FEDERAL COURT OF AUSTRALIA

NAJO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356

MIGRATION – Refugee Review Tribunal – judicial review – protection visa – corroborative documentary evidence – rejection of documentary evidence – finding by the Refugee Review Tribunal that documents were a fabrication – possibility of fabrication never put to appellant – breach of procedural fairness – jurisdictional error – appeal allowed

Migration Act 1958 (Cth)

WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 applied

NAJO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1502 OF 2003

MOORE J

SYDNEY

31 MARCH 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders of the Federal Magistrate of 11 September 2003 be set aside.

3.                  A writ of certiorari issue to remove to this Court and quash the decision of the Refugee Review Tribunal of 18 December 2002.

4.                  A writ of mandamus issue directing the Tribunal to determine according to law the appellant's application for a protection visa.

5.                  The respondent pay the appellant two thirds of the 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

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from a judgment of a Federal Magistrate of 11 September 2003, dismissing an application for judicial review of a decision made by the Refugee Review Tribunal ("the Tribunal").  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act").

Background

2                     The appellant is a national of Bangladesh.  He arrived in Australia on 7 August 1999.  On 17 September 1999, the appellant applied to the Department of Immigration and Multicultural Affairs for a protection visa, which was refused by a delegate of the Minister on 8 November 1999.  On 25 February 2000, the appellant lodged an application with the Tribunal for review of the delegate's decision.  The Tribunal made its decision on 18 December 2002, affirming the delegate's decision not to grant the appellant a protection visa.  The appellant lodged an application for judicial review of that decision.  On 11 September 2003, the Federal Magistrates Court dismissed that application.

3                     The appellant claimed a fear of persecution in Bangladesh on the basis of his political opinion.  The Tribunal, in its reasons for decision, set out a summary of the appellant's primary claims:

the [appellant] claimed he was a member of the student wing of the Jamat-e-Islami (JI), that he was elected general secretary of the local branch of the party at a young age, that he was a leading activist, motivating members to oppose the Awami League and that as a result the AL was "adamant to kill him".

4                     I turn to consider the Tribunal's decision in more detail.

The Tribunal's Decision

5                     The Tribunal apparently accepted that the appellant was a national of Bangladesh.  In substance, it accepted virtually no other aspect of his claims concerning his experiences in Bangladesh.  The appellant's claims can be summarised as follows. He had been an active member of a student wing of Jamat-e-Islami ("JI").  He had completed his tertiary education in 1997 after which he became the general secretary of a district branch of JI.  In 1998 he was injured in a clash with supporters of the Awami League ("AL") which was one of several occasions on which he had been assaulted.  He claimed that false charges were brought against him and were still pending in Bangladesh.  I should add that a closer examination of the various statements furnished by the appellant and his account at the hearing would indicate that this may not accurately (or at least comprehensively) reflect what he claimed were his experiences.  However, for present purposes it is sufficient.

6                     The Tribunal appeared to accept that the appellant had been involved in politics when he was a student.  The Tribunal made no positive finding, one way or the other, whether the appellant had been assaulted in 1998.  In relation to a newspaper clipping which the appellant relied on as containing a photograph of him injured and bandaged at the time of this incident, the Tribunal simply said "even if the person in the newspaper is the [appellant]" and then characterised the incident as an isolated and individual criminal assault.  If the newspaper clipping was not bogus (and the Tribunal did not say it was) then the Tribunal could have called on the appellant to provide a translation or obtained one itself.  One would have thought that having a translated version would have provided a surer foundation for dealing with this document.  Apparently on the assumption that the appellant might have been injured when involved in student politics, the Tribunal said:

One very sound way to avoid confrontation in student political clashes would be for the [appellant] to dissociate himself from student politics, which are compromised by violence and thuggery. In fact, he claims he already did this, some time before he departed Bangladesh, and in his evidence no further attacks occurred notwithstanding the evidence of his having remained at large and living his usual life.

