FEDERAL COURT OF AUSTRALIA

Applicant S209 of 2003 v Refugee Review Tribunal

[2006] FCAFC 181

APPLICANT S209 OF 2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 431 OF 2006

RYAN, DOWSETT AND RARES JJ

13 DECEMBER 2006

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the second respondent’s costs.

3.                  The name of the second respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA 

REASONS FOR JUDGMENT

RYAN J:

1                     I have had the advantage of reading in draft the separate reasons which have been prepared by Dowsett J and Rares J.  I agree with each of their Honours that the appeal should be dismissed with costs.

2                     Like Dowsett J, I agree with the learned primary judge that, despite some ambiguities in the Tribunal’s formulation of its reasons, it should be taken to have found that the letter from the member of parliament was not fraudulent in the sense of not having been written and signed by Sadeq Hossain but had been constructed solely to support the appellant’s claim for a protection visa.  I have been led to that conclusion primarily by the fact that the Tribunal assessed “the letters” from the parliamentarian and the lawyer together and found that they “are constructed to support the Applicant’s claims”.

3                     It is true that the Tribunal went on, in the paragraph immediately after that from which I have quoted, to observe;

 ‘In regard to the letter purportedly written by a member of parliament and of the BNP party I find it implausible that such a member of parliament of the same political persuasion would assist the departure of a person who is of such claimed importance to the party without using the resources of the party to provide protection in Bangladesh such that he could continue to operate on their behalf.’

4                     However, that reasoning is at least equally apt to express support for the finding, which I impute to the Tribunal, that the letter, although authentic, had been “written to order” and misrepresented or exaggerated the risk to the appellant if he were to return to Bangladesh.

5                     I also agree that, in the circumstances of this case, s 424A of the Migration Act 1958 (Cth) (“the Act”) had no application to the arrest warrant and other court documents.  In relation to the renewal of the appellant’s passport and the timing and circumstances of his departure through the Dhaka International Airport, I consider that the relevant information was probably supplied by the appellant himself and so within the exception created by s 424A(3) of the Act.  I also share Dowsett J’s doubts as to whether the Tribunal considered that the information presumptively derived from the passport was the reason, or part of the reason, for affirming the decision under review.  In any event, in the absence of evidence directed to this issue it is inappropriate, for the reasons given by Dowsett J, to allow it to be agitated on appeal.

Associate:

Dated:    13 December 2006.

REASONS FOR JUDGMENT

DOWSETT J:

6                     This is an appeal from the refusal of an application for writs of certiorari, prohibition and mandamus, directed to the Refugee Review Tribunal (the “Tribunal”) in connection with a decision made by the Tribunal.  By that decision the Tribunal affirmed a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the “Minister”) refusing to grant a protection visa to the appellant. 

7                     The appellant is a citizen of Bangladesh, born on 7 May 1969.  He entered Australia on 25 August 1998 and, on 22 September 1998, he made the relevant application, claiming to fear persecution in Bangladesh for reason of his political opinion.  At [6] – [10] in the learned primary Judge’s reasons, his Honour summarized the appellant’s claim as follows:

‘6.        In his protection visa application the applicant included a written statement in which he claimed, in short, that he was an active member of the Bangladesh Nationalist Party (“the BNP”) who had been attacked by supporters of the rival Awami league.  A few days before coming to Australia he had been shot at in the street.  His opponents had filed “false cases” against him.

7.         A copy of the same statement signed and dated 25 April 2000 and incorporating some corrections, was lodged with the Tribunal together with some other documents.

8.         Following a hearing on 27 April 2000, the Tribunal gave the applicant some further time to put his claims in writing.  He lodged a further statements of his claims on 15 May 2000 and the hearing continued on 29 May 2000.

9.         The Tribunal ultimately concluded that the applicant was, at most, a low level supporter of the BNP who was not of any adverse interest to the Awami League and there was no basis for concluding that he was likely to become of adverse interest to the Awami League in the foreseeable future.

