the visa. The second delegate:

(1)    did not accept the Respondent’s claim to be KA, born on 25 June 1970, or his claim that he had never used any other name or date of birth. It found that the match of the Respondent’s fingerprints with a person who is the bearer of a British passport in the name of SV, born 26 July 1971, was “compelling evidence that [the Respondent] has previously been known by this identity”; and

(2)    found that the Respondent’s country of reference is the United Kingdom (UK) and, as the Respondent only claimed to fear harm in Sri Lanka and not the UK or any other country, was not satisfied that he was a person to whom Australia owed protection obligations.

16    On 15 January 2016 the Respondent applied to the Tribunal for review of the second delegate’s decision.

17    On 12 July 2017 the Tribunal wrote to the Respondent pursuant to s 424A of the Act (First s 424A Letter) inviting him to comment on information which it considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review. The following two items of information were recorded in the First s 424A Letter:

•    On 1 May 2015 the Department received a Five Country Fingerprint Match Report. In this report you were positively identified through biometric information (fingerprints) as [SV], a British citizen, who was born in Britain on 26/07/1971.

•    Movement records show that [SV] (date of birth: 26/07/1971) first entered Australia as a British citizen holding a 976 Electronic Travel Authority (ETA) with a British passport number 303398519. [SV] subsequently departed Australia but returned on a number of occasions, each time with an ETA. [SV] last arrived in Australia on 6 June 2010 and he has been unlawful in Australia since 6 September 2010.

The Tribunal explained why these two items of information were relevant.

18    The Respondent did not respond to the First s 424A Letter.

19    On 8 August 2017 the Respondent appeared at a hearing before the Tribunal.

20    On 2 November 2017 the Tribunal wrote a second letter to the Respondent pursuant to s 424A of the Act (Second s 424A Letter) once again inviting him to comment on or respond to information which it considered, subject to his comments or response, would be the reason, or a part of the reason, for affirming the decision under review. Four items of information were listed in that letter as follows:

•    In your interview with the delegate on 7 October 2010 you stated that you entered Australia using a passport in name of [RV].

•    Departmental movement records indicate that a person named [RV] entered Australia on 24 June 2010 travelling on a flight from Malaysia and departed Australia nine days later on 3 July 2010.

•    Information on your Departmental file indicates that an examination of the relevant passenger cards indicates that the signature of [RV] completed on entry on 24 June 2010 is consistent with his signature on other occasions.

…

•    The delegate’s decision states that the passport of [SV] was examined by an officer of the Department on one of the occasions on which [SV] entered Australia and deemed to be a genuinely issued passport with a valid visa and that he was immigration cleared on this basis.

The Tribunal explained why that information was relevant to its review.

21    In a handwritten letter dated 22 November 2017 the Respondent noted that he had received the Tribunal’s letter and confirmed that his name is “AK” and his date of birth is 25 June 1970.

22    On 28 November 2017 the Tribunal affirmed the decision under review.

The Tribunal’s decision

23    The Tribunal identified the issue before it to be whether the grant of a visa to the Respondent was prevented by s 91WA of the Act because the Respondent had provided bogus documents as evidence of his identity, nationality or citizenship without a reasonable excuse for doing so.

24    The Tribunal considered the conflicting evidence about the Respondent’s identity and nationality. In doing so it placed significant weight on the FCC Report and expressed the opinion that the photograph appearing in that report was of the Respondent who appeared before it. The Tribunal found that the match of the Respondent’s fingerprints and facial image with a person who holds a British passport in the name of SV indicated that the Respondent had been known by that identity. The Tribunal also found that the Respondent had not credibly explained why his fingerprints matched those belonging to SV who was fingerprinted in the US and rejected the suggestion that someone might have forged someone else’s passport and put the Respondent’s photograph in the passport, noting that would not explain why the Respondent’s fingerprints matched those of a British passport holder who entered the US or why the Respondent was photographed entering the US.

25    The Tribunal then considered the Respondent’s contention that the identity documents he submitted prove his identity and observed that the Respondent still had not explained why his fingerprints matched those of the person who entered the US or why he was photographed entering the US. The Tribunal noted that independent and credible reports indicated that fraudulent documentation, including Sri Lankan identity documentation, is readily available. On that basis the Tribunal found that the identity documents produced by the Respondent as evidence of his claimed identity lacked probative value.

26    At [43]-[44] the Tribunal made the following findings:

43.    In this context, the Tribunal finds that the fact that the applicant was positively identified through biometric information as a person who is the bearer of a British passport in the name of Mr SV, a British citizen born 26 June 1971, who was finger printed and photographed when he travelled to the United States, indicates that the applicant is not who he claims to be and that nothing he says can be relied upon. Furthermore, the Tribunal finds that Departmental movement records show that Mr SV first entered Australia as a British citizen holding a 976 Electronic Travel Authority (ETA) with a British passport number 303398519. Mr SV subsequently departed Australia but returned on a number of occasions, each time with an ETA. Mr SV last arrived in Australia on 6 June 2010 and he has been unlawful in Australia since 6 September 2010. In this context, the Tribunal has considered whether the evidence before it indicates that the applicant is, in fact, Mr SV.

44.    The Tribunal finds that the match of the applicant’s fingerprints with a person who is the bearer of a British passport in the name of Mr SV indicates that he has been known by this identity. The Tribunal considers that the Departmental movement records in relation to Mr SV, when considered together with the information contained in the FCC Fingerprint Match Report, support the conclusion that the applicant has not been truthful about his identity, nationality or the circumstances in which he entered Australia and support the conclusion that the applicant’s true identity is that of a British citizen, named Mr SV, who was born in Britain on 26 July 1971.

(Footnotes omitted.)