(…)

there has been a significant change of circumstances the [sic] [appellant's] life, in detaching himself entirely from student politics, and that there has been significant change in Bangladesh itself, with the change of government, confining the [appellant's] claimed problems to the past, if they ever existed at all; and here is the main problem for the [appellant], for the Tribunal has come to the view that he has fabricated the bulk of his evidence.

7                     The Tribunal did not accept that the appellant was an office holder with any branch of JI, and held that this was sufficient to reject the claim for the protection visa, as the appellant's application was based on the claim that he had been "a JI leader of some notoriety".  At an earlier point in its reasons, the Tribunal indicated the appellant's evidence concerning the structure of JI was "vague and not what one would reasonably expect to be the understanding of one of its office holders".  The appellant's explanation of how he became an office bearer was viewed by the Tribunal as "utterly unrepresentative of the dynamics within political parties" and that the appellant's explanation of how he became the general secretary of the branch while a teenager when the other members were in their thirties was "not reflective of competition within political bodies".

8                     In relation to what it viewed as the appellant's failure in Australia to keep abreast of political events in Bangladesh, the Tribunal noted that:

a person interested enough in the JI to become one of its local leaders, and afraid enough of being killed for doing so, would have taken an interest in the party's fortunes particularly in light of its present position of force and influence, but the [appellant] drew what could reasonably be called a complete blank on the subject.

9                     In relation to the appellant's claim that AL workers had brought false charges against him, the Tribunal noted that the appellant claimed:

the AL was using its influence whilst in government to witch-hunt political enemies by manipulating police and the courts.  By definition, this scheme would have to have come undone as soon as the AL lost government.  However, according to the [appellant], in vague and illogical evidence, he is still in danger of going to jail even though the government knows of the AL’s past methods of disarming political foes.

10                  In support of this claim of false charges having been brought, the appellant furnished letters from what the Tribunal described as "friends and family".  The Tribunal said:

Addressing this claim, [the appellant] has submitted letters written to him in English purportedly from friends and family saying that police are still looking for him.

The Tribunal dealt later in its reasons with this material by simply saying:

The Tribunal dismisses as products of self-serving fabrication all the letters and documents purporting to support the [appellant's] claims about being hunted by the authorities.

11                  In relation more generally to the claim that he was facing false charges, the Tribunal found that he gave:

vague, illogical and outlandish evidence as to how he became aware of so-called charges against him. This goes against him, as does the fact that in so much time, nothing was done to follow up the so-called charges.

12                  In reaching its decision, the Tribunal was aware (and noted) that the Bangladesh Nationalist Party ("BNP") held government in Bangladesh until 12 June 1996, when it was replaced by the AL.  In October 2001, the BNP was returned to government and formed a coalition with JI.  The Tribunal indicated, in its view, that the change in political circumstances had made the situation better for JI supporters, and made it more remote that JI supporters, office bearers, and former office bearers, would have any difficulty with authorities in Bangladesh.  Further, the Tribunal found that even during the period the AL governed, the appellant had been of no interest to the authorities as he had been able to obtain a passport from the authorities while the AL governed.

The Reasons of the Federal Magistrate

13                  The appellant contended before the Federal Magistrate that the Tribunal's decision was affected by actual bias, that the Tribunal failed to exercise jurisdiction, failed to review the decision and failed to comply with its obligations under s 430 of the Act such that this failure constituted jurisdictional error.

14                  Before dealing with the appellant's specific claims, his Honour noted that the Tribunal's decision:

does not set out, as is common in these matters, the substance of the debate between the Tribunal and the [appellant] so that when the Tribunal comes to its reasons for decision a logical pattern can be ascertained.  In this decision information is very much mixed with comment….

15                  In relation to the allegation of bias, the appellant pointed to the Tribunal's reasons and submitted that the Tribunal should have set out the evidence which he advanced to establish his claim of a well-founded fear of persecution for a Convention reason, compared that evidence with the country information available to it and indicated which evidence it preferred and why.  The appellant claimed the Tribunal's failure to do so indicated it did not perform its task at all or it performed it with a closed mind.  Before the Federal Magistrate, the appellant did not rely on anything other than the Tribunal's reasons in support of his contention that the Tribunal had been biased.

