FEDERAL COURT OF AUSTRALIA

MZXFN v Minister for Immigration & Citizenship [2007] FCA 362

MIGRATION – procedural fairness – Tribunal found that the appellant lacked credibility and that documentary evidence did not support his claim – no finding that documentary evidence was fraudulent – no obligation on the part of the Tribunal to raise concerns as to the genuineness of the documentary evidence – s 422B

Migration Act 1958 (Cth) s 422B

Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 cited

MZXFN v Minister for Immigration & Multicultural Affairs [2006] FMCA 1274 affirmed

NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 followed

SZAJL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 217 cited

SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 followed

WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 cited

WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 cited

WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 considered

VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 cited

MZXFN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 1046 OF 2006

BENNETT J

14 FEBRUARY 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The name of the first respondent be changed to the “Minister for Immigration and Citizenship”.

2.                  The appeal be dismissed.

3.                  The appellant is to 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

1                     The appellant is a citizen of Pakistan and claims to have a well-founded fear of persecution in that country because of his religion.  He claims that, as an adherent to the minority Shia Muslim faction, he has a well-founded fear of persecution from persons who are adherents to the majority Sunni Muslim faction.  He claims that he and his family had been harassed in the past and that he had been injured in May and July 2004.  In August 2004, there was a bomb blast at a mosque in Sialkot, the town where he lived.  He says his brother was killed and he was injured.  He decided to leave Pakistan and claims that he did so illegally before arriving in Australia in September 2004. 

2                     The appellant’s application for a protection visa was refused by a delegate of the Minister.  He sought a review of that decision in the Refugee Review Tribunal.  The Tribunal accepted that the appellant is a Pakistan National, that he had lived in Lahore and Sialkot and that he is a Shi’a Muslim. 

3                     The Tribunal did not accept that the appellant left Pakistan and feared to return because he was persecuted as he claimed.  It did not accept that his brother was killed in a bomb blast, as claimed, or that the appellant was injured because he was a Shi’a Muslim.  Nor did the Tribunal accept that the appellant left Pakistan illegally.  The Tribunal said that its reason for finding against the appellant in relation to these matters was that it did not accept that he is credible.  The Tribunal gave reasons for that decision and explained its conclusion with respect to the appellant's account of his departure from Pakistan and the appellant's claims about his injuries and the death of his brother.

4                     The appellant had forwarded to the Tribunal copies of a newspaper and a translation of two articles therein in support of his claims (‘the newspaper articles’).  Documents from doctors in Sialkot, dated 10 July 2004 and 20 August 2004, were also provided (‘the medical reports’).  The Tribunal discussed the contents of those documents and said:

            ‘given that the Tribunal does not accept that [the appellant] is a credible witness, the Tribunal considers that the documents he has submitted, described as from doctors in Sialkot and dated 20 August 2004 and 10 July 2004, do not provide credible evidence to support [the appellant's] claims.’

5                     The appellant applied to the Federal Magistrates Court for an order that the Minister show cause why orders in the nature of certiorari and mandamus in respect of the Tribunal’s decision should not be granted.

6                     In that application and in his appeal to this Court, the appellant says, in effect, that he was denied procedural fairness by the Tribunal because ‘the matters which caused the Tribunal to reject the genuineness of [the newspaper articles and the medical reports] were not raised with [him]’ at the Tribunal hearing.  He says that he was not given the opportunity to be heard on those issues and that the material may have been capable of explanation.  The appellant also claims that he is not precluded by s 422B of the Migration Act 1958 (Cth) (‘the Act’) from so contending. 

The Federal Magistrate’s reasons

7                     Federal Magistrate McInnis dismissed the amended application (MZXFN v Minister for Immigration & Multicultural Affairs [2006] FMCA 1274).  Although his Honour did not state expressly in his reasons whether that dismissal was pursuant to r 44.12(1)(a) or (c) of the Federal Magistrates Court Rules 2001 (Cth), the parties have proceeded on the basis of a right of appeal from a final decision.  On my reading of his Honour’s decision, I am satisfied that it is appropriate to proceed on that basis.  His Honour found that the appellant had not been denied procedural fairness (at [32]–[36]) and that s 422B of the Act precluded the application of any common law principles of procedural fairness (at [40]).  His Honour observed, in relation to the newspaper articles (at [32]):

‘In my view, a proper reading of the Tribunal’s decision indicates that it did no more than consider the material and draw a conclusion that the material either did not support [the appellant’s] claims or that the articles otherwise provide corroborative material for [the appellant] sufficient to encourage the Tribunal to find [the appellant] was a witness of credit.  Having found difficulties with [the appellant’s] credibility, the Tribunal was entitled to consider the material offered by [the appellant] as a means of corroboration, and to then reject those items without necessarily proceeding to make a specific and express finding that the newspaper articles were forgeries.’