27    Based on the evidence before it the Tribunal did not accept that the Respondent is:

(1)    a citizen of Sri Lanka and found that the information he provided to the Department and the Tribunal about his identity, nationality and the circumstances in which he entered Australia had been fabricated; and

(2)    KA, born in Sri Lanka on 25 June 1970, and found that the Respondent’s true identity is SV, a British citizen born on 26 July 1971.

28    The Tribunal concluded that the Respondent is a UK citizen, the UK is his country of reference for the purpose of assessing whether he is a person to whom Australia owes protection obligations as a refugee and the UK is the Respondent’s receiving country for the purposes of assessing whether he meets the complementary protection criteria.

29    The Tribunal then turned to consider whether the Respondent had provided bogus documents as evidence of his identity. The Tribunal found that the birth certificate, birth registration certificate and the Sri Lankan identity card provided by the Respondent in support of his claimed identity were counterfeit by reference to para (b) of the definition of “bogus document” included in s 5(1) of the Act.

30    Next, the Tribunal considered whether the Respondent had a reasonable explanation for providing the bogus documents in accordance with s 91WA(2)(a) of the Act. It found that, as the Respondent had not acknowledged providing bogus documents, it could not be satisfied that he had a reasonable explanation for providing those documents.

31    Accordingly, the Tribunal found that pursuant to s 91WA of the Act it must affirm the decision to refuse the grant of a visa to the Respondent.

32    The Tribunal then considered what it described as “alternative findings” on the basis that “it is possible to imagine a scenario in which the operation of section 91WA of the Act might operate to prevent the grant of a protection visa to a person even though that person might otherwise have had a meritorious claim for protection”. However, the Tribunal concluded that this was not such a case. It found that nothing the Respondent said about his experiences in the past could be relied upon and once again rejected as false his claim to be a Sri Lankan citizen and rejected all of his claims to fear harm in Sri Lanka.

33    The Tribunal found that the Respondent was a UK citizen born in the UK with a right to enter and reside in the UK only and assessed his claims on that basis. The Tribunal noted that the Respondent had made no claims for protection either that he is owed protection as a refugee or under the complementary protection criteria in relation to the UK and thus was not satisfied that the Respondent met the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.

The Federal Circuit Court proceeding

34    The proceeding first came before the primary judge for a show cause hearing at which the primary judge relevantly made an order that:

Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to whether the Tribunal should have made enquiries of the United Kingdom authorities whether the applicant is a United Kingdom citizen.

35    The Respondent filed an amended application on 20 August 2019 which included seven grounds. However, ultimately he only relied on grounds 1, 2, 3 and 7 which were in the following terms:

1.    Ground 1 – The Tribunal failed to disclose to the applicant the documents that were used by the department which caused the delegate and the Tribunal to infer that the applicant was not who he claimed he was.

Particulars

a.    At [19] the Tribunal states that it had invited the applicant to comment pursuant to s424A of the Act.

b.    The Tribunal did not provide the applicant the Five Country Fingerprint Match Report that it relied upon to reach its finding concerning the applicant’s identity.

c.    Withholding information such as the Five Country Fingerprint Match Report amounts to a denial of procedural fairness, therefore the Tribunal has committed legal error as the applicant has not been afforded a fair hearing and the opportunity to respond appropriately.

2.    Ground 2 – It was not open for the Tribunal to infer that the applicant was Mr SV a British Citizen [34]     

Particulars

a.    At [34] the Tribunal states that it had a “facial image of the applicant entering the United States” and that this facial image “bore a very close resemblance to the applicant”.

b.    The Tribunal did not provide the image to the applicant or his representative it appears from reading the decision record.

c.    It was not open for the Tribunal to make a firm finding on the basis of an image that bore “very close resemblance” where the photo was taken prior to applicant's arrival into Australia (i.e. he arrived in 2010, so the photo that was produced was prior to 2010).

d.    If the facial image was taken in 2009 / 2010 prior to the applicant arriving in Australia the facial image would have been taken 7 years earlier, it would be unreasonable for the Tribunal to give weight to a facial image that was taken 7 years ago.

e.    For this reason the Tribunal could not have made a finding on the basis of the facial image.

f.    The basis of the Tribunal’s consideration of the “facial image” was its conclusion that it was a photo of the Applicant taken in the US, which conclusion was based on the report referred to as the Five Country Fingerprint Match Report;

g.    The Five Country Fingerprint Match Report did not provide any indication of the author of the report, how any fingerprint data was received by the author of the report, the qualifications of the author of the report or the methods used by the author of the report to identify any fingerprint match and, therefore, the facial image referred to in the report;

h.    For the reasons in sub-paragraph (g), there was no material in the Five Country Fingerprint Match Report upon which the conclusion in sub-paragraph (f) could be based;

i.    The Five Country Fingerprint Match Report was not authorised for use by the Tribunal such that the Tribunal was not entitled to give it any weight;

j.    The Five Country Fingerprint Match Report had not been validated by DIBP fingerprint experts and the Tribunal could not be satisfied that it had been prepared or considered by any fingerprint expert;

k.    The Five Country Fingerprint Match Report specifically authorised and encouraged decision-makers to make further investigations if the information in the report was disputed (which it was).

3.    Ground 3 - The Tribunal exercised its discretion in a manner that was so unreasonable when determining the applicant's identity to be that of a British Citizen.

Particulars

a.    The applicant provided sufficient explanation in support of his claimed identity and also provided certified copies of original documents of his Sri Lankan national identity card and original Sri Lankan birth certificate to the department along with his application.

b.    The AAT failed to consider the certified copies of the applicant’s identity documents when considering copies of the applicant’s identity documents on file [30].

c.    The AAT’s discretion to place greater weight upon the fact that the applicant’s finger prints had been identified as those belonging to a person who travelled to the US as a British citizen is infected with legal error as it did not consider that the applicant’s identity documents tendered in were certified by his representative, this means the original identity documents tendered in were “sighted” by the applicant’s representative.

d.    More details will be provided later.

