FEDERAL COURT OF AUSTRALIA

BES16 v Minister for Immigration and Border Protection [2018] FCA 78

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a citizen of Bangladesh who arrived in Australia by boat as an unauthorised arrival on 6 May 2013. On 13 August 2013 he applied for a permanent protection (Class XA) visa which was subsequently converted to an application for a temporary protection (class XD) visa by operation of s 45AA of the Migration Act 1958 (Cth) (Act) and regulation of the Migration Regulations 1994 (Cth) (Regulations). The appellant claimed to fear harm due to his political opinions and activities in support of the Bangladesh Nationalist party, and arising from a family land dispute with his uncle in Bangladesh.

2    On 11 May 2015 a delegate of the Minister for Immigration and Border Protection (delegate) rejected the appellant’s visa application. The delegate was not satisfied that the appellant had a real chance of being persecuted for a Convention reason or that there was a real risk he would be subjected to significant harm. The appellant applied to the Administrative Appeals Tribunal (Tribunal) for a review of that decision, and on 3 May 2016 the Tribunal conducted a hearing. On 4 May 2016 the Tribunal gave its decision, affirming the decision of the delegate. The appellant then applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the decision of the Tribunal. A hearing was conducted before the primary judge on 26 April 2017 and judgment was delivered on 21 June 2017, dismissing the application.

3    The appellant now appeals to this Court on the basis that the whole of the judgment of the FCCA reflected jurisdictional error. The grounds of appeal upon which the appellant relies are as follows:

Grounds of appeal

1.    The Court erred in finding that the records in respect of the entry of the appellant’s birth in the Birth Registration Information System of Bangladesh (BRIS) did not amount to “information” for the purposes of s 424A(1)(a) Migration Act 1958 (the Act).

2.    The Court erred in finding in the alternative that the records in respect of the entry of the appellant’s birth in BRIS were excluded from the operation of s 424A of the Act by s 424A(3)(b) because the 3rd birth certificate to which the BRIS records related was given by the appellant for the purposes of the review.

3.    The Court erred in failing to address a contention that the Tribunal was in breach of s 425(1) of the Act.

Particulars

i.    The appellant had contended in a Further Amended Application that the Tribunal did not give the appellant a fair opportunity to show he had “a reasonable explanation for providing the bogus document” because the Tribunal did not tell the appellant how each of the first and 2nd birth certificates was a “bogus document” as that term was defined in s 5 of the Act.

4.    The Court erred in failing to find the Tribunal did not give the appellant a fair opportunity to show he had “a reasonable explanation for providing the bogus document” because the Tribunal did not tell the appellant which provision of which document required a reasonable explanation as “the bogus document” or how each document was a “bogus document” as that term is defined in s 5 of the Act.

5.    The Court erred in failing to find the Tribunal misconceived and misapplied what “a reasonable explanation for providing the bogus document” might be for the purposes of s 91WA(2) of the Act.

4    The parties were represented by counsel at the hearing of the appeal and both supplied helpful written submissions prior to the hearing. Included in the materials advanced on appeal is the transcript of the hearing before the Tribunal.

2.    THE DECISION OF THE TRIBUNAL

5    The appellant appeared before the Tribunal, gave evidence, and was assisted by an advisor and an interpreter.

6    The Tribunal did not consider the substance of the appellant’s claims. Instead, it identified that the first question to be determined was whether the appellant had provided a ‘bogus document’ within the meaning of that term in s 5(1) of the Act as evidence of his identity, nationality or citizenship. In this regard the Tribunal noted that the appellant had provided the Department of Immigration and Border Protection (Department) with one birth certificate with a date of issue of 29 October 2008, but which was purportedly signed on 22 May 2013 (first certificate), that he had provided the Tribunal with another birth certificate as evidence of his identity prior to the commencement of the hearing, on 26 April 2016 (second certificate) and that he had provided a further birth certificate during the course of the hearing (third certificate).

7    The Tribunal records in its decision that the appellant was asked how the first and second certificates came to be issued, and that the appellant explained that the Department had asked him to provide evidence of his identity. He called his mother in Bangladesh, and she went to the local council office to obtain the birth certificate. There was a mistake in the first certificate in that the date of birth expressed in words said “3 October” rather than 3 August. He called his mother again about 6 or 7 months before the hearing and asked her to obtain another certificate making sure that all of the details were correct, which led to the provision to the Tribunal of the second certificate.

