FEDERAL COURT OF AUSTRALIA

NAQZ of 2002 v Minister for Immigration & Multicultural &Indigenous Affairs; NAQY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 898

MIGRATION – appeal from decision of the Federal Magistrate which affirmed a decision of the Refugee Review Tribunal approving a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to the appellants a grant of a protection visa – whether the Refugee Review Tribunal denied the appellants natural justice when it did not put to them that it suspected documents critical to their main claim where forged – whether the Refugee Review Tribunal denied the appellants natural justice when it did not provide them with an opportunity to comment on adverse country information – whether the Tribunal committed a jurisdictional error when it did not take into account the decision of another Refugee Review Tribunal made in regard to differing claims made by one of the appellants.

Migration Act 1958 (Cth) s 424A, s 474

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 - applied

Muin v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 190 ALR 601 – distinguished

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 – discussed

SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 - applied

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs, Minister for Immigration & Multicultural & Indigenous Affairs v SBBK [2003] FCAFC 129 - applied

Stead v State Government Insurance Commission (1986) 161 CLR 141 – applied

WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 – not followed

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 – applied

WAEJ v Minister for Immigration & Indigenous Affairs [2003] FCAFC 161 – applied 

NAQZ OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1423 OF 2002

NAQY OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1424 OF 2002

HILL J

27 AUGUST 2003

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent Minister’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent Minister’s costs of the appeal.

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

N 1424 OF 2002

REASONS FOR JUDGMENT

1                                 The appellants appeal from a decision of a Federal Magistrate (Driver FM) dismissing their applications for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal affirmed the delegate’s decision not to grant to the appellants a protection visa.

2                                It is a criterion for the grant 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 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                                 The appellants are a husband (NAQZ) and wife (NAQY) who separately applied for protection (class XA) visas. Their applications were heard together before the Tribunal and the Federal Magistrate.

The History of NAQZ’s Claim

4                                 NAQZ was found by the Tribunal to be a citizen of India.  He arrived in Australia on 7 December 1996 and made an initial application for a protection visa on 12 December 1996, which was rejected by the Minister’s delegate on 21 March 1997 as that application set out no claims. The application for review of that decision was filed on 21 April 1997, and a Tribunal decision unfavorable to the appellant was recorded on 31 March 1998.

5                                 The application relevant to these proceedings was lodged on 8 May 2001 and includes that of his son, who was born in Australia on 9 December 2000. On 24 July 2001 the delegate of the respondent Minister refused his application. The male appellant lodged an application for a review of the decision of the delegate on 21 July 2001.  On 10 July 2002 the Tribunal handed down a decision made on 18 June 2002, which affirmed the delegate’s decision. The application for review of that decision was filed in the registry of the Federal Court on 7 August 2002.

·        NAQZ’s claims

6                     NAQZ, who is a Hindu, claimed that he was applying for a protection visa because of the religious and political persecution he had suffered in Bangladesh, and because of his marriage to NAQY, who was from a different caste. What follows is a summary of the facts as they were claimed by NAQZ in his application for a protection visa. It does not reflect the facts as found by the Tribunal.

7                     NAQZ claimed to have met NAQY whilst she was studying at Jagannath University College in 1990. He had later proposed marriage, but her family had not approved because of the difference in their castes. NAQY’s family then sent her to India for her higher education and arranged a marriage for her with another man.  NAQZ visited NAQY at the university twice, and convinced her to fly to Sydney on an Australian business visa he had procured from India.  They were married less than a month after her arrival in Sydney.  He later tendered an affidavit in which his mother in law said that she had severed all relations with him and his wife because they had lowered her social prestige. NAQZ stated in the application that the mother in law had asked her relatives to kill him as he had impugned the pride of wife’s family.

8                     NAQZ joined his brother’s business in 1987. His family was wealthy and owned an agricultural farm, shops and residential units in their area and a nearby town. In 1990 he had commenced a business partnership with a Hindu friend. He was also involved in Hindu social and religious activities, as well as the Bangladesh Hindu Budda Christian Oikya Parishad from 1990 to 1992 of which he was elected an office holder.

9                     NAQZ said that he was raped by a Muslim teacher at his high school when he was in year ten in 1983.  The school asked his parents not to take the matter to the police, and they did not do so because they had no faith in the police who according to NAQZ predominately served Muslim interests. The local influential Muslims, who did not want them to report the matter, had also threatened his parents.

10                  Because of his involvement in human rights and social welfare organisations NAQZ’s family was harassed. In 1991 hooligans extorted and vandalised the family business.  The police were notified but did not act, and merely advised him to stop working for minority groups. NAQZ and his business partner were also assaulted by Muslim youth in May of that year on their way home from the business, where he was bashed, kicked, called an enemy of Islam and told not to report the matter to the police. They told him that if he did not cease his involvement with the Bangladesh Hindu Budda Christian Oikya Parishad he would be killed. NAQZ reported the matter to the police, but no action was taken.

11                  NAQZ tried to help one of his Hindu friends in a land dispute, which made the Muslim community unhappy. The matter became a communal conflict, as the Muslims claimed his friend’s possession of the land was illegal, and that the friend was hindering them from building a mosque on it. In 1991 NAQZ and his business partner were again attacked as a result of their involvement in the land dispute at their place of business.  Muslims threatened to kill NAQZ if he continued his involvement in the dispute. He was hospitalised for a week.  The incident was reported to the police and two of his attackers were arrested. However, after being released on bail they harassed him until he withdrew the allegation.