…

7.    Ground 7 – The Tribunal committed jurisdictional error by failing to carry out the review required of it by the Migration Act 1958 (Cth) because it failed to make obvious enquiries about whether the Applicant held a UK passport.

Particulars

a.    The Tribunal should have sought further information from the first respondent about what enquiries had been made of the UK authorities in respect of the personal details of the holder of the UK passport identified in the FCC Fingerprint Report and the movements of the holder of that passport.

b.    The Tribunal should have required the first respondent to carry out further investigations of the UK authorities in respect of the personal details of the holder of the UK passport identified in the FCC Fingerprint Report and the movements of the holder of that passport.

c.    Alternatively to (b), the Tribunal should itself have invited the relevant UK authority to provide information (pursuant to section 424 of the Act) in respect of the personal details of the holder of the UK passport identified in the FCC Fingerprint Report and the movements of the holder of that passport.

36    The primary judge first considered ground 7. His Honour reasoned as follows.

37    First, the primary judge found that it was “surprising that a citizen of the United Kingdom would impersonate a Sri Lankan asylum seeker” but noted that was a necessary conclusion to draw from the Tribunal’s findings.

38    Secondly, the primary judge found that the Respondent’s denial that he is SV and that he had used that identity or been to the US lacked credibility. His Honour found that it was “tolerably clear from the available material that the [Respondent] did use the identity of SV to enter the United States”. His Honour noted that the Respondent’s “fingerprints and a photographic image at US Border Control established that to the Tribunal’s satisfaction and, having seen the material” his Honour agreed.

39    Thirdly, having found that to be the case, the primary judge said that either the Respondent is in fact SV and used a bogus document as evidence of his identity and nationality or the Respondent is KA and he used SV’s identity to undertake travel, which would suggest that the UK passport which he used was bogus.

40    Fourthly, the primary judge noted that the Tribunal proceeded on the basis that the UK passport used by SV was genuine and that the Department had not carried out any forensic examination of it and relied upon a simple visual inspection by one of its officers on one occasion, which raised a question of doubt. The primary judge was of the opinion that the issue could have been resolved by making an inquiry of the UK authorities about whether the UK passport used by SV was genuine and, if it was, whether there was any evidence that it had been fraudulently obtained. His Honour continued at [44] as follows:

If the United Kingdom passport was not genuine or had been fraudulently obtained, other questions would have had to have been resolved by the Tribunal but its conclusion that the applicant was SV, a United Kingdom national would probably have had to have been put aside. It probably would not have been open to the Tribunal to proceed on the basis of the application of s.91WA.

41    Finally, the primary judge found that the inquiry of the UK authorities was “obvious” and could have easily been made and that the fact about which the inquiry would have been made was critical. His Honour concluded that the failure to make the inquiry in the circumstances of the case went to the Tribunal’s jurisdiction and accordingly upheld ground 7.

42    The primary judge then considered but dismissed each of the remaining grounds.

43    In relation to grounds 1 and 2, which asserted a denial of procedural fairness because the Respondent had not been provided with a copy of the FCC Report (ground 1) and with the facial image of the person who had used SV’s passport (ground 2), the primary judge pointed out that a document of itself is not “information” and that this is not a case where s 424A of the Act required the Tribunal to disclose the whole document. His Honour found: first, that the First s 424A Letter gave sufficient details of the particulars of the FCC report; and, secondly, that the Tribunal put to the Respondent pursuant to s 424AA of the Act that the FCC Report also contained a facial image of the Respondent entering the US which bore a close resemblance to him. The primary judge concluded that there had been no breach by the Tribunal of ss 424AA, 424A or 424B of the Act and that it had provided sufficient particulars of the adverse information.

44    The primary judge also found that, even if the Respondent had established a breach of the Tribunal’s obligations under s 424A of the Act, he would have withheld relief in the exercise of the court’s discretion given that the FCC Report was released in full to the Respondent in response to a request made pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act). In those circumstances it could be reasonably inferred that the Respondent was aware of its contents and that there was no practical injustice.

45    The primary judge rejected each of the three arguments raised by the Respondent in relation to ground 3 by which the Respondent contended that the Tribunal failed to consider the certified copies of his identity documents and took issue with the Tribunal giving greater weight to the Respondent’s fingerprints matching a person who had travelled to the US. The primary judge:

(1)    found that there was a rational basis for the Tribunal to rely on the FCC Report, that there was no extreme illogicality in the Tribunal relying on it as evidence and that on its face the FCC Report is probative of the Respondent being the person who entered the US on 14 October 2008 because they share the same fingerprints and appearance;

(2)    rejected the Respondent’s argument that the Tribunal should have given him a copy of the FCC Report for the same reasons that his Honour rejected grounds 1 and 2; and

(3)    found that it was not unreasonable for the Tribunal to give little weight to the Respondent’s identity documents given the other information on which it relied, namely, the FCC Report and country information on document fraud in Sri Lanka.

The appeal

46    The Minister raises a single ground of appeal, namely:

His Honour erred in finding that the Tribunal erred by failing to make an inquiry of the United Kingdom authorities as to whether SV’s passport was genuine or had been fraudulently obtained.

Particulars

Given the material before the Tribunal indicated that the passport was genuine, and the Tribunal did not possess the physical passport, such an inquiry was not sufficiently obvious to given rise to any such duty on the Tribunal.