8    The third certificate was provided to the Tribunal midway through the hearing. It was furnished after the Tribunal questioned the appellant as to the veracity of the first and second certificates. The decision records that prior to the hearing, the Tribunal had attempted to verify the appellant’s birth certificate using the online Birth Registration Information System (BRIS) of Bangladesh. The Tribunal informed the appellant of that attempt and [16] of the decision records that the BRIS information was relevant because it might lead the Tribunal to conclude that the birth certificates provided were bogus documents which could result in a refusal of the application. The decision states:

18. The Tribunal put to the appellant that the birth certificate provided to the Tribunal on 26 April 2016 was also purportedly signed on 22 May 2013, even though he said that his mother had only obtained that certificate only 6 or 7 months ago. The Tribunal would have expected that certificate to have been signed on a date in 2015.

19. At this point in the hearing the appellant produced a further (third) birth certificate. It shows a date of issue of 19 October 2014, and was signed on the same day. It contains a different birth registration number, and is in a different format to the other certificates.

9    The decision records that the appellant was asked to explain the differences between the birth certificate provided during the hearing (that is, the third certificate) and the first and second certificates, but he was unable convincingly to do so. The Tribunal invited the appellant to put forward a reasonable explanation in the event that it found one or more of the birth certificates to be bogus documents, to which the appellant responded that one of the birth certificates was obtained at the local council office and the other was obtained at the chairman’s office. They are different offices. It is possible to obtain birth certificates from these offices without payment. The appellant contended that any differences between the documents were not his fault because the government of Bangladesh is corrupt or alternatively that public administration is not done properly in Bangladesh.

10     The Tribunal rejected this explanation because it found that the first and second certificates were false documents, were not issued by the authorities in Bangladesh and as a result they could not be blamed for the discrepancies.

11    The decision records that following the hearing, the Tribunal attempted to verify the third certificate using the BRIS online register and found a record relating to the appellant. The Tribunal made a finding that the third certificate is genuine. However, it found that the first and second certificates were not issued by the authorities in Bangladesh and that they were bogus documents within s 5(1) of the Act.

12    The Tribunal then turned to consider whether the appellant had provided a reasonable explanation for providing the bogus documents pursuant to s 91WA of the Act but concluded that he had not. The Tribunal concluded that it was satisfied bogus birth certificates had been presented by the appellant as evidence of his identity and that it was not satisfied that he had a reasonable explanation for providing such documents to the Department. Accordingly, it affirmed the decision of the delegate.

3.    RELEVANT STATUTORY PROVISIONS

13    Section 91WA of the Act provides:

Providing bogus documents or destroying identity documents

(1) The Minister must refuse to grant a protection visa to an appellant for a protection visa if:

(a) the appellant provides a bogus document as evidence of the appellant's identity, nationality or citizenship; or

(b) the Minister is satisfied that the appellant:

(i) has destroyed or disposed of documentary evidence of the appellant's identity, nationality or citizenship; or

(ii) has caused such documentary evidence to be destroyed or disposed of.

(2) Subsection (1) does not apply if the Minister is satisfied that the appellant:

(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

(b) either:

(i) provides documentary evidence of his or her identity, nationality or citizenship; or

(ii) has taken reasonable steps to provide such evidence.

(3) For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

14    Section 5(1) definition of “bogus document” is as follows:

Interpretation

(1)    In this Act, unless the contrary intention appears:

….

"bogus document ", in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)  purports to have been, but was not, issued in respect of the person; or

(b)  is counterfeit or has been altered by a person who does not have authority to do so; or

(c)  was obtained because of a false or misleading statement, whether or not made knowingly.

….

15    Section 424A(1) and (3) provide:

Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

…

(3)  This section does not apply to information:

(a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)  that the applicant gave for the purpose of the application for review; or

(ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)  that is non-disclosable information.

…

16    Section 424AA(1) provides:

Information and invitation given orally by Tribunal while applicant appearing

(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) if the Tribunal does so--the Tribunal must:

(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii) orally invite the applicant to comment on or respond to the information; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

4.    CONSIDERATION OF THE GROUNDS OF APPEAL

17    The appellant raised grounds before the primary judge in similar terms to those advanced on appeal in this Court. For present purposes it is convenient to address the reasoning of the primary judge in the context of the present grounds of appeal.

