FEDERAL COURT OF AUSTRALIA

NACS v Minister for Immigration & Multicultural Affairs

[2002] FCA 935

APPLICANT NACS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1593 OF 2001

HILL J

29 JULY 2002

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent Minister’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Bangladesh.  After his arrival in Australia he applied to the respondent Minister (“the Minister”) for a protection (class AZ) visa.  The office of the Minister was at the time then called the Minister for Immigration and Multicultural Affairs but is now called the Minister for Immigration and Multicultural and Indigenous Affairs.  A delegate of the Minister refused the application.  He thereafter applied for review of that decision by the Refugee Review Tribunal (“the Tribunal”). 

2                     The Tribunal rejected his application.  He then applied to this Court for relief under s 39B of the Judiciary Act 1903 (Cth) which, subject to provisions of s 474 of the Migration Act 1958 (Cth) (“the Act”), is made applicable to appeals from the Tribunal. 

3                     The Tribunal’s decision is “a privative clause decision” as defined in s 474(1) of the Act.  The meaning and relationship between s 474 and the remainder of the Act and the constitutional validity of s 474 are matters presently the subject of appeals which have been heard by a Full Court of this Court and reserved.  It would be unproductive of me to add to the proliferation of views on these matters. 

4                     At the outset of the hearing I, accordingly, announced to Counsel that I proposed only to hear argument on the question whether there was a jurisdictional or other error, such as would ground relief under s 39B of the Judiciary Act but for the provisions of s 474(1).  If I were of the view that there was not, I would dismiss the application.  If on the other hand I was of the view that the Tribunal had made a jurisdictional or other error such as would ground relief under s 39B I would defer consideration of the provisions of s 474 and its application to the present circumstances pending the decision being handed down by the Full Federal Court.  Ultimately Counsel acquiesced in this course. 

5                     The point raised on behalf of the applicant is a short one.  His case that he was a refugee, within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as affected by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”), turned upon his claim to have been politically aligned with the Bangladesh Nationalist Party and a prominent member of its youth wing the Jatiotatabadi Jubo Dal.  In support of that claim he submitted what his adviser referred to as, “a certified copy of a photograph showing the applicant with Begum Zia”, the former Prime Minister of Bangladesh and chief of the Bangladesh Nationalist Party.  He said that he feared persecution by reason of his political association and gave evidence that his house had been looted and fired, thugs had beaten up his father, that he had been tortured and that his life was in danger.

6                     The photograph was submitted to the Tribunal on behalf of the applicant by an immigration practitioner in a letter dated 21 February 2000.  The Tribunal thereafter referred the photograph to a document examiner who was an employee of the Department of Immigration and Multicultural Affairs.  The document examiner responded by Minute date 5 April 2000.  The Minute noted that the picture had been examined and observed that there was a multicoloured halo surrounding the head of the male person, the applicant, which was not present around that person’s arm or around the other person in the picture, Mr Begum.  The writer of the Minute concluded that this was indicative of “superimposition before the current picture was printed”. 

7                     The Tribunal made no reference to the Minute until the scheduled hearing of the application on 14 August 2001.  There is no explanation for the delay of some 16 months. 

8                     At the hearing the Tribunal member pointed out to the applicant the significance of the Minute.  This was reinforced by a letter also handed to the applicant which relevantly said, “A report from the Department’s Document Examination Unit indicated that there had been a superimposition onto a photograph submitted by you.  A copy of this report is attached, as is the photograph.  As explained at the hearing this information is relevant because it raises profound questions as to the genuineness of all the other documents submitted by you as well as the credibility of the claims made by you.”  The applicant was asked to comment in writing by 6 September 2001, that is to say approximately three weeks from the date of the hearing. 

9                     On 20 August 2001 the applicant’s adviser wrote to the Deputy Registrar of the Tribunal indicating that the applicant wished to have the photograph re-examined by an independent expert.  He sought 28 days time from the date of this letter to carry out the re-examination. 

10                  On 27 October the applicant’s adviser again wrote to the Tribunal indicating that the photo had been submitted to a forensic examiner who had returned the photograph to the applicant saying that he could not do anything.  The letter noted that the applicant still intended to have the photograph examined by an independent expert and sought an additional 28 days from 27 October 2001 for this to be done.

11                  The Tribunal notes in its reasons that the 27 October letter followed contact between the Tribunal and the applicant in which the Tribunal had inquired of progress.  The Tribunal also notes that it refused the additional time requested because it was of the view that a sufficient time had already elapsed to enable the photograph to be examined. 

12                  As already noted, the Tribunal affirmed the decision of the delegate.  It did so on the basis, not only that documents were frequently obtained fraudulently from Bangladesh but also, of the report of the document examiner.  The Tribunal said:

“The Tribunal has considered the evidence the applicant has presented with regard to his political activities.  Given the applicant’s preparedness to present a falsified photograph to the Tribunal, the Tribunal cannot be satisfied that the applicant is being truthful in his claims that he has ever been attacked by Awami League “thugs” as he claims…the Tribunal is not satisfied that the applicant faces politically motived charges nor that he has a well-founded fear of harm for reasons of his political opinion nor for any other Convention reason.”

