FEDERAL COURT OF AUSTRALIA

SZAJC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1686

MIGRATION - Appeal from decision of Federal Magistrate refusing application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") - Judicial review - Protection visa - Corroborative documentary evidence supplied - Rejection of documentary evidence on the basis of findings of adverse credibility - unsupported speculation that documentary evidence produced as the result of arrangements made by the appellant with other persons from Colombia - Speculation never put to appellant - Rejection of documentary evidence as fabricated - Failure to give opportunity to respond to conclusions on corroborative evidence - Breach of procedural fairness - Jurisdictional error - Appeal allowed.

WAGU v Minister for Immigration and Multicultural and Indigenous Affairs 2003 FCA 912 applied

NARU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 864 applied

WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 distinguished

WACO v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 511 applied

SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298 referred to

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 discussed

Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82 applied

SZAJC v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 51 referred to

SZAJC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 279 OF 2004

TAMBERLIN J

SYDNEY

21 DECEMBER 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.                  The appeal is allowed.

2.                  The decision of the Federal Magistrate is set aside.

3.                  The matter is remitted to the Tribunal for determination in accordance with law.

4.                  The respondent pay the appellant’s costs on this appeal and the hearing below.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a Federal Magistrate given on 4 February 2004, dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 April 2002.

2                     The Tribunal affirmed a decision of a delegate of the Minister not to grant protection visas to three applicants, being father, mother and son. The claims were made by the appellant in these proceedings, who is the father. The claims of the mother and son were based on their association with the appellant.

3                     The principal issue for determination on appeal is whether the Magistrate erred in failing to find that the Tribunal erred in law when it rejected three documents that were tendered on behalf of the appellant. These documents comprised a memorandum written by a Mr Jorge Carrero, a sworn statement by Ms Julia Rodriguez, and an official police report of a statement by the appellant’s wife. The appellant contends that the applicants at the Tribunal hearing were not given an opportunity to make submissions as to the authenticity of, or the weight to be attached to such documents and nor was it indicated that the Tribunal member did not intend to take the letters into account and that therefore there was a failure to afford procedural fairness.

4                     The appellant is a citizen of Colombia who arrived in Australia with his teenage son on 21 December 1999. He and his son lodged an application for a protection visa on 24 January 2000. A delegate of the Minister refused to grant the visa on 18 February 2000, and the appellant applied to the Tribunal for review of the decision. On 14 May 2000, the appellant’s wife arrived in Australia. She also lodged an application for a protection visa on 19 June 2000. This application was also unsuccessful and the wife applied to the Tribunal for review of that decision. The Tribunal prepared one set of reasons in relation to both claims.

5                     The appellant’s claim is essentially that he feared persecution for reasons of political opinion. The appellant claimed to have been involved in a group giving welfare assistance to people who had been forced to leave their lands by the Colombian Revolutionary Armed Forces (“FARC”). The appellant claimed that because he had provided this support he had received death threats against him and his family. He and his wife also claimed that they feared they would be targeted by FARC because of their membership in a political party known as “Century 21”.

the tribunal decision

6                     The Tribunal accepted that the appellant had been involved in a social welfare group, but did not accept that he had received any death threats. The reason given was that the information available to the Tribunal showed that FARC is a highly trained and ruthless group that does not hesitate to execute and kidnap civilians, which is a circumstance that is inconsistent with the fact that the appellant and his family had never been harmed. In particular, the Tribunal took into account that the appellant continued with his activities until October 1999, lived continuously at his address (which was known to FARC) until he departed for Australia in December 1999, and continued to work up until his departure. The Tribunal member concluded that the appellant had fabricated these claims to give himself the profile of a refugee.

7                     The Tribunal rejected the claim that the appellant was a member of a political party because it was made late, and the document in support of the claim asserted that he was an active member up to 2002, whereas he had stated that he had not been politically active since arriving in Australia. The Tribunal considered the claims made by the son on the basis that he claimed to fear persecution as a member of a particular social group, namely his family. Having rejected the central claims of the appellant, the Tribunal member was not satisfied that the son had a well-founded fear of persecution on this basis. The claims of the wife were considered on the same basis as the son, as well as on the basis of her membership of a political party. Her application was rejected for substantially the same reasons.