12                  In 1992 NAQZ and some members of the Hindu community spoke to the police regarding the need for protection for minorities in Chandpur, and particularly the threats that had been received by NAQZ from Muslim youth. The police promised protection, but did not do anything.

13                  In December of 1992 the Babri Mosque was destroyed in India by radical Hindus and according to NAQZ a backlash occurred in Bangladesh.  He said he had seen Muslims kill and rape Hindus, and his house and business were looted and burned. A cousin and some friends were apparently killed.  NAQZ’s family then left Chandpur but he did not go with them.  On 16 December 1992, a public rally was held by protesting Hindus, who were stoned by Muslim fanatics. Local Mullahs agitated for more attacks on Hindus.  The police did not intervene. That night NAQZ and some Hindu youths put up posters and graffiti with secular slogans and slogans against the Imam who had allegedly instigated the riot in Chandpur.  He organised more rallies. During the course of the evening of 18 December 2002 NAQZ claimed that, as a prominent Hindu organiser, he was arrested by the police, who interrogated and beat him.

14                  At the end of December 2002 NAQZ and his family were afraid for his life, and he left Bangladesh for India without valid papers. He lived there until 1994 where he later learnt that the Bangladeshi Government had filed charges against him for subversive anti-state activities.  He felt insecure in India because the government was crusading against illegal immigrants, but did not want to return to Bangladesh. The same person who had obtained for him a false Indian passport arranged to have his passport renewed and obtained an Australian visa.

·        Proceeding before the Tribunal (as it related to NAQZ)

15                  NAQZ was represented at the hearing before the Tribunal by counsel, who also represented him before this Court (Mr Eyeson Annan). Both NAQZ and NAQY gave evidence before the Tribunal. He initially attempted to resile from some of the information in his application stating that his migration agent, then a Mr Kazi, had provided misleading information to the Department, and that the same had occurred during the course of the first application, but with another migration agent, a Mr Boni Amin. However, he then affirmed that he was satisfied that the material in his application was true and correct.

16                  Notwithstanding this, NAQZ was forced in the course of questioning by the Tribunal to resile from some of his previous claims. He claimed that he was a Bangladeshi, and that the Indian passport on which he had entered Australia was a forgery obtained from smugglers.  He claimed that he had pretended to be Indian until he was put in detention and received a Bangladeshi passport. This was inconsistent with his original application for a protection visa, in which he claimed to be from India. At the hearing NAQZ produced two Indian passports, the second of which had purportedly replaced the first. He said that Mr Kazi had arranged an Indian passport for his son after the appellant had asked for it to be arranged.  During the course of later questioning by the Tribunal which focused on whether NAQZ has supplied material indicating he was an Indian to allow Mr Kazi to arrange the Indian passport for NAQZ’s son, NAQZ claimed that he did not ask for an Indian passport for the son, but needed it to obtain medical assistance. He had nothing to say on why he would need a passport for his son to obtain medical assistance when the family was in receipt of Medicare.

17                  The Tribunal brought to NAQZ’s attention the fact that both his Indian passport and the application for a protection visa showed his birth date to be 29 May 1961, whilst the Bangladeshi passport showed a birth date of 11 November 1967.

18                  The appellant also produced a bundle of documents.

19                  The first of these was an English language original purportedly from the Office of the District Election officer in Chandpur which indicated that on 26 October 1995 the appellant was aged 28. The Tribunal noted that if the NAQZ was born in May 1961, his age on that day would have been 34 years, but if he was born in November 1961, he would have been 27 years of age. The Tribunal further questioned why the appellant would appear on the electoral roll of a place in which he had not resided by his own evidence since 1992. The Tribunal noted that the font and typeface of this document was the same as that of a nationality certificate also included in the bundle, whilst the date entered was written or appeared to be written in the same hand as that of the nationality certificate, as was the signature.

20                  The second document was an English language original from the Chandpur Pourashava from 1995 certifying that NAQZ was an inhabitant of that locality (which on his own evidence he had not been since 1992) and a Bangladeshi by birth. According to the Tribunal the font and the typeface were the same as on the electoral roll certificate. It was dated and signed in the same hand as the electoral roll.

21                  The third of these documents was an original affidavit sworn by NAQZ’s mother in law and dated 8 August 2000, accompanied by an English language translation . The affidavit stated that the daughter was to be married to someone in Bangladesh on 12 January 2000, but left the family home on 14 December 1999. The evidence of NAQZ and his wife was that the she had arrived in Australia on 18 November 1999 and that they married on 12 December 1999. NAQZ was then asked when he married. He said it was on 12 December 1999. He was asked if he had been married in 1994 (a claim made in the first visa application and documented by supporting materials). He said that this claim had been made by his first migration agent Mr Amin. He was then asked whether or not he had told the Tribunal at the first hearing that he was married in 1994, and had returned to India from Australia in 1997 but had travelled to Bangladesh to visit his wife and children who were in custody and under arrest in Nepal. He claimed that he had lied as Mr Amin had told him he would not come to the Tribunal hearing if he did not lie. He also claimed that at the Federal Court hearing Mr Amin had told him to say that the interpreter was the member of an opposing faction in Bangladesh, and to continue the lies.  He said that not the entire statement was false. He admitted that at his first hearing before the Tribunal he had lied about the wife and child being imprisoned in Nepal.

