FEDERAL COURT OF AUSTRALIA

Applicant S1061/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1050

APPLICANT S1061/2003 v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1815 of 2004

ALLSOP J

28 JULY 2005

SYDNEY

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs.

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

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

REASONS FOR JUDGMENT

1                     This is an appeal against orders made by a Federal Magistrate on 22 November 2004, in which the Federal Magistrate dismissed an application made by the appellant for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) in which that Tribunal had affirmed a decision of a delegate of the Minister not to grant a protection visa.  The decision of the delegate of the Minister was made in March 1998.  The decision of the Tribunal was made in January 1999, and notified to the appellant in that month.

2                     In this appeal, there has been determination by the Chief Justice pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that a single Judge of the Court hear the appeal.

3                     The matter has a procedural history as follows in outline.  In February 1999, the appellant sought review of the Tribunal's decision in the Federal Court.  The application was dismissed by Von Doussa J on 31 May 1999.  No appeal was taken from that dismissal.  The appellant joined what has become known as the Muin and Lie Class Action Group (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601).  His application in that respect was dismissed by consent by Emmett J on 30 April 2004.

4                     The applicant then commenced fresh proceedings in the Federal Magistrates Court in May 2004.  Notwithstanding the dismissal of the application by consent and the Muin and Lie Class Action various assertions are made in the current proceedings based on that decision.   It is important as a preliminary observation to recognise that the age of the decision of the Tribunal means that what might otherwise be aspects of some difficulties in relation to s 424A of the Migration Act 1958 (Cth) do not arise. 

5                     The appellant claimed to fear persecution by reason of his political opinion in Bangladesh.  He claimed to be a member of the Bangladesh Nationalist Party (the BNP), and to have been assaulted by members of the rival Awami League, and that members of the Awami League had caused false charges to be lodged against him in Bangladesh.  He said that he would fear being killed if he returned to Bangladesh.

6                     The findings and reasons of the Tribunal are set out on pages 9, 10 and 11 of its reasons.  After finding that the appellant was a national of Bangladesh, the Tribunal went straight to the question of the reliability of the appellant as a witness.  The Tribunal began by noting that it had become apparent that the appellant had made false statements to the Department and knowingly submitted a false document in evidence.  It noted that some of his claims were internally inconsistent and that some important claims were not raised by him until the Tribunal hearing notwithstanding that he had an experienced Bengali speaking migration agent acting for him in the preparation of his written claims.

7                     The Tribunal then went on to deal with the reasons why it did not accept that the appellant was a person with connections to the BNP.  It found that documentary evidence purporting to be from the office secretary of a BNP branch was false. 

8                     The Tribunal then directed itself to the assertion that false and politically motivated charges would be laid against him if he returned to Bangladesh.  In rejecting this, the Tribunal first directed itself to the documents, which had been provided by the appellant.  It said that it had difficulty in accepting, as genuine official documents, the copies of two complaints lodged about him, and the arrest warrant.  Secondly, the document which the appellant claimed to be a genuine arrest warrant was issued some five months before the applicant left Bangladesh.  This aspect and other aspects of this part of the claims were found by the Tribunal to be implausible.

9                     Thirdly, the Tribunal noted that the appellant's name was not listed in pro-BNP magazines.  In this respect, the Tribunal rejected the explanation of the migration agent, then acting for the appellant. 

10                  Finally, the Tribunal said that even if the police had visited the appellant's home, it could not conclude that this was to arrest him for a Convention reason.  Thus the Tribunal refused to conclude that the appellant had been sought by the police on politically motivated charges.

11                  The Tribunal accepted that the appellant had faced some violence in the past, but in the light of its rejection that he was a BNP activist, it found it implausible that the violence had been motivated by perceptions of his political opinions. 

12                  The application before the learned Federal Magistrate identified four grounds.  First, that procedures that were required by the Act and regulations to be observed had not been followed.  Secondly, that the Tribunal did not provide an opportunity to the appellant to be heard on materials which the Tribunal used in its decision.  Thirdly, there was no evidence or other material to justify the decision.  Fourthly, the Tribunal made a decision which denied the appellant natural justice.

