ATK16 v Minister for Immigration

[2016] FCCA 2765

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATK16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2765

Catchwords:
MIGRATION – Application for protection visa – whether Tribunal obliged to give reasons or invite further submissions after doubting the applicant’s documents were genuine.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA

Cases cited:

SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609

Applicant: ATK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 9 of 2016

Judgment of: Judge Young

Hearing date: 18 October 2016

Date of Last Submission: 18 October 2016

Delivered at: Darwin

Delivered on: 18 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Charman

Solicitors for the Applicant: MSP Legal

Counsel for the Respondents: Ms Griffin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 5 April 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 9 of 2016

ATK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an application for review of a decision of the Administrative Appeals Tribunal (AAT) to refuse the applicant a protection visa. The amended ground of review is that the Tribunal failed to accord the applicant procedural fairness as required by sections 424A and 424AA of the Migration Act 1958 and, in doing so, failed to exercise its jurisdiction.  There are eight paragraphs of particulars of this ground.  The particulars can be summarised, at least from particular 1.2 through to 1.10, as an attack on the Tribunal’s conclusion that various documents provided by the applicant were not genuine.  These documents included an arrest warrant for the applicant, a letter from the Bangladesh National Party or Nationalist Party - it is not quite clear what the proper title is; I will call it the BNP – advising that the applicant was a member of that party. There is also a reference to a statement from the applicant’s mother supporting his claims but the genuineness of that document was not in dispute. 

2. The nub of the applicant’s attack on the decision is that the Tribunal, having requested and been provided with the originals of the documents, most particularly to the arrest warrant and the letter from the BNP after the hearing, found that they were not genuine. It was asserted that sections 424A and 424AA required the Tribunal to give notice of the reasons for finding these documents were not genuine.

3. Particular 1.1 is simply a statement that the Tribunal made adverse credibility findings against the applicant and appears to be introductory to the following particulars, rather than a separate particular. 

4. The background to the matter is as follows.  The applicant is a citizen of Bangladesh.  He arrived in Australia some time before 29 January 2013 when he underwent an entry interview.  On 28 August 2013 he applied for a protection visa on the ground that he had a well-founded fear of persecution on the basis of his political beliefs or imputed political beliefs. 

5. He claimed that an arrest warrant was issued on 10 November 2013 in Bangladesh although the arrest warrant was produced to the Australian authorities, apparently, for the first time on 4 February 2016.  He was interviewed by the delegate on 15 August 2014 and an adverse decision was made on 10 October 2014.  The documents which are the subject of this application were not made available to the delegate and no finding about them was made.  The applicant sought review of the delegate’s decision before the Tribunal and the applicant was invited on 21 December 2015 to a Tribunal hearing. 

6. On 4 February 2016 the applicant provided a copy of the arrest warrant to the Tribunal and, as I have noted above, that appears to have been the first occasion on which a copy of that document was provided to the Australian authorities.  A hearing before the Tribunal took place on 10 February 2016.  At that hearing, the Tribunal made it clear – and I think this is not in dispute – that it doubted the authenticity of the arrest warrant.  The Tribunal referred to country information that such documents were routinely forged in Bangladesh and it also referred, as a separate basis for its doubt about the genuineness of the document,  to its appearance some lengthy period after the application for a protection visa. On my calculation, that delay was two and a half years. 

7. It is also apparent from the Tribunal’s decision that the Tribunal doubted the applicant’s credibility more generally, particularly due to inconsistent statements from the applicant, including an initial statement that he was persecuted by the opposition party, BNP, and the later assertion that the persecution was from the government party, the Awami League.  Following the interview on 10 February 2016, the applicant’s migration agent offered by email on 15 February 2016 to provide the Tribunal with the originals of the arrest warrant and, in addition, a letter from the BNP confirming the applicant’s membership of that party and a letter from a Bangladeshi lawyer about that warrant. 

8. It is clear from the letter from the migration agent that it was apparent that the applicant was aware that the Tribunal doubted his credibility and doubted the genuineness of the documents provided during the hearing.  Two grounds for that are referred to in the migration agent’s letter:  first, the ease with which forged documents were or are apparently attainable in Bangladesh – the Tribunal relied on country information for reaching that conclusion – and, secondly, the late appearance of the documents and, in particular, the arrest warrant that I have already referred to. 

9. On 19 February 2016, the Tribunal replied to the migration agent’s letter in the following terms, and I am excluding irrelevant parts,  “please provide the original documents referred to in this submission…”.

10. The Tribunal went on to allow seven days for the provision of those documents.  The documents, it appears, were obtained promptly from Bangladesh and the original documents were provided to the Tribunal on 1 March 2016. 

11. On 10 March 2016, the Tribunal made its decision.  It did not accept the applicant as a credible witness nor did it accept the documents as genuine, and, in particular, I refer to paragraph 100 of the Tribunal’s decision: 

    The Tribunal has examined these documents and acknowledges that they implicate the applicant, along with several other people, in charges made by an Awami League member.  However, in the Tribunal’s view, the question is not whether the documents before the Tribunal are original documents or photocopies, as discussed with the applicant at hearing.  The question is whether the documents are genuine.  For all of the above reasons, including the late submission of such relevant documentation dated in 2013, the inconsistency of the applicant’s evidence in relation to why he did not have the documents in his possession earlier, together with the country information referred to above regarding the prevalence of fraudulent documentation in Bangladesh, the Tribunal does not find the arrest warrant, court documents and the letter from the applicant’s lawyer to be reliable evidence in this matter.  The provision of what are claimed to be original documents does not overcome the Tribunal’s concerns about the manner in which the documents were obtained.  The Tribunal has given the documents no weight.  In the absence of any other compelling information and in view of the significant credibility concerns already expressed in this decision, the Tribunal does not accept an arrest warrant has been issued in the applicant’s name, that there are court proceedings pending against him, or that he has anything to fear on his return to Bangladesh for this reason. 

12. The applicant’s counsel submitted that having invited provision of original documents – and I emphasise original – that the Tribunal implied that it would be a determining factor in the Tribunal’s decision whether or not the documents were genuine.  The submission from counsel went on to say that if, having given such an implication, the Tribunal was obligated to provide reasons for its thinking and invite submissions from the applicant. 

13. I do not accept that the Tribunal’s letter of 19 February 2016 contained any such implication.  In my view, the proper interpretation of that letter is that it is merely an agreement to receive further documents provided by the applicant, in response to a request from the applicant.  The applicant’s letter, or at least the applicant’s migration agent’s letter of 15 February 2016, showed an awareness of that concern and, in my view, the Tribunal, once it indicated that there were reasons based on country information for doubting the genuineness of documents such as the documents put forward by the applicant, was not required to provide reasons for doubting the genuineness of the particular documents.  It appears to me that the specific is subsumed in the general in this case. 

14. Nevertheless, the Tribunal has, on my reading of its decision, and this is supported by the migration agent’s letter of 15 February 2016, indicated that its general concerns about the genuineness of the documents were based on the inconsistent narrative of the applicant at various times, the late appearance of the documents and the country information that such documents were commonly forged.  All of those matters were clearly flagged to the applicant in the Tribunal and, in my view, there was no further requirement for the Tribunal to set out further the reasons for its doubts about the credibility of the applicant himself and the genuineness of the documents he put forward. 

15. I also accept the respondent’s submission that disbelief of an applicant is not information that is subject to the requirements of section 424A or section 424AA, and I refer to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at paragraphs [18] for that proposition. For these reasons, I dismiss the application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 26 October 2016