FEDERAL COURT OF AUSTRALIA
AYZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 429
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. Order 4 of the orders made by the Federal Circuit Court on 31 July 2019 be set aside and in lieu thereof it be ordered that the decision of the delegate of the Minister determining that the appellant was an “excluded fast track review applicant” be set aside and the matter be remitted to that delegate for hearing and determination according to law.
3. For the avoidance of doubt, order 2 of these orders shall leave unaffected the delegate’s decision refusing the appellant’s application for a protection visa save and except on any question concerning s 91WA of the Migration Act 1958 (Cth).
4. In the event that the delegate identified in order 2 of these orders is not able to deal with the remittal or guidance is necessary as to the extent of the remittal, then liberty to apply is reserved to the parties to approach Beach J seeking further directions as to the procedure to be followed.
5. Order 5 of the said orders made by the Federal Circuit Court be set aside and in lieu thereof it be ordered that the respondent pay the appellant’s costs of the proceedings in the Federal Circuit Court.
6. The respondent pay the appellant’s costs of and incidental to his appeal to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BEACH J:
1 The appellant has appealed from a decision of the Federal Circuit Court made on 31 July 2019 that dismissed an application for judicial review challenging a decision of a delegate of the Minister that determined that the appellant was an “excluded fast track review applicant” within the meaning of s 5(1) of the Migration Act 1958 (Cth) on the basis that without reasonable explanation the appellant had provided a bogus document to the Minister.
2 The appellant had applied for a subclass XD-785 temporary protection visa (the visa) under s 65 of the Act seeking to invoke the criteria set out in ss 36(2)(a) and (aa). The delegate refused that application finding that neither criterion had been satisfied. But the delegate also both invoked s 91WA(1) and determined that the appellant was an “excluded fast track review applicant”. This determination had the consequence that the appellant was denied the opportunity to have the delegate’s decision to refuse the visa reviewed by the Immigration Assessment Authority.
3 The hearing of the appeal last Friday proceeded by telephone under the temporary COVID-19 arrangements with counsel for both parties just getting on with it so to speak.
4 For the reasons that follow, I would allow the appeal concerning the delegate’s determination of that status. The consequence is that the delegate must reconsider that matter. I will discuss later how he is to proceed on the remittal given that his decision, as distinct from some of his reasoning, to refuse to grant the visa is, for the moment, to be left untouched. Ultimately though, if the delegate does not make the same status decision on remittal, then the principal decision refusing the visa will be reviewed by the Immigration Assessment Authority.
5 Now before proceeding further, it should be apparent from what I have said that I need only focus on the facts and the law concerning the bogus document question and whether the primary judge ought to have found jurisdictional error in the delegate’s status determination that the appellant was an “excluded fast track review applicant”. So, I do not need to consider the broader question concerning the decision to refuse the visa on the usual protection claim questions. But one ground of refusal was informed by the facts relevant to the status determination, which concerned the operation of s 91WA(1). I will return to this linkage later in the context of my discussion as to the scope of any remittal.
6 The appellant claimed that he was a citizen of Afghanistan, but he had lived in Pakistan since he was a small child. He feared harm if he were to be returned to Afghanistan on the basis of his Shia religion, his Hazara ethnicity and appearance, and the lack of protection of family or friends in the Hazara community in Afghanistan. He claimed not to know anyone who lived in Afghanistan and did not believe that he was able to relocate in Afghanistan because the risk of harm to him extended throughout the whole country. And he claimed that he could not relocate to Pakistan where he had lived most of his life and where his family (including his wife and young child) resided, as he was not a citizen of Pakistan.
7 The appellant arrived in Australia as an unauthorised maritime arrival on or around 31 March 2013. He was interviewed by representatives of the Minister’s department on 26 April 2013 and 25 May 2013.
8 By letters dated 18 February 2016 and 25 February 2016, the Minister in effect lifted the bar under s 46A of the Act that had prevented the appellant from making a valid application for the visa. I do not need to elaborate on that aspect further. The appellant applied for the visa on 25 August 2016 and made the claims that I have just set out.
9 By letter dated 7 September 2016, the delegate requested that the appellant provide documentary evidence of his identity, nationality or citizenship. The appellant did not respond to that request.
10 On 15 November 2016, the appellant was invited to attend an interview with the delegate.
11 The appellant attended an interview with the delegate on 7 December 2016. At the interview, he provided what purported to be a copy of an Afghan taskera, which is a form of identity card, purportedly issued in Quetta, Pakistan in 2012 (the appellant’s taskera), what he claimed was a handwritten marriage certificate or “Mullah’s Certificate” and a translation of a marriage certificate that he said was issued from the Afghan Consulate in Quetta (the Afghan marriage certificate).
12 By letter dated 7 December 2016, the appellant was invited to comment on the fact that the delegate reasonably suspected that the appellant’s taskera that he had provided was a “bogus document” as defined in s 5(1) of the Act. The delegate invited the appellant to provide a reasonable explanation about why he produced a bogus document, and he was given an opportunity to either produce documentary evidence of his identity or take reasonable steps to produce that evidence.
13 On 20 January 2017, the appellant’s representative provided a response to the delegate indicating that the appellant’s taskera was not bogus and was issued in Quetta, Pakistan. Further, attached to the response was a copy of what the appellant’s representative represented as the appellant’s father’s taskera with a relevant translation (the father’s taskera).
14 From February to August 2017, the delegate made a number of enquiries with a Departmental forensic document examiner and to the Australian High Commission in Islamabad concerning the documents that the appellant had provided.
15 On 8 August 2017, the delegate wrote to the appellant’s representative seeking responses in relation to various identified inconsistencies and discrepancies in the documents and evidence provided by the appellant. These inconsistencies pertained to the Afghan marriage certificate and inconsistencies between certain details on the appellant’s taskera and the father’s taskera. The delegate also asked for an explanation as to why, if it were found that Pakistan was the receiving country, the appellant feared returning there and, if he did, why he could not relocate within Pakistan to another area to avoid persecution.