13                  The learned Federal Magistrate after setting out these grounds, dealt with them one by one.  I should add that at the hearing before the Federal Magistrate, there was an affidavit of the appellant of some two and a quarter pages, in support of his claim.  It is important to understand the contents of that evidence in the light of the fact that there was a claim that there had been jurisdictional error by reason of a denial of natural justice.

14                  If a party is to assert that a tribunal or court has failed to accord him or her natural justice or procedural fairness, then generally speaking, unless the facts are patently obvious, an evidential foundation for that assertion needs to be made.

15                  The affidavit of the appellant deals with the following matters.  First, it sets out some brief procedural history, including a procedural history up to the dealing with the Muin and Lie matter by the Federal Court.  Then in paragraph 7 of the affidavit, it was stated that the Tribunal ignored relevant evidence and contradicting independent evidence which was a failure to provide procedural fairness.  The affidavit then went on to discuss various aspects of the decision of Gaudron J in Abebe v Commonwealth of Australia (1999) 197 CLR 510.

16                  The paragraph, that is paragraph 7, then went on to assert that in weighing the possible danger that he faced on return to Bangladesh, the Tribunal failed to apply Article 1A(2) of the Refugee Convention.  The affidavit then went on to discuss the time limit in filing matters before the courts and, in particular, s 486A of the Migration Act, s 75(v) of the Constitution, and the High Court decision in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476.

17                  There was no attempt in the evidence by the appellant to analyse any particular aspect of the decision of the Federal Magistrate and to identify, in evidence, any important consideration by the Federal Magistrate which was not put to the appellant at the hearing.

18                  Before moving on to an analysis of the decision and the reasons of the Federal Magistrate, in the light of my comments about the nature and extent of the evidence in the affidavit of the appellant, it is appropriate for me to identify the nature of the written submissions placed before the Court in this appeal by the appellant. 

19                  In paragraph 1 of those submissions, the appellant, once again, discussed the procedural history of the matter, the decision of Gaudron J in Abebe, and the assertion that Article 1A(2) of the Refugee Convention was not properly brought to bear on the claims.  On the second page of the submissions, there is then a recitation of what appears in the notice of appeal as the grounds of appeal.  These are four paragraphs.  They are in the following terms:

1.        The [Tribunal] in its decision … in breach of the rules of procedural fairness took into account material directly relevant and adverse to the [applicant’s] claim of refugee status without giving him notice of the material or any opportunity to address on it.

2.        The [Tribunal] during the hearing of the review of the decision of the delegate of the [Secretary of the Department] in breach of the rules of procedural fairness failed to put to the [applicant] such country information as the [Tribunal] proposed to rely upon in coming to a decision adverse to the [applicant].

3.        The [Tribunal] in its decision … in breach of the rules of procedural fairness relied in an impermissible way upon certain submissions of the [Secretary of the Department] relevant to the review by the [Tribunal] of the decision of the [Secretary of the Department]

4.        The [Secretary of the Department] failed to provide the [Tribunal] documents or part of documents in the possession or control of the [Secretary of the Department] relevant to the review by the [Tribunal] of the decision of the [Secretary of the Department] and upon which the [Tribunal] did rely in its decision’

20                  As can be seen, the first three are largely unparticularised assertions of the failure to accord procedural fairness.  No evidential foundation had been laid for any of them.  The fourth appears to be an assertion reflective of Muin and Lie.  Once again, there is no specificity in the allegation and there is no evidential foundation for it. 

21                  Then under the recitation of those four grounds on page 2 of the submissions there is a paragraph which asserts that the Tribunal did not provide the appellant with detailed information from the Australian Embassy reports, which formed the reason of the Tribunal's decision.  The paragraph then goes on to deal with part B evidence that was before the delegate, again redolent of Muin and Lie.  There was an asserted non-compliance with s 418(3) of the Migration Act, redolent of Muin and Lie.

22                  The third and fourth pages of the submissions contain material which purports to be an identification of the errors made by the learned Federal Magistrate.  There are eight paragraphs in support of this assertion of error on behalf of the Federal Magistrate.  First, the assertion is that the Tribunal member failed to raise adverse information in deciding the case and failed to give the appellant an opportunity to comment on it.  In this respect, my earlier comments as to the lack of specificity of any of these assertions, and the lack of an evidential foundation for any conclusion about them can be made again.

