FEDERAL COURT OF AUSTRALIA

Applicant S298/2003 v Minister for Immigration and Citizenship

[2007] FCA 1793

MIGRATION – where appellant tendered a photocopy of a document to the Tribunal – where Tribunal decision made on 19 August 1998 – where s 424A and s 422B not yet enacted – where common law rules of natural justice applied instead – whether Tribunal misled appellant into thinking that there was no point tendering the original document – appeal allowed.

Migration Act 1958 (Cth)

Federal Court of Australia Rules 1979 (Cth)

Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2001) 168 ALR 407cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 cited

VAAC v Minister for Immigration (2003) 129 FCR 168cited

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

APPLICANT S298/2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1133 OF 2007

LANDER J

22 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The order of the Federal Magistrates Court made on 31 May 2007 be set aside and in lieu thereof:

(a)        there be an order quashing the decision of the second respondent made on 19 August 1998;

(b)        there be an order requiring the second respondent to review according to law the decision made by the delegate of the first respondent on 6 May 1997 to refuse the applicant a Protection visa (866);

(c)        the first respondent pay the applicant’s costs.

3.                  The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     This is an appeal from an order of a Federal Magistrate made on 31 May 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 19 August 1998.  In that decision the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the appellant a protection visa.

2                     The appellant was born on 1 January 1966 and is a citizen of Bangladesh.  He arrived in Australia on 9 March 1997 on a false passport of the Republic of South Africa.  On 2 April 1997 he applied for a Protection visa (866).  The Minister’s delegate refused that application on 6 May 1997.  On 16 May 1997 the appellant applied to the Tribunal for a review of that decision.  The Tribunal affirmed the delegate’s decision on 19 August 1998.

3                     On 14 September 2005 the appellant made an application to the Federal Magistrates Court for a judicial review of the Tribunal’s decision.  On 23 October 2006 the appellant filed a further amended application.  On 31 May 2007 a Federal Magistrate dismissed that application.

4                     The Tribunal’s decision was made some seven years before the appellant brought his proceeding in the Federal Magistrates Court.  Neither s 422B nor s 424A of the Migration Act 1958 (Cth) (the Act) were enacted at that time.  The appellant cannot rely upon those sections.  He can, however, claim that the Tribunal needed to conform with the common law rules of natural justice.

5                     The Tribunal records that the appellant’s claims were set out in written submissions made to the delegate, further written submissions to the Tribunal and his oral evidence given before the Tribunal on 19 March 1998.

6                     The appellant said that he was born in Chargali, Tongi, Gazipur in Bangladesh and completed his schooling in 1987.  He said he joined the Freedom Party in that year.  He left Bangladesh to escape problems because he feared persecution due to his involvement with the Freedom Party in Bangladesh.  He feared that he would be harmed by “people associated with the Government of Bangladesh, the Awami League, the army and the police.”

7                     After he left Bangladesh he lived in South Africa from August 1995 until March 1997 when he travelled to Australia on a false South African passport.

8                     In his evidence before the Tribunal the appellant said he had travelled to South Africa on his Bangladeshi passport which he left in South Africa.  He said that he had not returned to Bangladesh since he left in 1995.

9                     Whilst in Bangladesh, he joined the Freedom Party in 1987 which was a political party founded by Colonel Faruq.  The Freedom Party, he said, was totally opposed to the Awami League which was then in power.  However, he was unaware that Colonel Faruq had stood unsuccessfully as a presidential candidate against the then President of Bangladesh, General Ershad.

10                  He said that between 1994 and 1995 he was the Joint Secretary of the Party in the Narsingdi Palash area and during that time was subject to a number of attacks.  He said he arranged a meeting near a bus stop in Ghorizal in February 1995 which the Awami League tried to stop.  As a result, three innocent people were killed and 50 or 60 were badly injured.   A railway station was burned and the tracks uprooted.  The appellant said that he was beaten very heavily during the fight.  Proceedings were brought against him but he fled and went to Dhaka where he hid until July 1995.

11                  The appellant said that he was subject to violence on at least five or six occasions during his time as Joint Secretary of the branch of the Freedom Party.

12                  He said in response to a question from the Tribunal that he was allowed to depart Bangladesh via the airport by paying money at the immigration counter through an agent.

13                  The Tribunal asked the appellant how the charges laid against him were fabricated when they occurred not when the Awami League was in power but when the BNP was in power.  The appellant said that both parties were powerful in Bangladesh and that they remained influential and powerful regardless of who was in power at the time.  He further said that he obtained the false South African passport from a broker in South Africa for 2,000 Rand.  He did not travel on his Bangladeshi passport because he could not obtain a visa for Australia on that passport.