16 By letter dated 30 August 2017, the appellant’s representative responded and provided, inter-alia, a copy of an identity verification form purportedly from Afghan authorities and an amended translation of the father’s taskera.
17 Relevantly to the present context, in response to the question concerning the discrepancies between the appellant’s taskera and the father’s taskera, the representative responded that the appellant was not literate and was not aware of the processes implemented by the Afghan Consulate in Quetta for issuing taskeras. It was explained that the appellant took his father’s taskera with him to obtain his own taskera and did not notice any discrepancy. The appellant through his representative also indicated, for the first time, that the appellant had obtained a second taskera after his marriage as the first one was lost and that was why it was dated after the date of his marriage. I do not need to detail the balance of the response concerning why the appellant could not return to Pakistan.
18 On 30 January 2018, the delegate refused the visa, finding that the appellant had provided a bogus document being the appellant’s taskera, without having provided a reasonable explanation for doing so (s 91WA(1)). Therefore he could not be granted the visa. Further, the appellant also did not fall within either s 36(2)(a) or s 36(2)(aa). The delegate also found that as the appellant had provided a bogus document in support of his application without reasonable excuse, he was an “excluded fast track review applicant” under limb (a)(vi) of the s 5(1) definition. As a result, the appellant had no right of merits review by the Immigration Assessment Authority or any other review body concerning the decision to refuse the visa.
Some statutory provisions
19 Before turning to discuss what occurred in the court below, it is useful to set out some provisions of the Act.
20 Section 5(1) defines “bogus document” in the following terms:
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.
21 It also defines “excluded fast track review applicant” in terms:
excluded fast track review applicant means a fast track applicant:
(a) who, in the opinion of the Minister:
(i) is covered by section 91C or 91N; or
(ii) has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or
(iii) has made a claim for protection in a country other than Australia that was refused by that country; or
(iv) has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; or
(vi) without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or
(aa) who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim:
(i) has no plausible or credible basis; or
(ii) if the claim is based on conditions, events or circumstances in a particular country—is not able to be substantiated by any objective evidence; or
(iii) is made for the sole purpose of delaying or frustrating the fast track applicant’s removal from Australia; or
(b) who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(a).
22 Presently, I am only concerned with limb (a)(vi). It should also be noted that s 5(1) defines a “fast track review applicant” so as to not include an “excluded fast track review applicant”.
23 Section 5AAA provides:
Non‑citizen’s responsibility in relation to protection claims
(1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2) For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a) the purposes of a regulation or other instrument under this Act; and
(b) the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4) To remove doubt, the Minister does not have any responsibility or obligation to:
(a) specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b) establish, or assist in establishing, the claim.
24 Section 91W provides:
Evidence of identity and bogus documents
(1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.
(2) The Minister must refuse to grant the protection visa to the applicant if:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and
(c) the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and
(d) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:
(i) refuses or fails to comply with the request; or
(ii) produces a bogus document in response to the request.
(3) Subsection (2) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and
(b) either:
(i) produces documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to produce such evidence.
(4) For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.
25 Section 91WA provides:
Providing bogus documents or destroying identity documents
(1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
(2) Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b) either:
(i) provides documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to provide such evidence.
(3) For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.
26 Further, I note that s 473CA mandates that the Minister must refer a “fast track reviewable decision” to the Immigration Assessment Authority. But “fast track reviewable decision” is defined in s 473BB to be, inter-alia, “a fast track decision in relation to a fast track review applicant”. But the appellant by reason of the determination of the delegate is not such an applicant. And for completeness, the second limb of the definition invoking s 473BC has no application in the present context.
The proceedings in the Federal Circuit Court
27 The appellant sought judicial review of the delegate’s decision concerning principally the status determination. The appellant was legally represented. There were four grounds raised in his amended originating application. The primary judge dismissed the application. His Honour dealt with the four grounds as follows.
28 By ground one it was contended that the delegate had erred by failing to take into account a DFAT country information report of 1 September 2017 from Pakistan (the Pakistan Report), in breach of s 499(2A) of the Act which required a decision maker to comply with a Ministerial direction, specifically in this case Direction 56, which required the decision maker to take into account a country information report prepared by DFAT for the purposes of protection status determination. It was said that the delegate had found, based on country information, that it was not possible to obtain a taskera outside Afghanistan in the manner that the appellant had described. It was said that in making that finding, the delegate had not taken into account the Pakistan Report and in particular para 3.9, thereby committing jurisdictional error.
29 The primary judge noted that the Pakistan Report was referenced by the delegate, albeit that the delegate did not refer to para 3.9 relied on by the appellant. His Honour identified as the basis for this ground the fact that it was not specifically referenced when the delegate made the finding that the appellant’s taskera was not a genuine document. Hence, it was contended that it ought to be inferred that it was not taken into account. But his Honour found that the appellant had failed to satisfy him of this, identifying in particular a passage of the Pakistan Report that was on the same page as para 3.9 and was referenced in the delegate’s decision. The primary judge inferred from this that, rather than not taking para 3.9 into account, the delegate simply did not afford that particular paragraph any weight. The primary judge held that the weight to be attached to it, as country information, was a matter for the delegate. Moreover, he said that Direction 56 was a guide. And it was not intended to dictate what findings should be made.
30 Further, the primary judge also noted that there was no obligation on the delegate to refer to every piece of evidence, rather only what was relied on in making the relevant finding of fact. Finally, he found that the real reason for the finding that the appellant’s taskera was bogus was not the delegate’s reliance on country information that was said to be contradicted by what was in para 3.9 of the Pakistan Report, but rather that there were a number of elements of the appellant’s story about how he obtained his taskera that were found by the delegate to be lacking in credibility.