23                  The second assertion of error in the Federal Magistrate's decision is that the human rights of the appellant have been violated, and that it has been well established in US State Department reports, which were ignored by the Tribunal, that human rights are violated in Bangladesh.  The paragraph then goes on to deal with an asserted failure of the Tribunal to give an opportunity to deal with aspects of the Tribunal's decision including, in particular, relocation. 

24                  The third ground is that the Tribunal's decision was supported by unspecified and vague evidence by the Department of Foreign Affairs and Trade, and the Tribunal members are inexperienced.   This is said to be a denial of natural justice.  The paragraph then goes on to say that the Tribunal member failed to consider his supporting documents, that the Tribunal did not consider him a credible witness, and that he had been denied procedural fairness.

25                  In the next paragraph, paragraph 4, it was asserted that the Tribunal did not put to him doubts about documents containing information personal to him from different sources in Bangladesh, and that the Tribunal member had failed to internalise the circumstantial grounds of his protection visa application in weighing both the subjective and objective claims of the review application, and in reviewing the “huge supporting facts and documents”, and it is said that the Tribunal breached several unidentified sections of the Migration Act in failing to comply with rules of natural justice.

26                  My earlier comments in relation to the need for evidence for the assertion of failure to accord natural justice apply here.  This is an appeal.   There was, apart from the terms of the decision of the Tribunal, no attempt by the appellant in evidence to show what was, and what was not put to him by the Tribunal at the hearing that took place. 

27                  The fifth paragraph in this part of the submission says that the appellant strongly believed that his application had not been taken properly into account, that the Tribunal relied upon "some general facts", and that this established a denial of procedural fairness.

28                  The sixth paragraph of this part of the submissions says that the Tribunal made an error of law, being an incorrect application of the law to the facts as found.  No further particularisation is given. 

29                  The seventh paragraph deals with the Muin and Lie point.  

30                  The eighth paragraph complains of the lack of reference by the Tribunal in its reasons to the documents that the appellant had provided. 

31                  In the above context I need to examine the reasons of the Federal Magistrate to ascertain whether or not there is any error in the way he approached the matter.

32                  Grounds 1 to 4 of the notice of appeal are, in effect, identical to grounds 1 to 4 of the amended application and thus it is clear that when dealing with grounds 1, 2, 3 and 4 of the application, the learned Federal Magistrate is dealing, in effect, with the subject matter of the corresponding grounds of appeal.

33                  The learned Federal Magistrate, after noting the grounds of appeal, noted the submissions that had been filed on behalf of the appellant.  The Federal Magistrate then began to deal with the first two grounds of the application (being identical to the first two grounds in the notice of appeal).  In that consideration, he noted that the appellant claimed that there was a failure to give him an opportunity to deal with Australian Embassy reports, which form part of the reasons for the Tribunal's decision.  No specificity had been given by the appellant in relation to those matters, but the learned Federal Magistrate referred to pages 162 to 165 of the Court Book which was material from the Department of Foreign Affairs and Trade which was referred to by the Tribunal at page 6 of its decision.

34                  The Federal Magistrate then sought to ascertain whether it was 162 to 165 or perhaps Court Book pages 147 to 161 to which the appellant was referring.  The Federal Magistrate was unable to see how this material was adverse to the claims of the appellant.  In any event, to the extent that this material deals with the method of leaving Bangladesh, the Federal Magistrate noted that in the record of the Tribunal's decision, it would appear that the Tribunal put to the appellant, giving him an opportunity to respond, the issue as to how he left Bangladesh.

35                  Further, from a consideration of that material, in the light of the reasons of the Tribunal, it is not plain to me what is said to have been an issue which should have been put to the appellant at the hearing.  Even if I could understand that, it would be necessary to identify an evidential base for a conclusion that the matter had not been fairly raised with him at the hearing.  There is no such evidential base.

36                  The Federal Magistrate then went on to consider the findings of credit made against the appellant.  In paragraph 11 of the Federal Magistrate's reasons, there was a recounting of the findings of false statements and false documents, and the findings of implausibility as to the balance of his evidence.  These, of course, are serious findings. 

