FEDERAL COURT OF AUSTRALIA

Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375

APPLICANT S214 OF 2003 v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1015 OF 2003

EDMONDS J

7 APRIL 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Edmonds J:

Introduction

1                     This is an application for an order nisi which was filed in the High Court of Australia on 23 May 2003 and subsequently remitted to this Court. At the outset of the hearing, and with the concurrence of counsel, I reconstituted the proceedings by removing the Secretary of the Department of Immigration and Multicultural Affairs as second respondent and the Commonwealth of Australia as third respondent and by joining in their place the Minister for Immigration and Multicultural and Indigenous affairs (‘the Minister’).

2                     Counsel for the applicant, Mr Jackson, moved on an amended application which was attached to his written submissions dated 23 December 2004. In support of that application he read an affidavit of the applicant’s sister affirmed 20 December 2004 and two affidavits of the applicant affirmed 21 October 2005 and 6 December 2005.

3                     Counsel for the Minister, Mr Potts, relied on the content of a book of relevant documents filed on 17 October 2005.

4                     At an early stage of the hearing Mr Jackson indicated that the only issue raised by the amended application concerned an alleged denial of procedural fairness. That allegation is articulated in Ground 1 of the amended application as follows:

‘The First Respondent failed to accord procedural fairness, in failing to warn the Applicant that is was considering finding that the Applicant’s sister was a “party to an attempt to deceive the Tribunal” in swearing that she remembered a photo of her father in the newspaper, and generally holding that her sworn statement, which corroborated key aspects of the Applicant’s case, was “an attempt to assist her brother’s application for a protection visa”, and its corroborative contents to be disbelieved, because “the Applicant did not seek that the Tribunal take evidence [from her]”…’

5                     To put this allegation into context one must turn briefly to the events surrounding the applicant’s application for a protection visa and the proceedings before the Refugee Review Tribunal (‘the Tribunal’).

Background

6                     The applicant arrived in Australia on 31 October 1995. He was travelling on an Indian passport and entered the country on a visitor’s visa. On 15 November 1995 he lodged an application for a protection visa, which was refused by a delegate of the Minister on 14 November 1997. The applicant applied to the Tribunal for review of that decision on 20 November 1997. On 8 October 1998 the applicant attended a hearing before the Tribunal.

7                     The applicant claimed that he faced persecution because of his race as a Tamil and because of his support for a political party known as the Liberation Tigers of Tamil Eelam (‘LTTE’).

8                     During the course of the hearing before the Tribunal the applicant produced a page from a Tamil language newspaper, the Malai Manar of 19 November 1991, reporting on the arrest of a person called Anandaraj in connection with the murder of the leader of a political group, the Eelam People’s Revolutionary Liberation Front (EPRLF), whose name was ‘Pathmanaba’. A photograph which depicted two men accompanied the article. The caption beneath the photograph reads (as translated):

‘The person with grey hair in the picture is Anandaraj. The person standing next to him is Thevasigamany.’

The applicant told the Tribunal that the elderly man in the photograph (Anandaraj) was his father.

9                     At the hearing the Tribunal member told the applicant that he did not accept that the person referred to in the newspaper article was his father. The photograph of his father which accompanied the article appeared to have been taken at a different time from the photograph of the person next to him. The caption, however, indicated that the two men were standing next to each other. The Tribunal member told the applicant that he intended to send the page from the newspaper to the Document Examination Unit in the Department of Immigration and Multicultural Affairs for its advice.

10                  On 13 November 1998 an expert document examiner advised the Tribunal that the photographs in the newspaper displayed differences but she expressed the opinion that there was nothing in the caption to indicate that they had been taken at the same time. She observed that the quality of the newspaper was poor but there was nothing to suggest that the photograph of the male person with grey hair had been cut and pasted into the page.

11                  On 25 November 1998 the Tribunal wrote to the applicant’s representatives attaching a copy of the comments received from the Document Examination Unit. While noting the document examiner’s view that there was nothing in the accompanying text of the newspaper article to suggest that the photograph of the person whom the applicant claimed was his father and that of the other man had been taken at the same time, the letter advised the applicant’s representatives that the Tribunal member remained of the view he had expressed at the hearing, namely that the caption to the photograph indicated that the original photograph was one of two people standing side by side, rather than two separate photographs.