31 Accordingly, ground one was rejected.
32 By ground two it was contended that the delegate made an illogical finding about the father’s taskera. The appellant argued that the document he had presented as his father’s taskera was in fact his father’s birth certificate and thus it was not open to the delegate to make a finding based upon the inconsistencies that the delegate had identified. His Honour rejected this ground noting the high threshold set for establishing illogicality or irrationality. His Honour also noted that the appellant did not seek to raise with the delegate the mistake now relied on and thus effectively was seeking to have the primary judge engage in impermissible merits review. Accordingly, ground two was also rejected.
33 I do not need to discuss the rejected grounds three and four before the primary judge as they have not been raised before me.
34 In summary, the application for judicial review was dismissed by the primary judge.
The present appeal
35 The central issue in the appeal before me is whether the delegate made a jurisdictional error in concluding that the appellant was an “excluded fast track review applicant” for having provided a bogus document, namely, the appellant’s taskera, and whether the primary judge erred in failing to find such an error.
36 As I have said, the consequence of the delegate’s finding was that the appellant was denied any review by the Immigration Assessment Authority of the delegate’s decision to refuse the visa.
37 The appellant filed his notice of appeal on 28 August 2019, which had been prepared by his current solicitor. But on 13 March 2020, the appellant filed a proposed amended notice of appeal that he sought leave to rely on. Now whilst ground one was redrafted, it is in substance similar to ground one in its original form which in turn was ground one in the court below. But ground two raises a new claim of jurisdictional error that was not in form made below. Moreover, the appellant also seeks to rely on another ground, submitting that there was an error made by the delegate in the failure to advert to a forensic document examination. The Minister opposes the appellant being granted leave to rely on the reformulated ground two and the additional ground.
38 I will grant leave to the appellant to rely on the grounds in his amended notice of appeal. There is no prejudice to the Minister in granting such leave. Moreover, each of the grounds are, at the least, reasonably arguable. Indeed, for the reasons that I will explain, they have been substantiated. Further, the appellant has given a frank albeit tissue-thin reason for the late amendment, being a reconceptualisation of the matter by the newly briefed Mr Aleksov.
39 The Minister made another argument which was expressed (at [16] of Ms Graycar’s submissions):
A further and fundamental consideration is that when a new ground is raised on “appeal”, the appellant is effectively seeking to have this Court undertake the task of the FCC, ie, conducting judicial review of the delegate’s decision, something it has no jurisdiction to do, rather than consider whether the primary court made an appellable error. By s 476A of the Act, the original jurisdiction of this Court in relation to a migration decision is extremely limited: it has original jurisdiction “if and only if” one of the matters set out in s 476A applies. The appellate jurisdiction of this Court is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). It follows that the attempt to propound a different case on appeal from the one agitated before the FCC, where the appellant was represented by both solicitor and counsel, is inconsistent with, and takes no account of, the specific nature of the jurisdiction conferred upon, and being exercised by, this Court. (emphasis in original.)
40 It was also said that my granting leave would somehow impermissibly interfere with the structure and integrity of the appellate process, and that somehow I would be impermissibly exercising original jurisdiction. These themes are a little too out there for my liking.
41 Allowing in the exercise of my appellate jurisdiction the raising of a new ground not considered by the primary judge is neither antithetical to the appellate process nor at odds with s 476A. I am not exercising original jurisdiction in considering a new jurisdictional error not considered by the primary judge. Rather, in my appellate function I am considering what should have been considered by the primary judge but was not, admittedly because it was not raised before him. Indeed, the Minister had to fall back on saying that “in a practical sense” I was exercising original jurisdiction, thereby implicitly conceding that as a matter of legal form I was not exercising original jurisdiction.
42 I do not need to linger further on these themes. I would grant the necessary leave.
43 But before discussing each of the amended grounds of appeal in turn, it is useful to identify the key passages of the delegate’s reasons which are relevant to the present discussion.
44 The delegate made the following observations concerning the appellant’s taskera in Part 3 of his reasons headed “Identity Assessment”:
I find that the Afghan Taskera provided to the Department on 07 December 2016 is a bogus document. I am satisfied that the Afghan Taskera is a bogus document on the basis of the following information:
• The applicant has provided conflicting and inconsistent evidence throughout his dealings with the Department regarding his Afghan Taskera. For example, at his TPV interview the applicant claimed he obtained his Taskera from the Afghan consulate in Quetta, Pakistan. The applicant indicated he provided the name of his village in Afghanistan and his father’s name to the Afghan Consulate in Quetta in order to obtain his Taskera. The applicant indicated he provided no identity documents to the Afghan Consulate in Quetta to obtain his Taskera as he did not possess any identity documents in Pakistan at that time. I put it to the applicant that country information indicated that it was not possible to obtain a Taskera outside Afghanistan in the manner he had described. I put it to the applicant that the Afghan authorities would at the very least require his father’s Taskera as part of his Taskera application. The applicant indicated he provided his family details and the Afghan authorities in Quetta checked their records and issued his Taskera. At his TPV interview the applicant provided no evidence that he had provided his father’s Taskera to the Afghan Consulate in Quetta to facilitate the issuance of his own Taskera. In his migration agent’s submission dated 30 August 2017; however, I note it indicates the applicant used his father’s Taskera to obtain his Taskera from the Afghan Consulate in Quetta. His migration agent’s submission dated 30 August 2017 provides no explanation regarding the conflicting evidence provided by the applicant at his TPV interview regarding how he obtained his Taskera.