8                     The Tribunal accepted that the appellant was involved with a group assisting displaced persons in Bogota for six months in 1999. It was also accepted that the appellant was involved in a party called “Century Twenty-One Renovation”. However, the Tribunal was not satisfied that the appellant was threatened by FARC or that he had a well-founded fear of persecution for Convention purposes. The Tribunal was not satisfied that his claims to have become a target of FARC were credible or genuine. The Tribunal had regard to independent country information and found that the appellant’s claims to have been labelled a “traitor” and “military target”, and to have been sentenced to death by fire lacked credibility. The Tribunal member accepted that the independent evidence supported the conclusion that FARC has no hesitation in killing those who behave contrary to their wishes. An important fact in the Tribunal member’s reasons was that no harm had come to the appellant between April and December 1999. The Tribunal member considered that if FARC had any genuine interest in harming the appellant and his family it would have done so in April or May 1999, when he initially refused to obey their order to stop his activities.

9                     The RRT reasoning pertinent to this appeal is as follows:

“The [appellant’s] claims and evidence about his treatment by FARC are not consistent with independent evidence about the modus operandi of this group. In the eight months between April 1999 when the [appellant’s] claims the first threat was made, until December 1999 when the applicant departed Colombia, the FARC had ample time in which to locate the [appellant] [given that they knew where he lived it would not have been difficult] and carry out the claimed threat. Again, as noted above no harm whatsoever came to the [appellant]. The Tribunal finds therefore that in this particular case, the [appellant] has fabricated his claim to have been threatened and “sentenced to death” by FARC in order to establish a claim refugee status.

The Tribunal has found the [appellant] to be an unreliable witness, and in the light of this finding, it cannot be satisfied that the documents he has submitted to the Tribunal in support of his applicant [sic] are reliable either. The Tribunal cannot [and therefore does not] rely on the letters from FARC or the letter from Mr Jorge Carrero. Regarding the latter, the Tribunal notes that the author of this letter [Mr Carrero] is himself an applicant for Asylum [in New Zealand], and in the Tribunal’s view it would have been a relatively straightforward matter for the [appellant] to contrive this letter by giving the author instructions in relation to what he should write, and further, given their independent claims, it would be in the author’s own interests to write such a letter thereby giving collective credence to their assertions. With regard to the statement by Ms Julia Rodriguez and the letter [facsimile] from the [appellant’s] wife dated 8^th February 2000, again, it would be a relatively straightforward matter for the [appellant] to contrive these letters, by giving the authors instructions in relation to what they should write, and given that the Tribunal does not find the [appellant’s] claims regarding the threats by FARC to be credible, it cannot rely on these documents. The [appellant]also submitted a certified translation of a report made by Ms Calderon Canas [undated relating to incident in January 2000] to the Investigations General Office. It is the view of the Tribunal that this document has no value because it would have been a straightforward matter for the [appellant] to instruct his wife to go to this office and make a false report. The Tribunal finds that given the [appellant’s] lack of credibility in relation to his claims of fearing harm by FARC, it cannot rely on this document and gives it no weight.” (Emphasis added)

10                  The documents were therefore rejected on the dual basis that the appellant was an unreliable witness and that he contrived to bring them into existence.

evidence sought to be tendered

11                  The material rejected by the Tribunal was initially sent to the Department of Immigration and Multicultural Affairs under cover of a letter from the appellant, and was received by the Department on 31 March 2000. It also included four letters from FARC, some newspaper cuttings and a letter from the appellant’s wife dated 5 February 2000, which referred to threats from FARC.

