FEDERAL COURT OF AUSTRALIA

SZMUF v Minister for Immigration and Citizenship [2009] FCA 182

MIGRATION – challenge to the weight given to evidence – adverse findings as to authenticity of documents – findings open to Tribunal – no duty to make further enquiries

Abebe v The Commonwealth of Australia [1999] HCA 14, 197 CLR 510, cited

Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375, 90 ALD 632, cited

Chand v Minister for Immigration and Ethnic Affairs (unreported, FCA, NG 257 of 1997, 7 November 1997), cited

Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370, cited

Minister for Immigration and Citizenship v Le [2007] FCA 1318, 164 FCR 151, cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 168 ALR 407, cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22, 206 CLR 57, cited

SZJMH v Minister for Immigration and Citizenship [2008] FCA 270, cited

SZKRR v Minister for Immigration and Citizenship [2008] FCA 145, cited

SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198

SZMUF v Minister for Immigration and Citizenship [2008] FMCA 1731, affirmed

WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171, 131 FCR 511, cited

WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912, cited

WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74, 80 ALD 568, cited

SZMUF v MINISTER FOR IMMIGRATION AND CITZENSHIP AND ANOR

NSD 2001 of 2008

FLICK J

2 March 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The Appeal is dismissed.

2.                  The Appellant is to pay the costs of the First Respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The Appellant arrived in Australia on 27 March 2008.  He is a citizen of Bangladesh.

2                     He applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 10 April 2008. That application was rejected by a delegate of the Minister on 30 June 2008. An application was then made on 24 July 2008 to the Refugee Review Tribunal. That Tribunal affirmed the delegate’s decision on 1 September 2008.

3                     An application was then filed with the Federal Magistrates Court on 25 September 2008. That Court dismissed the application on 9 December 2008: SZMUF v Minister for Immigration and Citizenship [2008] FMCA 1731.

4                     The Appellant now appeals to this Court. He appeared before the Court this morning unrepresented, although he did have the assistance of an interpreter.

5                     His Notice of Appeal was filed on 23 December 2008 and his Grounds of Appeal assert three alleged errors committed by the Refugee Review Tribunal, namely:

(i)                   a failure “to exercise its duty under the Migration Act not to put any weight to the documents which I submitted before the Tribunal to support my claim”;

(ii)                   a contention that the Tribunal “underestimated my inability of politics and my involvement with the BNP …”; and

(iii)                   a failure “to realise the genuine fear which I would face in my home country if the current regime of law and order in Bangladesh would collapse and/or the old regime under which I claimed persecution and political violence rife was reinstated …”.

Written submissions filed by the Appellant with this Court on 18 February 2009 have substantially repeated these arguments.

6                     Again this proceeding exposes a yet further instance in which an Appellant does not identify any error as made by the Federal Magistrate. The jurisdiction of this Court is relevantly to entertain an appeal from a decision of a Federal Magistrate; no jurisdiction is conferred upon this Court to again review the decision as made by the Refugee Review Tribunal.

7                     And, yet again, the Notice of Appeal fails to comply with Order 52, r 13(2) of the Federal Court Rules 1979 (Cth). Each of the purported “Grounds of Appeal”, however, was an argument advanced for resolution before the Federal Magistrate. It is thus possible to construe the “Grounds of Appeal” as being a contention that the Federal Magistrate erred in rejecting the same arguments as are now sought to be advanced on appeal.

8                     So construed, the Appeal is to be dismissed.

9                     The fundamental difficulty confronting the now Appellant in both his application as filed with the Federal Magistrates Court — and this Court on appeal — is the adverse finding as to credibility made by the Tribunal. It ultimately concluded in part as follows:

[52] The Tribunal is of the view that the Applicant’s whole case is overwhelmingly damaged by bad faith, forgery, a lack of credibility and a failure to provide consistent and plausible details that a person in his claimed position would easily have been able to provide.

The Weight To Be Given to Documents

10                  Before the Tribunal the now Appellant produced a number of documents, including posters; a letter in support of his contention that he occupied a position within the BNP, the Bangladesh Nationalist Party; and a letter from the police. The Tribunal had difficulties in accepting the genuineness of the documents presented — the posters on inspection exposed a difference in the size of the font and the police document appeared to have material cut out and other portions inserted. The Tribunal concluded:

[50] The Tribunal does not accept that the Applicant has ever worked for the BNP or for any political party in Bangladesh. The Tribunal gives weight here to the Applicant’s inability to describe and consistently distinguish the roles of “Press Secretary” and “General Secretary”. The letter intended to support the Applicant’s claims about having been a “Press Secretary” is undermined by the Applicant’s inability to identify consistently the position held by the author who, he said, was his direct superior. The Tribunal gives the letter no weight and, in view of the obvious forgery of the purported police letter, goes so far as to form the view that this letter too is a fake.