47    The Respondent relies on a notice of contention which raises the following grounds:

1.    The learned Judge accepted Ground 7 of the Applicant’s Amended Application because his Honour concluded that the AAT should have made an enquiry of the UK authorities to determine whether a UK passport was genuine and, if it was genuine, whether there was any evidence of it being fraudulently obtained ([44]-[46] of the Judgment). In addition to that enquiry, the following matters were obvious enquiries that the AAT should have made, and its failure to do so was a jurisdictional error:

(a)    enquiries of the UK authorities in respect of the personal details of the holder of the UK passport identified in the Five Country Fingerprint Match Report (Exhibit A1 in the Federal Circuit Court Proceedings) and the movements of the holder of that passport;

(b)    enquiries of the Appellant (the Minister for Immigration and Border Protection) in respect of:

(i)    the identity of the author of the Five Country Fingerprint Match Report (Exhibit A1 in the Federal Circuit Court Proceedings), how any fingerprint data was received by the author of the report, the qualifications of the author of the report and the methods used by the author of the report to identify any fingerprint match and, therefore, the facial image referred to in the report;

(ii)    whether the Five Country Fingerprint Match Report was authorised for use by the AAT;

(iii)    whether the Five Country Fingerprint Match Report had been validated or considered by DIBP fingerprint experts or any other fingerprint expert; and

(iv)    what further investigations the Appellant had carried out in respect of the information in the Five Country Fingerprint Match Report.

2.    For the following reasons, the learned Judge erred by rejecting Ground 2 of the Applicant’s Amended Application:

(a)    the AAT relied on a “facial image of the applicant entering the United States” and stated that this facial image “bore a very close resemblance to the applicant”.

(b)    the basis of the AAT’s consideration of the “facial image” was its conclusion that it was a photo of the Applicant taken in the United States of America, which conclusion was based on the report referred to as the Five Country Fingerprint Match Report (Exhibit A1 in the Federal Circuit Court Proceedings);

(c)    the Five Country Fingerprint Match Report did not provide any indication of the author of the report, how any fingerprint data was received by the author of the report, the qualifications of the author of the report or the methods used by the author of the report to identify any fingerprint match and, therefore, the facial image referred to in the report;

(d)    for the reasons in sub-paragraph (c), there was no material in the Five Country Fingerprint Match Report upon which the conclusion in sub-paragraph (b) could be based;

(e)    the Five Country Fingerprint Match Report was not authorised for use by the AAT such that the AAT was not entitled to give it any weight;

(f)    the Five Country Fingerprint Match Report had not been validated by DIBP fingerprint experts and the AAT could not be satisfied that it had been prepared or considered by any fingerprint expert;

(g)    the Five Country Fingerprint Match Report specifically authorised and encouraged decision-makers to make further investigations if the information in the report was disputed (which it was); and

(h)    accordingly, by relying on the Five Country Fingerprint Match Report the AAT engaged in an unreasonable or illogical reasoning process, which was a jurisdictional error.

3.    The learned Judge erred in:

(a)    finding (at [39] of the Judgment) that the Applicant used the identity of SV to enter the United States; and

(b)    finding (at [58] of the Judgment) that the Five Country Fingerprint Match Report (Exhibit A1 in the Federal Circuit Court proceedings) was probative of the Applicant being the person who entered the United States on 14 October 2008 because they share the same fingerprints and appearance, and it was open for the Tribunal to regard it as such,

for the following reasons:

(i)    the learned Judge based those conclusions on the Five Country Fingerprint Match Report; and

(ii)    for the reasons set out in respect of sub-paragraphs 2(c)-(g), above, the Five Country Fingerprint Match Report did not provide any evidential foundation for that finding.

48    We will first address the ground of appeal and then the Respondent’s notice of contention.

The single ground of appeal

Parties’ submissions

49    The Minister makes two principal submissions: first, that the primary judge’s concern that SV’s passport might be bogus was founded on speculation; and secondly, that the inquiry postulated by the primary judge would not resolve that concern because the UK authorities would not be able to provide any confirmation without physically examining the passport.

50    The Respondent submits that the primary judge proceeded on the assumption that the FCC Report was accurate and, even on that assumption, there were very good reasons to doubt the consequences of the Tribunal’s finding. The Respondent observes that the effect of the Tribunal’s finding was that one would be required to believe that a UK citizen entered Australia in June 2010 and impersonated a Sri Lankan asylum seeker for the purposes of an Australian claim to protection, a scenario which the Respondent contends is highly improbable for the reasons referred to by the primary judge at [38] of his Honour’s reasons. The Respondent submits that that alone gave rise to the need for further simple inquiry.

51    The Respondent submits that the FCC Report itself provided further reasons to make such inquiries. He says, even assuming that the FCC Report correctly identified the Respondent as SV, it recorded that SV visited the US in October 2008, a matter which he disputed. The Respondent points to the statement included in the FCC Report that “[i]f travellers dispute information revealed by their match, decision makers are encouraged to investigate further”.

52    The Respondent submits that whether any such inquiries would be futile, as the Minister contends, is not something that can be decided in advance. That is, if having carried out further inquiries, the UK authorities were unable to assist, then the Tribunal would not make a jurisdictional error by proceeding. The Respondent contends that, in any case, if one speculates about what such an inquiry would bring about, as the Minister seeks to do, it is clear that it may be of assistance. By way of example the Respondent says that the UK authority is likely to be able to confirm whether there is a citizen with the name SV and the movements of that citizen, so far as the UK authority is concerned. If those records were inconsistent with the FCC Report that might be an indication that the passport being used by the person identified in the FCC Report was bogus. Another example raised by the Respondent is that the UK authority is likely to have a photograph of its citizen and if that photograph is a different person that would also provide an indication that the passport being used by the person identified in the FCC Report was bogus.

Relevant principles

53    It is convenient to commence with the authorities that have considered the circumstances in which a failure on the part of a tribunal to make an inquiry would constitute a failure to review.