12                  The letter from Mr Jorge Carrero of New Zealand is in the form of a memorandum, dated 10 March 2000, which states that he and the appellant belonged to a social group that helped rural people fleeing from the Colombia Revolutionary Army by giving them food and contacting relatives and it states that this work was detected by the Colombian Revolutionary Army and their families were threatened with death, and they were obliged therefore to seek asylum outside Colombia. The memorandum is signed and witnessed by a Justice of the Peace in Auckland, New Zealand.

13                  The sworn statement from Ms Julia Rodriguez of 28 February 2000, which bears the seal of a notary, states that she has known the appellant for over eighteen years, and has accompanied him on several occasions to Bolivar City to deliver food and clothes to the people displaced by the guerrillas. She states that the appellant was forced to leave Colombia as a result of the death threats that he received.

14                  The report of Ms Celmira Calderon Canas is undated, but refers to an “incident” or state of affairs since January 2000 at the home of the appellant’s wife in Bogota. It is a record of a statement made to the “Judicial Police Specialized Unit” of the “Investigations General Office” in the “Security Administrative Department” by the appellant’s wife, giving details of the work that her husband and friends did for people displaced by the guerrillas. The document records the appellant’s wife refers to threats from FARC demanding that the appellant stop helping displaced people, which she says he ignored. The threats reportedly continued arriving on a monthly basis. The appellant’s wife reported that her husband had been declared a military target, and that her fifteen year old son had been threatened, and that this was the reason they left the country and were travelling to Australia. She said that she had also been threatened, and, faced with these threats, had decided to change her domicile. She says that a note had been found in her home which stated that if she did not collaborate with information about her husband and son, she would be killed.

the authorities

15                  The appellant submits that there was a failure to provide procedural fairness by the Tribunal in this case because the appellant was not informed at any time, either before, during or after the hearing, that the Tribunal member intended to treat the documents from Mr Carrero, Ms Rodriguez, Ms Canas and the appellant’s wife as having been fabricated, by virtue of the appellant telling the authors what to write, and instructing his wife to make a false police report. These are positive findings as to active misconduct by the appellant in conjunction with other parties. There is no doubt that if the documents had been accepted as genuine they could have a significant effect on the credibility of the appellant.

16                  The appellant has tendered the transcript and a cassette recording of the Tribunal hearing on the application, and it is not disputed that there is no explicit reference in the transcript to the proposed rejection of the three documents and the rejection of the police report, or to any suggestion that all or any of this material was fabricated, contrived or written at the request or with the connivance of the appellant or his wife. This transcript was not before the Federal Magistrate.

17                  It is submitted that notwithstanding that the Tribunal found that the appellant was an unreliable witness, and that this was stated in the Tribunal’s reasons as a basis for rejecting the documents, the contents of the documents is such that they could have had a significant bearing on the outcome in circumstances where credibility was a central issue.

18                  In support of the submission that there was a failure to provide procedural fairness the appellant relies on several authorities. First, I was referred to WAGU v Minister for Immigration and Multicultural and Indigenous Affairs 2003 FCA 912 at [34] and [36] where French J said:

“[34] 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.

…

[36] 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.” (Emphasis added)

19                  That decision was referred to and applied by Stone J in NARU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 864 where her Honour, after reviewing the authorities, said at [31]:

“The Wawira letter was crucial to the applicant’s claims on the circumcision issue. On its face it provided strong corroboration of those claims. If accepted as genuine it may well have led the Tribunal to reconsider its rejection of the applicant’s embarrassment as a reason for not raising the circumcision claim earlier. In circumstances where the Tribunal appears to have accepted the applicant’s account of her experiences in Kenya other than the circumcision claims, it corroborative value was especially high. In those circumstances the procedural fairness required that the Tribunal afford the applicant the opportunity to address its concerns about the genuiness of the Wawira letter.”

20                  In that case her Honour made an order in the nature of certiorari quashing the decision of the Tribunal.