16                  In dealing with the allegation of actual bias, his Honour set out the applicable principles when considering bona fides discussed in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 756; [2002] FCAFC 361 at [43] and following:

First, an allegation of bad faith is a serious mater involving personal fault on the part of the decision maker.  Second, the allegation is not to be lightly made and must be clearly alleged and proved.  Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition.  Fourth, the presence or absence of honesty will often be crucial.

The fifth proposition is that the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme.  This is especially so where all that the applicant relies upon is the written reasons for the decision under review.

Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; … Bad faith is not to be found simply because of poor decision making.  It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism.

Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.

Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task.

Ninth, it is not necessary to demonstrate that the decision-maker knew the decision was wrong.  It is sufficient to demonstrate recklessness in the exercise of the power.  (Citations omitted)

17                  His Honour observed that the comments of the Tribunal in its decision might be comprehended by circumstances discussed in three cases.  The first was SDAA v Minister for Immigration [2002] FMCA 184 (a judgment of his Honour) in which he had said that "the strong language used by the RRT, although indicative of a lack of sympathy, could not itself constitute a lack of bona fide".  The second was Mr H v Minister for Immigration and Multicultural Affairs [2000] FCA 668 in a judgment of Hely J as quoted in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at 46 per Branson and Katz JJ:

It is probably a fair comment to say that the transcript reveals that the presiding member exhibited a degree of scepticism and impatience with the story which was being told to him.  At some points in the transcript, the presiding member indicated that he did not find what was being put to him by the applicant in the least bit convincing, and that he believed that the applicant was lying

(…)

It would have been better if some of the statements made by the member had been left unsaid.  But I am not satisfied that the member came to the hearing with his mind made up such that he was not open to persuasion.

The third was a joint judgment of Heerey and Kiefel JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SBAN  [2002] FCAFC 431 at [8]:

Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith.  Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty.

18                  The Federal Magistrate did not accept that the Tribunal had a closed mind having regard to the Tribunal's reasons.  His Honour noted that in the past, where such a finding has been made, it usually requires evidence from the transcript or tapes of the Tribunal hearing.  The appellant had accepted that nothing in the transcript would add to his claims.

19                  As to whether the Tribunal had failed to review the decision of the delegate, his Honour was satisfied that the Tribunal understood and considered the appellant's claims and the evidence before it.  His Honour found that it was open to the Tribunal to be:

sceptical of the [appellant's] claim that he was a leader of JI… If the [appellant] was not as an important member of JI as he said he was then he is unlikely to have been targeted by the Awami League. If he was not being targeted by the Amwai League he had no genuine fear of persecution.  The Tribunal also noted that the Awami League was no longer in power in Bangladesh and this too would lessen the prospects of the [appellant] being persecuted if he returned to his country.

20                  His Honour dismissed the appellant's claims.

Issues in the Appeal and its Disposition

21                  The notice of appeal, as filed, raised the following grounds:

(a)       His Honour erred in not finding that the Refugee Review Tribunal ("RRT") in its decision handed down on 22 January 2003 made jurisdictional error.

(b)       His Honour erred in not finding that the RRT failed to exercise jurisdiction.

(c)        His Honour erred in not finding that the RRT was affected by actual bias.

(d)       His Honour erred in not finding that the RRT failed to review the decision.

(e)        His Honour erred in not finding that the RRT failed to comply with its obligations under s 430 Migration Act 1958 such that it can be said that there is jurisdictional error.

22                  On the first day of the hearing of the appeal, counsel for the appellant sought an adjournment to obtain a transcript of the hearing before the Tribunal and to give consideration to whether the basis upon which the decision was being challenged should be widened.  While counsel for the Minister sought the costs occasioned by the adjournment, the adjournment was not opposed.  At the resumed hearing of the appeal, the appellant provided particulars of ground (a) in the following terms:

1.         The RRT denied the Appellant procedural fairness in that it dismissed documents supporting the Appellant's claims as self-serving fabrications but did not give to the appellant the opportunity to comment or give evidence in relation to the allegation and/or finding involved.

2.         The RRT made a finding that the Appellant had dissociated himself from student politics when there was no evidence to support such finding.

