Federal Court of Australia

FLD18 v Minister for Home Affairs [2022] FCA 676

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

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

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

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

•    The applicant claims his parents fled Afghanistan in the early 1980s following the Soviet invasion. He claims they lived in or near Zamo Refugee Camp, Kurram Agency, Pakistan. He claims they returned to Khost in 1988, following the Soviet withdrawal.

•    The applicant claims he attended Tarakai School in Bak district from 2002 until 2009, completing grade 7.

•    The applicant claims that he opened a mobile phone business in Khost city in 2010. He claims that as part of his services, he provided music and movie uploads.

•    The applicant claims that in August 2010 the Taliban sent him a warning letter regarding his business. He claims that he did not take the letter seriously, believing it to be from a rival trader but that in March 2013 he received a phone call from the Taliban threatening to kill him for spreading anti-Taliban propaganda. As a consequence, he decided to flee Khost for Australia in March 2013. He did this by obtaining an Afghan passport in Khost, his home region, before travelling to Kabul to get a visa for Pakistan, then crossing into Pakistan at Torkham en route to Peshawar.

•    The applicant claims that he cannot return to Afghanistan as the Taliban will seek to harm or kill him. He also claims that as a returnee from the West he will be seen as wealthy and will, as a consequence, be kidnapped and extorted. He claims that no region of Afghanistan is safe for him, and the government cannot provide him with effective state protection.

3    On 3 October 2018, the delegate refused the appellant’s application for a protection visa and determined that:

(a)    by reason of s 5(1)(a)(vi) of the Migration Act 1958 (Cth) (the Act), the appellant was an “excluded fast track review applicant” (EFTRA) as he was found to have provided a “bogus document” (as defined in s 5) in support of his application without reasonable explanation;

(b)    section 91WA(1) of the Act prevented the appellant from being granted a Safe Haven Enterprise Visa as he had, without reasonable excuse, provided a bogus document as evidence of his identity, nationality or citizenship; and

(c)    in any event, the appellant did not satisfy s 36(2)(a) (the refugee criterion) or s 36(2)(aa) (the complementary protection criterion) and thus would not be eligible for a protection visa.

4    As a consequence of being found to have provided a bogus document as evidence of his identity, nationality or citizenship without a reasonable explanation for doing so, the appellant was prevented from being granted a protection visa by virtue of s 91WA of the Act. He was also prohibited from applying for any form of merits review by virtue of sub-ss 5(1) and (9) of the Act because he was found to be an EFTRA.

Relevant provisions of the Act

5    The terms “bogus document” and “excluded fast track review applicant” are defined in s 5(1) of the Act, relevantly as follows:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

excluded fast track review applicant means a fast track applicant:

(a)    who, in the opinion of the Minister:

…

(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; …

6    Section 5(9) provides for the meaning of “finally determined” in relation to visa applications made by EFTRAs as follows:

For the purposes of this Act, subject to subsection (9A), an application under this Act is finally determined when:

…

(c)    in relation to an application for a protection visa by an excluded fast track review applicant—a decision has been made in respect of the application.

7    The consequences for the grant of a protection visa if an applicant provides bogus documents are set out in s 91WA:

91WA 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.

8    Section 57 provides for a process in relation to providing information to a visa applicant, and inviting that applicant to respond to it, where the information would be the reason, or part of the reason, for refusing to grant a visa or deciding the applicant is an EFTRA, as follows:

57 Certain information must be given to applicant

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or part of the reason:

(i)    for refusing to grant a visa; or

(ii)    for deciding that the applicant is an excluded fast track review applicant; and

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)    was not given by the applicant for the purpose of the application.

Note:    Excluded fast track review applicant is defined in subsection 5(1).

(2)    The Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    invite the applicant to comment on it.

9    Section 36 relevantly provides the following criteria for eligibility for a protection visa:

36 Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

The delegate’s decision

10    In the decision refusing to grant the visa, the delegate made a number of findings adverse to the appellant. He rejected the appellant’s claim to be from Afghanistan and found that he was in fact a Pakistani national. Among the reasons given for so finding were the following.

11    First, the Department of Home Affairs (the department) had received information that the appellant’s family were Pakistani nationals issued with Pakistan national identity cards and that the family’s original residence was the village of Bilyamin in Lower Kurram, Kurram Agency, Pakistan.

12    Secondly, the delegate found that the appellant attended school and commenced higher education in Pakistan. The delegate relied on photographs from social media of the appellant with school friends in school uniform (worn in Pakistan but not in Afghanistan) and did not accept the appellant’s account of having borrowed a uniform to attend a function at his Pakistani friend’s school. The delegate also did not accept that the record provided by the appellant of his school results purportedly obtained in Afghanistan was a valid record, both because it was said to be for 2011 (which was inconsistent with the appellant’s claim that he completed school in 2009 and had been operating his mobile phone store since 2010) and also because the document purporting to be a school record from 2011 contained a photograph that was the same photograph as used on the other identity documents that he provided. In that regard, the delegate reasoned as follows:

The applicant claims that he lived in Mana kalle (village), Bak district, Khost province from birth until 2010. The applicant claims he attended a village school in Tarakai (aka Tarakay, Tarakai, Taraki), Bak district, Khost province until 2009. As evidence of his attendance at Tarakai High School, the applicant provided a document he claims are his results from year 7. I note the translation of the document indicates that it is for the school year 2011, despite the applicant claiming that he completed school in 2009 and opened a mobile phone business in Khost City in 2010. I note that photograph of the applicant on the document is the same photo that appears on numerous ‘Afghan’ documents provided by the applicant, supporting the assessment that they were manufactured contemporaneously, contrary to varying and wide ranging issue dates. However, most compelling are images of the applicant attending school in Pakistan. Images on the applicant’s social media account … show the applicant wearing a school uniform, including in the playground and in a class photo. Students in Afghanistan wear traditional attire to school, not school uniforms or western attire such as shirts and ties. Other persons in these school photos were identified in the applicant’s social media friends list [the delegate then named two friends]. Both of their social media accounts state that they attended school in Pakistan, with [the second friend] naming his school as Bilyamin Government High School in Kurram Agency. This information is consistent with information previously cited regarding the applicant’s family being registered Pakistani citizens from Bilyamin, Lower Kurram.

As this information was not provided by the applicant and may form the reason or part of the reason for refusing his application for a protection visa, it constitutes relevant information under section 57 of the Migration Act 1958. It was therefore put to him in a series of procedural fairness letters. The applicant provided the following response regarding his appearance in these school photos:

I fled to Pakistan in 2013. Prior to fleeing for my life, l lived in my birth country Afghanistan. I did not go to school in Pakistan. Using information about other individuals on social media to conclude that I attended school in Pakistan does not prove in any way that I attended such schools. I wish to also stress that information on social media is not always correct. Individuals will provide incorrect information on these platforms for privacy purposes or to better themselves.

I did however attend a school function of my friend … when I was in Pakistan arranging my departure abroad. [My friend] gave me the uniform to wear so that I could attend and feel welcomed within the school community at the function. Attending this function has been misinterpreted as me attending school in Pakistan. It is not uncommon for people to attend school functions in the uniform or colours of that school and not be in full-time study attendance. As I have stated previously I was born and raised up in Mana Village, Bak District, Khost Province, Afghanistan. I studied locally, up to Year 7 and then had a mobile and music store in Khost City, due to which my life became in danger and I fled from Afghanistan in about March 2013.

The applicant is claiming that despite fleeing Khost via Kabul to Pakistan, enroute to Australia, he travelled to Kurram Agency, adjacent to Khost, to attend his Pakistani friend’s school function, borrowed a school uniform so as to feel welcome, and posed for photographs as a member of the class, and with a friend in the school playground during recess. This claim is far-fetched, as is his claim that it is common for people in Pakistan to attend school functions of schools they did not attend, wearing school uniforms of the schools. This also raises the question as to how he came to be close friends with … a resident and citizen of Pakistan, when he has allegedly lived in Khost his entire life. I am therefore not satisfied the applicant attended the school as a guest but was, in fact, enrolled as a student.

Based on the information outlined above, the applicant’s flawed response, and the anomalies in the Tarakai school transcript[’]s appearance and date, I am satisfied the applicant did not attend school in Khost, Afghanistan. I am satisfied the applicant has made false statements regarding his education and provided a bogus document (being his Afghan school report), to support his fraudulent claim. Based on the photos described above, I am satisfied the applicant attended school in Pakistan. I am satisfied the applicant has demonstrated a willingness to make false statements and provide false documentation to the department to support his application for a protection visa.

13    Thirdly, the delegate also relied on information from the Institute of Management Sciences, Peshawar, in Pakistan, showing that the appellant had been enrolled there in the 2012 academic year in a Bachelor of Business Administration. In that regard, the delegate reasoned as follows:

The applicant claims that he opened a mobile phone business in Khost City in 2010, and operated it until March 2013. However, images on the applicant’s social media account … show the applicant wearing an official looking lanyard …

More compelling, however, is information on the Institute of Management Sciences (IMS) Peshawar website regarding former and current students. Several of these documents name [the applicant], of Kurram Agency as a student and scholarship recipient. Another document lists [his] results for the 2012 academic year.

The Department contacted the IMS Peshawar registrar’s office on 25 January 2018 asking for information in relation to the enrolment and attendance of [the applicant], from Kurram Agency, at the institution. In response, the IMS provided [the applicant’s results for the degree of Bachelor of Business Administration] …

The results indicate that [the applicant] was enrolled in six subjects in semester one 2012 … and successfully completed five subjects. The results indicate that [he] was enrolled in six subjects in semester two; however he ‘dropped out’ of the courses and received a grade of F for each subject.

As this information was not provided by the applicant and may form the reason or part of the reason for refusing his application for a protection visa, it constitutes relevant information under section 57 of the Migration Act 1958. In a procedural letter dated 8 December 2017 it was put to the applicant that information before the Department indicates that he attended IMS on scholarship in 2012.