12                  On 15 December 1998 the applicant’s representative made written submissions to the Tribunal about the photograph and the caption. Relevantly, the applicant’s representative provided to the Tribunal a statutory declaration from the applicant’s sister. The Tribunal described the content of that declaration as follows:

‘The Applicant’s representative also produced a statutory declaration from the Applicant’s sister stating that she and her brother were from Valvedditturai, that she had gone to India in 1987 because of the ongoing civil war and that in 1988 she had been sponsored to come to Australia by her husband (the Applicant’s and her first cousin). She stated that in 1991 she had been in India on holiday when her father and the Applicant had been arrested. She said that she had visited her father in the police station in “Trichy” on several occasions as well as in the gaol at “Trichy”. She said that she remembered the photograph of her father in the newspaper:

“His photo and that of Thevasigamany, were taken separately but printed beside each other in the newspaper.”’

13                  In its reasons for decision the Tribunal found that the applicant ‘would say anything he thought would assist his application, without regard for the truth’. Based upon the inconsistencies in the applicant’s statements, the Tribunal found that the newspaper article was a fabrication. In particular, the Tribunal said:

‘The contradictions between the account originally given by the Applicant and the account which he now gives once again lead me to conclude that he has modified his account after receiving the supposed documentary corroboration of his evidence and that the newspaper article, like the purported court documents, is a fabrication.’

14                  In the present application a breach of the rules of natural justice is said to arise out of the way in which the Tribunal treated the contents of the statutory declaration of the applicant’s sister. It is convenient to set out in full the passage of the Tribunal’s reasons in that regard:

‘After the hearing before me the Applicant’s representative produced a statutory declaration from the Applicant’s sister stating that she had been in India on holiday in 1991 when her father and the Applicant had been arrested and that she had visited her father in the police station in ‘Trichy’ on several occasions as well as in the gaol in ‘Trichy’. She said that she remembered the photograph of her father in the newspaper and that the photographs had been taken separately but printed beside each other in the newspaper. Once again I note that the Applicant did not seek that the Tribunal take evidence from the sister at the hearing before me and I have therefore not had the opportunity to observe her giving her evidence. I do not consider that the purported corroboration of the Applicant’s evidence to a limited extent by his sister outweighs the view I have formed of the credibility of the Applicant on the basis of his demeanour at the hearing before me and the adverse impression I have formed as a result of the contradictions in the Applicant’s own evidence in relation to his arrest and the arrest of his father. I consider that the Applicant’s sister has provided her statutory declaration in an attempt to assist her brother’s application for a protection visa. Having regard to the view I have formed of the credibility of the Applicant and the contradictions in his evidence regarding his arrest and that of his father, I do not accept that he and his father were arrested and I therefore do not accept the evidence of his sister that she visited her father in the police station or the gaol in ‘Trichy’.

As I have said I consider that the newspaper article which the Applicant has produced in supposed corroboration of his claims and to which the Applicant’s sister also refers is a fabrication. The Applicant’s representative submits that the inference to be drawn from the report of the Document Examiner is that the newspaper article is genuine. I do not agree. It is genuine in the same sense that the Applicant’s Indian passport is genuine: that is, it is to all appearances genuine but the content of it is a fiction. Just as the Applicant is not a national of India, born in Tiruchirappalli, as his apparently genuine Indian passport suggests, so I do not accept that there is any truth in the substance of the newspaper article which the Applicant has produced, having regard to the Applicant’s signal failure to mention any connection between the arrest of his father and the Pathmanabha murder case (or indeed the existence of the newspaper article) until such time as he received the supposed newspaper article. I am therefore compelled to conclude that the Applicant’s sister is a party to the attempt to deceive the Tribunal since she states in her statutory declaration that she remembers the photograph of her father in the newspaper.’

15                  Mr Jackson submitted that the Tribunal’s failure to warn the applicant that it was going to make these findings constituted a breach of the rules of natural justice and relied primarily upon WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511.