3.         The RRT failed to consider whether any modified behaviour (as found by the RRT) in the Appellant dissociating himself from student politics was influenced by a threat of harm if he did not dissociate himself from student politics.

23                  The first particular was based, in part, on the judgment of the High Court in Applicant S20/2002 v Minister for Immigration & Multicultural Affairs (2003) 198 ALR 59 and the second and third particulars were based on the judgment of the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112.  While counsel for the Minister understandably did not do so with enthusiasm, she accepted that the issues raised in the notice of appeal as amended by the particulars, could be treated as the grounds of the application for judicial review and the appeal could proceed on the basis that the Federal Magistrate should have set aside the Tribunal's decision if one of the grounds was made out.  The transcript of the hearing before the Tribunal was admitted into evidence without objection.

24                  In my opinion, the Federal Magistrate correctly concluded that the appellant had not made good his contention that the Tribunal was biased.  I will not repeat his Honour's reasons for reaching that conclusion which are adverted to above.  The portions of the transcript, which the appellant relied upon in the appeal in further support of the allegation of bias, do not, in my opinion, take the matter further in any material respect.  The Tribunal member was plainly sceptical of the appellant's claims and took a fairly vigorous approach in testing them.  However, this falls well short of establishing that the Tribunal approached its consideration of the appellant's claims with a closed mind.

25                  Grounds (b), (d) and (e) can conveniently be considered together.  It is not entirely clear to me which aspect of the appellant's claims it is alleged the Tribunal failed to consider other than the documents which are discussed below.  It did consider them and dealt with them in its reasons.  The flaw in the way the Tribunal dealt with them involves a denial of procedural fairness which is discussed later.

26                  The third particular of ground (a) is based on an argument that the reasoning of the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (supra) applies in the present case because the Tribunal, in the passage quoted at [6] above may have been suggesting that the appellant could avoid harm which he might otherwise suffer by refraining from expressing his political opinion, in particular, by dissociating himself from political activity.  However, I do not think that is what the Tribunal meant, though the first sentence in the quoted passage contains what appear to be two fairly disjointed thoughts.  All the Tribunal was really saying was that, on the facts as it found them, the appellant had moved on from student politics and, accordingly, had moved from a situation where he was at risk of harm from the violence and the thuggery associated with student politics.  The Tribunal's reasons do not reveal, in my opinion, an error of the type identified by the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (supra).

27                  I also consider, for similar reasons, that the Tribunal did not err in the way contended in the second particular of ground (a).  Counsel for the Minister accepted that the appellant had not claimed that he had dissociated himself from student politics and that, in this respect, the Tribunal made an error of fact.  However as I apprehend what the Tribunal was saying, it was not using the expression "dissociate himself" in quite the way both counsel appeared to understand it.  As noted earlier, I understand the Tribunal to have been saying that the appellant moved on from student politics to politics in another form (as a member of the district branch).  There is some evidence emerging from the transcript which would support this conclusion though, I must say, it was the result of the Tribunal taking a particular view of what the appellant was saying and then directing the questioning on the assumption that the view was correct.

28                  I lastly consider the first particular of ground (a).  An important part of the appellant's claims was that he had been falsely charged by his political opponents and was being sought by the authorities with possible dire consequences for him.  He provided the Tribunal with two letters purportedly from a Bangladeshi lawyer and two letters purportedly from his father.  It is probably these four documents which are comprehended by the Tribunal's remarks quoted at [10] above.  The Tribunal's rejection of the documents was perfunctionary.  There are, I accept, aspects of the documents which might raise doubts about their authenticity.  Comparing the two letters from the father, the signatures of the father are markedly different.  Comparing the two letters from the lawyer, the qualifications of the lawyer in what appears to be letterhead are different.  In the letter dated 1 November 1999, the first qualification in the letterhead is "B.S.S. (Hons)" and in the second letter dated 1 April 2000, the first qualification in letterhead is "B.S.C. (Hons)".  Ultimately the Tribunal may have a firm foundation for rejecting the letters as not being authentic.  However, that is not the point raised in this ground which concerns unfair processes: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 particularly at [59] and [80] per Gaudron and Gummow JJ.