In response, the applicant stated the following:

When my life became in danger in about August of 2012, I began my search for a way out of the trouble. An agent who resided in Khost city, promised me that he could facilitate a smooth way out of the whole problem. The agent asked me for two of my photos, along with full description. I did not know and had no knowledge of the ‘smooth’ way that the agent was pursuing to get me out of the trouble. He only indicated to me that if I had a college admission or higher qualifications, it would make it much easier to obtain a third country’s visa, however, the agent did not fully disclose his plans to me. In the meantime, when I received the threatening call from the Taliban and I felt seriously in danger, I stopped pursuing the matter with the local agent in relation to a way out, but fled to Peshawar to save my life.

When I received the second letter of IMMI S57, Natural Justice stating that I had applied for and consequently attended an interview at the Institute of Management Sciences, I assume that it would have been in fact the agent that would have arranged my application, and admission at the said Institute. I am adamant that I never applied, sat at an interview, got admission and granted a scholarship at the Institute of Management Sciences. I have supplied two photographs to the agent, and he would have arranged the entire above process.

The applicant’s response is not consistent with his original statement of claims in his application for a protection visa. In his application he states that he received a warning letter from the Taliban in August 2012 however:

I thought that the letter was probably sent to me by someone to mock around [sic] or to annoy me, and hence, I continued my work in the shop of selling and loading the music, movies, and songs ... However, in about March 2013 I received a phone call where the caller threatening me [sic]. The caller was saying that I did not act upon the warning letter to stop selling of music and movies ... After receiving the call from the Taliban, I was really scared and called my maternal uncle for advice.

Therefore, according to his original statement of claims, the applicant didn’t take the warning letter seriously in August 2012 and only began making arrangements to depart Afghanistan in March 2013. This contradicts his statement in his response to the procedural fairness letter. The applicant’s claim that an agent contrived his enrolment at the IMS in Peshawar, without his knowledge, in 2012, before his alleged problems with the Taliban and commencement of arrangements in March 2013 is therefore implausible.

As I am satisfied the applicant attended school in Lower Kurram, and IMS in Peshawar in Semester 1, 2012, I cannot be satisfied that the applicant operated a mobile phone business in Khost City between 2010 and March 2013.

14    Fourthly, when asked for information about his family members, the appellant provided actual dates of birth for each of his siblings and parents (consistent with how they would be recorded in Pakistan), while for himself, he listed his birthday as 31 December of his birth year (consistent with the fact that Afghanistan does not record precise birth data). In that regard, the delegate reasoned as follows:

The applicant has provided precise dates of birth for all of his extended family, however has only provided 31 December 1991 as his own. The precise dates of birth of his family members is not consistent with persons born in Afghanistan. They are, however, consistent with persons born in Pakistan, where accurate records of births are recorded. The fact that, unlike the precise dates of birth given for his family members, the applicant has provided the traditional Afghanistan estimate dates for himself, raises concerns that the applicant has provided inaccurate information regarding his own date of birth.

…

I note that the applicant has provided precise dates regarding the birthdates of his parents and siblings, however he has simply listed his birthdate as 31 December 1991. I therefore have concerns that this is not the applicant’s correct date of birth. In the absence of genuine documentary evidence of his date of birth, I find the applicant to be born on 31 December 1991 for the purposes of this decision record only. I am not satisfied the applicant is a citizen of Afghanistan, therefore I am not satisfied the applicant is a dual national. I find the applicant to be a citizen of Pakistan only.

15    Fifthly, the delegate found, relying on material including social media posts, that the appellant’s father worked for the Pakistan government as part of the “Kurram Levy Force”. The delegate’s reasons record that this information was put to the appellant “in a series of natural justice letters”, and that in response, the appellant revised what he had said about his family returning to Khost, Afghanistan in 1988 after the Soviet withdrawal, and stated that his father had remained in Kurram, Pakistan where he worked as a camp supervisor. The appellant claimed that his father worked both in Kurram and managed a farm/livestock export business in Khost, and relied on an unlawfully obtained Pakistani identity card so he could move between the two countries. The delegate rejected this evidence as a contrivance, as follows:

While I am satisfied that [Pakistan’s National Database and Registration Authority] has issued many national identity cards to Afghan refugees in Pakistan, and are indeed cracking down on these persons, I am not satisfied the applicant has provided a truthful account as to how his father acquired a Pakistan national identity card. I am satisfied that the applicant’s inconsistency regarding his father’s and brother’s movements and places of residency in response to adverse information indicates that he has changed his narrative in response to strong evidence that his family are Pakistani nationals and members of the Bangash tribe from Lower Kurram. I am satisfied that the applicant’s father is or was in the Kurram Levy Force, also known as the Levies. I am satisfied the claim that his father operated a farm, a livestock export business, and worked as a camp supervisor at Zamo camp simultaneously, is contrived.

