FEDERAL COURT OF AUSTRALIA

WZARX v Minister for Immigration and Border Protection [2014] FCA 423

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant appeals from a decision of the Federal Circuit Court (WZARX v Minister for Immigration & Anor [2013] FCCA 1640). His grounds of appeal are that he was denied the opportunity to have legal representation to advance his case and that he could not properly file an amended application without that representation.

2    He is a citizen of Guinea who arrived in Australia on 13 May 2011, travelling on a Belgian passport in another person’s name which he described as being his brother. He applied for a protection visa on 3 June 2011. After being interviewed on 21 March 2012 by the delegate of the first respondent (the then Minister for Immigration) (Minister), his visa was refused two days later. He applied to the Refugee Review Tribunal (Tribunal) for review on 27 March 2012. The Tribunal held hearings on 13 July 2012, 24 July 2012 and 5 October 2012 and produced reasons totalling 34 pages. The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the 1967 Protocol Relating to the Status of Refugees, opened for signature on 31 January 1967, 606 UNTS 267 (entered into force on 4 October 1967) (Refugees Convention). The Tribunal affirmed the delegate’s decision not to grant the appellant a Protection (Class XA) Visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

3    As the Tribunal’s reasons disclose, the appellant claimed to fear persecution in Guinea for reasons of his ethnicity and race because he belonged to the Fulah (or Pehl) ethnic group, and because of his political opinion and activity. He claimed he was an active member of the UFDG (also known as the Elhadj Cellou Dalain Diallo), organised support amongst disbursed Guineans in the USA and that on 3 April 2011 he organised a welcome celebration for the UFDG leader, Cellou Diallo. He claimed that on 8 April 2011 he was arrested by military police and taken to prison and that he was tortured and forced to sign a document confessing to organising a rebellion against the government. He claimed that on 6 May 2011 he was released after his brother paid a bribe to the military chief, and that his brother also arranged for the appellant to be smuggled across the border before he travelled to Australia. The appellant also claimed that since arriving in Australia he had spoken at a meeting of the Guinea Community Association of Western Australia (GUICAWA) and received a number of threatening phone calls relating to his involvement.

4    As indicated, the Tribunal’s reasons ran to 34 pages following hearings on three different days.

5    The Tribunal reached comprehensive adverse credibility findings and rejected all of the appellant’s claims for protection. The Tribunal concluded that he was an unreliable witness who had fabricated his claims for protection. The Tribunal did not accept that the appellant had suffered any past harm for reasons of his political opinion and was also not satisfied on the evidence before it that he would be politically active if he returned to Guinea. The Tribunal concluded that the appellant’s activity with GUICAWA had been for the sole purpose of strengthening his claims to be a refugee and therefore disregarded that conduct pursuant to s 91R(3) of the Act.

6    The Tribunal accepted the possibility that the appellant might suffer some discrimination in Guinea due to his ethnicity, but concluded that such discrimination would not amount to ‘serious harm’ for the purposes of s 91R(1)(b) and s 91R(2) of the Act.

IN THE FEDERAL CIRCUIT COURT

7    In the Federal Circuit Court, the appellant sought an extension of time pursuant to s 477(2) of the Act which his Honour granted on 24 April 2013 and further ordered (at [5]), clearly in favour of the appellant, the Minister to show cause why relief should not be granted in relation to two issues.

8    The first of those issues was whether the Tribunal erred by failing to make inquiries about the immigration status of the appellant’s wife in the USA (First Issue). This arose because the appellant had claimed that he had been granted asylum for 10 years from 2002 to 2012 in the USA as a member his wife’s family unit. The Tribunal had made inquiries of the USA authorities and was informed that the appellant had, in fact, been denied asylum in 2001 and his appeal had been dismissed in 2003. The Tribunal accepted and relied upon this advice and found that the appellant’s documentation which allegedly granted him asylum in the USA was not genuine.

9    In relation to the First Issue, his Honour found the inquiries made by the Tribunal indicated that the appellant’s claims concerning his grant of asylum in the USA were untrue. His Honour said (at [19]) (footnotes omitted):

19.    An obvious inquiry about a critical fact, the existence of which is easily ascertained, may possibly give rise to a duty to inquire. However it has been repeatedly stressed that the circumstances in which such a duty can arise are rare and exceptional. In this case, the Tribunal’s inquiries indicated that the [appellant’s] claims concerning his grant of asylum in the USA were untrue. There was no occasion for the Tribunal to make further inquiries, especially as the inquiries it had made did not suggest that the [appellant] had a wife who had been granted asylum in the USA. This issue would have been speculation at best, and so hardly a “critical fact”. Accordingly no duty to inquire arose.