54    In Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 the appellants argued that the Tribunal was obliged, in conducting its review, to undertake inquiries by exercising its power to summons witnesses. That ground was rejected. In doing so, after referring to Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI) at [25], the Full Court (Dowsett, Pagone and Burley JJ) said at [33]:

There is no general obligation to make inquiries, but as Kenny J noted in Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60], an obligation may arise in “rare or exceptional circumstances”. The mere fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to a jurisdictional error; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63] (White J); Singh v Minister for Immigration and Border Protection [2017] FCA 1285 at [64] (Murphy J).

(Emphasis added.)

55    Their Honours found that in the case before them there were no such exceptional circumstances.

56    In SZIAI French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ considered whether and in what circumstances a tribunal has an obligation to inquire.

57    Relevantly in that case the tribunal had regard to a letter from the Ahmadiyya Muslim Association Australia Inc (Association) responding to an inquiry from the tribunal about whether the respondent was known to the Ahmadiyya Muslim Jamaat in Bangladesh (AMJ Bangladesh). The tribunal included in its letter to the Association copies and translations of certificates produced to it by the respondent which were signed by persons purportedly associated with the AMJ Bangladesh. In its response the Association enclosed a letter from the National Ameer of the AMJ Bangladesh. The tribunal wrote to the respondent pursuant to s 424A of the Act inviting him to comment on, among other things, the letter from the National Ameer and provided a copy of that letter. In his response to the tribunal the respondent disagreed with the information provided and asserted that he was an Ahmadi but said that he could not otherwise prove that to be so.

58    The tribunal referred to the correspondence with the Association and from the National Ameer in its reasons for decision and set out what it had said in its letter sent pursuant to s 424A of the Act and the response received. The tribunal concluded that the respondent was not a witness of truth and that there was no truth to his claims made in support of his protection visa application.

59    At [25] their Honours said:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

(Footnote omitted.)

60    Their Honours did not need to explore the questions of principle they posed at [25] because, as explained at [26]: first, there was nothing on the record to indicate that any further inquiry by the tribunal in that case could have yielded a useful result; and secondly, the response given by the respondent to the tribunal’s letter sent pursuant to s 424A of the Act indicated the futility of further inquiry. Their Honours observed that there was nothing that the respondent or his solicitors could add, beyond a bare denial of what was included in the National Ameer’s letter. For those reasons their Honours concluded that there was no factual basis for the conclusion reached in the Court below that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision in that case was infected by jurisdictional error.

Consideration

61    As their Honours observed in SZIAI a failure to make “an obvious inquiry about a critical fact, the existence of which is easily ascertained” could in some instances amount to a failure to carry out a review. However, for that to be so, an applicant must show that the failure to inquire affected the outcome of the review in some way.

62    The “issue of doubt” identified by the primary judge in this case was whether SV’s passport was genuine. His Honour noted that the Department had not carried out any forensic examination of the passport and that it relied on a “simple visual inspection of it” by one of its officers. This, his Honour said, raised “a question of doubt” which, his Honour found, could have been “readily and simply resolved” by inquiry of the UK authorities. With respect we do not agree.

63    First, in our opinion, an inquiry into the veracity of SV’s passport was not an obvious inquiry. There was no evidence before the primary judge about the quality of the inspection of SV’s passport undertaken by the Departmental officer. More fundamentally, there was nothing in the material before the Tribunal to suggest that SV’s passport was not genuine or that the Tribunal should have any concern about the examination undertaken by the Departmental officer of that passport as referred to by the second delegate.

64    The Tribunal referred to the following evidence in its decision record:

(1)    the FCC Report which the Tribunal noted positively identified the Respondent as SV, a UK citizen, who was fingerprinted when he travelled to the US, and which included a facial image which bore a very close resemblance to the Respondent; and

(2)    movement records which showed that SV:

(a)    first entered Australia as a UK citizen holding a 976 Electronic Travel Authority (ETA) with a UK passport;

(b)    subsequently departed Australia and then returned on a number of occasions, each time with an ETA; and

(c)    last arrived in Australia on 6 June 2010 and has been unlawful in Australia since 6 September 2010.

65    The Respondent did not respond in writing to the First s 424A Letter in which the Tribunal invited him to comment on the FCC Report and the movement records. The Tribunal records at [27] of its decision record that when the letter was read to the Respondent at the hearing he said that the same question was put to him by the Department and that:

He told them that one in every 100 000 fingerprints can match and that he has definitely never been to Australia before. He denied being a British citizen. He said someone might have forged someone else’s passport and put his photograph in the passport.

66    The Tribunal observed that the second delegate noted in his decision record that on one of the occasions on which SV entered Australia his passport was examined by a Departmental officer and “deemed to be a genuinely issued passport with a valid visa and that he was immigration cleared on this basis”. The Tribunal noted that the Department’s file did not include a report relating to the examination of SV’s passport and, while it did not consider this item of information to be determinative, it was consistent with the conclusion that SV is a UK citizen.

67    In the Second s 424A Letter, the Tribunal invited the Respondent to comment on, among other things, the second delegate’s reference to the Departmental officer’s examination of SV’s passport. The response to that letter is recorded at [21] above and amounts to no more than a bare assertion by the Respondent that he is “AK”.

68    Secondly, the inquiry to be made must not only be obvious but it must be about a “critical fact”. As the Minister submits, whether the veracity or otherwise of SV’s passport is a critical fact can be tested by considering whether, had the posited inquiry been made, information that SV’s passport was not genuine would have changed the outcome. We do not think that is so.

69    Information that SV’s passport was not genuine would not detract from the findings that SV had travelled to the US and to Australia on several occasions using that passport between 2004 and 2010. The period covered by that travel included the period in which the Respondent claimed to be in Sri Lanka and to have been detained first by the Sri Lankan Army (SLA) and subsequently by the LTTE and when he claimed that in 2009 the SLA and people associated with it were looking for him, causing him to leave his home area, hide and plan his departure from Sri Lanka. Even if SV’s passport was not genuine, in light of the evidence before the Tribunal that it was used by SV for the travel reported in the movement records and the FCC Report, the Respondent would face significant issues in satisfying the Tribunal that the account of his claims should be believed.