21                  In WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 at [64], the Court distinguished WAGU. This was on the basis that the Tribunal in WAGU had found that the appellant had been involved in a conspiracy with a person or person in Iran to fabricate information about his connection with a political organisation in Iran in circumstances where there was no evidence before the Tribunal to support the conspiracy finding. This proposed finding was never put to the appellant. The majority in WAHP (Carr and Tamberlin JJ) indicated that a positive finding of the fabrication of information presented a different situation to the circumstances under consideration in WAHP, where their Honours formed the view that the Tribunal had given the appellant an opportunity to respond to its concerns because it had raised these with the appellant: see WAHP at [56]. That is a different case to the present.

22                  The observations of the Full Court in WACO v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 511 are also pertinent to the present case. The Tribunal there treated letters from two Iranian Ayatollahs tendered by the appellant in corroboration of his evidence as having been forged, without signalling to the appellant that it proposed to do so. Their Honours (Lee, Hill and Carr JJ) said at [53]-[54] and [58]:

53 … fairness would require that before a finding of forgery is made the person so accused [must] 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.

54 Where the finding of fact made does not turn upon the credibility of the appellant 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.

…

58    … Only where the case is one where it can be shown that the appellant could not, even if given the opportunity to do so, affect the outcome would it be held that there was no denial of procedural fairness. If the possibility exists that the appellant, if given the opportunity might be able to make submissions or call evidence which could affect the outcome the appellant will not fail merely because the appellant has not proved that the submissions or evidence would affect the outcome.” (Emphasis added)

23                  As Counsel for the appellant points out in his supplementary submissions, the High Court refused the Minister’s application for Special Leave to Appeal from the decision in WACO on 28 October 2004.

24                  These principles were also applied by Tamberlin J in SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298 at [26] and [30].

25                  It is no answer to a claim of procedural unfairness to submit that there was no indication of precisely what the applicant could say if an opportunity to make submissions were given, because in this case the substantive finding of forgery or fabrication was not foreshadowed to him: cf Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [34], where the majority said:

“34. … But the failure of the present appellant to file evidence about what he would have done had the Tribunal member’s promise been fulfilled is not fatal to the appeal for at least one reason specific to the present case. While the appellant knew that the foreshadowed questions would relate to inconsistencies in what he had said about the detentions, it would not have been possible for him to file an affidavit stating what answers he would have given to particular questions without knowing what the questions would have been. He could not anticipate what material he would asked to supply, nor could he anticipate how any particular material to be requested would relate to the potential lines of reasoning of the Tribunal member, and hence he could not anticipate what he might usefully say on the subject generally.” (Emphasis added)

26                  The High Court also pointed out that the entitlement of the appellant to complain about the failure to complete the review process does not depend on the tender of evidence that he was misled or prejudiced.

27                  In Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82, Gleeson CJ said at [4]:

“It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal’s ultimate conclusion would have been the same. But noone can be sure of that. Decisions as to credibility are often based on matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and correcting an erroneous and unfavourable factual assumption relevant to his credibility.” (Emphasis added)

THE RESPONDENT’S Submissions

28                  The respondent submits that on a fair reading of the transcript of the hearing before the Tribunal it cannot be said that the appellant was denied procedural fairness. It is said that the appellant was clearly on notice that his fears in relation to FARC were being challenged by the Tribunal member because of perceived inconsistencies, illogicalities and anomalies in his evidence, and that these perceptions were explained at some length by the Tribunal member. At one point in the Tribunal hearing, the member referred to the FARC documents and an explanation was sought as to why the appellant did not bring those letters with him. It is said that when this reference is considered together with the foreshadowed non-acceptance of the appellant’s version of events, there is sufficient doubt to put the appellant on notice that the additional material, which is not referred to in the transcript, was the subject of doubt by the Tribunal member, to the extent that the appellant was in a position to sufficiently respond to the subsequent findings of forgery and fabrication so as to satisfy the requirements of procedural fairness.