• The applicant’s TPV application indicates he was issued with a Taskera and a Marriage Certificate when he married his wife at the Afghan Consulate in Quetta. At his TPV interview I asked the applicant if his Marriage Certificate had been issued at the same time as his Taskera as I noted the documents he provided at his TPV interview (located in document ‘ISU124-Identity documents provided at TPV interview’) contained significantly different dates of issue (3/04/2011 and 08/05/2012). The applicant indicated his Marriage Certificate had been recently issued by the Afghan Consulate in Quetta and was a copy of his marriage which took place in 2011. I put it to the applicant that his Marriage Certificate indicated it was issued in 2011 and contained no evidence it had recently been issued by the Afghan Consulate in Quetta. The applicant stated ‘that’s how they do it. They just state the date of marriage’. I asked the applicant when his Afghan Taskera was issued and he indicated it had been issued a few months before he came to Australia. At his TPV interview the applicant indicated his Taskera was issued after his Marriage Certificate by the Afghan Consulate in Quetta and provided no evidence that he had previously been issued with another Taskera in Pakistan. In his migration agent’s submission dated 30 August 2017; however, it indicates the applicant was issued with two Taskeras in Pakistan and he used his first Taskera (which was subsequently lost) as evidence of his identity to obtain his Marriage Certificate from the Afghan Consulate in Quetta. Had the applicant been issued with two Taskeras in Pakistan as claimed in his migration agent’s submission; it is reasonable to assume he would have mentioned it at the earliest opportunity as part of his TPV application or at his TPV interview. His migration agent submissions offer no explanation regarding the conflicting evidence provided by the applicant regarding how he obtained his Afghan Marriage Certificate.
• Following his TPV interview the applicant provided a copy of his father’s Taskera to support his claim to be an Afghan national. Information before the Department (located in document ‘ISU124-Advice from Islamabad Post’) indicates the registration details on the applicant’s Taskera should be identical with the registration details stated on his Father’s Taskera. As part of a departmental letter dated 08 August 2017 the applicant was asked to explain why the registration details on his Taskera (Book Number, Page Number and Record Number) differed to the registration details stated on his father’s Taskera. In his migration agent’s submission, dated 30 August 2017 it acknowledged there was a discrepancy in the registration details of his father’s Taskera which was identified as a translation error. I note his migration agent provided an amended translation of his father’s Taskera containing registration details which match the registration details stated on the Identity Verification Form purportedly issued by the Afghan authorities in Canberra. His migration agent’s submission dated 30 August 2017; however, provides no explanation as to why the registration details on the applicant’s Taskera are not consistent with the registration details stated on his Father’s Taskera.
…
After carefully considering all the available evidence which includes concerns regarding his claimed identity and nationality discussed throughout this Identity Assessment, I reasonably suspect that the applicant’s Taskera is a counterfeit document as defined by s5(1)(b) of the Act - I do not accept it was genuinely issued by the Afghan authorities in Quetta. Information before the Department (located in document ‘ISU124-Advice from Islamabad Post’) indicates that Afghan Consulates do not hold the authority to issue Taskeras. I am also aware that all Afghans are required to ‘return to their family’s place of residence, or to Kabul, to apply for [a] Tazkera’. As country information indicates Taskeras are only issued inside Afghanistan and the applicant claimed he was issued with a Taskera from the Afghan Consulate in Quetta, Pakistan; I find his Taskera is not a genuine document. The applicant has not satisfactorily explained the numerous inconsistencies in his previous testimony regarding how he obtained his Afghan Taskera. As discussed below in the Identity Finding, the weight of evidence before me indicates the applicant is a Pakistani national.
The applicant claims his Afghan Taskera is genuine and I find he does not have a reasonable explanation for producing a bogus document in support of his TPV application. Therefore, I must refuse to grant a Protection visa to [the applicant] under s91WA(1) of the Act. I will also, however, make findings on the applicant’s identity and protection claims on the information that is available to me.
(Footnotes omitted; emphasis added.)
45 Now these observations and findings were made in the context of the delegate considering s 91WA. Later in Part 7 of the delegate’s reasons, the delegate addressed directly his assessment as to whether the appellant was an “excluded fast track review applicant”. The delegate referred back to and adopted his earlier findings in Part 3 that the appellant had provided a bogus document, namely the appellant’s taskera. He also found that the appellant had not provided a reasonable explanation for providing such a bogus document. He therefore concluded that the appellant met the definition of “excluded fast track review applicant”.
46 Let me turn then to the first ground of appeal.
Ground 1
47 The first ground of appeal is expressed in the following terms subject to some corrections that I have made to identify the Pakistan Report rather than an analogous report detailing country information concerning Afghanistan that is not the subject of the present challenge:
The Delegate made a jurisdictional error by failing to taken into account a country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes.
PARTICULARS
(a) On 21 June 2013, the Minister for Immigration and Citizenship gave a Direction under s 499 of the Act (Direction No. 56) requiring decision makers to take into account a country information assessment prepared by DFAT expressly for protection status determination purposes.
(b) On [1] September 2017 DFAT prepared a report entitled “DFAT Country Information Report [Pakistan]” (DFAT Report) for protection status determination purposes.
(c) In the DFAT Report, it was stated at paragraph 3.9: “Credible sources told DFAT that Afghans are typically able to access Afghan identity information, including Taskeras, from the Afghan Embassy in Islamabad. DFAT was unable to obtain specific information about whether Afghans, including Hazaras, can access formal documentation through the Afghan Consulate in Quetta, but DFAT considers it plausible that they can”.
(d) In finding that he did not accept that the applicant’s Taskera was genuinely issued by the Afghan authorities in Quetta, the Delegate failed to take into account relevant information in the DFAT Report at paragraph 3.9 concerning the issue of Afghan identity documentation through the Afghan Embassy in Islamabad and the Afghan Consulate in Quetta.
