FEDERAL COURT OF AUSTRALIA

NADC v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 201

MIGRATION – protection visa – judicial review – Minister’s delegate refused to issue protection visa – decision affirmed by Refugee Review Tribunal – where the Refugee Review Tribunal held that certain documents were forgeries – whether the Refugee Review Tribunal denied the applicant natural justice – whether the Refugee Review Tribunal under an obligation to consider both each of the applicant’s claims individually and the effect of the claims as a group.

Migration Act 1958 (Cth) – s 474

Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 followed

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 referred to

NAOC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1424  followed

Muin v Refugee Review Tribunal [2002] HCA 30 distinguished

NADC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1137 OF 2002

HILL J

14 MARCH 2003

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, a citizen of Bangladesh, seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming the decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refusing to grant to him a protection (class XA) visa.

2                     It is a criterion of a protection visa that the person applying for it be, inter alia, a person of whom the Minister is satisfied that Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 (herein called “the Convention”).  Australia will, generally speaking, have protection obligations to a person who is a “refugee”, as defined in Article 1(A)(2) of the Convention.  That article provides that a person will be a refugee who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country;…”

3                     In his application for the visa, the applicant claimed that in 1993 he had joined an organisation known as Jatiya Chattra Samaj, the student wing of Jatiya Party (“JP”).  He claimed to have organised the party in his college, to have been elected the vice-president of the college branch and “organise[d] some grass-root level political meetings in [his] local area”.  He claimed that the two dominant political parties in Bangladesh, the Awami League (“AL”) and the Bangladesh Nationalist Party (“BNP”) resented his popularity and wanted to destroy his career.  He said they planned to include his name in the list of a local murder case which concerned the murder of a labour leader of the BNP, Mr Abul Kashem.  This was done, he said, and his name was included in a charge sheet.  He claims that he was found guilty but escaped and ultimately, after going into hiding, left the area permanently.

4                     His claim further was that in 1994 some of Mr Kashem’s supporters had attacked him and left him unconscious.  He said that his village home was burnt while he was in hiding but that the police did nothing, despite some attempt by several well wishers to solve the problem.

5                     Ultimately, he went to a United States territory, Saipan, and worked there as a security guard from February 1995 until March 2000.  He left there and came to Australia.

6                     His complaint also concerned the actions of the Awami League which was, at the time of his application, in office.  It no longer is, having been replaced in government by the BNP in coalition with other minor parties.

7                     At the hearing in the Tribunal, the applicant was represented by a solicitor.  The solicitor produced, on his behalf, a large number of documents which were said to support the applicant’s case.  They had not been produced earlier.  These documents included material concerning the murder charge and subsequent conviction and newspaper clippings.  Two of these clippings, from ‘The Bangladesh Times’ of 16 January 1995 and ‘The Daily Star’ of the same day, in virtually identical terms contained a photograph of the applicant, referred to the attack on him and the fact that he was one of the accused in the murder case. One of the documents concerning the murder charge would suggest that his conviction in absentia did not occur until June 2001.  The apparent delay and perhaps discrepancy inherent in the newspaper clippings was not, however, raised by the Tribunal.

8                     The solicitor for the applicant also prepared and lodged with the Tribunal a written submission.  In regard to the various documents produced, the submission said:

“Because of his persecution, [the applicant] could not manage relevant documents earlier.  Now he is providing sufficient documents, which the authority should take into account.  We agree that this is a general trend for refugee applicants to submit false documents in supporting their claims, but we can not generalize this trend for all applicants.  It is clear from the various supporting documents  specially the letter from [the applicant’s] Party Chief, that the applicant is a genuine Jatiya party activist.  In this regard, the authority may take opinion from the concerned authority (DFAT) in Dhaka.”

That submission is dated 5 August 2002, the date on which the Tribunal heard the proceedings.

9                     The tape of the proceedings is not before me.  It is unknown therefore whether the Tribunal, in any way, discussed the potentiality of forgery of the mass of documents produced at the time of the hearing.