29                  A further submission was that it is evident from the Tribunal reasons that the credibility of the appellant was the substantial reason why his submissions and evidence were not accepted. At the point in the reasons where reference is made to the correspondence said to constitute forgeries, the Tribunal member had already reached the conclusion that there was no substance in the appellant’s case due to his lack of credibility and the inconsistencies in his evidence when considered together with independent country information. Accordingly, it is said that the findings in relation to the documents were essential to the decision and therefore the decision should not be set aside even if, contrary to the respondent’s submissions, it were found there was a breach of procedural fairness.

Reasoning on appeal

30                  The substance of the Tribunal findings in relation to the documents is that they were fabricated, and that the appellant was a party to, or procured, the concoction and fabrication of these documents. These findings are not simply a dismissal of the documents as having no probative effect, or an expression of non-satisfaction with the authenticity of the documents because of the appellant’s unreliability as a witness. In substance the findings go substantially further and conclude that there has been positive misconduct and contrivance by the appellant in respect of the provenance of the documents. Inevitably, this finding must bear directly and adversely on the credibility of the appellant, and the acceptance of his claims and version of events. As indicated earlier, it is not necessary for the appellant to establish that there was something further which he could say in relation to the findings if they had been brought to his attention. If such a concern grounded, as it clearly did, an adverse finding as to credibility in a significant way, then the Tribunal was obliged in fairness to warn the appellant and give him an opportunity to respond, either prior to or at the hearing, or some time before the decision. In fact, the documents had been with the Minister since about April 2000, and no query or challenge had been indicated prior to, during, or after the hearing. In particular, no suggestion of any concoction or fabrication was raised at any time. I do not consider that any of the transcript pages referred to by Counsel for the respondent are sufficient to indicate in any way that there is a real concern that the appellant has been guilty of fraud in arranging for the documents to be drawn up and sent.

31                  If the positive findings had not been made and the correspondence had been accepted, then it would have been necessary for the Tribunal to take the documents into account in determining the cogency of the appellant’s case, and to weigh the documents together with the general country information and other matters which were considered important by the Tribunal member.

32                  It is of course true that the Tribunal’s decision was made on the basis of the whole of the oral and documentary material. It is artificial to suggest that by the time the Tribunal reasons reached the point where it considered the correspondence its opinion was cast in stone, so that subsequent adverse findings would make no difference. If one considers a possibility that the appellant may have been able to verify the documents and establish that they were authentic, then the member’s reasoning may well have been different when considered in conjunction with such a finding. It is the denial of this opportunity to address the conclusion of fraud, fabrication and concoction of documents in order to deceive the Tribunal which constitutes the denial of natural justice in this case, on a central issue which goes to the credibility of the appellant and his character.

33                  It is correctly pointed out that the Federal Magistrate did not have the benefit of a transcript, and therefore was not in a position to determine whether the issue was raised in the oral hearing. The evidentiary position before me was different because I had the benefit of the tape and a full transcript. His Honour’s conclusions appear in the judgment; SZAJC v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 51 as follows:

“[20] In the circumstances, if there was no opportunity for the applicant to comment upon the [Tribunal’s] credibility concerns about the letters, there was no practical unfairness because the applicant had had an opportunity to comment generally upon the [Tribunal’s] credibility concerns about his claims concerning the threats received from FARC.

[21]Accordingly, I find there was no procedural unfairness in the determination of the application by the [Tribunal]. I find there was no jurisdictional error in the decision of the [Tribunal]” (Emphasis added)

34                  The evidentiary position before me was different. In my view, it is apparent that there was no opportunity for the appellant to deal with the rejection of the material referred to earlier. There was no opportunity to address the charge of having fabricated the documents. I consider that the present circumstances come within the principles expressed in the above cited authorities and that therefore there was a clear failure to afford procedural fairness. Consequently, the Tribunal reasons disclose procedural error. I am also of opinion that his Honour, the Federal Magistrate, erred in law in finding that there had been no failure to provide procedural fairness.

35                  The appeal is allowed. The decision of the Federal Magistrate is set aside. The matter is remitted to the Tribunal for determination in accordance with law. The respondent is to pay the appellant’s costs on this appeal and of the hearing below.

Associate:

Dated: 21 December 2004