48 The appellant argues that the delegate made a critical finding that the appellant could not have obtained the appellant’s taskera in Quetta as he claimed, because the delegate believed that country information indicated that a taskera could not be obtained in Quetta.
49 It would seem that the delegate acted, inter-alia, upon the information in an email dated 10 August 2017 from the Integrity Team, Immigration Section, Australian High Commission, Islamabad, Pakistan concerning Boat ID ISU124 (the ISU 124 advice) which stated:
According to the information obtained from our contact in Afghan Consulate General Quetta. Tazkira’s (sic) can only be obtained from Afghanistan. Consulates never issue Tazkiras. Tazkira number should be identical doesn’t matter on which document it is written. It always remains the same.
NOTE:
If Tazkira was issued from Afghan Consulate General Quetta then it does not hold any authenticity as we have confirmed it previously that they does not hold any authority to issue Tazkiras as they can only be issued from Afghanistan.
50 This information was dated 10 August 2017 and admittedly was specific. But the Pakistan Report was dated 1 September 2017. And as later stipulated, could on one view be taken to have been more probative than the earlier gathered information, including the previous country information before the delegate.
51 Let me note several features of the Pakistan Report.
52 Its opening paras 1.1 to 1.4 stated the following:
1.1 This Country Information Report has been prepared by the Department of Foreign Affairs and Trade (DFAT) for protection status determination purposes only. It provides DFAT’s best judgment and assessment at time of writing and is distinct from Australian government policy with respect to Pakistan.
1.2 The report provides a general, rather than an exhaustive country overview. It has been prepared with regard to the current caseload for decision-makers in Australia without reference to individual applications for protection visas. The report does not contain policy guidance for decision-makers.
1.3 Ministerial Direction Number 56 of 21 June 2013 under s 499 of the Migration Act 1958 states that:
Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making their decision. The decision-maker is not precluded from considering other relevant information about the country.
1.4 This report is based on DFAT’s on-the-ground knowledge and discussions with a range of sources in Pakistan.
53 Then at paras 3.7 to 3.9 the following was said:
3.7 The Hazara ethnic group has lived in central Afghanistan for centuries, with many Hazaras migrating to Pakistan in the second half of the 20th century. Hazaras are descended from eastern and western Eurasian peoples, making them visibly distinct from other ethnic groups in Pakistan. Hazaras are overwhelmingly Shi’a Muslims, predominantly of the Twelver Sect (athna asharia), with a small Sunni minority.
3.8 While there are no reliable official data on the size of the Hazara population in Pakistan, estimates range up to around one million. The majority of Hazaras live in Quetta, Balochistan, with smaller but significant populations in major urban centres such as Karachi.
3.9 The majority of Hazaras in Pakistan have lived there for decades, are Pakistani citizens and can access formal identification such as Computerised National identity Cards (CNICs). Hazara children born in Pakistan also have Pakistani citizenship. More recent Hazara arrivals from Afghanistan typically do not have citizenship, but tend to have access to formal documentation in the form of immigration cards, which provides some rights such as access to drivers’ licences. Credible sources told DFAT that Afghans are typically able to access Afghan identity documentation, including Taskeras, from the Afghan Embassy in Islamabad. DFAT was unable to obtain specific information about whether Afghans, including Hazaras, can access formal documentation through the Afghan Consulate in Quetta, but DFAT considers it plausible that they can.
54 So, para 3.9 of the Pakistan Report specifically stated that DFAT considered it to be plausible that a person such as the appellant could obtain a taskera from Quetta. Now the delegate did not mention this specific item of information, although he did refer to the Pakistan Report in general terms in various parts of his reasons. Indeed, it is apparent that the delegate treated DFAT as being a reliable source of relevant information. But though there is extensive reference to the Pakistan Report throughout the delegate’s reasons, that fact alone does not, of course, mean that the delegate was required to accept the DFAT assessment in the Pakistan Report.
55 But I agree with the appellant that it is plain that the DFAT assessment at para 3.9 of the Pakistan Report was important country information relevant to an important factual issue before the delegate. If accepted, that information was important to assessing the appellant’s claims of having obtained his taskera in Quetta. In my view DFAT’s assessment of this being “plausible” should have been confronted expressly by the delegate, particularly given that it was the most recent assessment before the delegate.
56 In these circumstances, I agree with the appellant that the failure to mention expressly this passage of the Pakistan Report supports an inference that it was not considered by the delegate. There was therefore a failure to consider important country information, which amounts to a jurisdictional error. And the primary judge should so have found.
57 Now the Minister says that the delegate did take account of the Pakistan Report, thus complying with his obligation under s 499(2A) and specifically Direction 56.
58 Moreover, the Minister says, as the primary judge also held, that the weight to be given to country information is a matter for the delegate.
59 Generally, the Minister says that there was no error in the treatment of this issue by the primary judge. The Minister reiterated what he put below, which was set out in the primary judge’s reasons (at [44] to [45]), and adopted the primary judge’s analysis rejecting this ground (at [46] to [78]).
60 But I would reject the Minister’s contentions.
61 First, true it is that the delegate in a general sense took into account the Pakistan Report. But when one considers the delegate’s reasons, it would seem to me that he did not take into account para 3.9. If he had taken into account para 3.9, I do not see how the delegate could have sensibly said in his reasons:
As country information indicates Taskeras are only issued inside Afghanistan and the applicant claimed he was issued with a Taskera from the Afghan Consulate in Quetta, Pakistan[,] I find his Taskera is not a genuine document.
62 Clearly, para 3.9 did not support such a proposition. Now the ISU 124 advice supported what the delegate said, but this had an earlier date to the Pakistan Report.
63 Now plainly the delegate was not obliged to refer to every piece of evidence in his reasons. And I accept that I should not scrutinise his reasons with an eye attuned to error. But given such a statement in the delegate’s reasons that I have just set out, one would have expected some reference to para 3.9 in the context where the delegate had expressly referred to country information and had used it to definitively state that the appellant’s taskera could not have been issued in Quetta.