22                  There were also copies of four English language documents, dated from 12 to 14 November 2001 from the Bangladesh Chattra League (of which there were two), the Distressed Women’s Rehabilitation Organisation, and the Hindu Boudday Khristan Praishad. The documents were, in summary, letters from members of these various organisations to the appellants informing them about various events that had supposedly occurred in Bangladesh during their absence and exhorting them not to return. The letters, according to the Tribunal, were in the same font and typeface, and had been signed by the same person.

23                  The bundle also contained a variety of newspaper clippings and translations reporting violence against Hindus in Bangladesh.

24                  The Tribunal noted that NAQZ had lied to the Department of Immigration by indicating that he was going to India in 1997, but that he instead had gone to Bangladesh to see his wife. NAQZ in response had claimed that he had gone to India without his passport. He then resiled from his statement that he had lied, and said that Mr Amin had told him to do it. The Tribunal asked him if he believed that if he had been advised by someone to do it, then it would not be a lie. He said it was true that it was wrong, but that Mr Amin set up stories to help people. He claimed that when he found out that Mr Amin was misleading him, he disagreed with him and lost the application. He claimed that he and his wife took action against Mr Amin, whose licence was suspended for a time.

25                  It was put to NAQZ that he had lied and given false evidence about many of the claims. He asserted that everything was now true. It was put to him that the false evidence undermined much of the evidence about his wife, Bangladesh, claims of rape, problems in India, and that there were also problems with inconsistencies, with his activities and even at the hearing. He claimed that he had made a statement to Mr Amin which included a few words to base the story on, and then had questioned it when he realised it was fabricated. However, language difficulties prevented him from going to another migration agent, which is why he had continued to use Mr Amin. The Tribunal noted that NAQZ had since that time two other migration agents, without any communication problems. He claimed that his wife’s case was not affected by the fabrications, which was apparently inconsistent with his earlier evidence.

26                  NAQZ was then asked why he thought his marriage made him a refugee. First he claimed that it did not make him a refugee, then he changed his evidence, and said that the out of caste nature of the marriage increased his problems in Bangladesh, and that the wife’s family were after him. He claimed his fear was Convention related, and should not be seen merely as a private family dispute, as religion was involved. He then changed the subject, claiming that he was wanted by Jamaati e-Islami in Bangladesh. He was asked why a minor party would have any interest in him. He said that they had great influence, and were against Hindus. The Tribunal pointed out to him that he had not been in Bangladesh since 1992, and that he had visited Bangladesh in September and December 1997 without any problems. He then claimed that his brother had come with him to Australia, returned to Bangladesh and then disappeared. This claim had not been made before. The Tribunal asked him for proof. The appellant then produced a newspaper article saying someone had disappeared after returning from Australia, but the article did not mention any names. He claimed he had been able to return to Bangladesh previously because he had travelled on a foreign passport and been discrete. The Awami League had also been in power and they were, according to the appellant, more flexible than the BNP.

27                  It was put to him that he could live elsewhere in Bangladesh. He noted that he had nowhere to go, and no relatives. It was put to him that he had claimed that he had a wealthy family in Bangladesh and a house. He said his parents had gone and that he would have no protection in Bangladesh. He was unable to specify what sort of protection his relatives would have been able to provide.

28                  It was put to NAQZ that he could live in India. He claimed that this was not possible as the Indian government was ‘pushing back’ those who were there illegally. It was put to him that he had claimed to be an Indian citizen, that he had one Indian passport which had been replaced with another and that he had successfully travelled on that passport, including to India. He claimed that he had lived in hiding with his cousin in India. This contradicted his previous claim that that he had lived and worked in India.

29                  He claimed that the Indian passport was obtained by a broker and that the first was no good, although the second one, which was a replacement for the first, was ‘okay’. It was put to him that if the second passport was a replacement for the first, it would be accepted as valid by the Indian authorities. He claimed that it had been obtained through a smuggler, and that it lacked an address. It was pointed out to him that this contradicted his previous evidence.

30                  It was put to NAQZ that he, his wife and son all had Indian passports, and that he had claimed all the members of his family were Indian citizens. He continued to claim that all the passports were obtained through Indian brokers. It was put to him that he claimed that the son’s passport had been obtained from the Indian High Commission in Sydney by Mr Kazi.

31                  At the hearing NAQZ claimed that he had been raped in year 10 by local people several times, tortured on many occasions and that his house had been destroyed. He claimed that he would have the same problems if he returned to Bangladesh.  It was put to him that this was inconsistent with his statement in which he claimed to have been raped by a Muslim teacher in year 10. It was put to him that if he had been raped in 1983 in year 10, he would have been 21 years old. He claimed he was born in 1967 and not 1961.

·        The Tribunal’s decision regarding NAQZ

32                  The Tribunal noted that the independent country information indicated that there was a high prevalence of document fraud in Bangladesh, and that there was further country information indicating that there was a prevalence of document fraud amongst Bangladeshi asylum seekers.