10    The second issue raised in the Federal Circuit Court was whether the Tribunal had erred by relying on information from the USA authorities that failed to address the question asked as to the authenticity of the documents provided by the appellant (Second Issue). The inquiries made by the Tribunal had asked whether the appellant’s documents were genuine, but this inquiry was not specifically answered by the USA authorities. Without speculating as to the reasons for this, his Honour concluded (at [20]) that the information that the USA authorities provided permitted the Tribunal to draw the inference that the documents relied upon by the appellant were not genuine. At [123], the Tribunal said:

The [appellant] claimed that there is some irregularity with the USA’s handling of his application for asylum. Based on the information cited above which the Tribunal received from the US Department of Homeland Security Foreign Liaison Office, the Tribunal finds that the relevant asylum determining authority in the USA has found, on at least two instances, that the [appellant] is not a person to be afforded protection as a refugee on the basis of his own claims. The information from the US Department of Homeland Security is that his applications, and his appeals, were refused and dismissed respectively, and that he was removed or deported twice from the USA. This report is also clear that he does not have a right to re-enter or reside in the USA due to the commission of fraud. In light of this, there is in the Tribunal’s view, no room to interpret certain documents provided by the [appellant] as being genuine. For example, the Tribunal considered the document referenced EAC-03-176-50039 and which the [appellant] claims grant him asylum or refugee status for a period of 10 years from 2002 to 2012, is not a genuine document in light of the advice given by the US Department of Homeland Security. The Tribunal finds that there is no reliable or credible evidence given by the [appellant] to suggest that the relevant asylum assessing authority in the USA made a relevant mistake in assessing his application, or that the US Department of Homeland Security made a mistake in providing its report via DFAT to this Tribunal, or that the information provided to the Tribunal is tainted by error. The Tribunal does however accept the [appellant’s] claim that he was not removed to Paris France and that this was an error on the original report provided to the Department. The Tribunal considered that the [appellant] has attempted to explain the refusal of asylum in the USA by claiming that he was refused asylum because he overstayed his student visa, and such things as the US Immigration and Customs Enforcement (ICE) being “out of control”. The Tribunal finds these attempted explanations to be inadequate attempts to obfuscate or confuse what actually happened in respect of the [appellant’s] asylum applications in the USA.

11    His Honour was of the view (at [20]) that no error was revealed by the Tribunal’s finding at [123]. Even if the Tribunal made a wrong finding of fact, there would not (without more) be an error of law: Waterford v Commonwealth (1987) 163 CLR 54 (at 77); Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 (at 303); and Abebe v Commonwealth (1999) 197 CLR 510 (at 560).

THE HEARING IN THIS COURT

12    The notice of appeal to this Court is confined to the argument that the appellant did not have a lawyer and could not ‘defend himself’. The Minister makes the point that his Honour’s order that the Minister show cause was made on 24 April 2013 with the final hearing being on 16 October 2013, leaving the appellant ample opportunity to arrange for legal representation if he wished. Further, the course followed by his Honour in granting an extension of time and identifying issues not advanced by the appellant was manifestly in favour of the appellant.

13    There is no automatic entitlement for an appellant to have legal representation in a civil claim of this or any other nature. The appellant explained that he had declined the opportunity for legal advice at a point in time when he anticipated being able to afford his own legal representation. By the time of the hearing before his Honour, he had been unable to do so. Be that as it may, this is not a ground of appeal on which the appellant can succeed. (I note in passing, for what it is worth, the appellant demonstrated considerable skill in communicating his argument.)

14    As observed by Flick J in SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 (at [30] to [31]):

30    ... In Dietrich v The Queen (1992) 177 CLR 292 it was concluded that in certain circumstances a serious criminal proceeding may be stayed if a person is not afforded legal representation. But that is an incident of the Court’s power to stay an unfair criminal trial. The rules of procedural fairness in civil proceedings, it has been said, do not extend to requiring the provision of legal representation: New South Wales v Canellis (1994) 181 CLR 309 at 330 to 331.