10.       The Tribunal rejected the applicant’s claims that he had been prominent in the BNP, and suffered harm at the hands of the Awami League, for the following reasons:

(1)        There were inconsistencies in his claims about when he had been shot at, and in his descriptions of a protest rally he claimed to have led, which led the Tribunal to think those parts of his claims were fabricated;

(2)        The documents submitted in support of his claims appeared for various reasons to be either fraudulent or concocted to support his claim;

(3)        His evidence at the hearing, even if taken at face value, suggested that he had a fairly low political profile in any event; and

(4)        The fact that the applicant had renewed his passport a month before leaving Bangladesh, and then used it to leave the country, was inconsistent with him having been blacklisted or having warrants issued for his arrest.’

8                     At first instance the appellant was represented by counsel who advanced two broad grounds of appeal.  They appear at [11] and [12] of his Honour’s reasons as follows:

‘11.      The first ground is that the Tribunal failed to accord procedural fairness in failing to warn the applicant that the Tribunal was considering finding that:

(1)        A letter purportedly from a member of Parliament was not genuine.

(2)        A further information report and charge sheet were fraudulent.

(3)        A lawyer’s letter was “constructed to support the applicant’s claims”.

12.       The second ground is that the Tribunal did not comply with s 424A of the Migration Act 1958 (Cth) (“the Act”) in failing to invite the applicant in writing to comment on “independent information” that there “is a very high level of document fraud in Bangladesh” and information that arrest warrants are not provided to applicants, which was information personal to the applicant, because the Tribunal used the information to support a finding that the arrest warrant and other documents were fraudulent.’

9                     The “lawyer’s letter” was a certified copy of a letter issued by the appellant’s lawyer in Bangladesh, addressed to him, and in English.  It informed him that a warrant had been issued for his arrest and advised him not to return to Bangladesh.  The other letter was a certified copy of a letter from Sadeq Hossain, a member of parliament and convenor of the Dakar City Bangladesh National Party.  It was also in English and was in the nature of a reference for the appellant, addressed ‘To Whom It May Concern’.  It certified that he was a BNP activist who had been attacked and had “false cases” filed against him.  The “court documents” purportedly related to charges laid against the appellant.  They included a warrant for his arrest.

10                  At first instance counsel conceded that the Tribunal had sufficiently raised with the appellant its concerns in connection with the court documents.  That ground was therefore not pressed.  In the circumstances there is no reason to permit the appellant to revisit the matter on appeal.  The Tribunal concluded that the documents were, in effect, forgeries.  There was evidence that there was ‘… a very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police.  It is also common to pay bribes to officials.  In addition, lawyers will provide, for a fee, a letter advising that it is unsafe to return to Bangladesh.’  There was also evidence that the police would not give up possession of a warrant for arrest because it is their authority for such arrest.  I need not further consider the court documents.

11                  As to the two letters, the Tribunal found that ‘… the letters are constructed to support the applicant’s claims …’.  The primary Judge concluded that this did not mean that the Tribunal considered them to be forgeries.  Rather, in his Honour’s view, the Tribunal meant that the letters were authentic, in that they had been prepared by the persons purportedly signing them, but in order to support the appellant’s case.  The significance of this distinction flows from the decision of the Full Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [53] – [55].  It was there said (per Lee, Hill and Carr JJ) that before making a finding implicating an applicant in forgery, the Tribunal must extend to him or her an opportunity to deal with the material suggesting such forgery.  Thus it was necessary in this case that the question of forgery of the court documents be raised with the appellant in order that he have an opportunity to comment.  However it was not necessary to afford him such an opportunity in connection with the letters if the Tribunal merely proposed to find ‘…that the weight to be given to the content of the document provided no support to the “genuineness” of the appellant’s claim …’.  See WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 at [50] – [57].  See also WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at 56.  In such a case, the Tribunal is merely evaluating the evidence.