16                  In that case the applicant claimed to be associated with the Ayatollah Shirazi. The Tribunal member indicated at the hearing that he would be unlikely to accept that claim on the evidence before the Tribunal. The applicant indicated that he could provide documentary material in support of his claims. The material which the applicant subsequently provided to the Tribunal included two letters which were central to the applicant’s claim that he had a relationship with the Ayatollah Shirazi. The Tribunal stated in its reasons (the relevant portion of which is set out at [39] of the Full Court’s reasons):

‘... [in] view of the Tribunal’s firm findings against the Applicant in respect his religious association with Ayatollah Shirazi, the Tribunal is not prepared to accept either of these documents as genuine … the Tribunal is not satisfied that the contents of the letters … regarding [the Applicant’s] claimed status as a follower and a close associate of Ayatollah Shirazi are genuine and finds that they have been prepared to seek to bolster his claims.’

17                  At [50], [51] the Court said:

‘[50] The appellant in the present case was left in no uncertainty that the Tribunal did not on the evidence before it at the conclusion of the appellant’s case accept the appellant’s version of events. The Tribunal said:

“I have difficulty that there was this relationship with Ayatollah Shirazi and I have to put it to you that at this stage I don’t see that the authorities would have been interested in you, that Ayatollah Shirazi would have had a relationship with you.”

The appellant replied that he could obtain documentary proof.

[51] The question is whether in these circumstances there is a denial of procedural fairness if the Tribunal takes a negative view of the genuineness of documents thereafter produced where the appellant has been put on notice that the Tribunal is not satisfied that the evidence given by the appellant is credible. Was the Tribunal’s finding of fact that the documents in question were not genuine unfair?’

18                  After considering a number of authorities the Court concluded (at [53] – [55]):

‘[53] In the present case and in [Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370] the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant insofar as the finding is that the letters have been concocted by the appellant 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.

[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.

[55] Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the appellant to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary.’

19                  It was on this basis that the Full Court held that the Tribunal had breached the rules of natural justice by failing to give the applicant an opportunity to answer the suggestion that the letters he provided were not genuine.

20                  Mr Jackson submitted that while WACO concerned slightly different facts from the present case the principles enunciated by the Full Court were nevertheless applicable. If that is correct, it would follow that the Tribunal’s failure to warn the applicant that it proposed to make findings:

1.                  That the sister’s evidence was provided by her in an attempt to assist her brother’s application for a protection visa;

2.                  that on the basis of the Tribunal’s findings as to the applicant’s own credibility it would not accept the evidence of his sister that she visited her father in the police station or the gaol in ‘Trichy’; and

3.                  that the sister had been a party to an attempt to deceive the Tribunal

and afford the applicant an opportunity to respond to them, constituted a breach of the rules of natural justice.

21                  Mr Jackson then referred me to what was said by French J in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 91, in particular at [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.’

22                  A little later (at [41] and [42]), in his reasons for judgment, French J summarises the pertinent facts in WACO, the Full Court’s conclusions and its reasons therefore. At [42] his Honour said:

‘The Full Court held that the letters were “central to the [applicant’s] claim in so far as they were tendered as evidence of his relationship with the Ayatollah Shirazi” – at [39]. Their Honours held that the question whether the letters were genuine did not directly depend upon the evidence of the applicant. A finding that they were forgeries could turn upon the applicant’s credit in so far as it was a finding that the letters had been concocted to advance the applicant’s case. If this were so, fairness would require that before a finding of forgery were made the person so accused should be given the opportunity of answering it. Their Honours said:

“A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations.”’

23                  Counsel for the Minister, Mr Potts, submitted that WACO was to be distinguished from the facts of the present case on the basis that the critical issue in WACO was the genuineness or authenticity of documentary evidence. That is beyond dispute, although in WACO the Tribunal did go on to say, in consequence of the finding that the documents were not genuine, that their contents were not genuine. However, it was the first finding, that the documents were not genuine, which led the Full Court to conclude as it did. Here, however, the genuineness or authenticity of the statutory declaration is not in issue, only its contents as testimony of the applicant’s sister.