14                  The appellant submitted a document purportedly from an office holder of the Freedom Party dated 6 January 1998 to the Tribunal which claimed that the appellant was “actively involved in our party as a Joint Secretary from January 1994 to July 1995.”

15                  During the hearing it was put by the Tribunal to the appellant that there was advice from the Department of Foreign Affairs and Trade that bogus and fraudulent documents were commonly obtained in Bangladesh and that such documents should be treated with circumspection.

16                  The following exchange took place:

MEMBER:       You just forgot one thing.  Earlier you mentioned the document from the Freedom Party that was attached to your statement that you sent on 9^th March.

THE APPLICANT:     I have given a copy.

MEMBER:       Yes.  I’ve got a copy.  I’m just required to tell you that there is advice from the Department of Foreign Affairs that fraudulent official documents are commonly easily obtainable in Bangladesh.

The advice is that these letters and copies of original arrest warrants should be treated with some caution as procedures may appear virtually impossible to obtain documents such as original arrest warrants from police.

THE APPLICANT:     It is very difficult in our country to get the original documents.  It is not like Australia where you can go to any office and get copy of any document.  In our country of course if you pay money then you can get this second grade thing.  If you want to get the original you really need a lot of money and sometimes they want to keep everything secret so they do not give the …  Therefore it is very difficult to get documents.

17                  Shortly after, the following further exchange took place:

THE APPLICANT:     I have given a photocopy of this of this (sic) and do you want to see this original?

MEMBER:       It’s not the matter of whether it’s a photocopy of the original it’s just um, what I was trying to tell you earlier was that there is advice that original documents are easy to obtain in a fraudulent manner.

            But that doesn’t necessarily mean that I am saying that that is a fraudulent document, what I’m saying is that um, I may or may not use that document as supporting that you were a member of the Freedom Party.

            Ok.  …

18                  The Tribunal was satisfied that the appellant was, as he claimed, a citizen of Bangladesh even though he had travelled to Australia on a South African passport.  However, it said that it had serious concerns about the appellant’s credibility which led it to doubt the truth of his claims.

19                  The Tribunal found that, whilst the appellant may have been a supporter of the Freedom Party, the appellant was not a member or an officer holder in that Party.  It found that he did not face serious harm of any kind for reasons of his political beliefs.  It rejected his claim that he went to South Africa in order to flee the Awami League in 1995.  It found that his evidence conflicted with independent evidence.  It lacked detail and specificity.  The Tribunal said that some of his answers were rehearsed.  The Tribunal refused to place any weight on the document which he produced because it accepted independent evidence that fraudulent and bogus official documents were commonly and easily attainable in Bangladesh and because the appellant was not a witness of truth.

20                  The Tribunal went on to say:

Furthermore, the document was a photocopy, which could not be the basis of an investigation into authenticity by the Document Examination Unit of the Department of Immigration and Multicultural Affairs, even if the Tribunal saw it fit to conduct such an investigation.

21                  It rejected as implausible the appellant’s claims that the Awami League harassed him in order to make him join the Party.  It rejected his evidence that after the incident in 1995 he went into hiding.  It accepted the country information that the Freedom Party attracted little attention from the Government.

22                  The Tribunal found that he did not have a well-founded fear of persecution for a Convention reason.  Thus it affirmed the delegate’s decision.

23                  In his application to the Federal Magistrates Court the appellant claimed that the Tribunal failed to accord him procedural fairness by placing no weight on the document produced from the Freedom Party.  The appellant claimed that the Tribunal committed jurisdictional error by denying the appellant natural justice and procedural fairness in failing to investigate the veracity of that document.  The appellant claimed that the Tribunal committed jurisdictional error by failing to set out its findings on material questions of fact and, in the process, identified a wrong issue and/or took into account irrelevant considerations.  The appellant claimed that the Tribunal denied him procedural fairness by misrepresenting the significance or otherwise of tendering an original document as opposed to a copy.  Lastly, he complained that the Tribunal committed jurisdictional error by making a critical finding of fact that was not open on the evidence before the Tribunal.