4.1    Ground 1 – s 424A(1)(a) of the Act

18    In ground 1 the appellant contends that the primary judge erred in concluding that the entry of the appellant’s birth in the BRIS did not amount to “information” within s 424A(1)(a) of the Act and that as a consequence he erred in concluding that particulars of the entry did not have to be supplied to the appellant by the Tribunal. The appellant submits the relevant “information” is the contents of the appellant’s third birth certificate as it appeared in a particular form on the BRIS. The appellant submits that the Tribunal acted in breach of its obligation under s 424A(1)(a) by not telling the appellant that it was able to locate the records relating to the appellant on the BRIS system following the hearing.

19    In response, the Minister first contends that the BRIS information was not the reason or part of the reason for affirming the delegate’s decision. This was because, as a matter of construction, the reasons given by the Tribunal for concluding that the first and second certificates were bogus pursuant to s 91WA(1) of the Act were encapsulated entirely within [28] of the Tribunal’s reasons. The minister next contends that the BRIS information was not “information” within s 424(1)(a) of the Act. This raises a subject that requires some consideration of the relevant law.

20    I am unable to accept the Minister’s first contention. The relevant findings of the Tribunal are at [27]-[29] which are as follows:

[27] Following the hearing, the Tribunal attempted to verify the birth certificate provided by the applicant at the hearing using the online BRIS system. The Tribunal was able to locate a record relating to the applicant. The Tribunal accepts that the birth certificate provided by the applicant at the hearing is genuine.

[28] The Tribunal finds that the birth certificate provided to the Department and the birth certificate provided to the Tribunal on 26 April 2016 were not issued by the authorities in Bangladesh for the following reasons:

•    Both of these birth certificates have the same personal identification number. The Tribunal was unable to verify the birth certificates online using the BRIS system, in circumstances where the applicant told the Tribunal that the certificates were available online and invited it so to verify. The Tribunal places significant weight on this factor.

•    Both of these birth certificates contain a date of issue of 29 October 2008 but were purportedly signed on 22 May 2013. The Tribunal does not accept the applicant’s explanation that the 2008 date was the date that the certificates were transferred to the online system. As noted in the preceding point, these certificates do not appear on the online system. The Tribunal does not find it plausible that there would be over a 4 year delay from when the certificates were issued to when they were signed, or that the certificates would have been issued before the applicant’s mother requested them.

•    The Tribunal does not accept that the birth certificate provided by the appellant on 26 April 2016 was obtained by his mother 6 or 7 months ago. If it was obtained 6 or 7 months ago, the Tribunal would have expected the certificate to have been signed in on a date in 2015, not on 22 May 2013.

•    While the Tribunal accepts that a genuine document could contain errors, and that English is a second language in Bangladesh, the fact remains that the applicant provided 2 birth certificates, both purportedly signed on 22 May 2013. The documents contain different signatures. One certificate contains a border, the other does not. The applicant’s permanent address is different on each certificate. The Tribunal would not expect document issued by the same office on the same day to contain such differences. In particular, the Tribunal expects that all birth certificates, issued by the same office on the same day would be consistent as to whether they contained a border or not.

•    The Tribunal does not accept that the birth certificates differ due to being issued by the local council office as opposed to the chairperson’s office. There are 3 different birth certificates, and the applicant’s explanation only explains 2 sets of differences.

[29] In these circumstances, the Tribunal finds that the first 2 birth certificates purport to have been, but were not, issued in respect of the applicant as contemplated by paragraph (a) of the definition of ‘bogus document’ and that such a [sic] documents are ‘bogus documents’ for the purposes of that definition in s. 5(1) of the Act.

21    The words “[i]n these circumstances…” in [29] suggest that the Tribunal took into account its finding that the third certificate was genuine, as expressed in [27] as one factor (amongst others) indicative that the first and second certificates were bogus. That construction is supported by the observations of the Tribunal in [32] where it says “… There are 3 different birth certificates, and the appellant’s explanation only explains 2 sets of differences” and at [35] where, in rejecting the appellant’s explanation, the Tribunal notes the appellant’s “reluctance to provide what proved to be the genuine third birth certificate to the Tribunal until midway through the hearing”. In each of these observations the authenticity of the third certificate is used as a factor to demonstrate a lack of authenticity of the first and second certificates.