[51] Because the Tribunal finds that the purported police document is a fake, and because there are significant problems with the purported BNP letter leading the Tribunal also to give that document no weight, the Tribunal gives no weight to the posters submitted by the Applicant. The Applicant’s credibility is so damaged both by his oral evidence and by the poor contrivance of the purported police document, in particular, that the Tribunal gives no weight to either of the two posters, irrespective of the font size under his image in each.

11                  As concluded by the Federal Magistrate, these were all findings of fact open to be made by the Tribunal upon the evidence before it.

12                  It was unclear from the written submissions as filed by the Appellant whether his concern was more directed to:

·               the weight given by the Tribunal to particular pieces of evidence; or

whether he was also concerned as to:

·                    the procedure followed by the Tribunal in the course of making its findings.

The written submissions unquestionably made a criticism as to the absence of weight given by the Tribunal to some evidence; those written submissions, however, also contended that if the Tribunal had any doubt as to the authenticity of documents, it could have made further enquiries. In his brief oral submissions this morning, the Appellant (via his interpreter) maintained that the Tribunal should have made those further enquiries in Bangladesh.

13                  However the argument be advanced, it is to be rejected.

14                  The weight to be given to the evidence before it is a matter for the Tribunal: Abebe v The Commonwealth of Australia [1999] HCA 14, 197 CLR 510. Gummow and Hayne JJ there observed:

[197] … In the end, the criticisms made by the applicant of the Tribunal’s reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.

Similarly, in Chand v Minister for Immigration and Ethnic Affairs (unreported, FCA, NG 257 of 1997, 7 November 1997) von Doussa, Moore and Sackville JJ observed:

The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another …

“A finding on credibility” it has been said, “is the function of the primary decision-maker par excellence”: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423 per McHugh J. Reference may also be made to SZKRR v Minister for Immigration and Citizenship [2008] FCA 145 at [7] per Bennett J; SZJMH v Minister for Immigration and Citizenship [2008] FCA 270 at [27] per Lander J.

15                  Each of the findings made by the Tribunal in the present proceeding was a finding of fact open to it. The findings as made by the Tribunal were based upon probative material and the reasons it advanced in support of its conclusions do not expose any departure from the duty of the Tribunal to act “judicially” and in accordance with law: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [19] to [24], 80 ALD 568 at 573 to 574 per Lee and Moore JJ; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 per Gordon J.

16                  Nor did the Tribunal err in the manner in which it went about making its findings.

17                  It may be accepted that circumstances may arise where the Tribunal may be exposed to a duty to make further enquiries: eg., Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [77] to [79], 164 FCR 151 at 178 to 179 per Kenny J. But no such duty arose in the present case.

18                  The Tribunal in the present proceeding inspected the documents placed before it by the now Appellant. Its inspection of those documents occasioned it to have reservations as to the authenticity of the documents. The Tribunal’s reasons thus record as follows its observations in respect to the document ostensibly emanating from the police and the manner in which the Tribunal resolved those reservations:

[42] The Tribunal drew the Applicant’s attention to the fact that the photocopy clearly displayed an area where the original typed text “Accuses” gave way to an area obscured by a cut-out piece of white paper over which four names including his own were handwritten in pen. The Tribunal showed the Applicant that the interpolations by pen made a deep enough impression in the paper for them to be discernible through the paper both to the eye and to touch. The Tribunal noted that the blank space created by the obscuring white cut-out ended just above the typed text stating the offence and a space provided within that typed text for the date of the offence. The Tribunal showed the Applicant where the blank cut-out obscured part of the date, and put to the Applicant that all these features indicated that the part of the document linking him to the police and to the purported offence and charge appeared very clearly to be falsified.

In respect to the posters, the Tribunal similarly recorded the procedural course it pursued in respect to these documents and its conclusions as follows:

[44] The Tribunal looked at the posters the Applicant brought to the hearing. Both of these purported to be notices calling people to come and hear BNP officials speak on issues of the day. Both included photographs of a number of purported BNP officials including the Applicant. The Tribunal put to the Applicant that the font appearing under his photograph in each of the two posters was not consistent with the font under the photographs of the others. The Tribunal put to the Applicant that [if] it found that it could not rely on the other two documents as being genuine reliable documents it would have good reason to give no weight to these posters. The Applicant insisted the posters were genuine and said they had lain in his office a long time. The Tribunal then asked the Applicant why the font under his image was slightly larger than the font under the other pictures, and he said that because the poster was for use in his own area, his name was given prominence. The Tribunal considered this, but was not impressed on sight as to any conscious effort to highlight the Applicant’s name, the difference in font was so marginal as to look more like the product of oversight than a deliberate intention to highlight.