29                  This issue was considered recently by French J in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912.  The facts are similar and it is convenient to set out a passage which both refers to the relevant principle and its application to the facts.  His Honour said at [34] and following:

It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant.  There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility.  To proceed otherwise risks putting the cart before the horse.  But to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error.

In Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59, McHugh and Gummow JJ observed at 70 [49]:

'In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.  It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.  If the critical passage in the reason of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration.  The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question.  That may be a preferable method of going about the task presented by s 430 of the Act.  But it is not irrational to focus first upon the case as it was put by the appellant.'

Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility.  In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness.  This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision.  But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness.  Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility. 

In the present case there is no doubt that the Tribunal made findings generally adverse to the credibility of the appellant.  It decided that the appellant's claims of involvement with the Freedom Movement of Iran were fabricated.  That finding having been made would perhaps have supported a finding that the email from the Secretary-General should be given no weight.  But the Tribunal expressly disclaimed any reflection upon the character of the author of the email and observed that: 

'No doubt the applicant is well-enough connected there to have such statements arranged.'

This was a proposition, which as the learned magistrate observed, was not supported by any evidence before the Tribunal.  It was a proposition that the Tribunal never put to the appellant and does not naturally flow from adverse findings as to his credibility.  It essentially involves a finding that the appellant has been involved in some kind of conspiracy with a person or persons in Iran to fabricate information about his connection with the Freedom Movement to dupe its Secretary-General so that he would send an email to Australia confirming the appellant's involvement.  None of this was ever put to the appellant.  Moreover, it provided a basis for rejection of the document which meant that it did not have to be taken into account in the assessment of credibility. 

It might be argued that the Tribunal's reasons should be construed as involving an adverse finding in relation to the appellant's credibility which in turn supports the rejection of the email evidence and the hypothesis that it was fabricated in the way suggested.  The difficulty with that characterisation of the Tribunal's reasoning is that it is not apparent from the way the Tribunal has expressed itself.  The strong impression left after reading the reasons is that the Tribunal has reconciled the existence of the email evidence with its preceding findings as to credibility on the unsupported ground that it was produced pursuant to a fraudulent arrangement made by the appellant himself.

In my opinion there was, in the Tribunal's treatment of the email, a failure to accord procedural fairness to the appellant by at least putting to him the Tribunal's suspicions about the way in which the email came into existence.

30                  The above reasoning is apt to apply in the present case.  While the Tribunal plainly entertained considerable doubts about many aspects of the appellant's claims and rejected most of them, its reasons do not reveal that it reached such a state of incredulity that it simply believed nothing the appellant said.  In those circumstances, in my opinion, the Tribunal was obliged to raise with the appellant its doubts about the documents before rejecting them in the terms it did.  I do not accept, as counsel for the Minister submitted, that by referring to "fabrication" the Tribunal was limiting its observations to the contents and not suggesting the documents were either fraudulent or forged, which are the terms used by French J in the passage quoted above.  In any event, as French J observed, the obligation to raise doubts the Tribunal may have with an applicant arises if the Tribunal is disposed to rejecting the evidence on some positive basis.  That the documents were "fabricated" is such a basis whatever, more precisely, the Tribunal may have had in mind.  No submission was made that the denial of procedural fairness otherwise made no difference or, as a matter of discretion, relief should not issue. 

31                  The appeal should be allowed.  The Tribunal's decision should be quashed and the Tribunal should be directed to hear and determine the appellant's application.  Costs is a difficult issue.  The ground on which the appellant has succeeded was not raised below but could have been (though I acknowledge that it was not until, as I understand it, August 2003 that judgements were given which clearly pointed to this ground being available).  On the day listed for hearing, the appeal was adjourned on the appellant's application to enable the appellant to fully prepare his case.  Unnecessary costs were occasioned by the Minister as a result.  It seems to me each party should bear their costs of the hearing before the Federal Magistrate and the appellant should have two thirds of his costs of the appeal.

Associate:

Dated:              31 March 2004