Federal Court. Is it "antithetical to the appellate process [or] at odds with s 476A" for FCA to allow "a new ground not considered by the primary judge"? Further, Appellant presented his taskera (Afghan ID card) in support of protection visa application. Delegate suspected taskera was bogus and his representative provided delegate with a document from Appellant's father as evidence that Appellant's taskera was not bogus. The document the representative provided was the father's birth certificate. But representative inadvertently mischaracterised that document as the father's taskera. Given discrepancies between Appellant's taskera and his father's "taskera", delegate found the former was a bogus document. Did delegate make a jurisdictional error despite being entirely blameless? Was forensic examination of taskera irrelevant?
The Appellant provided his taskera (Afghan ID card) in support of his protection visa application.
A delegate suspected that his taskera was a bogus document, as defined under s 5(1) of the Migration Act 1958 (Cth), and invited the Appellant to comment on that suspicion.
The Appellant's representative provided the delegate with a document from the Appellant's father as evidence that the Appellant's taskera was not bogus.
The document the representative provided was the father's birth certificate. However, the representative inadvertently mischaracterised that document as the father's taskera.
The delegate failed to notice the large and emboldened print in the father's document stating that it was a “Birth Certificate”. The Federal Court (FCA) said that "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", although he claimed there was no fraud or dishonesty in doing so.
Further, "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”".
Given the discrepancies between Appellant's taskera and his father's "taskera" / birth certificate, the delegate found that the former was a bogus document and made no reference to the forensic report.
The questions to the FCA were as follows:
Question 1: Can it be said that allowing in the exercise of the FCA's "appellate jurisdiction the raising of a new ground not considered by the primary judge" is "antithetical to the appellate process [or] at odds with s 476A" of the Migration Act 1958 (Cth)?
Question 2: Did the delegate make a jurisdictional error in his/her finding that the Applicant's taskera was a bogus document, despite the delegate being entirely blameless?
Question 3: Can it be "seriously suggested that forensic examination and testing is not material to [the issue of whether the Appellant's taskera was a bogus document]"? In other words, can it be said that "the incantation that the delegate does not need to refer to every piece of evidence [can] magically cure the problem in the present case by saying either that ... the delegate considered it but did not need to refer to it; or ... the delegate did not consider it and did not need to consider it as it was just another piece of evidence"?
Question 4: Should the answer to Question 3 be "yes", on the basis 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" or that "the original was not being tested"?
Question 5: The Minister argued as follows regarding the interpretation of "bogus document" under s 5(1): "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". Can it be said that, contrary to the Minister's argument, "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"?
The FCA answered those questions as follows:
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