No challenge could be made as to the fairness of the procedure pursued by the Tribunal. It brought to the now Appellant’s attention its concerns and did indeed make further enquiries of him. He was given an opportunity by the Tribunal to respond to those concerns. He was given a further opportunity this morning to make any further submissions he saw fit as to the genuineness of the documents in issue. He confirmed that the Tribunal had made enquiries of him and that there was nothing further he wished to add, other than his submission that further enquiries should have been made overseas.

19                  A denial of procedural fairness may arise where the Tribunal does not alert an applicant to the prospect that documents may be found to have been fabricated: eg., Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370. In applying this decision, a Full Court has concluded that there had been a denial of procedural fairness in circumstances where a claimant had not been given an opportunity to address a question as to whether documents were genuine: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171, 131 FCR 511. Lee, Hill and Carr JJ there observed:

[53] In the present case and in Meadows 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 in so far 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.

A general indication to the claimant by the Tribunal that it was having difficulties accepting the claimant as a credible witness, it was there said, was not sufficient to afford the claimant an opportunity to address the genuineness of the documents in issue.

20                  But where reservations as to the authenticity of one document have been brought to the attention of a claimant, there may be no necessity to separately warn a claimant as to reservations being experienced in respect to corroborating material: Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375, 90 ALD 632. The Tribunal had there found a newspaper article to be a fabrication. Corroborating evidence was from the claimant’s sister. The corroborating evidence was in the form of a statutory declaration; the question was whether its contents were correct. There was there held to be no necessity for the Tribunal to go back and warn the claimant that the Tribunal would find the sister’s evidence also to be fabricated. In rejecting the contention, Edmonds J concluded:

[33] At the end of [the] 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 … 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 … 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. (Citations omitted)

An opportunity to be heard thus does not involve informing a claimant as to the prospect of adverse findings being made in respect to each particular aspect of the case sought to be advanced.

21                  An assessment as to credibility may in turn lead to adverse conclusions being made as to the genuineness of documents: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [34] per French J (as His Honour then was).

22                  Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard. But procedural fairness does not require “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31], 206 CLR 57 at 69 per Gleeson CJ and Hayne J.

23                  In the present proceeding, and as explained by the Tribunal, there were indications on the face of the documents themselves to question their authenticity, and the now Appellant was put on notice by the Tribunal as to its concerns and given an opportunity to address those concerns.

24                  It was clearly open in such circumstances for the Tribunal to make the findings that it did. The now Appellant could have been left in no uncertainty as to the basis of the Tribunal’s concerns about the genuineness of the documents he sought to rely upon and in no uncertainty as to the concerns being expressed about his credibility. There was no “duty” imposed on the Tribunal to make further unspecified enquiries in Bangladesh.

Underestimated Inability in Politics

25                  The Tribunal rejected the now Appellant’s claim that he occupied a position within the BNP. The Tribunal set forth the various accounts being advanced as to the positions of “General Secretary” and “Press Secretary” and the responsibilities of each position. It concluded:

[49] On the vague, confused and contradictory evidence in this matter, the Tribunal does not accept the Applicant’s implied claim about being a member of the BNP or even of its Youth Wing.

26                  The Federal Magistrate was correct in his conclusion that the finding as made by the Tribunal was a finding of fact open to it on the evidence.

A Genuine Fear

27                  The “Particulars” provided in support of the final Ground of Appeal asserts that the “Tribunal failed to consider the reality of the chance of persecution for me because of my political opinion …”.

28                  Given the rejection by the Tribunal of the now Appellant’s claimed involvement in the BNP, the Federal Magistrate was also correct in his conclusion that no error had been exposed in the Tribunal’s reasons.

Conclusions

29                  No error has been exposed in the reasons for decision of the Federal Magistrate. Each of the findings sought to be impugned by the now Appellant was a finding of fact open to be made by the Tribunal.

30                  The Appeal must be dismissed and there is no reason why the Respondent Minister is not entitled to his costs.

ORDERS

31                  The Orders of the Court are:

1.                  The Appeal is dismissed.

2.                  The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:         2 March 2009