16    Sixthly, the delegate found that the Afghan passport that the appellant had provided was “fraudulently obtained, and that the taskera [or identity document], driver’s licence, Taliban warning letter, police document and [Tarakai] academic transcript provided by the applicant to the department are counterfeit”. The delegate referred to anomalies in the documents and reasoned as follows:

This assessment is reinforced by anomalies in the documents, including: dates that are inconsistent with claimed school attendance; documents that bear no resemblance to genuine specimens; the use of the same photograph on all primary and secondary documents (with the exception of the 2017 passport); production features on the primary and secondary documents not consistent with genuine specimens; and the exclusive use of the western Gregorian calendar on a document purportedly produced by the anti-western Taliban.

17    The delegate found, as to bogus documents, in summary as follows:

The applicant provided a bogus Afghan passport, taskera, driver’s licence, secondary documents, including school documents. The passport meets the definition of a bogus document in subsection 5(1)(c) of the Migration Act; “was obtained because of a false or misleading statement, whether or not made knowingly”. The other documents meet the definition of a bogus document in subsection 5(1)(b) of the Migration Act; “is counterfeit or has been altered by a person who does not have authority to do so”.

18    Relevantly, the delegate noted that the department sent a s 57 letter to the appellant dated 31 January 2018, which put to him that a delegate of the Minister reasonably suspected his Afghan passport to be a bogus document on the basis of meeting paragraph 5(1)(c) of the definition of bogus document (see [5] above). The appellant responded several weeks later, and the delegate’s reasons regarding that response were as follows:

In a response dated 15 February 2018, the applicant maintained that Afghan authorities verified his Afghan documents before issuing him with an Afghan passport. He claims that the Afghan Embassy … is a reputable agency, inferring that it should be trusted. The applicant claims that the Afghan Embassy issued his passport having conducted appropriate checks. The applicant states: “As I have explained in my Statutory Declaration dated 24 November 2017, I had to provide my original Taskera along with its original verification and English copy before a passport was issued to me”.

The applicant stated in a statutory declaration to the Department in August 2016 that he was unable to provide his original taskera to the Department as part of his application for a protection visa because he provided his original taskera to Jetset Travel in Dandenong in order to obtain a passport; however they lost it, thus preventing him from submitting the original to the department or the Afghan Embassy in Canberra. The applicant states in the same statutory declaration that he has also lost his documents relating to his application for an Afghan passport in Kabul in 2013, and was therefore unable to provide this evidence to the Afghan Embassy in Canberra.

This statutory declaration clearly claims that Jetset Travel lost his original taskera sometime before August 2016. Therefore, he could not have provided his original taskera to the Afghan Embassy in order to have a passport issued in May 2017. I am therefore satisfied the applicant made a false statement in his response dated 15 February 2018.

19    As is apparent from the extracts from the delegate’s reasons, the appellant had been informed by the delegate of doubts as to the credibility of his claims and the authenticity of his documents, including his taskera, in three s 57 letters. The appellant responded to all three letters, as set out in the extracts of the reasons above. Having considered the appellant’s responses, the delegate sent a further letter to the appellant dated 7 September 2018, inviting him to provide a reasonable explanation for providing bogus documents as evidence of his identity, nationality or citizenship.

20    The appellant responded on 1 October 2018 and provided, among other things, a statutory declaration attaching further documents, including what he claimed to be a photograph taken by one of his relatives in Afghanistan of the details of his original taskera as recorded in the District Office of Bak.

21    As to that declaration, the delegate found as follows:

The applicant states in his statutory declaration dated 28 September 2018 that the Afghan Embassy in Canberra checked the registration of his taskera with authorities in Afghanistan before issuing him a passport. However, as noted previously, in his application for a protection visa he stated that he provided his taskera to Jetset Travel, Dandenong for the purpose of making a passport application to the Afghan Embassy; however Jetset Travel lost his taskera. If this is the case, I cannot be satisfied that the Embassy received his taskera in order to conduct checks.

The applicant claims:

One of my relatives in Afghanistan was able to take a photo of the Register book where details of my original Taskera were recorded in the District Office of Bak[.] A copy of that photo is enclosed for your reference. For privacy reasons the details of other people have been covered.

The applicant does not name the relative; however I note that the applicant has informed the Department that his family reside in Peshawar, Pakistan, allegedly fleeing to that city in approximately 2014. This raises the question as to which relative went to the Bak district headquarters in Khost, was allowed access to the district’s records, and was permitted to photograph the relevant district taskera register page, which includes personal information pertaining to a number of people in Bak district.

I am not satisfied that a relative of the applicant travelled to Bak from Peshawar for the purpose of photographing a government document; was granted access to such government records; and was permitted to photograph a page that contains the personal details of numerous persons from the district. I assess this suggestion to be far-fetched.

In addition, I note that the ‘register page’ in the photograph is stark white and seemingly in pristine condition, despite allegedly being some six years old at the time the photograph was taken by the unnamed relative. The page shows no signs of yellowing or other discolouration expected in a six year old document. The edge of the page is in similarly pristine condition, which is not consistent in a six year old page that has been subject to regular handling. I note that each entry is made with the same pen, in the same hand, strongly supporting the assessment that each entry was made contemporaneously. These features support the assessment that the document is counterfeit and his explanation as to how it was acquired is contrived.