37                  There was material on pages 6 to 10 of the Tribunal decision that recounts a body of material that was put to the appellant.   There was no further evidential foundation before the Federal Magistrate as to what was and was not put to the appellant at the hearing.  I am not prepared to assume, as I do not think there is evidential foundation to assume, that the written decision of the Tribunal should be treated as equivalent to a comprehensive transcript of the hearing before the Tribunal. 

38                  The learned Federal Magistrate then dealt with the third ground of the amended application. 

39                  The third ground in the amended application (being identical to the third ground of the notice of appeal), relates to information from the Secretary of the Department.  As the learned Federal Magistrate said, there were no particulars about what that information was, and the Federal Magistrate identified that the appellant was not able to provide any detail at the hearing as to what that was.   There was no evidential foundation for it.

40                  The fourth ground was then dealt with by the Federal Magistrate.  That was the Muin and Lie ground.  There was no evidential foundation for this.  As the Federal Magistrate made clear, Muin and Lie was a particular case based on agreed facts.  It has been made plain in many cases that for Muin and Lie to be relevant to a particular appellant or applicant, either an agreed set of facts or evidence will be required to understand whether or not there has been a failure to accord procedural fairness.  That was in effect, the approach of the Federal Magistrate.

41                  The learned Federal Magistrate then dealt with the filed written submissions, and the eleven points made in them.  The first was that the Tribunal had not given the applicant, now the appellant, an opportunity to comment on adverse information.  The Federal Magistrate noted that there were no further details of this beyond what was asserted in the application. 

42                  Secondly, the Federal Magistrate dealt with the assertion that the Tribunal ignored the fact that the appellant had been tortured by police in a detention centre.  The learned Federal Magistrate said that there was no evidence before him that this claim had been raised by the applicant before the Tribunal.  The Federal Magistrate then recorded that the appellant, at the hearing before him, said that he had not been in detention and that the submissions were wrong and had been drafted by a friend. 

43                  The third aspect of the submission was that the applicant was denied an opportunity to respond to the Tribunal after the hearing, and prior to the Tribunal's decision.  The learned Federal Magistrate noted that there was on evidence before him to show that the applicant sought, or had been told that such no opportunity was to be provided nor was there any material before the learned Federal Magistrate to indicate that such an opportunity was required for fairness to be accorded.

44                  Fourthly, the Federal Magistrate dealt with the assertion that the Tribunal had not properly considered the issue of relocation.  The Federal Magistrate noted that the claim had been largely dealt with on the question of credibility, and that this was an alternative.  However, it is not clear to me what issue, if any, of error of the Tribunal was being raised.

45                  Fifthly, it was asserted that the Tribunal's decision was supported by unspecified vague evidence from DFAT reports, and the Tribunal's own experience.  The Federal Magistrate recorded that before him, on that day, the appellant said that the Tribunal had a preconceived idea and did not believe his documents.  The Federal Magistrate rejected any implicit claim for bias in this assertion as one without any supporting foundation.

46                  Sixthly, it was asserted that the Tribunal failed to warn the applicant about the view it was going to take about the documents not being treated as genuine.  The Federal Magistrate recorded that at the hearing before him, the appellant said that he did not think that he had said to the Tribunal that a false document had been obtained for him as reported by the Tribunal at page 104.9.  The learned Federal Magistrate then dealt with this matter in the following terms:

From the Tribunal´s decision record the Tribunal reports that it put its concerns about the documents submitted by the applicant, (see CB 101 - paragraph "a"), and records the applicant´s response which then led to the Tribunal´s finding at CB 104.9 regarding the "BNP letter". Further, the Tribunal also records [sic] it put to the applicant the existence of independent evidence about the ease of obtaining fraudulent documents in Bangladesh. The applicant has put no evidence forward to contradict this.

I note in that paragraph that what appears in inverted commas as "a" should be "b".

47                  It is important to note that the Tribunal was recorded as putting to the appellant the following:

b)        there was independent evidence before the Tribunal that fraudulent official documents, including arrest warrants, were easily obtainable in Bangladesh.  The applicant responded that the arrest warrant submitted in evidence by him was a copy of a genuine document.  He said that his father had obtained it for him from the police and sent it to him Australia.