31    Dietrich, it has been further concluded, has no application in respect to a decision of the Administrative Appeals Tribunal in deportation proceedings: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265, 101 FCR 20. Sackville, Marshall and Lehane JJ there declined to extend Dietrich so as to require the provision of legal representation to the appellant who had invoked the jurisdiction of the Tribunal when seeking review of a decision to deport him from Australia. In doing so, their Honours concluded:

[18]    There are formidable difficulties in applying the Dietrich principle to the hearing by the AAT of an application to review a deportation decision. The reasoning in Dietrich was based on two propositions. The first is that an accused person has a right to receive a fair trial according to law; the second is that the courts have the power to stay criminal proceedings which will result in an unfair trial. A criminal trial, of course, involves an adjudication of the guilt of the accused and, if guilt is established, the imposition of punishment. An administrative review of a deportation decision, even one based on criminal convictions, involves different considerations.

[19]    The power to exclude or expel non-citizens is an incident of sovereignty over territory: …

[20]    It has long been accepted that deportation of a non-citizen is not to be regarded as punishment for a criminal offence. …

…

[22] The limited scope of the principle in Dietrich was recognised by the High Court in New South Wales v Canellis (1994) 181 CLR 309. …

Their Honours then extracted passages from the judgments in that decision and continued:

[24]    As these passages show, there is nothing in the reasoning in Dietrich to suggest that the decision applies otherwise than to a court hearing a prosecution for a serious criminal offence under Commonwealth, State or Territory law. In particular, there is nothing to suggest that the reasoning applies to administrative hearings, including a hearing by the AAT in the course of reviewing a deportation order made by the Minister's delegate. On the contrary, the rationale underlying Dietrich, namely the power of a court to stay proceedings in order to prevent an unfair criminal trial taking place, does not apply to an administrative review conducted by a tribunal no matter how serious the consequences for the individual concerned.

[25]    There are other difficulties confronting the appellant. In a criminal trial, it is the prosecuting authority which initiates and conducts the criminal proceedings against the accused. A stay of proceedings until adequate legal representation is provided is doubtless an effective means of preventing the unfairness inherent in a trial for a serious criminal offence where an indigent accused is forced to represent himself or herself. In the present case, however, it was the appellant who sought review by the AAT of the decision to deport him. A stay of the AAT proceedings, of itself, would have achieved very little from the appellant's point of view, since the deportation order would have remained in force and he would have remained in detention pending deportation: …

This conclusion has since been applied by other Judges of this Court: NART v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1343 at [7] per Stone J; SZNOP v Minister for Immigration and Citizenship [2010] FCA 179 at [8] per Jagot J. Nor has Dietrich been extended to taxation proceedings before the Administrative Appeals Tribunal: Commissioner of Taxation v La Rosa [2002] FCA 1036 at [120] to [122], 196 ALR 139 at 161 to 162 per Nicholson J. See also: Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 at [17] per Hely J. Similarly, the principle established in Dietrich has not been extended to a proceeding before the Refugee Review Tribunal (MZXFU v Minister for Immigration and Multicultural Affairs [2006] FCA 1593 at [8] per Sundberg J; SZKMG v Minister for Immigration and Citizenship [2008] FCA 1062 at [31] per Reeves J) or the Migration Review Tribunal (Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J). See also: SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [4] per Gyles J.

Two issues in the Federal Circuit Court

15    The main topics of argument actually advanced by the appellant pertained to the processes of the Tribunal. As to the first issue, although an obvious inquiry about a critical fact the existence of which is easily ascertained may possibly give rise to a duty to inquire (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (at 436)), it has been stressed on a number of occasions that the circumstances in which such duty can arise are rare and exceptional: Minister for Immigration and Citizenship v MZYCE (2010) 116 ALD 156 per Gray J (at 166-167); Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 per Kenny J (at 174); SZNWF v Minister for Immigration & Citizenship [2010] FCA 1041 per Nicholas J (at [35]-[36]); SZOER v Minister for Immigration and Citizenship [2010] FCA 1100 per Cowdroy J (at [68]). His Honour correctly concluded (at [19]) that no duty to inquire arose regarding the First Issue, that is, the status of the appellant’s wife in the USA. There was no requirement for the Tribunal to make further inquiries.