His Honour held that in the absence of other corroborative evidence, it was open to the Tribunal to make the findings that it did on the documents given to the Tribunal by the appellant (at [34]).  His Honour did not consider it to be surprising that the Tribunal did not place significant weight upon the medical reports (at [35]).   

8                     His Honour said that the Tribunal had simply proceeded to make an adverse credibility finding against the appellant.  It considered the material provided by the appellant, which in part was sought to provide what might be described as corroboration but found that that material did not assist or support the appellant's claim (at [36]).  His Honour noted that the Tribunal had not found that the newspaper articles or the medical reports could properly be described as forgeries or fraudulent. 

The appeal to this Court

9                     The appellant appears in person assisted by an interpreter.  He relies on the same grounds that were before the Federal Magistrate and submits that the Tribunal ‘sort of ignored’ the medical reports and the newspaper articles.  Further particulars are not given. 

10                  The Minister submits that the appeal must fail for two fundamental reasons.  The first is that there has been no denial of procedural fairness and the second is that, even if there had been such a denial, s 422B of the Act applies.  That section relevantly provides that Div 4 of Pt 7 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.

11                  Section 424A(1) of the Act in Div 4 has no application, as the documents in question were given to the Tribunal by the appellant for the purposes of the review application (s 424A(3)(b)).  Indeed, the appellant does not raise any ground of appeal in this regard. 

Consideration

12                  I agree with the way in which McInnis FM dealt with the Tribunal’s approach to the medical reports and the newspaper articles.  The Tribunal made a finding on credibility which was neither displaced, nor corroborated, by the documents in question.  The Tribunal did not make a finding of forgery or otherwise of the documents but considered the documents on their face to see whether they did corroborate the appellant's claims. 

13                  A distinction has been drawn between circumstances where the Tribunal actually makes a finding of forgery and where the Tribunal does not (WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [52] and following).  In WAJR, French J considered the approach to be taken when findings of forgery are made and the Tribunal did not put to the applicant the basis upon which the authenticity of the documents might be called into question.  His Honour noted that two Full Court decisions, WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, were relevant to that inquiry.  

14                  The Full Court observed in WACO that, where a finding does not turn upon the credibility of the applicant and there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries, it would be inherently unfair for a decision maker to conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it (at [54]).  In WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, there was no finding by the Tribunal that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis. 

15                  French J concluded in WAJR at [56] that it may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents.  This distinction was also drawn by the Full Court in SZAJL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 217 at [34] and is consistent with the reasoning of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49].

16                  In this case there was an adverse finding of credibility.  I agree with McInnis FM and with the Minister’s submissions that all the Tribunal did was reject the documentary evidence as failing to support the appellant’s claims.  As the Minister submits, if the Tribunal had found that the documents were fraudulent or concocted to support the appellant’s claims, it would have said so.  It did not.  Absent any such finding, there was no obligation to put to the appellant that the authenticity of the documents might be called into question or otherwise to raise concerns as to the genuineness of the documents. 

17                  In any event, s 422B of the Act applies.  The analysis of the breadth of application of s 422B was dealt with by Heerey J in VXDC v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 146 FCR 562 at [22] to [31].  His Honour’s reasons were adopted and his conclusion upheld in Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [60] to [70]; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 at [8] and NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [85]. 

Conclusion

18                  No failure to accord procedural fairness according to common law principles has been established.  Even if such a failure had been established, s 422B of the Act precludes a consequential finding of jurisdictional error.  It follows that the appeal should be dismissed.  The appellant is to pay the Minister's costs.

Associate:

Dated:         15 March 2007

The Appellant appeared in person.