70    Thirdly, the existence of the fact must be easily ascertained. There was no evidence before the primary judge about how the information could have been obtained, how the UK authorities could have been approached, the information that would have been sought and the information the UK authorities may have been able to provide in relation to the veracity or otherwise of SV’s passport. For example, in order for the UK authorities to establish whether the passport is genuine they may need access to the passport itself. There was no evidence explaining whether such access would in fact be required and, if so, how the passport could then be produced to the UK authorities. In other words there was nothing before the primary judge to demonstrate that the information could be easily ascertained.

71    That the FCC Report included a notation to the effect that, should travellers dispute information revealed by their match, decision-makers are encouraged to investigate further does not assist the Respondent. The notation is no more than a guide to users of the report. Whether there is any obligation on a decision-maker to undertake any inquiry will depend on the relevant facts and circumstances and on whether there is an obvious inquiry that can be made about a critical fact, the existence of which can be easily ascertained.

72    In contrast to the situation faced by the Tribunal and before the Federal Circuit Court in this case were the facts in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22. There the plaintiff, Mr Wei, was enrolled as a student in a registered university which had failed to upload his confirmation of enrolment on to the approved electronic database, referred to as PRISMS. As a result, based on outdated information, officers of the Department formed the view that Mr Wei was not enrolled in a registered course and sent a letter to his last known residential address, notifying him of an intention to consider cancelling his visa. The letter was returned unclaimed. A second letter sent to another residential address, obtained by a telephone call to the university, was also returned unclaimed. Other attempts to notify Mr Wei also failed: a Departmental officer telephoned Mr Wei and requested his address but he refused to provide it as he did not believe that the caller was from the Department; and the same officer attempted to send an email to Mr Wei attaching the letter but, because of a typographical error, the email was sent to the wrong address. The time for response to the notification letter having expired, a delegate of the Minister cancelled Mr Wei’s visa under s 116(1)(b) of the Act for non-compliance with the condition that he be enrolled in a registered course.

73    Justice Nettle agreed with the majority of the Court (Gageler and Keane JJ) that the decision to cancel Mr Wei’s visa should be quashed but not for the reasons their Honours gave. His Honour considered that was a case in which the delegate was put on inquiry. As a result of the return of the letters sent to Mr Wei, the delegate knew that neither the address held for Mr Wei by the Department or by the university was his current address. His Honour said that the delegate knew that Mr Wei had not received the notification letter and that Mr Wei was unaware of the Minister’s intention to cancel his visa and, as a result, did not have the opportunity to demonstrate to the Minister why the proposed ground of cancellation did not exist. Thus Nettle J said that it would, or should, have been apparent to the delegate that it was more than usually important to be as certain as was reasonably possible that the proposed ground of cancellation existed. His Honour said that one obvious way of ensuring, or being more certain of, Mr Wei’s enrolment status was to make a telephone inquiry of the university, which his Honour described as “the direct and authoritative source of confirmation” of that enrolment, just as had been done to check Mr Wei’s address. At [51] Nettle J continued as follows:

… Given the criticality of the fact that [Mr Wei] was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so – by picking up the telephone and requesting the University to check whether [Mr Wei’s] enrolment status as shown in PRISMS was in fact correct – and the clear link between the delegate’s failure to make that inquiry and the delegate’s determination to cancel the visa, I consider this to be a case in which the delegate’s failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.

74    In the circumstances of this case it cannot be said that the question of the genuineness of SV’s passport was an obvious inquiry: it was not a critical fact; it could not and was not determinative of the application; the genuineness or otherwise of SV’s passport was not a fact that could be easily ascertained; and what any inquiry of the UK authorities would reveal was completely unknown. Further there is no link between the alleged failure to make the posited inquiry and the Tribunal’s decision to refuse the Visa. This is not a case in which “rare or exceptional circumstances” are present which would oblige the Tribunal to make the inquiry of the nature found by the primary judge.

The notice of contention

75    The Respondent raises three grounds in his notice of contention, each of which centre on the reliance by the Tribunal and the primary judge on the FCC Report.

76    The Respondent makes the following general submissions and observations about the FCC Report:

(1)    the Tribunal and the primary judge relied on section 2 of the FCC Report which gives details of an “Encounter” by providing details of an individual as well as a photograph of that individual with a date across the top of the photograph;

(2)    the Tribunal’s conclusions proceed from the following unstated assumptions:

(a)    the Respondent’s fingerprints provided a “match” with those of the person identified in the “Encounter” section of the FCC Report;

(b)    the photograph of the individual in the FCC Report was taken in an airport in the US on 14 October 2008; and

(c)    the individual in the photograph contained in the FCC Report was the Respondent;

(4)    the initial difficulty with that analysis is that the FCC Report does not state any of those conclusions within it and does not set out anywhere the basis on which the “Encounter” was identified;

(5)    if the FCC Report purported to identify a fingerprint match with the Respondent, one would expect that it would identify such things as the author of the report, how the fingerprint data from the Respondent was provided to the author of the report, how the fingerprint data from the individual referred to in the “Encounter” section of the report was provided to the author, the qualifications of the author in respect of fingerprint identification and the methods used by the author to identify any fingerprint match;

(6)    those matters represent a bare minimum of information for a decision-maker to conclude that the FCC Report provided any indication of a fingerprint match;

(7)    the FCC Report itself recognised its own limitations and inadequacies for use as material on which to make a decision. In that regard the Respondent refers to the notation on the FCC Report that it has been prepared for the Department’s internal use only and the extracts set out at [12] above;

(8)    based on those matters the FCC Report itself referred to the need for any decision-maker to carry out further investigations rather than rely on it in order to decide an individual’s nationality. It was a report for the Department’s internal use only (which did not include the Tribunal proceeding) and it had not been validated by Departmental fingerprint experts. For that reason the Tribunal could not be satisfied that it had been considered by any properly qualified fingerprint expert. The report specifically encouraged decision-makers to investigate further if the information was disputed, which in this case it clearly was, and specifically provided that further information could be sought from the providing country, in this case the US. The FCC Report also specifically provided that the information in the report could be provided to a third country, in this case the UK, to verify identity; and

(9)    for all those reasons the Tribunal could not rely on the FCC Report to come to the conclusions it did or, alternatively, before doing so, the Tribunal should have carried out various obvious inquiries about the material the subject of the FCC Report.