24                  The Federal Magistrate addressed the grounds in detail and rejected each ground in turn.

25                  The Federal Magistrate observed that the Tribunal did not find that the document which the appellant submitted was a forgery.  The Tribunal merely found that it was not prepared to put any weight upon the document because it was not satisfied that the appellant was a witness of truth and documents of the kind were easily obtained in Bangladesh.  The Tribunal rejected the submission that the appellant had been denied procedural fairness in relation to the document because the appellant was given a clear opportunity to respond to the country information of which the member advised the appellant to the effect that such documents were easily obtainable in Bangladesh.  The Federal Magistrate rejected the submission that the Tribunal’s finding implied that the author of the document and the appellant were engaged in some conspiracy to commit a fraud.  There was no finding made that the document was fraudulent.  The Tribunal had merely concluded that it was not prepared to put any weight upon the document.  The Tribunal did not use the document as a reason for rejecting the appellant’s evidence or assessing the appellant’s credibility.  Rather, it was not prepared to rely on the document as supporting his claim that he was a member of the Freedom Party.

26                  The Federal Magistrate referred to the exchange between the appellant and the Tribunal where the Tribunal advised the appellant that it was not a matter of whether the document was a photocopy or an original and said:

Although the transcript quoted above suggests the original letter may have been available, Counsel for the Applicant before me did not suggest to me that it was.

27                  Later, the Federal Magistrate said:

35.       If he was so misled, and I am by no means satisfied anything the member said could be capable of amounting to such a misrepresentation, then it is clear the fact that only a photocopy was annexed to the statement delivered 10 March 1998 did not form part of the Tribunals’ (sic) reasons for deciding to give the document (and, by implication its contents) no weight.  It is not clear whether the original was available in any event.  If it was, the Applicant did not attach the original to his letter dated 9 March 1998 or otherwise tender it to the member at the hearing.

28                  The Federal Magistrate found that the Tribunal was entitled to make a finding adverse to the appellant regarding his credibility which he said was a function of the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2001) 168 ALR 407 at 423 per McHugh J.

29                  The Federal Magistrate rejected the appellant’s complaints insofar as the appellant sought a rehearing on the merits.

30                  Similar matters are raised in the notice of appeal.  The thrust of the appellant’s complaints on appeal is that the Tribunal erred in (a) finding that the document was a forgery; (b) failing to accord the appellant procedural fairness that it might find the document to be a forgery; (c) failing to allow the appellant to present arguments relating to the issues as required under s 425 of the Act; and (d) failing to investigate the authenticity of the document pursuant to s 427(1)(d) of the Act.  Insofar as the Federal Magistrate rejected those arguments, it is said that the Federal Magistrate fell into error.

31                  The appellant sought to tender further evidence on the appeal in the form of an affidavit of the appellant in which he deposed that at the time of the hearing he had the original of the letter dated 6 January 1998 and had he known that the Tribunal would not attach any weight to a copy of that letter and/or investigate the authenticity of the letter he would have submitted the original to the Tribunal.

32                  The procedure for the tender of further evidence on appeal is governed by O 52 r 36 of the Federal Court of Australia Rules 1979 (Cth) (the Rules) which requires the party seeking to adduce further evidence to file an affidavit deposing to the grounds of the application and to the evidence necessary to establish those grounds.  The application is to be made on motion.  The affidavit must be filed more than 21 days before the hearing of the appeal: O 52 r 36(6).

33                  The appellant did not comply with the procedure in O 52 r 36 of the Rules.  Nor did the appellant adduce any evidence of any kind to explain why the evidence was not adduced before the Federal Magistrate.

34                  The first respondent objected to the Court receiving the further evidence for the reason that no grounds had been advanced in support of the application.  Moreover, it was submitted that if the further evidence were received it would be necessary to cross-examine the appellant in relation to the contents of the appellant’s affidavit.

35                  Whilst the question of the reception of further evidence on an appeal involves the exercise of a statutory discretion rather than the application of common law principles, the common law principles relating to the reception of fresh evidence are nevertheless relevant.

36                  I rejected the appellant’s application.  No explanation was given for the appellant’s failure to comply with the Rules.  There was no explanation as to why the evidence had not been adduced before the Federal Magistrate.  More importantly, the evidence, if received, could have prejudiced the Minister in that there was no evidence that the document which was referred to in the affidavit was still available for inspection by the Minister.  Even more importantly, I rejected the application because I thought the evidence did not advance the appellant’s case.

37                  The notice of appeal does not expressly raise concerns with the Federal Magistrate’s reasons in relation to the claim before the Federal Magistrate that the appellant had been denied procedural fairness in that he had been misadvised in relation to the use of a photocopy before the Tribunal.  However, it was accepted that that was a matter before the Federal Magistrate and that the appellant was entitled to raise the matter on appeal.

