AFP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 12 April 2022
• Neutral Citation: [2022] FCA 375
• Date: 12 April 2022

Federal Court of Australia

AFP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 375

Appeal from:	AFP20 v Minister for Immigration & Anor [2020] FCCA 3207
File number:	NSD 1341 of 2020
Judgment of:	THAWLEY J
Date of judgment:	12 April 2022
Catchwords:	MIGRATION – appeal from Federal Circuit Court orders dismissing application for judicial review of Administrative Appeals Tribunal decision – Tribunal affirmed decision of a delegate of the first respondent to refuse the appellant’s Protection Visa application – where there was an error in interpretation (being an omission) of the appellant’s evidence before the Tribunal – whether primary judge erred in not finding that the error in interpretation was material to the Tribunal’s exercise of power giving rise to jurisdictional error – whether the appellant was denied the hearing required under s 425 of the Migration Act 1958 (Cth) – primary judge should have found jurisdictional error established – appeal allowed with costs
Legislation:	Migration Act 1958 (Cth) Div 4 of Pt 7, s 425
Cases cited:	AXR16 v Minister for Immigration and Border Protection [2019] FCA 42; 163 ALD 296 DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	35
Date of hearing:	7 April 2022
Counsel for the Appellant	Mr D McDonald-Norman
Solicitor for the Appellant	Craddock Murray Neumann
Counsel for the Respondents	Ms R Francois
Solicitor for the Respondents	MinterEllison

Table of Corrections
13 April 2022	The third word in the first sentence of paragraph [23] is amended to ‘two’.

ORDERS

		NSD 1341 of 2020
BETWEEN:	AFP20 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	THAWLEY J
DATE OF ORDER:	12 APRIL 2022

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Set aside the orders made by Judge Street on 27 November 2020 and in lieu thereof order that:

1. the application be allowed;

2. there issue absolute in the first instance:

   1. a writ of certiorari quashing the second respondent’s decision of 23 December 2019; and

   2. a writ of mandamus directed to the second respondent, differently constituted, to exercise the powers under Part 7 of the Migration Act 1958 (Cth) according to law;

3. the first respondent pay the applicant’s costs, as agreed or assessed.

3. The first respondent pay the appellant’s costs of and in relation to the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1. The only issue in this appeal from a decision of what was then the Federal Circuit Court of Australia is whether an error in interpretation, which occurred during the appellant’s merits review hearing before the Administrative Appeals Tribunal, had the result that the appellant was denied the hearing required by s 425 of the Migration Act 1958 (Cth). The primary judge considered it did not: AFP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3207 (hereafter “J”). The appellant contends the primary judge erred in reaching this conclusion.

2. The question whether a mistranslation or misinterpretation has resulted in the appellant being denied the review contemplated by s 425 has been examined in a number of cases, including: SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 (Griffiths J); SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 (Allsop CJ, Flick and Robertson JJ); SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 (Lee J); Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (Kenny J); DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 (Beach J).

3. For present purposes, it is sufficient to note that the appellant has demonstrated that:

1. an error in interpretation occurred during the Tribunal hearing;

2. the Tribunal proceeded on an incorrect understanding of the appellant’s evidence as a result of the interpretation error;

3. the Tribunal’s misunderstanding led to a material finding or conclusion adverse to the appellant and, absent the misunderstanding, the outcome might have been different.

4. In these circumstances, the primary judge erred in failing to conclude that the appellant had discharged his onus of establishing jurisdictional error on the part of the Tribunal because:

1. the decision on review exceeded the decision-making authority conferred on the Tribunal because the review was procedurally unfair in a way not authorised by Div 4 of Pt 7 of the Migration Act; and

2. the appellant did not receive the “review” contemplated by Div 4 of Pt 7 with the result that the jurisdiction remains constructively unexercised: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 at [52].

5. Put at its simplest, the hearing was not fair: SZRMQ at [5], [9] and [10] per Allsop CJ. SZFDE was concerned with the consequences of the anterior fraud of a purported migration agent on the discharge of the statutory function of review. The present case is concerned with the consequences of an innocent error in interpretation on the discharge of the statutory function of review. The ultimate issue is the effect of the interpretation error upon the Tribunal’s decision-making process: SZFDE at [47].

6. It is unnecessary to recount the background facts in detail. It is sufficient to state that, in his protection visa application, the appellant claimed that he feared harm in Pakistan because he had been childhood friends with a person named X whom he later witnessed take part in a violent attack on a mosque on 15 November 2013. He said he reported X’s involvement to another friend (Y) who was a police officer. The appellant stated that he then assisted the police in locating X and arresting him. This allegedly caused X and his supporters to threaten the appellant and ultimately to attack him physically, forcing him to give up his business and flee to Australia.

7. One of the documents that the appellant provided in support of his application for a protection visa was a First Informative Report (FIR) from the local police, along with a list of suspects. These were just two of several documents given to corroborate his claims.

8. The error in interpretation was a simple omission. The appellant was asked by the Tribunal how he obtained the FIR and list of suspects. The appellant said that he was given a copy of the FIR because he had helped the police and that he had asked the police for evidence in support of his protection visa application. The Tribunal then asked “How did you ask them [the police for the FIR and list of...