12                  This dichotomy of approach may not always provide a clear basis for identifying the steps necessary to afford an applicant procedural fairness.  There may be cases in which a particular document is genuine, in the sense that it has been issued by the identified author but nonetheless, its issue may have involved fraud in which the applicant was implicated.  It is, in each case, necessary to identify the basis upon which the Tribunal proposes to decline to act upon such a document in order to determine the requirements of procedural fairness. 

13                  In the present case the Tribunal observed that the documents had been provided late, suggesting that they were ‘provided to strengthen a set of claims which, did not, of themselves have significant substance or credibility when probed in greater depth.’  This rather equivocal statement probably means that the late supply of the documents did not inspire confidence in them.  With respect to the letter written by the member of parliament, the Tribunal observed:

‘I find it implausible that such a member of parliament of the same political persuasion would assist the departure of a person who is of such claimed importance to the party without using the resources of the party to provide protection in Bangladesh such that he could continue to operate on their behalf.’

14                  As to the attack on the applicant  alleged in the letter, the Tribunal observed:

‘In regard to the claimed attack in 1996 I find that it is implausible that the ruling party, the Awami League, would blacklist the applicant, hire a group of assassins to make one attack on the applicant and, for the next two years, fail to do any actual harm, despite his claimed ongoing public appearances, his accessibility in his location, his continued employment in a Dhakar hotel until at least March 1997 and the fact that they were the party in power and thus have the upper hand at the time.’

15                  The Tribunal did not doubt that the letter came from the purported author but was unwilling to act upon its contents which reflected, more or less accurately, various aspects of the applicant’s own claims.  In other words the Tribunal, having evaluated the letter, concluded that it had no probative value. 

16                  The Tribunal did not say anything specific about the letter from the solicitor, save that it had been constructed to support the appellant’s claims.  That letter dealt with the alleged court proceedings and arrest warrant.  Had the Tribunal been willing to act upon it, it may have affected its view of the court documents and of the appellant’s claim that he was being harassed.  However the Tribunal was unwilling to act on the letter, apparently for reason of its late appearance in the proceedings.

17                  The primary Judge concluded that the Tribunal had simply refused to act on either letter, and that there had been no failure to extend procedural fairness to the appellant in so doing.  I agree.

18                  The second ground depends upon the proper construction of s 424A of the Migration  Act 1958 (Cth) (the “Migration Act”).  The section provides:

(1)       Subject to subsection (3), the Tribunal must:

(a)        give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

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

(c)        invite the applicant to comment on it.

(2)       The information and invitation must be given to the applicant:

(a)        except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)        if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)       This section does not apply to information:

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

(b)        that the applicant gave for the purpose of the application; or

(c)        that is non‑disclosable information.’

19                  At first instance, counsel for the appellant submitted that the information received from the Department of Foreign Affairs and Trade concerning arrest warrants and document fraud was information to which s 424A applied.  It was said that as this material was taken into account by the Tribunal in affirming the decision under review, it should have been put to the appellant in writing, and he should have been invited to comment on it.  Prima facie, I would have thought that such information fell within the exception contained in subs 424A(3)(a).  However counsel for the appellant submitted at first instance that in determining whether the information was specific to the appellant, or merely about a class of persons of which the appellant was one, it was necessary to look at the use to which the information was to be put.  He submitted that if the ultimate finding that the court documents were fraudulent was based upon such information, then it was personal to the appellant.  His Honour rejected this submission, in our view, correctly.  The decision of the Full Court in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 563 [12]-[14] dictated that view.  See also VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [13]-[16].  I see no reason to revisit those decisions.

20                  In the course of the hearing of this appeal the Court directed the parties’ attention to that part of the Tribunal’s reasons which appears on p 20 under the heading ‘The Applicant’s departure from Bangladesh’.  The relevant passage is as follows:

‘The applicant stated that a Mr Chowdury assisted him to leave the country.

He again made this claim at the Tribunal hearing.  His claims are therefore consistent in this regard.

However, the applicant left on a Bangladesh passport in his own name and with his details.