For these reasons, no weight can be placed on the document as evidence of the applicant’s taskera being legitimately registered in the Bak district headquarters taskera register.

22    The delegate concluded that he was not satisfied that the appellant had provided a reasonable explanation for the provision of bogus documents, and had accordingly not satisfied s 91WA(2). As a consequence, s 91WA(1) prevented the appellant from being granted a protection visa.

23    After summarising the above findings about the appellant’s claims to be an Afghan national, the delegate found him to be a Pakistan national, a Sunni Muslim and a Pashtun from the Bangash tribe. The delegate then went on to assess whether the appellant faced a real chance of persecution based on his accepted profile.

24    The delegate found that country information did not support findings that a Sunni Muslim Pashtun “with no other profile” was at risk of persecution in Lower Kurram, Peshawar or by the Taliban, that Sunni Muslims were persecuted by state or non-state actors, or that failed asylum seekers returning to Pakistan would be imputed with political opinions or persecuted by authorities. The delegate also found that country information did not support a claim that persons returning to Pakistan from western countries would be imputed with pro-western or anti-Taliban views.

25    Accordingly, the delegate was not satisfied that the appellant was a refugee as defined in s 5H(1) or that he met the criterion in s 36(2)(a). For similar reasons, the delegate found that the appellant did not have a real risk of significant harm if he were to return to Pakistan, including because he had “significant family support” and would reside with his family in Peshawar if he returned, and thus did not meet the complementary protection criterion in s 36(2)(aa).

26    As I say, the delegate also found that the appellant was an EFTRA by operation of s 5(1)(a)(vi) because he had, without reasonable explanation, provided a bogus document in support of his application. After noting that the appellant had provided a copy of his taskera, an Afghan driver’s licence, the Taliban warning letter, police document, and school results, the delegate reasoned as follows:

For reasons outlined in the protection visa refusal decision record, I am satisfied the applicant is a Pakistan national, a member of the Bangash tribe from Lower Kurram, and a long-term resident of Lower Kurram. I am satisfied the applicant has never lived in Afghanistan, nor is he lawfully entitled to Afghan citizenship. The applicant provided a statutory declaration to the department as part of his application for a Safe Haven Enterprise Visa that he lost his original taskera in 2016, and that he also lost his documentary evidence regarding his claimed application for an Afghan passport in Kabul in 2013. I am therefore satisfied that the 2017 Afghan passport was fraudulently obtained by the applicant from the Embassy of Afghanistan in Canberra. I am satisfied the passport meets the definition of a bogus document as defined in section 5(1) of the Migration Act 1958, for the reasons set out previously.

The decision of the Federal Circuit Court

27    The appellant sought judicial review of the delegate’s decision.

28    At the hearing before the primary judge, the appellant relied on a further amended application dated 30 April 2019 alleging two grounds. They related to the delegate’s finding that the appellant was an EFTRA and the decision not to grant the appellant a protection visa, respectively. Both grounds alleged that the delegate erred in making those findings on account of his factual error that the appellant had not provided a copy of his taskera to the Minister’s delegate who conducted the visa interview with him, being a delegate other than the delegate who made the decision (see [18] above). In fact, the appellant showed the interviewing delegate the document that he claimed to have been his original taskera, and the Minister agreed below that that fact appeared to have been overlooked by the delegate decision maker.

29    After summarising the findings of the delegate at [12]–[57], the primary judge at [59] referred to the further evidence filed by the appellant, which post-dated his visa interview. This comprised:

(1)    an affidavit affirmed by the appellant’s lawyer annexing the transcript of the visa interview;

(2)    an affidavit affirmed by the appellant, recounting how he had lost his taskera when he had provided it to the travel agency that assisted him, and how it had later been found; and

(3)    an affidavit affirmed by the appellant’s former migration agent deposing that he saw the appellant hand his taskera to the interviewing delegate.

30    After setting out the parties’ written submissions, the primary judge at [62] identified factual and credit findings made by the delegate, including the finding that the appellant had provided at least five bogus documents; that his evidence and his responses to the adverse information put against him and to the s 57 letters were disbelieved, far-fetched or implausible; and that the documents relating to the Taliban warning letter were counterfeit.

31    In relation to the delegate’s error – believing that the taskera had not been produced at the interview, when it had – the primary judge found as follows at [63]:

In my view, two things are clear from the Delegate’s reasons:

a.    The provenance of what might be called “the taskera issue” (i.e. whether the original produced at the Applicant’s [visa] interview, which the Minister now concedes likely occurred) was but one of five documents that were found to be bogus or counterfeit by the Delegate. The Delegate plainly did not place any “extra” weight or significance on “the taskera issue” compared to all other documentary considerations;

b.    Similarly, as outlined above, there were multiple adverse credit findings against the Applicant which, of themselves, had nothing to do with the taskera issue.

32    The primary judge held at [79] that in light of all the other evidence, “the relevance, actions and ultimate decision in relation to the [appellant’s] taskera would not have made any material difference to the ultimate result”. Further, he held that the decision of the delegate was not “irrational and illogical” as those terms are understood in the authorities.