22    The Minister’s second contention turns on whether the BRIS details should be understood to amount to ‘information” with s 424(1)(a) of the Act. In my view, they do not. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 the High Court (Gleeson CJ, Gummow, Callinan, Heyden and Crennan JJ) said:

[17] … The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

[18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information".

"does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

23    The statutory context in the present case is s 91WA of the Act, which relevantly provides that the Minister must refuse to grant a protection visa to an appellant if the appellant provides a bogus document as evidence of the appellant’s identity unless the Minister is satisfied that the appellant has a reasonable explanation for providing the bogus document. The reason, or a part of the reason, for affirming the decision that is under a review in the present case was that the appellant had provided a bogus document as evidence of the appellant’s identity and that the appellant had failed to provide a reasonable explanation for failing to provide the bogus document.

24    The appellant submits that the post-hearing discovery by the Tribunal that the BRIS information matched the appellant with the third certificate undermined his claims that the first and second certificates were genuine and relevantly amounted to information within s 424A(1)(a). That argument has superficial attraction. Certainly, the Tribunal took the BRIS information as confirmation that the third certificate was genuine. It then relied upon the contrast between the third certificate on the one hand and the first and second certificates on the other as providing part of the reason for concluding that the first and second certificates were bogus.

25    However, the authorities on the subject are tolerably clear. Material that is a source of information that a Tribunal considers generally reliable and which it then uses to weigh and assess evidence about the claims advanced by the appellant does not fall within the scope of “information” in the relevant sense.

26    In SZVCZ v Minister for Immigration and Border Protection [2017] FCAFC 130 Markovic J said (Siopis J agreeing at [1]):

[56] That information was not of dispositive relevance to the claims advanced by the appellant before the Tribunal: see MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 (Heerey J) at [27]. Rather, it was, in its terms, neutral. It did not contain a rejection, denial or undermining of the appellant’s claims, nor did it support the appellant's claims, including his claim to fear harm because of his family’s association with Christian educators and because his family donated land to the Baptist mission.

[57] The Asserted Information was, as the Minister submitted, of the same nature as the information considered by the Full Court in SZHXF. That is, it was a source of information that the Tribunal considered to be generally reliable and which it then used to weigh and assess evidence about the claims advanced by the appellant. The consequences of that assessment could have supported the claims made by the appellant or it could have undermined them. As the Full Court said in SZHXF at [13]:

… Whatever the conclusion, this process of assessment cannot properly be described as materially undermining the applicant's claim. Rather, it is a process which allows the Tribunal to investigate and evaluate the claims advanced by the applicant by weighing his or her evidence against another reliable source of information. Although information derived from such sources is used as part of the Tribunal's process of consideration of the evidence advanced by an applicant, it is not of itself "information" within the meaning of s 424A of the Act, which is required be disclosed to the applicant.

27    The appellant submits that the present case may be distinguished from SZVCZ because in that case, and Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298 which was cited in it, the evaluation of claims made for protection visas pursuant to s 36 of the Act whereas the criterion set out in s 91WA is quite different. The latter observation may be accepted as accurate. However, it does not serve as a relevant point of distinction. Plainly enough it is necessary to consider whether there existed information that was relevant to the claims set out in s 91WA, rather than s 36 of the Act. Otherwise the principles set out above are, in my view, plainly applicable.

28    The appellant next submits that the authorities considered above concerned, as Markovic J said at [56] in SZVCZ, information that is “neutral” in its terms that was not itself of dispositive relevance to the claims made. In the present case the BRIS information was not neutral. However, information will be “neutral” in the relevant sense if it is not itself of dispositive relevance. That is, if the relevant information requires analysis before it is utilised in a way that directs the reasoning of the decision maker, then the authorities indicate that it does not fall within the definition.

29    The following examples given by Heerey J in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [27] demonstrate the point.

[27] SZBYR, and in particular [17] of the majority judgment, essentially says that a court must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa. It would “undermine” his claims to have well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention. This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.

30    In the present case the BRIS information was relevantly neutral or non-dispositive. It yielded to the Tribunal information that the appellant’s details existed on the BRIS system and also information concerning the registration. It may be inferred that that information was then analysed by the Tribunal to conclude; first that the third certificate was a genuine certificate, secondly that the first and second certificates contained different information to the third certificate and lastly, that, contrary to the appellant’s claim, the first and second certificates were less likely to be genuine documents. Coupled with the factors set out at [28] of the Tribunal’s reasons it was these deductions and inferences that supported the Tribunal’s conclusion that the first and second certificates fell within the definition of ‘bogus’.