13                  Counsel for the applicant accepts that the Tribunal’s reasons depended substantially upon its finding concerning the photograph.

14                  It is submitted on behalf of the applicant that the Tribunal in raising the question of the superimposition only as at the date of the hearing denied to the applicant procedural fairness or in other words that there was a denial of natural justice to the applicant.

15                  It can be accepted for present purposes that a denial of natural justice would provide grounds for relief under s 39B of the Judiciary Act 1903 (Cth).  There is a more difficult question whether a denial of natural justice can be raised in the Court having regard to s 474 of the Act.  However that is not a matter which I need decide in this present case.

16                  The question what constitutes a denial of natural justice is one that must be determined by reference to the legislation in question and all of the circumstances of the case: Kioa v West (1985) 159 CLR 550 at 584 – 585.  In that case Mason J said inter alia,

“the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.  The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate consideration…”

17                  It may be noted that s 424A(1) of the Act provides:

“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.”

18                  The notification and invitation may be given to the applicant personally or be sent by mail to him or her.

19                  It is not in issue that the Tribunal complied with s 424A by giving the notice to the applicant at the time of the hearing.  The submission is that, given the great significance of the matter to the applicant’s case and the fact that the Tribunal had received the Minute from the documents examiner more than a year before the hearing date, it was not “appropriate” for the Tribunal to give the notice so late and to do so only at the date of the hearing was unfair to the applicant.

20                  Counsel for the applicant made reference to s 177(1) of the Evidence Act 1995 (Cth) which requires that there be served on a party a certificate giving an expert’s name and address and opinion together with his or her qualifications no later than 21 days before the hearing.  Although it is conceded that the Tribunal was not bound by the rules of evidence but could inform itself in such manner as it considered appropriate, nevertheless s 177(1) of the Evidence Act was said to provide an appropriate analogy for the way the Tribunal should have proceeded, particularly having regard to the requirement of s 353(2)(a) of the Act that the Tribunal “act according to substantial justice and the merits of the case.”

21                  In summary the submission for the applicant was that the question of the authenticity of the photograph was of such great significance to the applicant’s case that where it was within the powers of the Tribunal to do so and the significance of the evidence was obvious on its face, procedural fairness required the Tribunal to inform the applicant well before the hearing of the adverse opinion of the document examiner including giving details of the qualification and other matters that would otherwise be required to be given under s 177(1) of the Evidence Act in a case to which that section applied. 

22                  The submission made reference also to the fact that the provision of forged material, such as a reconstituted photograph was an offence under s 234 of the Act carrying serious criminal consequences, not only for the applicant but potentially also for applicant’s adviser.  Indeed, it was submitted, that the implications of the photograph went beyond the matter of credibility and the very significance of the matter required, so it was submitted, that the applicant be told of the content of the report ahead of the hearing so that he would have the time and opportunity to prepare a response to the Minute and the challenge to the applicant’s credibility and honesty posed by the conclusion in it.  This was also required having regard to the jeopardy in which the findings set out in the Minute placed the applicant, having regard to the criminal offences such as those specified in s 234 of the Act.

23                  It may here be noted that the submission that the Tribunal had failed to act appropriately and in accordance with s 424A of the Act was not said to be a separate ground for providing relief under s 39B of the Judiciary Act 1903 (Cth) but rather the reference to s 424A provided content to the rules which natural justice required.

24                  Finally it may be noted that it was submitted on behalf of the applicant that the Tribunal did not make a bona fide attempt to exercise the power conferred upon it by s 424A in accordance with one of the exceptions referred to by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.  I do not propose the consider this argument save to note here only that it was not suggested that the Tribunal had conducted itself in bad faith in a subjective sense.  Otherwise the argument is one that requires consideration of the privative clause provisions of s 474(1) and should await clarification of that section by the Full Court.

25                  In my view, there was no denial of natural justice to the applicant in the circumstances of the present case.

26                  No doubt the delay by the Tribunal in notifying the applicant of the contents of the document examiner’s Minute by some 16 months may be the subject of criticism.  The delay may in part be explained because at some stage the file was reallocated to a different Tribunal member for hearing.  But whether this provides an explanation for the delay, the case was not one where the applicant was not given an opportunity to meet the material in the document examiner’s report.  In fact the applicant had between the date of the hearing on 14 August 2001 until the end of October in that year to have the photo examined independently and to arrange for a report to be given to the Tribunal.  Nothing happened in this time.  There is no explanation why, if a different independent view of the photograph was possible, a report could not have been obtained and filed.  The explanation given in the letter of 27 October is, to say the least, somewhat difficult to follow.  It might well suggest that the reason the independent expert could not help was because he or she agreed with the Departmental Document Examiner.

27                  Counsel for the applicant accepted that unless he succeeded in showing that the applicant had been denied procedural fairness the present application must be dismissed.  Since I am of the view that the applicant has not succeeded in so doing, I would dismiss the application and order the applicant to pay the respondent Minister’s costs of it.

Associate:

Dated:              29 July 2002