38                  The appellant’s case failed before the Tribunal because the appellant was not accepted as a credible witness.  The appellant tried to bolster his credibility by bringing to the Tribunal’s attention the document which he claimed established his association with the Freedom Party.  Contrary to the submission made by the appellant, both to the Federal Magistrate and to this Court, the Tribunal did not find that document was a forgery.  It found that, because it did not accept the appellant to be a witness of truth and because documents of that kind were easily attainable in Bangladesh, little weight could be put upon the document.

39                  The appellant has relied upon WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 where the Court found the Tribunal to be in breach of procedural fairness by failing to allow an applicant an opportunity to respond to its conclusion that documents which were submitted to the Tribunal at the Tribunal’s request after the hearing were a forgery.

40                  In this case, however, the Tribunal did not find the document to be a forgery.  Rather, it refused to accept it as evidence in support of the appellant’s credibility.  Moreover, in this case, contrary to the facts in WACO131 FCR 511, the Tribunal raised its concerns with the appellant about the status of the document during the hearing.

41                  It was put that the second and third grounds of appeal were not raised before the Federal Magistrate.  The respondent objected to the appellant raising these grounds for the first time, especially in circumstances where the appellant has not explained why the matters were not raised on the application before the Federal Magistrate: VAAC v Minister for Immigration (2003) 129 FCR 168.

42                  The third ground of appeal was abandoned.  Section 425 was in different form when the Tribunal undertook its review.  It then provided:

425.  (1)  Where section 424 does not apply, the Tribunal:

(a)     must give the applicant an opportunity to appear before it to give evidence; and

(b)     may obtain such other evidence as it considers necessary.

         (2)  Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.

43                  There was not then a statutory obligation to invite an applicant to present arguments relating to the issues.  For that reason, that ground was rightly abandoned.  Ground 2 was, I think, raised before the Federal Magistrates Court and could be the subject of an appeal.

44                  The appellant argued before the Federal Magistrate and on appeal that the Tribunal had misadvised him in relation to the use of a photocopy and, as a result, he lost the opportunity of tendering the original.

45                  The respondent contended that there was no evidence that the original was in existence at the time of the hearing before the Tribunal.  In my opinion, the proper inference to be drawn from the exchange which took place between the appellant and the member was that the original either was available or could be made available if the Tribunal required the document.  The question asked by the appellant certainly suggests that such a document was available.

46                  When the appellant asked the question that he did of the Tribunal he was advised, I think unambiguously, that the tendering of an original would not assist because “original documents are easy to obtain in a fraudulent manner.”

47                  It may be inferred from that exchange that the Tribunal’s response to the appellant’s question would have led the appellant to believe that there was no point in tendering the original because it would not advance his case.

48                  The advice given by the Tribunal to the appellant was, on the Tribunal’s own reasoning, wrong.  An original document could have been investigated as to its authenticity by the Document Examination Unit of the Department of Immigration.  It may also be inferred that had the original been before the Tribunal, the Tribunal would have exercised its powers under s 427(1)(d) and required the Secretary to investigate the authenticity of that original document.  If the original document had been authenticated, that would have supported in a material way the appellant’s claim that he was a member of the Freedom Party.  It would also have supported his claim that he had been the Joint Secretary of the Party for a district for the period which he claimed.

49                  As I have already mentioned, the appellant’s claim failed because he was not believed as to his membership of the Freedom Party and as to his claim that he was the Joint Secretary for a district of the Freedom Party.

50                  In my opinion, the appellant was, by the answer given by the Tribunal, denied the chance of establishing those two facts before the Tribunal.  If it had been established that the document was authentic, the Tribunal might not have made the adverse credit findings.  That being the case, in my opinion, the appellant has been denied a fair hearing and the Tribunal has fallen into jurisdictional error.  Not every statement made by the Tribunal to an applicant which is factually incorrect or may mislead will give rise to a finding that the Tribunal has fallen into jurisdictional error.  The statement or representation must give rise to unfairness in the sense that the applicant was denied a fair hearing: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53 at [30].  Insofar as the Federal Magistrate said otherwise I think, with respect, he has fallen into error.

51                  I would allow the appeal, set aside the order made by the Federal Magistrate dismissing the appellant’s application, quash the Tribunal’s decision and I would remit the matter to the Tribunal for hearing according to law.

Associate:

Dated:         22 November 2007