Ground 1

77    The first ground in the notice of contention concerns other “obvious inquiries” which the Respondent contends the Tribunal should have made and alleges that the failure to make those inquiries was a jurisdictional error. The further inquiries all concern the FCC Report.

78    The Respondent submits that there were various obvious inquiries, in addition to that found by the primary judge, which the Tribunal should have carried out and that, by not carrying out those inquiries, it fell into jurisdictional error.

79    The Respondent contends that the Tribunal should have made inquiries of the UK authorities about the UK citizen named SV and his movements and that those inquiries would have gone not only to whether the passport was bogus but to whether the information in the FCC Report was correct in the first place. The Respondent says, by way of example, that the UK authorities may have a photograph of SV which is different to that in the FCC Report or they may have reported that there is no such person as SV or that SV has never travelled to the US.

80    The Respondent also contends that the Tribunal should have made inquiries of the Minister, a party to the proceeding, and if necessary, the US authorities about:

(1)    how the FCC Report had been prepared, in order to determine whether it was a report upon which any reliance could be placed;

(2)    whether its author had authorised it for use by the Tribunal given that, on its face, it was not so authorised; and

(3)    whether it had been validated by any fingerprint expert at all given that the FCC Report itself referred to the fact that it had not been validated by Departmental experts and did not indicate whether it had been validated by anyone at all.

81    The Respondent submits that none of those inquiries were difficult, that they went to the key issue before the Tribunal, the identity of the Respondent, and that the failure to carry out those inquiries was an additional reason for the orders of the primary judge.

82    The proposition that if the Tribunal had more evidence before it in the form of a response to the posited inquiries such that it may have come to a different decision is not sufficient to demonstrate that the Tribunal fell into error. It is necessary to show that the inquiry which the Tribunal failed to make was an obvious inquiry about a critical fact, the existence of which could be easily ascertained. In our opinion this ground fails at the first hurdle because, contrary to the Respondent’s contention, neither of the proposed inquiries referred to at [79]-[80] above was obvious.

83    The Tribunal identified the issue before it to be whether the grant of a visa was prevented by s 91WA of the Act because the Respondent had provided bogus documents as evidence of his identity, nationality or citizenship. In determining that issue it had to address the related issue of the Respondent’s identity. In that context, it is difficult to see how seeking information from the UK authorities about the UK citizen SV and SV’s movements was an obvious inquiry. As the Minister submits, such an inquiry would be unlikely to do more than provide details of SV’s personal details, for example his name and date of birth, and details of his departures from and entry into the UK.

84    In any event there was no evidence to establish that the UK authorities may have been able to provide information that would have been of assistance to the determination of the issues before the Tribunal and how that information might have been obtained.

85    Nor was any inquiry in relation to the mode of preparation or validation of the content of the FCC Report obvious. There was nothing before the Tribunal to suggest that there was any issue with, or any reason to doubt, that report. Indeed the Respondent did not put in contest the fact that his fingerprints matched those of SV entering the US, as indicated in the FCC Report. Rather:

(1)    as we have already observed and, as the Tribunal records, the Tribunal invited the Respondent to comment on evidence that indicated that he is a UK citizen who previously travelled to the US where he was fingerprinted by the US authorities (at [15] of its decision record);

(2)    the Respondent denied ever having travelled to the US and when asked to explain how the US authorities had his fingerprints he said “it could be a one and [sic] hundred thousand chance” (at [15] of its decision record);

(3)    the Tribunal also noted that the Respondent was represented before it and was provided with time to make an application pursuant to the FOI Act (at [17] of its decision record); and

(4)    the Tribunal referred to the post-interview submission provided by the Respondent in which he submitted that he maintained his identity as set out in his protection visa application and that he was not a UK citizen (at [18] of its decision record).

86    The Respondent also submits that an inquiry should have been made about whether the author of the FCC Report had authorised it for use by the Tribunal given that, on its face, the FCC Report was not so authorised. Again this was not an obvious inquiry. The FCC Report was made available to the Tribunal. Insofar as there were obligations relating to its disclosure that was a matter for the Department to be concerned with and not a matter with which the Tribunal needed to be concerned. Having been provided with the FCC Report, the Tribunal was entitled to draw factual conclusions as it saw fit.

Grounds 2 and 3

87    By grounds 2 and 3 of the notice of contention the Respondent, in effect, contends that the Tribunal engaged in an unreasonable or illogical reasoning process in relation to the FCC Report and that it was unreasonable for the primary judge to give weight to the FCC Report.

88    In relation to ground 2, the Respondent submits that, having not carried out the inquiries referred to at [79]-[80] above, the Tribunal drew the conclusions referred to at [76(2)] above when for the reasons given at [76(3)]–[76(7)] above:

(1)    the FCC Report was not authorised for use by the Tribunal;

(2)    those conclusions could not be drawn from the FCC Report; and

(3)    the FCC Report referred to various further investigations which a decision-maker should carry out in circumstances where the information revealed by the match was disputed.