That passport was renewed a month prior to his departure from Bangladesh and five months after the applicant claimed he had been blacklisted and the Awami League had filed false cases against him and a warrant had been issued for his arrest.

In addition to the reasons detailed above I find that the applicant’s ability to apply for and be granted a renewal of his passport and depart through an international border check, the Dhaka International Airport, he was not blacklisted and did not have a warrant issued for his arrest.’

21                  The Court’s concern was that s 424A may have applied to the information concerning issue or renewal of the appellant’s passport and/or the circumstances surrounding his departure from Bangladesh.  If so then the Tribunal was obliged to give the appellant particulars of such information if it considered that it might comprise part of its reasons for affirming the original decision.  One method prescribed for so doing (subs 441A(2) is:

‘… a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.’

22                  It is at least arguable that such of the information as was derived from the passport was given to the applicant by the member.  As appears from the transcript of proceedings before the member, the appellant was shown the passport in the course of the hearing and asked questions about the matters referred to in the above extract.  It is not clear whether all of the information in the relevant extract was derived from the passport, but it seems probable that it was.  If that is so then the relevant particulars were, at least arguably, supplied pursuant to s 424A.  There may be some debate about whether or not an invitation of the kind contemplated by s 424A(1)(c) was so given.  However, to the extent that the information or an invitation to comment thereon was not given to the appellant as required by s 424A, there is still a question as to whether the information was part of the Tribunal’s reasons for affirming the original decision.  It is clear from the extract that the Tribunal rejected the appellant’s claims to have been blacklisted and that a warrant had issued against him for other reasons.  See pp 17-19 of the reasons.  The Tribunal considered such claims to be implausible.  The passage on p 20 is nothing more than an afterthought, offering additional support for conclusions reached on other grounds. 

23                  In any event, the point was not taken at first instance.  There is no evidence as to how the Tribunal came into possession of the passport or any of the information referred to in the extract.  Indeed, the transcript demonstrates that the Tribunal returned the passport to the appellant in the course of the hearing, suggesting that it had received it from him.  If that is the case then to the extent that the Tribunal relied on information in the passport, it was probably within the exemption to the operation of subs 424A(1) contained in subs 424A(3).  Because the matter was not raised at first instance the parties have not provided the evidence necessary to determine whether any of the information in question was information to which s 424A applied.  The appellant was represented at first instance.  In the circumstances I would not allow any application to amend the notice of appeal to raise this matter.

24                  The appeal must be dismissed with costs.

Associate:

Dated:         13 December 2006

REASONS FOR JUDGMENT

RARES J

25                  I have had the benefit of reading the reasons prepared by Dowsett J and gratefully adopt his Honour’s account of the facts.  Subject to what follows I agree with his reasons and the orders he proposes.

26                  The Tribunal’s decision was given on 5 June 2000 (AB 5/84).  Section 422B of the Migration Act 1958 (Cth) did not apply at the time the decision was made;  the requirements at common law of procedural fairness applied to the circumstances in which the Tribunal had to decide the appellant’s case (see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 at [10]).

27                  Dowsett J refers at [13] to the letter written by the member of the Bangladeshi Parliament and concludes that the Tribunal did not doubt that the letter came from the purported author (at [15]).  I can see this as one possible reading.  However, I am of opinion that the better reading of the Tribunal’s reasons is that it regarded the letter as fabricated.  The Tribunal stated:

‘In regard to the letter purportedly written by a member of Parliament and of the BNP party I find it implausible that such a member of Parliament of the same political persuasion would assist the departure of a person who is of such claimed importance to the party without using the resources of the party to provide protection in Bangladesh such that he could continue to operate on their behalf’  (emphasis added)

28                  I am of opinion that this is a finding that the letter was not written by the member of Parliament as claimed and that it was, in effect, a fraud.  Immediately before the sentence just quoted, the Tribunal had said:

‘I find the letters are constructed to support the Applicant’s claims and [sic] that the FIR, charge sheet and arrest warrant are fraudulent.’  