24                  Mr Jackson submitted that this was a very fine distinction which should not be made, however, in my view, it is a critical one. In my view, WACO is not authority for the proposition that the Tribunal’s failure as articulated in [20] supra, constituted a breach of the rules of natural justice.

25                  The question which remains is whether the Tribunal was otherwise under an obligation to advise the applicant of its adverse conclusion with respect to the applicant’s sister’s testimony embodied in her statutory declaration.

26                  Mr Potts referred me to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 as to why there was no such obligation and Mr Jackson conceded that ‘… in the end … WACO is an application of Alphaone’. In Alphaone the Court said (at 590 – 592):

‘It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41. However, as Lord Diplock said in F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:

“… the rules of natural justice do not require the decisionmaker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.”

A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-757 (French J) and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J).

The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:

1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).

2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.

His Honour observed that those qualifications may be no more than an application of the general requirement of procedural fairness in particular cases. As Gummow J there said (at 359):

“… in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or material provided by the third party, but what is seen to be the conduct of the applicant in question.”

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.’

27                  There can be no suggestion that the contents of the applicant’s sister’s statutory declaration is ‘adverse material from other sources’ or is ‘not apparent from its nature or the terms of the statute under which it is made’. Nor is the Tribunal’s adverse conclusion on such contents, one which was ‘not obviously open on the known material’. The applicant was already aware of the Tribunal’s view of his credibility on such matters. Thus, in terms of the Full Court’s articulation of the qualifications to the general principle, there was no relevant qualification to oblige the Tribunal to expose its mental processes or provisional views to the applicant for comment before making the decision in question.

28                  Finally, Mr Jackson referred me to Mahon v Air New Zealand Ltd [1984] 1 AC 808 where the Privy Council upheld a decision of the New Zealand Court of Appeal (Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No. 2) [1981] 1 NZLR 168). In that case, the Privy Council advised that the rules of natural justice required, inter alia, the judge as a Royal Commissioner investigating the cause and circumstances of the Air New Zealand aircraft crash into Mt Erebus, to ensure that any person represented at the enquiry that might be affected adversely by a finding should know of the risk of such a finding being made and be given an opportunity to adduce additional material that might have deterred the judge from making that finding even though it cannot be predicted that it would inevitably have had that result. In this context, Mr Jackson submitted:

‘It should not be considered anything other than exceptional that serious findings of a criminal nature will be made in circumstances where there is no warning given to the impugned party, and that person is not given an opportunity to respond.’

29                  In response, Mr Potts submitted that it had to be remembered that the ‘impugned party’ was the maker of the statutory declaration and not the applicant. In other words, what the applicant seeks to assert is that he was denied procedural fairness because of the Tribunal’s findings in relation to the statutory declaration. Moreover, he took issue with the applicant’s characterisation of the Tribunal’s findings as ‘serious findings of a criminal nature’. He submitted that the findings were serious, but not criminal. In a different context, in criminal proceedings to which the sister was a defendant, and applying a criminal standard of proof, findings to the effect that the applicant’s sister was a party to an attempt to deceive the Tribunal, through the provision of a knowingly false statutory declaration, may have amounted to findings of criminality. In the present context, they were simply findings of fact necessary to dispose of the application, albeit findings of a serious nature.

30                  Mr Potts drew my attention to Hayne J’s consideration of the effect of their Lordships’ advice in Mahon in Muin v RTT (2002) 190 ALR 601 at [265] – [268] to which I would add, by way of introduction [263] and [264], namely:

‘[263] Unlike a court, the tribunal was not restricted to acting only on material that was expressly referred to in the course of a particular review. It was not bound by rules of evidence and its members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come. It may very well be, therefore, that, as individual tribunal members heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those tribunal members read more widely about the country concerned, they developed a body of knowledge upon which their views about the country were formed. And as they become more knowledgeable their capacity comprehensively to identify the particular sources of their knowledge would ordinarily diminish.

[264] There is, therefore, a very practical reason to doubt that procedural fairness required the tribunal to identify the source, and the general nature, of every piece of material that led the member to form a view that a particular country was willing and able to protect its citizens. So to hold would impose an obligation that could not readily be performed and in some cases would be impossible. But the difficulty in the argument advanced by Mr Muin is even more deep-seated than that.