31    The learned primary judge concluded at [35]-[39] that the BRIS information was information that was neutral in character and that the Tribunal used to weigh and assess evidence about claims advanced by the appellant. In my respectful view he did not fall into error in so concluding. Accordingly, ground one of the appeal must be dismissed.

4.2    Ground 2 – s 424A(3)(b)

32    In ground 2 the appellant contends that the court erred in concluding that the BRIS information was excluded from the operation of s 424A(1) by virtue of s 424A(3)(b) because the third certificate was given by the appellant to the Tribunal. This ground of appeal is redundant given my finding in relation to ground 1. However, I do note that in his reasons the learned primary judge appears to conflate the contents of the third certificate with the information received by the Tribunal on the BRIS.

33    After finding that the true contents of BRIS relevant to the third certificate were not “information” with s 424A(1), the primary judge addressed a subsidiary argument at [39]:

…Still further, even if it could be said that the result of the Tribunal’s comparison of the third birth certificate with the BRIS records otherwise amounts to information for the purposes of s 424A(1)(a), it would be excluded by s 424A(3)(b), the birth certificate having been given by the appellant for the purpose of the review….

34    In my respectful view the primary judge’s characterisation of the relevant information in this passage is not entirely accurate. He earlier observes at [27] the information relied upon by the appellant was not only the details contained on the third birth certificate (which was provided to the Tribunal by the appellant), but also the fact of the entry of those details in the BRIS system (which was not provided). Once this is recognised, it is apparent that the relevant information did not fall within the exception. Accordingly, had I found that ground one had succeeded, then in my view the exception within s 424(3)(b) would not have been engaged. However, given my finding in relation to ground one, this discrepancy is not material.

4.3    Ground 3 – s 425(1) Inadequate notice of bogus document finding

35    In ground 3 the appellant contends that Tribunal erred in failing to inform him how the first and second certificates might have fallen within the definition of “bogus document” in s 5(1) of the Act. The appellant contends that due to this, the Tribunal failed to give him a fair opportunity to provide a reasonable explanation for providing those certificates. The primary judge erred in failing to identify this error. The appellant further submits that the definition of “bogus document” could mean a document that the Minister reasonably suspects is either (a) a document that purports to have been, but was not issued in respect of a person or (b) is counterfeit or has been altered by a person who does not have authority to do so, or (c) was obtained because of a false or misleading statement. The Tribunal failed to put the appellant on notice as to which of these alternatives the first, second or third certificates might fall. The appellant contends that the Tribunal was in breach of s 425(1) of the Act for failing to do so.

36    The Minister contends that the requirements of procedural fairness within s 425(1) were satisfied by the Tribunal and that there was no obligation upon the Tribunal to say, in so many words, that one or more of the appellant’s birth certificates might be found to meet the definition of bogus documents.

37    Consideration of this ground requires some attention to the transcript of the hearing. The Tribunal noted at the outset that the appellant had at provided 2 birth certificates in support of his application. It asked him how they had been obtained. It discussed discrepancies between the 2 documents with the appellant and said at T4 .22:

Tribunal: So, I want to put to you some concerns I have about these birth certificates. The first concern is that both birth certificates have a date of issue of 29 October 2008. And the date of signature on both birth certificates is 22 May 2013. So that is some 4 ½ years later. I am just wondering if you can explain that to me.

Applicant: what… What wrong?

Tribunal: So the date of issue in… in typewritten letters is the 29th of the tenth 2008, and the signature and the stamp have dates of the 22nd of May 2013. So… so it seems to me unlikely that they would have prepared this certificate a number of years before you asked for it to be prepared and then signed it four and a half years later.

38    After some further questions the applicant said that if the Tribunal found anything confusing it could check online, to which the Tribunal responded:

Tribunal:… In terms of checking the birth certificate online, I did ask a Tribunal officer to do that. They attempted to verify the birth certificate using the online birth registration information system of Bangladesh. And there was no match for the identification number and the date of birth displayed on your birth certificate. And that information’s relevant to the review because it might lead me to conclude that the birth certificate provided to the department is a bogus document. And if… If I concluded that you provided a bogus document as evidence of your identity, the migration act would require me to refuse your application for a protection Visa, unless you had a reasonable explanation for providing the bogus document. So I want to invite you to comment and advise that you are entitled to request further time to comment if you wish.