48                  Seventhly, the Federal Magistrate noted that in the appellant's narrative in his submissions, there were various allegations regarding a failure on the part of the Tribunal to put doubts about documents to the applicant and that there was a breach of statutory provisions.  The learned Federal Magistrate noted that these appeared to repeat matters already alleged by the appellant.  The Federal Magistrate said that to the extent that this was wrong, and additional matters were being referred to, they were unparticularised and he could not find anything in the materials to support the appellant's claims. 

49                  Eighthly, ninthly and eleventhly, the Federal Magistrate then dealt with three paragraphs of the submissions, dealing with statements of belief and unparticularised assertions. 

50                  Lastly and tenthly, the Federal Magistrate noted that the submissions referred to part B documents in s 418(3) of the Act.  This was part of the Muin and Lie argument, which had already been dealt with.  The Federal Magistrate concluded in paragraph 19 of his reasons in the following terms: 

The applicant failed before the Tribunal because of the view the Tribunal took of the applicant's credibility. On the material before it I can find no reason to say that the Tribunal was not entitled to reach such a finding. Findings of fact, including findings on credibility are of course matters for the primary decision maker "par excellance". Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. I can find no error let alone jurisdictional error in what the Tribunal has done and on that basis this application should be dismissed. I should also note that the Tribunal decision which is the subject of this application before this Court has already been considered by the Federal Court where His Honour, von Doussa J, found that the Tribunal findings of fact were open to it on the evidence and that it was open to the Tribunal to disbelieve the applicant's evidence. His Honour dismissed the application for review after hearing from the applicant. The same Tribunal decision, with the same parties, has already been litigated. To the extent that the applicant is now seeking to raise additional grounds there is no evidence before me to answer the respondent´s assertion that they should have been raised earlier. [This includes, that it is as the respondent submits, no answer that Muin had not been decided at the time: Applicant A210/2002 v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCA 286]. To bring another application to another Court in these circumstances, without explanation over 5½ years later would be an abuse of process. In any event the applicant has not made out, nor is any jurisdictional error evident. The application should be dismissed on this basis.

51                  I have gone through the submissions and the material dealt with by the Federal Magistrate in some detail, because of the identity of the notice of appeal to the amended application.  I can see no error in the approach of the learned Federal Magistrate.  Importantly, and at base, the most important aspect of the approach of the Federal Magistrate was his view of the appellant's credit. 

52                  As can be seen from the Tribunal's reasons, this was in part by reason of inconsistencies and other matters of the Tribunal's appreciation or assessment of the appellant's evidence.  Importantly, however, it was founded on a view that some of the material provided to the Tribunal and the Department was not genuine. 

53                  As the Federal Magistrate pointed out in his reasons, there appears to have been a place at which the Tribunal brought to the attention of the appellant the question of the prevalence of fraudulent official documents originating in Bangladesh.  The evidence for that can be found in the record of the Tribunal's decision. 

54                  There was no attempt in the evidence to put the transcript of the hearing, or any other record, which would put any other perspective on that part of the written record.  More importantly, there was no basis to conclude that any aspect of the reasons of the Tribunal were not put in a sufficiently clear way to accord fairness. 

55                  To the extent that it might be thought (contrary to the view of the Federal Magistrate thought and contrary to my view) that the text of the reasons does not of itself disclose that the issue of the documentation was fairly and adequately brought to the attention of the appellant, it is sufficient, nevertheless, to prevent an inference being drawn (absent other evidence) that the issue was not fairly and adequately brought to the attention of the appellant.  In this respect I refer to the Full Court decisions referred to by Mr Riley in his submissions, of NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21], and Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [121] to [122].

56                  For the above reasons, I see no error in the reasons of the learned Federal Magistrate.  The appeal should be dismissed.  There is no reason apparent as to why there should not be the usual order that costs follow the event.

57                  Therefore, the orders of the court:

1.    The appeal be dismissed.

2.    The appellant pay the respondent's costs.

Associate:

Dated:              31 August 2005