[265] Procedural fairness required that Mr Muin have a reasonable opportunity to place before the tribunal any submission and any material that he wished to advance in support of his claim. Unlike National Companies and Securities Commission v News Corp Ltd and Mahon v Air New Zealand there was no question of allowing a person an opportunity to meet some adverse finding that might later be published. In such a case an investigating body may be obliged to provide an opportunity for rebuttal because the issue emerges with sufficient definition only at the stage where the body forms a tentative view that the adverse finding may be made. But that is not this case. As has already been pointed out, the issue of the willingness and ability of his country of citizenship to afford Mr Muin protection from persecution on Convention grounds was central to his claim. The tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the tribunal’s review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the tribunal’s proceedings.

[266] Nor was the tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of “contradiction” if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin’s claim. It was for him to make good his claim that he was entitled to Australia’s protection.

[267] Nor was this some aspect of his personal circumstances about which it might be expected that he had special knowledge or to which his answer might have some particular significance. It was a question about the general political situation in Indonesia — a matter about which his personal knowledge could fairly be expected to have been fully revealed (or at least revealed to the extent that he considered useful) in whatever evidence or submissions he had made to the tribunal.

[268] Yet in essence the plaintiff’s case in relation to adverse material was, first, that he could legitimately expect the tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the tribunal to tell him what material, adverse to his claim, the tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the tribunal in the role of an adversary to a claimant’s claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the tribunal is not to be cast in the role of contradictor.’

(Footnotes omitted)

31                  Mr Potts submitted that the applicant was well aware that the Tribunal had taken the view that the newspaper article caption suggested a photograph of two people standing side-by-side, rather than two photographs. The Tribunal had told the applicant it believed these documents to be fabricated. The sister’s statutory declaration was provided in relation to that issue, and in an attempt to dissuade the Tribunal from the view provisionally expressed. The rules of procedural fairness did not require the Tribunal to do anything further before reaching the conclusion it did, rejecting the potential corroboration of the sister’s statutory declaration. The fact that the findings it made in relation to the sister’s statutory declaration were findings of a serious nature did not change this.

32                  Mr Potts went on to refer to what was said by Gleeson CJ and Hayne J in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 69 at [31], namely, that procedural fairness did not require the Tribunal to give the applicant a running commentary on his prospects of success, warning him of every reason why his claims might not be thought sufficient to justify the grant of a visa. He also referred to what was said by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at 576 at [187]:

‘The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.’

33                  At the end of day, the applicant complained that the Tribunal did not warn him that it would find that the corroborating evidence of his sister had been fabricated. The simple answer to that contention is that it was not obliged to do so. The applicant had the critical issue, viz., the authenticity of the newspaper article, drawn to his attention. He proffered further evidence on this point, including the sister’s statutory declaration, which was rejected. There was no requirement for the Tribunal, acting in an inquisitorial capacity, to go back to the applicant warning him that this was one of the reasons why it would ultimately reject the newspaper article.

34                  There was some suggestion the Tribunal was obliged to call the sister as a witness before it could make the findings that it did, but that suggestion must be rejected. While it is the case that it is the Tribunal which ‘obtains’ or ‘acquires’ evidence (see Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 at [36], this says nothing about whether the Tribunal was obliged to call the applicant’s sister. It was for the applicant to place such material as was necessary to persuade the Tribunal of his claims before the Tribunal. The Tribunal was under no obligation to verify or investigate the applicant’s claims, including by calling his sister as a witness. The Tribunal has no duty to investigate, nor any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate (e.g. s 427(1)(d)): WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]. Even if the applicant had made a request under s 426 that the sister be called (which he did not) the Tribunal would not have been obliged to do more than have regard to the applicant’s wishes. The Tribunal did not commit jurisdictional error by failing to call the applicant’s sister as a witness, or by making the findings it did, having not called the sister as a witness.

35                  The applicant has not demonstrated any entitlement to the writs sought and the application must be dismissed with costs.

Associate:

Dated: 7 April 2006