39    After some further exchanges the applicant then, during the middle of the hearing, provided the Tribunal with the third certificate. The Tribunal then said at T6:

Tribunal: This one… Small one… Is a completely different birth certificate to either of the two versions I already have.

…

Tribunal: Well, this birth certificate has a completely different birth registration number to the other two certificates.

…

Tribunal: So if I were to conclude that one or more of the birth certificates you provided are bogus documents, I would then need to consider whether you had a reasonable explanation for providing a bogus document. So what would you say that your reasonable explanation was?

…

Tribunal: Now just to be clear, you say one time you went to the city council office, and the other time you went to the chairman’s office. I have three different birth certificates here, so where did you go the third time?

…

Tribunal: Okay, alright so, that’s… that’s a matter I will have to consider carefully because the Act does say that you can’t get a Protection Visa if you provided a bogus document as evidence of… your identity.

40    It is apparent from these questions and observations that the Tribunal was concerned that any or all of the 3 certificates may be a bogus document. It was concerned that the documents were not genuine in the sense broadly required by the definition of bogus document within s 5(1) of the Act and particularly may fall within (a) or (b). These concerns were, in my view, clearly communicated to the appellant.

41    The obligation to provide procedural fairness requires the Tribunal 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; Commissioner For Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at [591]-[592] as approved in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29]. Section 425(1) requires that the appellant be invited to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal is not required to identify the significance of the questions that it puts to a payment or the ultimate matter or issue to which those questions go; Minister for Immigration and Citizenship v Appellant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285 at [88] (Emmett, Weinberg and Lander JJ).

42    In the present case the Tribunal notified the appellant of its concerns and gave him an opportunity to respond. The issue concerning the third certificate can hardly have come as a surprise. The appellant was plainly concerned that the first and second certificates would not pass muster and came to the hearing armed with a third certificate. In those circumstances, and having regard to the questions posed by the Tribunal as set out in the extract from the transcript above, it is apparent that the appellant had opportunity to address the issue of whether or not the Tribunal might reasonably suspect that one or other of the certificates was not a genuine document.

43    Furthermore, towards the conclusion of the hearing the appellant’s advisor said the following:

First in terms of birth certificate verification. I was looking that in terms of his name and date of birth even in English except applicant’s name and age is stated, and also to say even genuine documents are often incorrect, due to high level of corruption in the government as for immigration and I can see there’s a different number as you mentioned and I think that’s because of they are two different officers, Chairman office and city Council office. So you can get birth certificate from any one of them.… It’s not applicant’s fault if the government is corrupt, you know. And so… So I think the bogus document should not be… Should not be the main issue…

44    From this passage it is apparent that, in addition to any evidence that the appellant provided in response to the Tribunal’s questions, the appellant’s advisor was aware of the Tribunal’s concern about the issue of whether or not one or more of the documents proffered was not a genuine document.

45    The primary judge formed the view that there was no doubt that a critical issue in the review conducted by the Tribunal was whether the appellant had provided a bogus document in connection with his Visa application, and that the Tribunal had put the appellant on notice of that issue. I respectfully agree with that conclusion.

46    Accordingly, ground 3 of the appeal must be dismissed.

4.4    Ground 4 – s 425(1) Notice of breach of requirement for explanation issue

47    In ground 4 the appellant contends that the primary judge erred in failing to find that the Tribunal did not give the appellant a fair opportunity to show that he had a reasonable explanation for providing the bogus document because the Tribunal did not tell the appellant which provision of which document required a reasonable explanation as the bogus document or how each document may be considered a bogus document.

48    The primary judge found that the Tribunal put the appellant on notice that an issue in the review was whether the appellant had a reasonable explanation for providing the document or documents (at [62]). I agree with that conclusion. The transcript quoted in section 4.3 of these reasons make plain that not only was the Tribunal concerned to identify the issue of whether or not one or all of the certificates was bogus, but also to make plain that the Tribunal was inviting the appellant to give an explanation for providing the documents.

49    In this context the primary judge said:

[63] I accept that the circumstances left the applicant in a difficult position. In the first place, he had not conceded that any of the three birth certificates were a bogus document. Any submission he made as to his explanation for providing a bogus document would have to have been contingent upon a finding which the Tribunal, to that point, had not made, and without prejudice to his primary position that none of the documents were bogus.