33                  The Tribunal assessed the appellant’s credibility unfavourably, stating:

‘The applicant’s evidence in relation to almost all aspects of his claims had no credibility or veracity. His evidence was a mixture of outright lies, fabrications, contradictions and inconsistencies. He claimed that all the fabrications, lies and misinformation were the products of his migration agents. When confronted with inconsistencies or contradictions, the applicant elaborated or fabricated evidence to reconcile such inconsistencies and contradictions. I do not consider that the applicant was a reliable or a credible witness. The lack of credibility of the applicant’s evidence, and well as my consideration of the independent evidence [relating to document fraud], leads me to conclude that I am unable to be satisfied that the applicant faces a real chance of persecution for a Convention reason in the foreseeable future if he returns to India or Bangladesh.’

34                  The Tribunal accepted NAQZ’s name and those personal details that were recorded in the Indian passport. The Tribunal noted that the Indian passport had been used for successful international travel, as a means of proving identity to obtain a NSW driver’s licence, to register the birth of the appellant’s child, establish the child’s Indian nationality and have the child issued with an Indian passport by the Indian High Commission in Sydney.  The Tribunal did not accept the NAQZ’s evidence that he had acquired the passport illegally, as it considered that evidence to be varied and inconsistent.

35                  The Tribunal rejected the documents the appellant supplied as corroboration of his Bangladeshi identity. It noted:

‘I have serious problems with the documents. The electoral roll document is in the same font and typeface as the nationality certificate document, the dates are in the same hand and the signatures and the dates are in the same hand, yet the documents themselves would appear to represent agencies remote in space and time. Four English language documents which are from various different agencies appear to have been produced in the same font and typeface, and are signed and dated in the same hand.’

36                  In relation to the affidavit of the appellant’s mother in law, it stated:

‘The affidavit from the wife’s mother in law also raises serious questions about the credibility and veracity of the applicant’s evidence. It is purportedly affidavit from the applicant’s wife’s mother deposing that the daughter was to be married on 12 January 2000 in Bangladesh, and that she ran away from the mothers house in Bangladesh on 14 December 1999. It was the applicant’s and his wife’s evidence, supported by the wife’s assertion that the wife arrived in Astrakhan on 18 November 1999 and was married in North Sydney on 12 December 1999.’

37                  The Tribunal stated:

‘The documents provided by the applicant have the flavour and character of the documents described in the independent information [concerning document fraud]. In light of the problems I note with the applicant’s documents, I am unable to accept that the documents produced by the applicant in support of his claims of identity and the situation he might face in Bangladesh, have any credibility or veracity. Therefore, I am unable to accept that the documents are genuine, and consequently, I am unable to give the documents any weight.’

38                  The Tribunal then referred to NAQZ’s claim to have a Bangladeshi passport, and noted that the passport was first used the day before the Tribunal hearing and that it had been the appellant’s previous evidence that he was unable to obtain a Bangladeshi passport. The Tribunal stated:

‘I note the independent country information discussed above about documentation produced from Bangladesh. I also take cognisance of the fact that the applicant’s evidence has neither been credible nor of any veracity in almost all aspects of his case. In light of these considerations, I am unable to accept the [Bangladeshi] passport is determinative of his nationality, date of birth or identity, or that it supports his claim of being a Bangladeshi. It does support the fact that the applicant has the resources to procure such a document…The applicant’s evidence of his identity and passport was confusing, inconsistent, contradictory and implausible.’

39                  Because the Tribunal did not accept that the Indian passport was illegally obtained, the member found it to be valid. It noted that NAQZ’s claims of the languages he could speak were consistent with those of a person who came from West Bengal in India.

40                  As the Tribunal did not accept NAQZ’s claims that he came from Bangladesh, it also rejected his evidence in relation to the ‘escape’ from Bangladesh to India because of religious or political problems, his rape by a Muslim or local people whilst at school, or that he was at risk from political opponents or religious fanatics upon a return to Bangladesh.

41                  The Tribunal found that even if NAQZ’s evidence in relation to the problems that arose because of his inter-caste marriage were to be accepted, these problems did not occur because of a Convention reason.

42                  The Tribunal did not accept that NAQZ had any problems in India, or that he would have any problems if he were to return to India, and consequently rejected his application. As no separate claims had been made on behalf of the son his applicant was likewise rejected.

The History of NAQY’s Claim

43                  NAQY who claimed to be both a citizen of Bangladesh and India, was found to be a citizen of India by the Tribunal. She arrived in Australian on 18 November 1999 and lodged an application for a protection visa on 17 December 1999. On 23 December 1999 a delegate of the Minister refused to grant to her a protection visa. She applied to the Tribunal to review that decision on 27 January 2000.

44                  NAQY claimed to fear persecution in Bangladesh from her family and her ex-fiancé due to her inter-caste marriage, and as a Hindu in a Muslim country. She also claimed to be at risk of persecution from her family, should she live in India because of her marriage.

·        NAQY’s claims

45                  NAQY in her application (which was prepared with the help of a migration agent) claimed to be a Bangladeshi Bengali Hindu of the Saha caste born on 9 July 1976. She claimed that she had attended a school and two colleges in Bangladesh, and that it was whilst she was a student at the second college (Jagannath University College in Dhaka) that she met NAQZ and commenced a relationship with him. She further completed a dress-making certificate in 1991, an embroidery certificate in 1993 as well as a bachelor and a masters of arts. She claimed to be a fashion designer. In 1994 her family found out about her relationship with NAQZ and sent her to live with an uncle in Calcutta.