64 The Minister made much of what was said in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ. Of course I accept that the weight to be given to country information is a matter for the delegate, not the primary judge nor I. Interestingly, it was also said in that case that it was not a jurisdictional error for the Tribunal to base its decision on country information that was not true. Here, of course, the argument is that the delegate failed to base his decision on country information that was true.
65 But accepting that the weight of the country information was a matter for the delegate, it still seems to me that the better view is that the delegate overlooked para 3.9.
66 If the delegate had considered para 3.9, one would have expected him to have referred to it and then discounted it in favour of earlier country or other information. But there is no such discussion. I infer that para 3.9 was not considered at all, rather than considered but discounted.
67 Now I have considered Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 which discusses the scenario where more recent country information may not be preferred or put aside in favour of older country information. And clearly, a decision maker is entitled in his consideration and weighing to prefer the older information. But as was said by Kenny, Griffiths and Mortimer JJ in that case (at [74]):
That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
68 But in the present context, there is no such discussion in the delegate’s reasons.
69 I have considered what the primary judge said on this aspect at [54] to [75]. His Honour, as he said at [58], was not prepared to assume that the delegate did not have regard to para 3.9. I have taken a different view. When the delegate came to write up his reasons I think that he simply overlooked para 3.9. Now at the expressed level of generality I can agree with some of the general propositions stated by the primary judge at [60] to [64]. Nevertheless, I think that para 3.9 was overlooked. Further, the primary judge at [64] to [66] referred to the ISU 124 advice. But as I have said, this just suggests that para 3.9 was overlooked. Now the point is made that such earlier information was more specific, which is true. Nevertheless, given the materiality of para 3.9 to the bogus document question, if para 3.9 had been considered, one would have expected it to be discussed and then discounted. But the delegate’s reasons are silent on that point. In summary, I do not accept the primary judge’s analysis that para 3.9 was considered but discounted by the delegate in some unidentified weighing process. Moreover, no statement of general administrative law principles can varnish over the delegate’s defect.
70 Second, the Minister said that if the delegate made an error then realistically this could not have made any difference to the result. The Minister put to me the same point that was put to the primary judge and accepted by him (at [77]) that “the outcome would have been no different because the real basis for the finding that the Taskera was bogus was the inconsistency in the applicant’s accounts”. Now true it is that this was an important part of the delegate’s analysis. Yet, the delegate had to consider and did consider objective matter including whether the appellant’s taskera could be obtained in Quetta and inconsistencies between the appellant’s taskera and what was represented to be the father’s taskera. And matching inconsistencies in the appellant’s version of events with the objective framework was an important part of the delegate’s task.
71 But whether the appellant’s taskera could be issued in Quetta was an important part of the objective matrix. Accordingly, I cannot say that the error made was not material. Jurisdictional error is demonstrated and the primary judge was in error for not so identifying.
Ground 2
72 The second ground of appeal is expressed in the following terms:
The Delegate’s decision is tainted by jurisdictional error in that the Delegate failed to consider important information in relation to the conclusion that the applicant had provided a bogus document to the Department in relation to his identity, nationality or citizenship.
PARTICULARS
(a) The Delegate stated that he was satisfied that the Afghan Taskera is a bogus document on the basis of the information that the registration details (Book Number, Page Number and Record Number) on the applicant’s Taskera differed to the registration details stated on his father’s Taskera.
(b) In the applicant’s Taskera it was stated that:
(i) The applicant’s age was […];
(ii) the Book Number was “Volume […] of male records for the year 91”;
(iii) the Page Number was […];
(iv) the Record Number was […];
(v) the Father’s Registration Number was Volume […] Page […] Record […].
(c) The applicant supplied a document entitled “Birth Certificate - IDENTITY BOOK” in respect of his father, on which was written: […].
(d) The document that the Delegate treated as the applicant’s father’s Taskera was in fact a birth certificate, not a Taskera, that contained a record of the applicant’s Father’s age established in 1975.
(e) The Delegate’s finding that the registration details on the applicant’s father’s birth certificate had to be consistent with the Father’s Registration No. on the applicant’s Taskera in order to establish the genuineness of the applicant’s Taskera was illogical.
73 Now before the primary judge it was accepted that the appellant presented a copy of an identity document relating to his father as being his father’s taskera, but the English translation of the document appeared to show that it was actually the appellant’s father’s birth certificate. Further, it was accepted below that the delegate relied on apparent incongruencies arising from details of the father’s document as though it was in fact the father’s taskera. Further, it was accepted by the appellant that although having an opportunity to correct the delegate’s misunderstanding, the appellant did not do so and continued to refer to it as a taskera.
74 Before the primary judge, the appellant’s complaint was run as an “illogicality” argument. But the appellant now seeks to run this point before me as a constructive failure to consider important evidence. This is a departure from the way in which the case was run below. But as I have said, I have granted leave to the appellant to put this new complexion on the appellant’s complaint.
75 Clearly the delegate gave careful attention to some aspects of the appellant’s father’s document. Moreover, the delegate did not suggest that this document was not genuine. And he compared some of its details with the appellant’s taskera. But the delegate, according to the appellant, failed to notice the large and emboldened print stating that it was a “Birth Certificate”.
76 The appellant says that it should be inferred that the delegate did not correctly understand the document. If he had understood it correctly, he would not have described it as a translation of a taskera, albeit that the appellant obviously contributed to this misunderstanding.
77 The appellant says that a misunderstanding or misconstruction of important evidence is tantamount to a failure to consider the actual evidence that has been advanced. That the birth certificate was not a taskera was important evidence. It was a significant contributing factor to why the delegate found that the appellant’s taskera was bogus. The appellant says that the failure to consider the actual evidence in terms of its correct characterisation is therefore a failure to consider important evidence and amounts to a jurisdictional error.