10                  The Tribunal accepted that the applicant had joined the student wing of JP, initially as a field worker, and that later he had been elected vice-president of the college branch, a position he had held until his departure from Bangladesh in 1995.  The Tribunal accepted also that he was active and that his popularity was resented.  However, the Tribunal did not accept that he would have created such animosity that supporters of the Awami League and BNP would have sought to implicate him in the murder.  Referring to the various documents which had been produced and which were said to relate to the murder trial, the Tribunal said:

“These documents are very similar to others that have been found to be fraudulent by the Tribunal.  Moreover the Tribunal accepts independent country information which indicates that “official” documents of this sort are easily and cheaply obtained in Bangladesh…  Accordingly, the Tribunal does not accept that these are genuine documents or that the applicant has been charged with and found guilty of being involved in the murder of Mr Abul Kashem.”

11                  As the law presently stands, it is not a ground for judicial review in this Court that decisions of the Tribunal suffer from defects of logic: Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565, Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411.  In terms of Aristotelian logic, the apparent syllogism:

some documents produced by applicants for protection visas from Bangladesh are forgeries

this document is produced from an applicant for a protection visa from Bangladesh

therefore this document is a forgery

suffers from what is called the fallacy of the undistributed middle. The actual premise which supports the conclusion is “all documents produced by applicants for protection visas from Bangladesh are forgeries”. The evidence before the Tribunal did not support that premise. However, non-conformity with Aristotelian logic is not, at least yet, recognised as a ground of review.

12                  This was not, however, the matter complained of by the applicant.  I shall return later to the real substance of the complaint.

13                  The Tribunal then proceeded to consider what the situation would be if the claims were in fact true and the documents were genuine copies.  The Tribunal’s response was that it would be for the Courts of Bangladesh to determine whether the applicant was innocent or guilty and in essence that the courts or at least superior courts were independent and could be relied upon to provide protection for those falsely charged.  Certain country information was referred to in support of this conclusion. It was open to the Tribunal.  The Tribunal said therefore that it was satisfied, that even if the fact of the charges and sentences were true, there was not a real chance that in the course of a judicial process reviewing the conviction the applicant would be subjected to serious harm amounting to persecution. 

14                  One might have some difficulty in accepting, even in Australia, the ease with which it is suggested that a person convicted of a crime might succeed in having a conviction upset.  But conviction in absentia for murder could not arise in this country.  Nevertheless, it was open to the Tribunal to find that the judicial independence of the Bangladeshi Courts rendered a chance of persecution for this reason so unlikely as not to constitute a “real chance”. 

15                  The Tribunal had the same view of the newspaper articles as it had of the court documents.  It was of the view that the clippings produced were not genuine, a matter which it said went to the question of the credibility of the applicant.  However, again the Tribunal considered what the situation would be if the newspaper material was in fact genuine, thereby confirming the attacks that the applicant claimed had been made on him.  The Tribunal felt that it could disregard this material because the events recorded in it occurred some seven and a half years earlier when the applicant was only in his teens.  Since then a considerable amount of time had elapsed with changes in government and this, the Tribunal said, led it to the conclusion that it wasn’t satisfied that there was a real chance that attacks of this kind or other serious harm amounting to persecution would follow if he returned to Bangladesh.

16                  Submissions in support of the application for judicial review were filed on behalf of the applicant.  They followed the form of similar submissions which had been filed in other matters.  In part, the submissions related to factual matters.  So it is said that there were sufficient grounds for the Tribunal to conclude with certainty that the applicant’s claims and fears were genuine.  That is not a matter, however, that avails the applicant here. 

17                  It is now clear, in this Court, that following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, jurisdiction will, despite the existence of a privative clause purporting to oust the Court’s jurisdiction (s 474 of the Migration Act 1958 (Cth)), be available to an applicant where there has been jurisdictional error.  The question what constitutes jurisdictional error may be difficult in some cases but that is not a matter which arises in the present case.  It can for present purposes now be accepted that there will be jurisdictional error where, in the course of the administrative proceedings in the Tribunal, there has been a failure to afford the applicant natural justice.

18                  The written submissions largely concentrated on natural justice and in particular matters that had been the subject of decision in the High Court in Muin v Refugee Review Tribunal [2002] HCA 30. 

19                  It can be said that in essence the submission made was identical to that which I considered in NAOC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1424.  For the reasons I there gave, the submission is misconceived.  The evidence from which it could be said directly that the applicant was misled, or from which that matter might be inferred, (and in Muin the relevant factual matrix came from an agreed statement of facts) is not present in the present case.  Nor is there any evidence before me, such as appeared in the agreed statement of facts in Muin, as to whether the Tribunal had read material which it said it had or to which it otherwise referred.  Just as in NAOC, so too in the present case, the situation before me is the same as existed in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 293, a case decided by a Full Court of this Court.  For the reasons I gave in NAOC the submission must fail. 