46                  NAQY claimed that NAQZ visited her twice in 1998 and that her uncle in 1999 arranged a marriage for her with a Bangladeshi (which was to take place on 12 January 2000) when he found out about the visits. Her uncle forced her to redo her secondary schooling and senior high school in India despite the fact that she already had a masters degree from Dhaka university. According to NAQY this allowed her uncle to obtain an Indian passport. She departed legally from India on 17 November 1999 on the Indian passport issued in April 1999.

47                  She claimed to have married NAQZ on 12 December 1999 in Sydney. A friend of her uncle’s in Sydney was named as the guardian of the appellant for the wedding, but objected, and informed the uncle. The friend supposedly told her that her uncle would take revenge on her and NAQZ, and that her Bangladeshi in-laws had received threats from the ex-fiancé.

48                  The appellant provided several documents in support of her claims. Notably these documents included:

(1)   copy of a high school certificate of 1988, dated 25 May 1991

(2)   copy of a secondary school certificate of 1989, dated 31 July 1986.

(3)   copy of a Bachelor of Arts certificate from the University of Dhaka for 1990, dated 18 September 1991

(4)   copy of testimonial from Jagannath University college, certifying that the appellant was student in the master class of political science from 1990 to 1991, dated 9 December 1999, and certified by a migration agent in Sydney on 15 December 1999.

(5)   Copy of a certificate from the Narsingdi government college certifying that the applicant got ‘second division’ in her Arts degree in 1991, dated 10 November 1999 and certified by the migration agent on 15 December 1999.

(6)   Copy of a testimonial from Narsingdi government college certifying that the appellant ‘got third division’ in the higher secondary certificate in the humanities group in 1988, dated 21 December 1999. It was certified by the migration agent on 15 December 1999.

·        NAQY at the hearing before the Tribunal

49                  At the hearing before the Tribunal on 1 February 2002, the appellant was assisted by an interpreter and represented by counsel. She confirmed that all the information in her application was true and correct.

50                  The Tribunal inquired about the NAQY’s passports. She claimed that her Indian passport had been obtained by smugglers, and that her Bangladeshi passport was lost. She claimed that her son’s Indian passport has been obtained by a previous migration agent, Mr Kazi who did not know that the child was a Bangladeshi. She was asked if she had provided Mr Kazi with documentation which would have led him to believe the son was Indian. She claimed that she had not been asked, and was not aware of anything going on, and that she had merely asked for a passport which was needed for medication and one was provided. At a later point in the hearing, she stated that her Indian passport had been used to identify the boy as an Indian national. She said she knew that what she had done was illegal, but that she had taken the advice of professional people. Although she was aware of moral standards, she was in a new country and did not know the new culture. She claimed that whenever she sought to mislead, her moral principles kicked in and she told her husband or someone else, but that she had to find a way to stay in Australia.

51                  NAQY produced a NSW driver’s license which had the same date of birth as was shown in her Indian passport. It was consequently inconsistent with the date of birth provided in her application (9 July 1976), the veracity of which she maintained at the hearing. She was unwilling or unable to indicate what identification she had produced to gain the driver’s licence. In response to a later and different question from the Tribunal, she claimed that she had presented her Indian passport to gain the driver’s licence.

52                  The Tribunal asked what she had studied for her Masters of Arts. She said she had studied political science, but was unable or unwilling to say if it had been by course work or thesis, or what specific subjects she had studied.

53                  NAQY said that she could not return to Bangladesh because of fear of her family, her relatives and Jamaati e-Islami. She primarily claimed that she was afraid of her family due to her inter-caste marriage to NAQZ, and that she had been threatened because of it. When it was put to her that she could live in other places in India and Bangladesh, her answer, in summary was that she had tried but believed that she was in danger. She was asked why such a claim had never been mentioned before, but she was unable or unwilling to say. She further claimed that she and her husband had tried to live elsewhere in India but resiled from this when the Tribunal indicated that it had not previously understood that she and her husband had lived together in India. She claimed that her husband had problems in India due to the Muslims, and that she had a big family there. NAQY claimed that after her engagement to NAQZ her family had arranged Muslim people against her. The Tribunal asked if this had occurred in India, and she replied that she had been attacked on the streets quite a few times. She was unable or unwilling to say why this claim had not been mentioned before, but later noted that the attacks had taken place in September 1999 and that she had been tortured many times.

54                  The Tribunal put it to her that her claim was incredible. She then claimed that her family had first kicked her out because of her affair with NAQZ, then arranged a marriage, and finally organised the Muslims against her. She was unable or unwilling to say why the family would have arranged the marriage after kicking her out of the family. NAQY then stated that she had left Bangladesh for India to seek shelter and safety from her family, after they organised Muslims against her some time after 1992. It was put to her that she had previously said that the family had sent her to India to stop the affair. She claimed that she fled to India after the marriage was arranged, as she did not like the fiancé. It was put to her that she had previously dated the year of the inception of the arrangement as 1999. She claimed that the family arranged a marriage in 1993 or 1994 to get her used to the idea.