78 Now a question of course arises as to whether the appellant should be granted any relief, assuming that a jurisdictional error was made, given that he contributed to the making of the error. But as to this the appellant says the following. First, the appellant has not acquiesced in proceedings known to be defective. Second, there is no procedural reason why relief should be refused. Third, it cannot be said that no injustice arises or that relief is too trivial. Fourth, there was no fraud or apparent dishonesty by the appellant. It seems to have been an error by his agent. Indeed, the appellant appears to be illiterate.
79 The Minister says that this reconceptualised ground of a constructive failure to consider important evidence cannot succeed.
80 The Minister says that the factual underpinning of this ground is based on the appellant having presented a document as his father’s taskera which it transpired was apparently not a taskera but a birth certificate.
81 Further, the Minister says that the primary judge correctly dealt with this issue in the manner that it was presented to him, namely, as a contention that the finding of inconsistencies was “illogical or irrational” (at [79] to [91]).
82 Further, as to the appellant’s reliance on NABE v Minister for Immigration and Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63], the Minister says that NABE concerns a failure to consider a claim, which can constitute a constructive failure to exercise jurisdiction. But NABE did not concern a failure on the part of a primary decision maker to discern for himself the nature of a piece of evidence presented as something other than what it was. Thus NABE does not assist the appellant. Generally, the Minister says that there is no authority for the proposition that the delegate is required to discern for himself the “true” nature of evidence presented by an applicant in support of a claim for protection.
83 Further, the Minister says that s 5AAA(2) of the Act provides that it is the responsibility of an applicant for protection to “specify all particulars of his or her claim …[to be a refugee] and to provide sufficient evidence to establish the claim”. Further, s 5AAA(4) provides:
(4) To remove doubt, the Minister does not have any responsibility or obligation to:
(a) specify, or assist in specifying, any particulars of the non-citizen’s claim; or
(b) establish, or assist in establishing, the claim.
84 Therefore, according to the Minister, s 5AAA leaves no doubt that this ground cannot succeed.
85 In my view, this ground presents a difficulty for the appellant. It is agreed by all that the father’s document was misidentified before the delegate and that blame in one sense must be laid at the feet of the then appellant’s representative.
86 The document, being an English translation, was represented as the father’s taskera, yet appears to be something else. Having said that though, the two versions in the appeal book before me also use the title of “Identity Book*” with the asterisk referring to a note at the foot stating, inter-alia, “Tazkira [sic] form is both in Pashtu and Dari”. Further, although the first title reference is to “Birth Certificate”, clearly some of the details refer to matters other than related to the father’s birth details.
87 The parties before me seemed to agree though that the document was misdescribed before the delegate such that the registration details for the father on that document could not convincingly be cogently compared with the father’s registration details on the appellant’s taskera. But such a comparison is what the delegate undertook as part of his objective analysis.
88 Before the primary judge, this ground was put as irrationality or illogicality. But the appellant does not now press that characterisation, except as a particular to the reconceptualised ground. Rather, the appellant now puts it differently as I have said.
89 Not without considerable hesitation but in the exceptional circumstances of this matter, I would uphold this ground even though the delegate is entirely blameless on this aspect. Clearly, the true nature of the father’s document was not understood, resulting in a false comparison being made concerning the registration features.
90 Now I do accept what the Minister says about NABE, but I do not accept what the Minister says about s 5AAA. True it is that the Minister did not have the responsibility to avoid this error. And let it be accepted that the appellant did. Nevertheless that does not necessarily negate the jurisdictional error contended for. The fact is that it is now accepted that the father’s document was wrongly characterised before the delegate such that the objective comparison made by the delegate was contaminated.
91 In my view, given the significance of this contaminated comparison to the delegate’s reasoning on the objective matrix relevant to the bogus document question, jurisdictional error is established.
New ground 2A
92 By this new ground, the appellant contends that the delegate failed to consider important information, being the forensic document examination report.
93 A forensic document examiner with the Department provided a report on 9 February 2017 stating the following concerning the appellant’s taskera:
Item Q1
Item Q1 has a similar format to what is expected in an Afghanistan Taskera. The details of the age and the signature below the photo appear to be written in a different blue ink to the remaining entries. In other Taskera’s submitted to the department this has also been observed. From information in our systems it is common practise for this information to be filled in at a different time and by a different person to the issuing officer who completes the rest of the information. The age in some instances is established from an age determination assessment.
I have found no irregularities of concern regarding the taskera in item Q1. My examination is, however, limited as the method of manufacture cannot be checked, and only an examination of the original document will determine this. (emphasis in original.)
94 So, there was evidence before the delegate of a forensic document examination of an image of the appellant’s taskera concluding that there were “no irregularities of concern”.
95 The appellant says that the delegate did not mention this in his reasons. It is said that this information was “extremely beneficial” to the appellant, yet it seems not to have been considered by the delegate in the decision-making process. It is also said that the failure to advert to these conclusions suggests conclusively that the delegate failed to give any attention to this information in reaching his conclusions.
96 Contrastingly, the Minister says that there is no obligation on a decision maker to mention every piece of evidence, particularly if no reliance was placed on that evidence (WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] and [47]).
97 Further, although the error is said to lie in the fact that the “delegate failed to give any attention to this information in reaching [his] conclusions”, the Minister says that this in itself, in the absence of some indication of how that was a matter that the delegate was required to consider, cannot establish jurisdictional error.
98 I find the Minister’s submissions on this ground unconvincing.
99 The delegate was considering whether the appellant’s taskera was a bogus document. Is it seriously suggested that forensic examination and testing is not material to that issue? And the incantation that the delegate does not need to refer to every piece of evidence cannot magically cure the problem in the present case by saying either that:
(a) the delegate considered it but did not need to refer to it; or
(b) the delegate did not consider it and did not need to consider it as it was just another piece of evidence.