[64] The fact, however, that the applicant found himself in a difficult position does not result in a conclusion that the Tribunal breached s 425. The applicant was the author of his own misfortune. It was he who provided three different birth certificates which inevitably gave rise to questions about each of them. It was open to the applicant to attempt to explain to the Tribunal the circumstances in which each of the certificates were obtained in order to potentially support a conclusion that, if any of the certificates were found to be bogus documents, the Tribunal might nevertheless conclude that the applicant had a reasonable explanation for providing it or them. In circumstances where the Tribunal clearly articulated the problem confronting it (and the applicant) and invited submissions based on more than one possible contingency, which could have been coherently addressed by the applicant, there was in my view no unfair degradation of the hearing opportunity afforded to the applicant.

50    I respectfully agree with the conclusion of the primary judge so expressed. Accordingly, ground 4 must be dismissed.

4.5    Ground 5 – s 91WA(2) – Inadequate explanation

51    In ground 5 the appellant contends that the primary judge erred in failing to find that the Tribunal misconceived what “a reasonable explanation for providing the bogus document” might be for the purposes of s 91WA(2)(a) of the Act.

52    In its reasons the Tribunal relevantly said:

32. As outlined above, the applicant advanced a number of explanations. One was that there were differences between the documents because they were issued by 2 different offices. The Tribunal does not accept this explanation. As noted above, there are 3 different birth certificates, and the explanation only explains 2 sets of differences. This explanation also does not account for the Tribunal being unable to verify 2 of the 3 birth certificates using the online BRIS system.

33. Another explanation was that it was not his fault if the government is corrupt, or that things are not done properly in Bangladesh. The Tribunal does not accept this explanation. For the reasons set out above, the Tribunal has found that the birth certificate provided to the Department and the birth certificate provided to the Tribunal on 26 April 2016 were not issued by the authorities in Bangladesh. The necessary implication of this finding is the Bangladeshi authorities were not at fault.

34. The Tribunal considers that the most plausible explanation is that, as claimed by the applicant, his lawyer pointed out a mistake on the birth certificate provided to the Department, namely that the date of birth in words referred to October rather than August. The applicant then tried to correct this mistake. However, because the birth certificate provided to the Department was not issued by the authorities in Bangladesh, the applicant would have to have had further recourse to document forgers in order to obtain the birth certificate provided to the Tribunal on 26 April 2016. The Tribunal finds accordingly, and therefore does not accept that it can be said that the provision of the bogus document was an “innocent, unintended or accidental matter” (citing Trevidi v Minister for Immigration and Border Protection (2014) 141 ALD 252 at [32]).

53    The appellant focusses attention on [34] and submits that the Tribunal’s statement in the final sentence, that it does not accept that it can be said that the provision of the bogus document was an “innocent unintended or accidental matter” reflects a misunderstanding, and an unnecessary restriction, of what constitutes a “reasonable explanation” within s 91WA(2)(a) of the Act).

54    However, in my view it is the reasoning of the Tribunal set out in [32], [33] which reflect the findings that it makes as to why no reasonable explanation was offered. The Tribunal could have stopped at that point. It went on to speculate on the reason for 3 certificates being offered. At [35] it observed that the appellant reluctantly offered the genuine third certificate as a last resort, midway through the hearing, and only after being subjected to prolonged questioning whereby the Tribunal had cast sustained doubt on the authenticity of the first and second certificates. These observations represent a further response to the appellant’s submissions before the Tribunal to the effect that he was the innocent victim of the corruption and inefficiency of the Bangladeshi authorities.

55    The Tribunal’s finding that the appellant’s conduct was not an “innocent, unintended or accidental” matter does not reflect the conclusion that any explanation within s 91WA(2) must fall within these requirements. Such a conclusion would incorrectly confine the scope of the enquiry. Properly understood [34] contains a finding that, contrary to the submissions advanced on behalf of the appellant before the tribunal, the appellant’s conduct in this case was not innocent or accidental but rather deliberate. It was open to the Tribunal to reach that conclusion. The primary judge did not err in so concluding.

56    Accordingly, ground 5 must be dismissed.

5.    DISPOSITION

57    The appeal must be dismissed with costs.

Associate:

Dated:    14 February 2018