33    The application for judicial review was thus dismissed.

The appeal to this court

34    Before this court, the appellant sought leave to rely on an amended notice of appeal dated 2 March 2022. The Minister did not object to leave being granted.

35    The amended notice of appeal advanced a single ground of appeal, as follows:

The primary judge erred in finding that the Minister’s delegate’s error in overlooking that the appellant had provided what purported to be his original taskera at the protection visa interview was not material because it “would not” have made a difference, when the error could realistically have made a difference to one or both of the visa refusal decision and the delegate’s decision that the appellant is an “excluded fast track review applicant” within the meaning of s 5 of the Migration Act 1958 (Cth).

Particulars

i.    The Minister conceded before the Federal Circuit Court that the delegate made a factual error in finding that the appellant had failed to produce his Afghan taskera (identity document) in his [protection visa] interview, when in fact the appellant had produced what purported to be his original taskera at the interview: at [61].

ii.    The primary judge found this was not a jurisdictional error because it “would not have made any material difference” to the delegate’s conclusion: at [75].

iii.    This misstated and misapplied the test for materiality: see MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at 454 [39].

iv.    The delegate’s error was material to one or both of the visa refusal decision and the decision that the appellant is an “excluded fast track review applicant”, because the delegate’s decision could realistically have been different had that error not been made.

The appellant’s submissions

36    The appellant submitted that one of the “absolutely critical” factors that led the delegate to conclude that the appellant’s Afghan passport, taskera, driver’s licence and other secondary documents were “bogus documents” within the meaning of s 5(1) of the Act was that the delegate did not accept that the Afghan embassy in Canberra had received and verified the appellant’s taskera, because the delegate believed it to have been lost. In particular, the appellant pointed to the delegate’s findings, set out at [18] above, referring to the appellant’s response to the third s 57 letter and his August 2016 statutory declaration explaining he had lost his taskera.

37    It was common ground on this appeal, as it was below, that although the appellant had stated in his original visa application that Jetset Travel had lost his original taskera, Jetset had subsequently returned it to him, and that he had in fact brought the original to his visa interview. So much is tolerably apparent from the transcript of that interview that was in evidence. As the appellant submitted, this oversight was in all likelihood attributable to the fact that the person who conducted the interview was not the same person who made the final decision.

38    The appellant also contended that the primary judge misstated the proper test governing the question of materiality of an error, at [75] and [79] of his Honour’s reasons. Those paragraphs were relevantly in these terms:

75.    In the light of the principles to which I have referred, and the factual matters summarised, in my view, the Ground of Review pressed by the Applicant in relation to the provenance of the taskera issue was but one among many factual and credit issues considered by the Delegate and which clearly informed his decision. Whether considered appropriately or not, the overwhelming weight of all of the other matters considered by the Delegate, in my view, must mean that due consideration of the taskera having been produced at his [visa] interview, would not have made any material difference to the conclusion reached by the Delegate. The basal principles outlined in Hossain and SZMTA, applied to the facts of the current matter, must relevantly apply here, which leads to the result that Ground 1 must fail.

…

79.    In my view, in the light of all the other evidence considered by the Delegate, as already recorded, the relevance, actions and ultimate decision in relation to the Applicant’s taskera, would not have made any material difference to the ultimate result. …

39    As the High Court said in MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at 454 [38]–[40]:

The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made.

Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

There is no reason to consider that the burden placed on the plaintiff of proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with the condition that has been breached is significantly more onerous than the burden indisputably borne by the plaintiff of proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied that the condition has in fact been breached. …

(Emphasis in original, footnotes omitted)

40    The appellant submitted, correctly, that it is well established that a failure to consider important evidence can amount to jurisdictional error. See, for example, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (Robertson J); Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (Kenny, Griffiths and Mortimer JJ). Further, whether or not a failure to consider critical material constitutes jurisdictional error turns on the importance of the ignored material to the decision-making process. See, for example, MZYTS (2013) 230 FCR 431 at 451 [70]; Chang v Neill (2019) 62 VR 174 at 200 [92] (Maxwell ACJ, Beach and Kyrou JJA).

41    The appellant submitted that in this case, in light of the weight that the delegate attributed to the appellant’s August 2016 statutory declaration to the effect that he had lost his original taskera, “it can be inferred that the fact that the appellant brought his original taskera to his interview is cogent and important evidence which the delegate failed to take into account in determining that the passport issued by the embassy was a bogus document”.

42    The appellant pointed in particular to the primary judge’s reference at [75] of his reasons to what he referred to as “the overwhelming weight of all of the other matters considered by the delegate” to conclude that the error was not material. The appellant also referred to [63] of his Honour’s reasons regarding the “taskera issue” (see [31] above), where his Honour found that (a) the taskera “was but one of five documents” found to be bogus or counterfeit and the delegate had not put any extra weight on that particular document (or its purported absence), and (b) there were “multiple adverse credit findings” which, of themselves, had nothing to do with the delegate’s error in relation to the taskera.