20                  Before me, however, the applicant was not represented.  I raised with Counsel for the Minister, the question whether the Tribunal had afforded natural justice to the applicant by perhaps not giving the applicant the ability to be heard and demonstrate if he could, that the applicant’s documents were genuine before the Tribunal reached the conclusion that the documents were forgeries.  Of course, as I pointed out to Counsel for the Minister, there was no material before me which made it clear what had happened at the hearing. However, in the course of discussion it was agreed that, if I so required, a procedure could be adopted whereby the tape of the proceedings could be listened to by the solicitor for the Minister who would then arrange either for a copy of the tape, so far as there was anything relevant in it, to be made or alternatively a transcript of relevant passages.  I was loath, however, to order that course unless I was of the view that any denial of natural justice by the Tribunal could be said to have affected the outcome. 

21                  Counsel for the Minister submitted:-

1. That there would be no denial of natural justice even if the Tribunal said nothing at all about the possibility of forgery during the course of the hearing, having regard to the way in which the legal adviser for the applicant had acknowledged the possibility that forgery was an issue in the submission to which I have already referred.

2. It was submitted that in any event, the Tribunal had found against the applicant on the basis that, even if the documents concerning the charge were true and not forgeries and even if the newspaper reports were likewise forgeries, the applicant could not succeed.

22                  I shall consider now these arguments:

23                  It is, of course, true that if the applicant knew that the authenticity of the documents was clearly an issue to be determined by the Tribunal member, it might not be a failure of natural justice for the Tribunal to advise the applicant that, subject to any submissions which the applicant was permitted to make, the Tribunal was likely to find the documents to be forgeries.  However, I do not think that the submission in the terms in which it is cast and in the terms in which it is set out above, can be said to have that effect.  It is true that the submission notes the possibility that other documents in the past had been forged.  But it does nothing more really than assert that the particular documents in question were genuine.  In my view, the Tribunal, assuming nothing further was said about the matter during the course of the hearing, would be in breach of the rules of procedural fairness if it did not alert the applicant to the possibility that the applicant would, in the absence of any further submission or evidence, treat the documents as forgeries.  It would have been a simple matter for the applicant to demonstrate whether the newspaper clippings were real and for that matter to submit the Court documents to expert scrutiny.

24                  The more significant matter is the second argument which I have noted.  Clearly, if the question whether or not the documents were forgeries could not affect the outcome, then the Court should not set aside the Tribunal’s decision but affirm it. 

25                  I raised with Counsel for the Minister the question whether consideration had been given by the Tribunal to what the consequence would be if both the documents relating to the conviction and the newspaper clippings were forgeries.  I raised this because the Tribunal had considered the effect of forgery on each category of document separately but not on the applicant’s case considering the documents in combination.

26                  Not without some anxious consideration, I have reached the conclusion that, even if the Tribunal found all of the documents to be forgeries, it could make no difference to the outcome of the present case having regard to the alternative findings made by the Tribunal.  The present case is one where a consideration of each category of document separately produces no different result from a consideration of all of the documents collectively.  Since it was open to the Tribunal to conclude that neither the convictions nor the attacks led to the conclusion that there was a real chance that the applicant had a well founded fear of persecution on a ground referred to in the Convention, it followed that that conclusion would be no different, even if the Tribunal had considered as a separate matter, that all the documents in question were forgeries.

27                  It follows therefore that in my view I should not adjourn the proceedings for investigation to be made as to what happened during the course of the proceedings in the Tribunal.  In summary, while I am of the view that there would be a failure of natural justice if the Tribunal did not at the hearing alert the applicant that the Tribunal might regard all the documents produced as forgeries, that failure could not have affected the outcome of the proceedings having regard to the Tribunal’s alternative findings.  Accordingly this Court should not, as a discretionary matter, set aside the decision of the Tribunal, notwithstanding that there may have been a breach of natural justice committed by the Tribunal during the course of the proceedings.

28                  I would accordingly dismiss the appeal and order the applicant to pay the Minister’s costs of it.

Associate:

Dated:              14 March 2003