55                  NAQY claimed that she saw NAQZ in September and December 1997 and was under mental pressure from her uncle who did not want her to remain living with the uncle after he realised that the affair was continuing. She said that after the visit the uncle said that she could no longer stay with her uncle, and that she was kicked out of the family. She claimed that she stopped living with the uncle in October 1999, went to live with a friend, and then received the visa for Australia. However, she also claimed that the uncle obtained the passport in 1998 from a broker but then stated that he did not organise it for her.

56                  She claimed to have attempted suicide for the second time in 1997. It was put to her by the Tribunal that there was no record of NAQZ entering India that year and that he had in fact denied it previously. She claimed that he had gone by road, and bribed officials but was unwilling or unable to say why that would be necessary. She resiled from her statement, in which she had written that he visited her in 1998.

·        The Tribunal’s decision in relation to NAQY

57                  The Tribunal first referred to country information which indicated the prevalence of document fraud in Bangladesh. It later accepted this information.

58                  The Tribunal held that NAQY did not have a fear of persecution for a Convention reason. It said:

‘The applicant’s evidence in relation to most aspects of her claims was vague, generalised, unconvincing and lacked specific detail. I do not consider that the applicant was a reliable or credible witness. The lack of credibility of the applicant evidence, as well as my consideration the independent [country information on the prevalence of document fraud in Bangladesh] leads me to conclude that I am unable to be satisfied that the applicant faces a real chance of persecution in the foreseeable future if she returns to India or Bangladesh.’

59                  The Tribunal did not accept that NAQY was a Bangladeshi, but held that she was Indian. The Tribunal member stated that her Indian passport appeared to have been legitimately issued, and that it had been used several times by her to enter and exit Bangladesh, and to enter Australia. The passport had been used as identification for the purpose of gaining a NSW drivers licence, and to establish her son’s Indian nationality and Indian passport.

60                  The Tribunal noted that NAQY had given many inconsistent accounts of how and when the passport was supposedly illegally (or legally) obtained. It rejected her claims that the passport was illegally obtained, and noted that the languages she spoke were consistent with those of an Indian West Bengali.

61                  The Tribunal then considered the documents tendered by NAQY as proof of her identity, the majority of which were education certificates. It pointed to the fact that many of these documents were dated only a few days prior to being certified as correct, and that one, the document concerning the HSC in 1988 was dated on a date later than the date on which it was certified as being correct. The Tribunal said ‘all the various educational certificates had been written in only two different hands.’  It concluded:

‘The documents provided by the applicant have the flavour and character of the documents described in the independent information. In light of the problems I note with the applicant’s documents, just some of the many and varied inconsistencies and difficulties with the applicant’s documents, and the independent information, I am unable to accept that the document produced by the applicant in support of her claims of identify and the situations she faced in Bangladesh have any credibility or veracity. Therefore, I am unable to accept that the documents are genuine, and consequently, I am unable to give the documents any weight.’

62                  The Tribunal further rejected that NAQY had been sent to India and her evidence that she had escaped from Bangladesh to go to India. It rejected also the claims that NAQY had an affair in Bangladesh with NAQZ, or that a marriage was arranged by her family or an uncle at any time, that Muslims were sent against her, or that her travel to Australia was arranged by NAQZ or the uncle. The Tribunal also noted that even if NAQY feared persecution from her family on the ground of the marriage, this would not be for a Convention reason.

The Decision of the Federal Magistrate in relation to both NAQZ and NAQY

63                  The applications of NAQZ and NAQY were heard together before the learned Federal Magistrate, and his Honour handed down his decision in one set of reasons applicable to both appellants.

64                              The reasons of the learned Federal Magistrate were handed down after the decision of five Judges of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. His Honour was therefore bound to hold that s 474 of the Migration Act 1958 (Cth) (‘the Act’) precluded judicial review except in a case which fell within one of the three provisos referred to in the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. However, his Honour held that none of the provisos applied in the present case.

65                              NAAV is no longer good law: SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 per Gray, von Doussa and Selway JJ at [19]; SDAV v Minister for Immigration & Multicultural & Indigenous Affairs, Minister for Immigration & Multicultural & Indigenous Affairs v SBBK [2003] FCAFC 129 per Hill, Branson and Stone JJ at [34]); Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168.

66                  At the hearing before the learned Federal Magistrate it was firstly submitted that the Tribunal breached s 424A(1) of the Act because notice had not been given to the appellants of country information on which the Tribunal had relied. The Federal Magistrate held that s 424A(3) of the Act applied. That subsection provides that s 424A(1) does not apply where information is a relevant part of the determination but where it is not specifically about the applicant, or is just about a class of persons of which the applicant is a member. The Federal Magistrate was satisfied that the issue of document fraud formed part of the reason for the Tribunal affirming the decision of the delegate. However, as the country information concerned document fraud in general, the learned Federal Magistrate considered that it met the criteria of s 424(3) of the Act, and that no error of law was consequently demonstrated.

67                  Secondly, counsel for the appellants argued that a reasonable apprehension of bias was evident in the Tribunal’s decision. The learned Federal Magistrate rejected this argument on the basis of the authority of NAAV.