43    The appellant submitted that there were the following difficulties with the judge’s reasoning in that regard.

44    First, it was submitted that sub-paragraph (a) of [63] “missed the point” that “the delegate’s findings on the other documents were either explicitly or implicitly informed by the delegate’s findings about the taskera”.

45    Secondly, it was submitted that it was apparent on the face of the delegate’s reasons that a “critical step” in concluding that the passport was a bogus document was that because the appellant had lost his taskera, it could not therefore have been provided to the Afghan embassy in Canberra in order for it to verify its authenticity. It was submitted that:

Given the central significance of the taskera (and the passport obtained on the back of the taskera), it should be inferred that an adverse finding on that document must have had, at least, a realistic potential to affect the delegate’s assessment on the other documents.

46    Thirdly, the appellant submitted that “a strong analogy can be drawn to this Court’s firm recognition that … credibility findings are not linear, and can have an imperceptible influence on other findings”. The appellant relied in particular on the following passages from the judgment of Beach J in DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [46]–[52], [58] (emphasis in original):

If a Tribunal purports to make its decision on the combination of facts A, B and C, and fact C is shown to be incorrect, prima facie, materiality of the error on the face of the reasons would seem to be clear. By prima facie I mean that although that may be the starting position for a consideration of materiality, it may not be the end point for such a determination.

Contrastingly, if a Tribunal purports to make its decision on the disjunction of facts A, B or C, and fact C is shown to be incorrect, prima facie there may be no materiality of the error on the face of the reasons.

These are the easy examples.

But what about the case where fact C is not only shown to be incorrect, but the error made concerning fact C has dual dimensions. So take the case where fact C was not only wrong, but was also wrongly used to make an adverse credibility finding.

Take the disjunctive case again where the Tribunal purported to make its decision on the disjunction of facts A, B or C, and it is shown that fact C has the dual dimension of being both wrong but also having been wrongly used to make an adverse credibility finding. Now assume that facts A or B were also based upon an adverse credibility finding. It may be said that the adverse credibility finding on fact C, posited to be wrong on my hypothesis, has also contaminated the foundation upon which facts A or B were also based. But it all depends upon the context and circumstances. If the type of adverse credibility finding, for example, exaggeration, is common to the foundation of each of facts A, B or C, the adverse credibility error concerning fact C may undermine the foundation upon which facts A or B were based. Contrastingly, if the type of adverse credibility finding is not common, this may not be able to be said. Moreover, even if it is a common type of adverse credibility finding that underpins each of facts A, B or C, and the adverse credibility finding concerning fact C is wrong, that may not be definitive to undermine facts A or B. For example, exaggeration on one aspect of a story does not necessarily entail exaggeration on another aspect.

I have sought to simplify the discussion for illustrative purposes only. But more generally there is force in the observations of Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44] and [45] that:

It is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” …

To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at 23 [81]:

… decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

Moreover, and on a related aspect, one must be cautious in taking the carefully expressed linear reasoning of the Tribunal and arguing that a later credibility finding in the sequence of the written reasons cannot have affected a credit finding earlier in the sequence. The logic, structure and flow of reasons does not necessarily dictate how in reality credibility findings on one aspect may or may not have consciously or subconsciously informed another aspect.

…

Fifth, I accept that where there are multiple reasons justifying why the Tribunal has made an adverse credibility finding and one of them has been shown to be flawed, there may be occasions where the finding can still stand with no jurisdictional error if other reasons singularly and cumulatively can in any event be independently drawn upon and were drawn upon to justify the adverse credibility finding. But here, the only substantial reason was essentially exaggeration or recent invention; the other so called implausibility finding derived from [49] was tissue-thin. And in any event, the wrong credit finding at [64] may have influenced earlier aspects of the reasoning such as [49] itself.

47    Fourthly, the appellant submitted that:

[T]here is a substantial degree of interconnectedness between the delegate’s findings as to the appellant’s linkages with Pakistan. As explained above, an apparently separate basis for refusing the applicant a protection visa was that the delegate found he was a citizen of Pakistan not Afghanistan (AB 484). But the adverse credit findings made by the delegate which informed the delegate’s identity finding were based in part on his erroneous view that the passport had been fraudulently obtained.

In particular, the delegate’s finding about school attendance depended in part on a finding that the appellant had demonstrated a willingness to fabricate documents. The delegate stated “[b]ased on the information outlined above, the [appellant’s] flawed response, and the anomalies in the Tarakai school transcripts appearance and date, I am satisfied the [appellant] did not attend school in Khost, Afghanistan”: AB 487. That had a flow-on effect on the delegate’s assessment of the Taliban warning letter: “As I am satisfied the [appellant’s] Tarakai transcript is counterfeit, and the [appellant] attended school and post-graduate studies in Pakistan, in combination with the anomalies outlined above, I am satisfied that the Taliban and Afghan police documents are also counterfeit”: AB 489.

Most notably, a whole section on the merits of the appellant’s application was devoted to the passport: AB 492-493. That then led the delegate seemingly to accept an anonymous letter received by the Department as having been sent by an Afghan official, notwithstanding that that position “cannot be confirmed”: AB2/493.