89    For those reasons the Respondent contends that the Tribunal engaged in an unreasonable or illogical reasoning process that amounts to jurisdictional error.

90    The Respondent submits that the Tribunal’s decision was of the nature of that described in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (SZUXN) at [56]. He submits that this was an additional matter which justified the orders of the primary judge.

91    In relation to ground 3, the Respondent submits that for the same reasons as those set out at [88]-[90] above, the primary judge erred in making the finding at [39] of his Honour’s reasons that:

… It is tolerably clear from the available material that the [Respondent] did use the identity of SV to enter the United States. His fingerprints and a photographic image at US Border Control established that to the Tribunal’s satisfaction and, having seen the material, I agree.

92    In SZUXN Wigney J provided a summary of the principles relating to legal unreasonableness. At [44] his Honour referred to the two different contexts in which the concept of legal unreasonableness is employed as identified in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437: the first being a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process; and the second being outcome focussed, that is, a conclusion reached by a supervising court that the outcome of the exercise of the power was arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law. At [46] his Honour found it difficult to see, in the case before him, how a conclusion could be reached that the tribunal’s decision came within the second category. As to the first category, his Honour observed at [48] that, while not express, it appeared that the primary judge in that case found that the relevant reasoning and findings by the tribunal were irrational or illogical and that it was this that amounted to an underlying jurisdictional error in the decision-making process.

93    Similarly, in this case, the Respondent alleges that the Tribunal’s reasoning and findings in relation to the FCC Report were irrational or illogical and amounted to an underlying jurisdictional error in its decision-making process.

94    At [49]-[50], [52] and [55] of SZUXN Wigney J summarised the principles relating to this type of alleged error as follows:

49    There may be circumstances where illogicality or irrationality in the decision-making process may constitute or justify a finding of an underlying jurisdictional error. A Tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction. A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power.

50    As was made clear by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130]-[132], however, not every lapse in logic in the decision-making process will result in jurisdictional error. If particular findings or reasoning on the way to the decision-maker’s ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker. At 648 [131] their Honours said:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, 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.

…

52    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “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”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

…

55    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. 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: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

95    The Respondent relies on SZUXN at [56] where his Honour said:

An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

96    The FCC Report was provided to the Tribunal. Based on it the Tribunal found that:

(1)    the photograph of SV included in the FCC Report was of the Respondent who appeared before it;

(2)    the match of the Respondent’s fingerprints and facial image with the person who is the bearer of a UK passport in the name of SV indicates that the Respondent has been known by that identity; and

(3)    the Respondent was positively identified as a person with a UK passport in the name of SV, a UK citizen born on 26 June 1971, who was fingerprinted and photographed when he travelled to the US, indicating that the Respondent is not who he says he is.

97    Contrary to the Respondent’s submissions, the Tribunal’s findings and reasoning in relation to the FCC Report were not irrational or illogical. The Tribunal was entitled to rely on the FCC Report. The findings the Tribunal made based on that report were open to it. It could not be said that no logical or rational decision-maker could have made the same findings or employed the same reasoning in relation to the FCC Report. To the contrary, on the evidence before the Tribunal a logical or rational decision-maker could have come to the same conclusion.

98    The caveats or warnings included in the FCC Report, on which the Respondent relies, do not lead to a different conclusion. As we have already observed, any obligation as to its disclosure or use was a matter for the Department; the FCC Report formed part of the material made available to the Tribunal, it was entitled to rely on it and to make findings based on its content; and, in the circumstances of this case, it is difficult to see what further inquiries it could or should have made.

99    For those reasons ground 2 is not made out.

100    Ground 3 relies on the same reasoning but seeks to impugn the primary judge’s reliance on the FCC Report. For the reasons set out at [97]-[98] above, this ground is also not made out.

Conclusion

101    For those reasons the appeal should be allowed, the primary judge’s orders should be set aside and, in lieu thereof, orders should be made dismissing the amended application filed in the court below with costs. As the Respondent has been unsuccessful, he should pay the Minister’s costs of the appeal as agreed or taxed.

102    We will make orders accordingly.

Associate:

Dated:    27 April 2020

REASONS FOR JUDGMENT

LEE J:

103    I have read the reasons of Nicholas and Markovic JJ in draft and with which I agree. The orders proposed by their Honours should be made, and the orders below cannot be sustained on the grounds set out in the notice of contention.

104    The primary judge accepted the manifestly inevitable conclusion that the respondent used the identity of SV to enter the United States. The logic of that conclusion was that the respondent must be SV (and hence used a bogus document as evidence of his identity and nationality as KA); or alternatively, is KA (and hence used a false UK passport issued in the name of SV).

105    Notwithstanding that a visual inspection by a departmental officer concluded that the passport was genuine (and hence the respondent was SV), the primary judge concluded that this was not enough, and an inquiry of the UK authorities (presumably the Home Office) as to the passport’s genuineness was required. This was characterised by the primary judge as an “obvious” inquiry about a critical fact.

106    In my view, the appeal must be allowed on the simple basis that: (a) the material before the Tribunal indicated that the passport was genuine; and (b) the primary judge’s concern that SV’s passport might be bogus, was founded on speculation of the purest kind (connected, it appears, to the disputable notion that it was intuitively odd that a citizen of the United Kingdom might pretend to be an asylum seeker from Sri Lanka in an attempt to remain in Australia).

107    As the joint reasons explain, there is no general obligation to make inquiries and, at bottom, the question is whether the Tribunal’s decision was attended by jurisdictional error. In the absence of anything to suggest that the passport was bogus or the visual examination was undertaken maladroitly, there was no obvious inquiry about a critical fact required. It follows this was not one of those exceptional circumstances where it could be said that a failure to make an inquiry constituted a failure to review.

Associate:

Dated:    27 April 2020