68                  Thirdly, the Federal Magistrate rejected the contention that the proceedings were generally unfair, and noted that if they were this unfairness would be protected from review by NAAV.  However, his Honour also noted that:

‘It may be arguable that for other reasons the proceedings before the RRT in this matter were unfair. It may be arguable that the presiding member failed o put properly to these applicants or at all that Bangladeshi documents that they were relying on were fraudulent. It seems that from the reasons for decision of the RRT that the presiding member concentrated on the Indian passports in putting questions to the applicants and gave scant, if any attention to the Bangladeshi document…He did, however, in his reasons for decision, place considerable emphasis on the fact that he regarded the Bangladeshi documents relied upon by the applicants as fraudulent. …I do note that the Bangladeshi documents were before the RRT at the hearing and that they had been advanced by the applicants, but I am surprised at the dearth of discussion about those documents in the section of the reasons for decision dealing with matters that were put to the applicants.’

The Appellants’ Grounds of Appeal before this Court

69                  The appeal to this Court was first listed for hearing on 24 April 2003. However, the appellants appeared in person and asked for an adjournment as they had found a counsel who was willing to represent them, but who was unable to do it at short notice. The hearing was consequently adjourned until 8 May 2003.

70                  On that day, counsel for the appellants provided written submissions in support of the appeal. These raised the following arguments:

1)      That there was a denial of natural justice as the Tribunal did not put to the appellant that it suspected that the Bangladeshi documents were fraudulent and thus allow them an opportunity to comment on it. The appellants relied on Muin v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 190 ALR 601 for the proposition that adverse general information had to be disclosed to an applicant.

2)      That the appellants were denied natural justice as they were not given an opportunity to comment on the adverse country information. The argument was put in a number of ways:

a)      It was submitted that s 424(3) of the Act did not apply in the present case as the Tribunal used the information as if it was specifically about the appellants.

b)      Counsel for the appellants submitted that that the term ‘class’ must have an ordinal scale otherwise the word ‘group’ would be used. As nationality could not be measured on an ordinal scale, country information about people from Bangladesh would not fall within the phrase ‘a class of people’.

c)      It was submitted that if the Tribunal undertook independent research (by finding and using country information) and that this resulted in the Tribunal appearing to ‘have preconceived ideas towards the appellant and [express] strong views against a whole class of persons’ the appellants were entitled to be informed of the adverse information.

3)      That the Tribunal fell into jurisdictional error when it ignored relevant information, namely the previous Tribunal’s decision and the decision of the delegate, which both held that the male appellant was a Bangladeshi rather than an Indian.

71                  At the hearing, the appellants’ counsel sought and was granted leave to argue the first ground as a general proposition divorced from reliance on Muin. Leave was also granted for both the appellants and the respondent to file further submissions concerning the relevance of practical injustice to the Court’s ability to provide or deny discretionary relief for a denial of natural justice. The respondent provided further submissions on 14 May 2003.  No further submissions were received from the appellants.

72                  Muin cannot be relied upon by the appellants.  It stands for the proposition that procedural fairness will have been denied in a case where an applicant before the Tribunal is misled into thinking that the Tribunal has considered relevant information so that the applicant does not place information before the Tribunal which he or she otherwise might be able to put: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293, per Kiefel J (with whom Spender and Moore JJ agreed) at [24], NADD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 275, per North, Mansfield and Downes JJ at [26].  That was not the situation here.

73                  The argument of the appellants is essentially that there was a denial of procedural fairness in the present case, either because the Tribunal had not made it known to the appellants that the Tribunal might rely upon country information about the prevalence of forged documents among Bangladeshi applicants or because the Tribunal had not alerted the appellants to the fact that the Tribunal might find the documents tendered to be forgeries and thus denied the appellants the opportunity to put such matters as they might wish to, to the Tribunal to persuade the Tribunal that the documents were, in fact, not forgeries.

74                  The submissions that the country information document falls within s 424A(1), so that the appellants were required to be notified of it are of no substance.  Section 424A 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.

…

(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.’

75                  With respect to the three ways in which the appellants framed their submission on this point, it can hardly be doubted that the country information was other than information about a class of people and not information specifically related to the appellants.  The attempts to submit otherwise must clearly fail.  Hence the only way the appellants’ case can be put, so far as that case raises denial of procedural fairness by the Tribunal in failing to alert the appellants to the proposed use of the country information is that s 424A was not an exclusive code concerning the application of the rules of procedural fairness so far as they related to documentary material of general application.

76                  That question has been decided by WAEJ v Minister for Immigration & Indigenous Affairs [2003] FCAFC 161 where a Full Court comprising Lee, Marshall JJ and myself said at [37]:

‘It is clear that the RRT relied on country information in the course of dismissing the appellant’s claims.  In doing so, without advising the appellant of its intention to rely on that material and without offering him an opportunity to comment upon it, the RRT denied the appellant procedural fairness.’

77                  We rejected an argument to the contrary based upon what had been said in WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 for the reasons set out in WAEJ.  I am bound by the Full Court’s decision and in any event it represent my views on the question.

78                  The present, like WAEJ, is not a case where the provisions of s 422B (which now makes the Division in which s 424A appears an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters the Division deals with) can apply.  That section commenced on 4 July 2002 and is applicable only to reviews of decisions by the Tribunal which commence after that date: Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth).