For these reasons, while the evidence against the appellant might seem substantial, the delegate’s assessment of it was both implicitly, and at times, explicitly, linked to the infirm finding about the taskera, so as to plainly establish the materiality of the error. It is not then for the primary judge to have engaged in a form of merits review himself to conclude that the material was so against the appellant as to render the error immaterial. To engage in that exercise would go beyond an assessment of materiality and stray into impermissible merits review.

The Minister’s submissions

48    The Minister submitted that in circumstances where the delegate found that five individual documents were bogus documents, the appellant could only meet the burden of establishing the relevant counterfactual if he could demonstrate (the onus being on him) that had the delegate not made the error of continuing to assume that the original taskera was lost, different findings could have been made about the authenticity of all other documents and that a different approach would have been taken to the delegate’s assessment of the appellant’s credibility, in particular in relation to what he had said in his responses to the s 57 letters.

49    The following exchange between the court and counsel captures the gist of the Minister’s case:

HIS HONOUR: You say the preponderance of the concerns of the delegate related to evidence before him that he was in fact a citizen of Pakistan, and various other documents having nothing to do with the taskera indicated, or proved to his satisfaction, that he couldn’t have been in Afghanistan in the years that he claimed to be, so it therefore followed that the driver’s license was a bogus document, the school transcript was a bogus document, and you would say, well, that’s enough.

MS GRAYCAR: Yes, your Honour. That’s right. That is, effectively, the respondent’s case. And, you know, I’m not sure we would put it in that reverse way in the submissions, but hearing my friend say, “Because these documents were found to be bogus, the delegate then disbelieved explanations of the appellant,” we say no, it’s exactly the other way around.

…

The appellant was disbelieved in his entirety in relation to [his] claims, and it followed that documents … that supported his claims but were inconsistent with the material before the delegate, could not be genuine documents. Perhaps the best example is the – it’s inconsistent with his own case, the provision of a school record dated 2011 [from Afghanistan] because his own case was that by 2010 he was operating a mobile phone store.

50    Counsel for the Minister also highlighted the findings by the delegate that the appellant’s claim that a school photograph was of him visiting a friend at a school function in a borrowed uniform when he was on his way from leaving Afghanistan was “far-fetched”, and that the appellant in fact attended the school as a student, as one of many examples of critical findings of credit that had nothing to do with findings of credit concerning the question of the lost taskera.

51    As to materiality, the Minister accepted that the correct test was whether there is a realistic possibility that a different decision could have been made, rather than would, but submitted that when primary judge’s reasons are “reviewed in substance”, it is apparent that his Honour did not err merely by using the incorrect word. And in any event, the Minister submitted, because an appeal to this court is an appeal by way of rehearing under s 24 of the Federal Court of Australia Act 1976 (Cth), it is open to this court, after review of the delegate’s decision, to reach the same conclusion on materiality as the primary judge.

Consideration

52    In DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525, Beach J referred to that category of case which he described as one “where the finding can still stand with no jurisdictional error if other reasons singularly and cumulatively can in any event be independently drawn upon and were drawn upon to justify the … finding”.

53    In my view, this is one such case.

54    There was a wealth of material before the delegate, including information from protected sources, that the appellant (and his family) are Pakistani citizens with Pakistani national identity cards; that he attended Bilyamin Government High School, in Pakistan, not Tarakai village school in Khost, Afghanistan; that his father worked for the Pakistan government; that he attended the Institute for Management Sciences in Peshawar, Pakistan in 2012, and did not operate a mobile phone business in Khost; and that he is a member of the Bangash Pashtun tribe, a tribe indigenous to Lower Kurram, Pakistan. It was these facts, among others (including his non-credible responses to the s 57 letters), that the delegate relied upon in concluding that the appellant’s Afghan passport was fraudulently obtained, and that the taskera, driver’s licence, Taliban warning letter, police document, and Tarakai academic transcript provided by the appellant to the department were counterfeit – a finding that was “reinforced by [the] anomalies in the documents” referred to above at [16]. Contrary to the appellant’s submission, it is clear that the delegate’s findings about the taskera did not “inform” these findings about the other documents.

55    It seems to me that those findings, and the factual matters underpinning them, constitute an overwhelming case justifying the delegate’s conclusion that the appellant is a citizen of Pakistan, not Afghanistan, and that one or more of the Afghan passport, taskera, driver’s licence, and secondary documents, including school documents, were bogus documents within the meaning of s 5(1) of the Act.

56    Critically, the definition of EFTRA under s 5(1) and the requirement that the Minister must refuse to grant a protection visa under s 91WA are engaged if an applicant provides even a single bogus document. As the extracts of the delegate’s reasons make clear, and as the primary judge found, the taskera was but one of five documents which the delegate found to be bogus documents.

57    It follows that the appellant has not proved on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had the error in relation to the fact that the appellant did produce what he claimed to be his original taskera at his protection visa interview not been made.

58    For those reasons, and for the reasons he gave, the primary judge was correct to dismiss the application.

59    The appeal will therefore be dismissed, with costs.

Associate:

Dated:    10 June 2022