29                  This is not a case in which the Tribunal simply evaluated the document and regarded it as having no probative value.  The Tribunal made a positive finding that the document was a fraud for the reasons that the Tribunal gave, namely that it was implausible that if the author were a member of Parliament, he would have acted as he claimed were the letter genuine.

30                  The trial judge acknowledged that the Tribunal had reservations as to whether this letter was written and signed by whom it purported to be ([2006] FCA 145 at [21]).  However, he concluded that the Tribunal had refrained from making a finding that it was fraudulent in the sense that it was not authentic, and his Honour observed it would have been quite easy for the Tribunal to have done so rather than expressing itself as it did.

31                  Regrettably, the Tribunal’s choice of language was not pellucid.  The reasons of an administrative decision-maker are not those of a judge, but of a person who discharges his or her obligation to explain in their own words why they have arrived at their decision.  Those reasons are not to be subjected to overzealous judicial review.  They are meant to inform:  Minister for Immigration and Ethnic Affairs v Wu Shian Liang (1996) 185 CLR 259 at 272.

32                  The Tribunal referred to ‘the letter purportedly written by a member of parliament’ and said it found ‘… it implausible’ that such a person would have assisted the appellant to depart from Bangladesh.  When it used the word ‘implausible’ the Tribunal was necessarily conveying disbelief that the contents of the letter were an expression of what its purported author had really done, that is it believed that the letter was not written by the person whom the letter sought to portray was its author.

33                  Even if one accepts the construction of this perplexing language of the Tribunal adopted by the trial judge, that the letter was written by the member of parliament but its content was a concoction, it is still not a genuine letter – on the Tribunal’s findings, it is just as much a fraud, as if the parliamentarian’s signature had been forged.  That follows from the finding that the contents were false either because they were not written by him and thus did not represent his position, or if he did write them, they still did not represent his true position.  Either way it is a fraud.

34                  The Tribunal was dealing with a claim for a protection visa in which the appellant claimed to be at risk.  Before it could find that the letter purporting to be from the member of parliament was either a fabrication of someone else or the member’s own propounding of a falsehood put forward by the appellant, the Tribunal had to comply with the requirements of procedural fairness at common law.

35                  Part of the reason for rejecting the appellant’s claims was the Tribunal’s finding that the letter was constructed to support the claims of the appellant which it found he had fabricated.  The Tribunal used both independent country information and information which was in the letter (including the identity of the real or purported author and its contents), as part of the reason for affirming the decision.

36                  It did this by saying that, first, it was implausible that the information in the letter was genuinely written by its purported author, secondly, the letter was constructed to support the appellant’s claims and, thirdly, that the independent country information about the prevalence of Bangladeshi asylum seekers providing fraudulent documents was a factor leading to the conclusion that the delegate’s decision should be affirmed.

37                  That being so, the Tribunal was obliged to inform the appellant of the country information which it used to find that ‘… the documents have been provided for the sole purpose of creating a basis to support the [appellant’s] claims’.  In the very next sentence the Tribunal found that the letter was constructed to support the claims. 

38                  I agree with Dowsett J at [19] that s 424A(3)(a) of the Act applied to the Court documents because the finding that they were fraudulent was not based upon information personal to the appellant.  Therefore, the Tribunal did not have to provide this information to the appellant under s 424A(1), see:  VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 563 [14];  VJAF v Minister for Immigration and Multicultural and Indigenous Affairs  [2005] FCAFC 178 at [13]-[16] and Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 600 [138]-[139].  

39                  The Tribunal stated that it had put to the appellant at the hearing the independent country information that fraudulent documentation was frequently provided by Bangladeshi visa applicants, including documents involving the fabrication of outstanding arrest warrants, court and police documents.  Here the independent country information was put orally to the appellant.  That sufficed to comply with the common law requirements of procedural fairness (see too:  Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [31]-[33]).  That was not a jurisdictional error because s 424A(1) did not apply. 

Associate:

Dated:         13 December 2006