100 Either of those propositions in the present context is untenable given the nature of the issue that was being considered, namely, whether the appellant’s taskera was a bogus document.
101 Now I accept that the forensic examination was in one sense inconclusive and of course did not amount to a positive finding that the appellant’s taskera was genuine. Further, the original was not being tested. Nevertheless, it was important evidence that ought to have been considered and some reference made to it. I do not consider that general observations of the type set out in WAEE justify the omission in the present context. It was either over-looked or, if not, ought to have been addressed.
102 I also consider that the error amounted to a jurisdictional error, particularly in combination with the other errors.
103 Now the Minister repeatedly asserted that the delegate’s findings on the bogus document question were strongly supported by the inconsistencies in the appellant’s version of events. That may be so. But the objective framework for the delegate’s analysis was also important.
104 As to the objective framework, let it be assumed that the delegate:
(a) had taken into account the forensic document analysis;
(b) had not been able to play off the appellant’s taskera against the father’s document; and/or
(c) had considered para 3.9 of the Pakistan Report.
105 In my view, the combination of any one or more of these factors could realistically have made a difference to the result. Clearly that is so for the combination of all three and less so for two of the three. But as to any one factor, I am also prepared to so hold.
106 Let me at this point raise one other matter, which applies to all grounds of appeal.
107 The Minister seemed to gain some comfort from the definition of “bogus document” in s 5(1) which it is again worth setting out:
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.
108 So, in essence the delegate only has to reasonably suspect one of (a) to (c) rather than that one of (a) to (c) needs to be objectively established. Therefore, as I understood the Minister’s argument, credibility concerns arising from inconsistencies in the appellant’s version of events was all that was necessary for such a reasonable suspicion. If that is the argument, I disagree with it. The reasonable suspicion must be based on the whole of the relevant evidence before the delegate, with such evidence properly considered by the delegate, that is, absent jurisdictional error.
General matters
109 Let me now deal with four other matters.
110 First, I have upheld each of grounds 1, 2 and 2A. But even if I had not upheld ground 2, nevertheless the wrong identification of the father’s taskera still has relevance to the other two grounds and the relief that I should grant.
111 On a remittal, the delegate will need to consider the following objective matters:
(a) para 3.9 of the Pakistan Report;
(b) the fact that the purported father’s taskera could not be as readily used to show inconsistency with the appellant’s taskera; and
(c) the forensic document analysis.
112 Even if ground 2 did not amount to a jurisdictional error, nevertheless an error has been demonstrated which on remittal on any reasonable view would be corrected. So, in that sense the complaint raised by ground 2 is relevant to the materiality of the errors identified by grounds 1 and 2A, because on remittal the realistic possibility of a different outcome if errors 1 and 2A had not been made would be heightened by the fact that on remittal the purported father’s taskera could not be used in the same way against the appellant once its true characterisation, as now accepted by the Minister, was appreciated.
113 Second, in the exceptional circumstances of this case I see no discretionary bar to giving the appellant relief on ground 2 even though his representative caused the error. I accept the appellant’s submissions on this aspect.
114 Third, I did give consideration as to whether I should take a stricter approach in favour of the appellant in considering the question of jurisdictional error concerning a decision on the status of whether an applicant was an “excluded fast track review applicant”, given that so to conclude thereby denies merits review by the Immigration Assessment Authority of the principal decision to refuse the visa. But I do not consider that I am warranted in applying any extra level of scrutiny in that context, and cases such as FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20 do not suggest that I do. Now AIB16 v Minister for Immigration and Border Protection (2017) 254 FCR 457 recognised that “a harsh consequence befalls an unsuccessful visa applicant who falls within the definition [of excluded fast track review applicant]” (at [23] per Tracey, Mortimer and Moshinsky JJ). Nevertheless, it provides no support for any higher standard of scrutiny; in that case, of course, it was accepted that a bogus document had been produced.
115 But given that the finding that a document produced by an applicant is a bogus document is serious in both its description and consequences, I would suggest that a delegate’s written reasoning on that aspect desirably should err on the side of displaying more rather than less intellectual rigour and forensic astuteness, particularly where bogusness is not readily apparent on the face of the document or from clear forensic testing.
116 Fourth, what should I set aside?
117 It seems to me that for the moment I should only set aside the delegate’s determination of the appellant’s status as being an “excluded fast track review applicant” and that only this matter should be remitted to the delegate for reconsideration.
118 Now a potential difficulty arises as to whether the errors that I have identified infect the delegate’s analysis on other aspects of his reasoning concerning s 91WA and the delegate’s decision ultimately to refuse to grant to the appellant the visa. Certainly they would in relation to the s 91WA question although not the protection claims aspect more generally. But I am not in a position to set aside the delegate’s decision refusing the visa as it is independently supported by matters other than s 91WA and which have not been challenged before me.
119 So, in my view the safest course is to set aside the status determination, but direct the delegate that if upon a reconsideration of the status determination the delegate does not make the same decision again, then the delegate as well as explaining this should revamp his reasons concerning s 91WA so that when the matter is then referred to the Immigration Assessment Authority, given that the protection claims have been rejected for other reasons that I have left untouched, an accurate statement of the delegate’s reasons on the bogus document question will be available to the Authority.
Conclusion
120 I have found in favour of the appellant. Accordingly, the relief granted will be:
(a) an order quashing the decision of the delegate that the appellant was an “excluded fast track review applicant”; and
(b) an order remitting to the delegate for reconsideration according to law the question of whether the appellant was an “excluded fast track review applicant” and his findings concerning s 91WA.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach. |