79                 There is therefore a question whether the Tribunal said anything to either appellant concerning either the existence of the country information or the possibility that the documents were forged.  It was held in WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 that there is a denial of natural justice, at least generally, where the Tribunal rejects documents as not being genuine without affording the party tendering them the opportunity to put to the Tribunal such matters as it may be able to so as to answer the charge that the documents are forgeries.  The Full Court said in that case at [53]-[54]:

‘In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the applicant.  However, it can be said that a finding that the letters were forgeries could turn upon the credit of the applicant in so far as the finding is that the letters have been concocted by the applicant to advance his case.  But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it.  A finding of forgery, just like a finding of fraud is not one that should lightly be made.  Both involve serious allegations.  Forgery, indeed, is a criminal offence.

Where the finding of fact made does not turn upon the credibility of the applicant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.’

80                  It was also held in that case, contrary to the submissions advanced by the Minister in the present case, that it is not necessary for an applicant denied natural justice to demonstrate as part of his or her case that he or she could have adduced evidence which demonstrated that the proceedings would have been decided differently if he or she had been alerted to the matter which was not made known to him or her by the Tribunal.  In a case such as the present, once it has been shown that there has been a denial of procedural fairness the decision which is challenged will be set aside unless the facts are such that a properly conducted proceeding could not possible have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141.

81                  There is no doubt that in both the case of NAQY and the case of NAQZ the documents found by the Tribunal to be forgeries were potentially corroborative of a crucial aspect of their case.  It was relevant to the rejection of their case that the appellants were found to be nationals of India and not nationals of Bangladesh.

82                  However, the Full Court in WACO did qualify their statement of the principle.  Their Honours left open the situation where there was something on the face of the documents themselves which would alert the parties to the proceedings that there is a real issue to be decided as to whether the documents in question were forgeries.

83                  There is an analogy to be found in the not unrelated rule in Browne v Dunn (1894) 6 R 57 (House of Lords).  While it will ordinarily be unfair for a tribunal acting as a trier of fact to decide a matter adverse to a party without putting to the party the adverse matter and permitting the party to comment upon it, this will not be so where expressly or impliedly the party has been alerted in advance that the matter is one which is in issue in the case: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 83 ATC 4015 at 4027.  That was a case where the matter not put to the witness was such that the dispute was one which should have been apparent without express notice.  The learned authors of Phipson (12^th ed. 1976) cited in Allied Pastoral qualify the rule, noting that the necessity to put a matter to a witness would not arise where either the witness has notice beforehand or where the story is itself of an incredible or romancing character.

84                  As appears from the decision of the Tribunal there were matters of concern about the documents tendered in each case.  Documents from diverse sources may have been written by the same hand or prepared on the same printer or signed by the same person.  There was a problem with the dates of certain documents.  Although it is not mentioned by the Tribunal some documents appear to have the same spelling errors.  While these matters might likely, in the absence of any evidence to the contrary, result in a finding that the documents were forged it has not been suggested that the case was one where no evidence to the contrary of forgery could be adduced.  For example, handwriting which to a non-expert may appear the same may to an expert not appear that way.  Nor has it been suggested that the documents on their face were of such a quality that either appellant could be said to have been alerted in advance that there was an issue he or she would have to meet as to the genuineness of the documents.  Since the documents were of great significance in the case fairness required the Tribunal member to at least alert the appellants that there was, to his mind, an issue of the genuineness of them.

85                  Ultimately, as Gleeson CJ observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 the question whether a person has been denied natural justice is one of fairness.  Ordinarily denial of procedural fairness will mean that there has been unfairness.

86                  For the appellants to succeed, however, they must prove that the Tribunal did not alert them to the country information and did not make it clear that there was an issue for the appellant to deal with as to the genuineness of the documents.  The appellants did not seek to tender a transcript of the proceedings before the learned magistrate, nor did they tender it before me.  In any case on appeal, it would be far from self-evident that leave to tender the transcript should be given. 

87                  The present is not a case where counsel for the Minister has conceded that the Tribunal made no reference to the country information covering the prevalence of forged documents in Bangladesh.  There is no concession either as to whether the Tribunal made any comments such as would alert the appellants to the fact that the Tribunal was likely to conclude in the absence of further evidence that the various documents tendered were forgeries.

88                  Accordingly a foundation for a case that the appellant were each denied procedural fairness has not been made out.

89                  The appellants’ last submission was that the Tribunal committed a jurisdictional error when it failed to take into account relevant information, namely the decision of a previous Tribunal and of a Minister’s delegate that the male appellant was a citizen of Bangladesh (rather than India). With respect to the appellants’ submission, the Tribunal function is to provide applicants for protection visas with de novo review of an unfavourable decision of the Minister’s delegate. The Tribunal is therefore not required to take into account factual findings by a previous Tribunal or by the Minister’s delegate. In fact overt reliance on such previous findings of fact by the deciding Tribunal may very well amount to taking it taking irrelevant considerations into account: NANX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 734, per Gyles J; Collins v Minister for Immigration (1981) 58 FLR 407, Full Court at 411-412, Aung v Minister for Immigration & Multicultural Affairs [2000] FCA 1562, Katz J at [4]-[7]. The appellants have therefore failed to make out this ground of appeal.

90                  The appeal will accordingly be dismissed with costs.

Associate:

Dated:              17 August 2003