16    As to the Second Issue, most of the argument advanced at the hearing before me centred on the illogicality and unfairness of the Tribunal concluding that the appellant had falsified his account in all regards on the basis that the documents presented to it in relation to his experiences in the USA were not valid. While it may be accepted that the USA authorities did not specifically comment on the question of whether or not the documents provided by the appellant were genuine, his Honour was correct to conclude that an error of fact without more taken in the context of the detailed reasons and reasonably extensive hearing would not afford a sufficient basis for an appeal.

17    An examination of the reasons given by the Tribunal reveal that there were numerous additional credibility findings adverse to the appellant on which it was entitled to reach its conclusion as to the validity of his claims. It is true that the USA authorities were specifically asked by the Tribunal whether the documents provided by the appellant indicated that he was granted refugee status for the period 11 May 2002 to 11 April 2012. As indicated above, that question was not specifically answered but the claim that he had that status for that period of time was certainly rejected. It was pointed out that the appellant had been denied asylum in 2001, and an appeal dismissed in 2003. The appellant had also returned to the USA (using a false name) on 25 June 2007 and lived there until he was again deported on 8 March 2011. There is no doubt that the Tribunal made a reasonable effort to verify the claims of the appellant. Although the response from the USA authorities did not precisely address the issue of the genuineness of the documentation, it did go to the crux of the issue of whether or not the appellant had in fact been granted asylum in the USA in the relevant period. It was clear on the basis of that information that he had not.

18    The Tribunal went further, as indicated in its reasons:

124.    The Tribunal rejects the [appellant’s] claim where he said he believed he had a ten-year right to reside in USA because of reference to such a period in the document referenced EAC-03-176-50039. Even if the Tribunal accepted the document to be genuine, which it does not, the Tribunal rejects the [appellant’s] claim that the [appellant], a seemingly well-educated man who claims to hold a Master’s degree, would genuinely hold the view that he had a right to continue residing in the USA as claimed, that is for 10 years, having had his asylum claims refused twice, having been deported or removed from the USA twice, and in between time having re-entered the USA using his cousins passport.

125.    The [appellant] urged the Tribunal to check the US Information Service website by entering the receipt numbers he provided to the Tribunal which he claims would show that his claim is genuine. The [appellant] also claimed that the Tribunal would be able to confirm his statements about his migration history in the USA and the authenticity of the documents he has provided the Department and the Tribunal regarding his migration history in the USA. The Tribunal entered the receipt numbers into the relevant inquiry field on the US Citizenship and Immigration Services website (www.uscis.gov). The Tribunal made the relevant inquiry on the USCIS website using the reference numbers provided by the [appellant]. The Tribunal found that although the numbers provided by the [appellant] generates results when entered into that website, the results are no more than records of action taken by the USCIS. In particular, the Tribunal finds that one inquiry results in a notice that on June 18, 2003, the USCIS transferred an application to another office for processing because the other office has jurisdiction. The other inquiry using a second reference number results in a notice that on August 25, 2005, the USCIS received a notice of appeal and that it mailed a notice describing how it will process the case. The Tribunal found that there is no identifying information or information which confirms the [appellant]’s identity, or that the reference numbers are in fact associated with the particular [appellant]. In light of this result, and while accepting that the numbers provided by the [appellant] may be genuine numbers, because the inquiry results do not show identifying information linking the [appellant] to the particular information, the Tribunal decided it would not place weight on this source of information. In its place, the Tribunal decided that it would rely on the information provided by the US Department of Homeland Security, and which was put to the [appellant] pursuant to s.424AA of the Act, as being the most reliable source of information in the circumstances of this case because the latter has provided information in respect of specific questions regarding the [appellant] and as set out in this decision above.

19    The Minister’s submission that the Tribunal as a finder of fact has diligently investigated as best it could the appellant’s account and his documentation with USA authorities must be accepted. Whatever conclusion it reached as a result of that diligence was a conclusion open to it and, in any event, an error of fact without more, could not amount to jurisdictional error.

20    As is well-established, the findings of the Tribunal as to credibility are findings of fact par excellence: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J (at 423). I accept the submission for the Minister that findings of the Tribunal are open to it for the reasons it gave. There is no scope for a merits review of the decision in this Court.

CONCLUSION

21    In those circumstances, the appeal must be dismissed with costs.

Associate:

Dated:    1 May 2014