Baroi, Manik v Minister for Immigration and Multicultural Affairs
[1998] FCA 991
•21 AUGUST 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – application for review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal failed to accord procedural fairness to the applicants – Member questioned first applicant about similarities between his statutory declaration and claims made in a statutory declaration in unrelated, successful proceedings – whether necessary to provide a copy of the other declaration – whether adjournment required.
Convention relating to the Status of Refugees.
Federal Court Rules, O 43, r 1, r 2.
Migration Act 1958 (Cth), ss 420, 427, 431, 439, 476. 481.
Ansell v Wells (1982) 43 ALR 41 (FCA/FC), discussed and distinguished.
Barnes v Oliver (1970) 16 FLR 366 (Cth Ind Ct/FC), cited.
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (FC), followed.
Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153 (FCA/Gummow J), cited.
Kioa v West (1985) 159 CLR 550, cited.
Mair v Bartholomew (1992) 108 ALR 182 (FCA/Davies J), distinguished.
Moore v Guardianship and Administration Board [1990] VR 902 (Gobbo J), distinguished.
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (FC), cited.
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 (FCA/FC), followed.
MANIK BAROI & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1099 OF 1997
SACKVILLE J
SYDNEY
21 AUGUST 1998
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 1099 of 1997 |
BETWEEN: | MANIK BAROI PAMELA BAROI | |
AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS | |
JUDGE: | SACKVILLE J | |
DATE OF ORDER: | 21 AUGUST 1998 | |
WHERE MADE: | SYDNEY | |
THE COURT ORDERS THAT:
The decision of the Refugee Review Tribunal dated 24 November 1997 be affirmed.
The applicants pay the respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 1099 of 1997 |
BETWEEN: | MANIK BAROI PAMELA BAROI | |
AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS | |
JUDGE: | SACKVILLE J | |
DATE: | 21 AUGUST 1998 | |
PLACE: | SYDNEY | |
REASONS FOR JUDGMENT
THE PROCEEDINGS
The Present Proceedings
The applicants in these proceedings are husband and wife, both of whom are citizens of Bangladesh. The first applicant (“Mr Baroi”) arrived in Australia on 20 July 1995. The second applicant (“Mrs Baroi”) arrived in Australia on 28 December 1996, accompanied by her two daughters (“the daughters”).
The applicants seek review of the decision made by the Refugee Review Tribunal (“RRT”) on 24 November 1997. In that decision, the RRT affirmed two decisions made by a delegate of the Minister, on 18 June 1996 and 2 May 1997 respectively. The delegate had refused to grant protection visas to Mr Baroi and Mrs Baroi, on the ground that the delegate was not satisfied that either applicant was a person to whom Australian had protection obligations under the Convention relating to the Status of Refugees (“the Convention”). The daughters were included in Mrs Baroi’s application for a protection visa.
The daughters were named as applicants in the proceedings, but not through the intervention of a next friend: see Federal Court Rules (“FCR”), O 43, r 1(1). There was some discussion at the hearing as to whether the daughters should remain parties to the proceedings and, if so, whether it was necessary to appoint a tutor, given that neither of the daughters was of full age: see FCR, O 43, r 2(1). Ultimately, the daughters, by their next friends, Mr and Mrs Baroi, filed a notice of discontinuance. They have therefore been removed from the proceedings.
The applicants’ case before the RRT was that, as practising Christians, they feared persecution from Muslims in Bangladesh. The RRT rejected some, but not all, of the claims made by the applicants concerning threats and violence directed at them in Bangladesh. In particular, the RRT rejected certain claims made in a statutory declaration prepared by Mr Baroi, the English version of which bore a translator’s declaration dated 26 September 1997. The RRT found that Mr Baroi had “fabricated [the] claims in order to manufacture for himself a profile which he thought would lead the Tribunal to find that he is a refugee”. The RRT made this adverse finding partly because Mr Baroi’s statutory declaration contained passages substantially identical to those in a statutory declaration filed in earlier, unrelated proceedings determined by the RRT. In the earlier proceedings, a person to whom I shall refer as “Mr M” succeeded in his claim for a protection visa on the basis that he was a Christian in Bangladesh who feared persecution by reason of his religious beliefs. The RRT in the present case found that Mr Baroi, despite his denials, had had access to Mr M’s statutory declaration when preparing his own statutory declaration.
The applicants’ grounds for review were set out in a further amended application filed, without objection, at the hearing. The grounds of the application were these:
“1. Procedures that were required by the Act to be observed in connection with the making of the Decision were not observed and/or the Decision involved an error of law being either an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the RRT.
Particulars
The RRT failed to act according to substantial justice and the merits of the case in:
(i)questioning the first application as to the similarities between his statutory declaration and that of another applicant for refugee status without showing him a copy of that other applicant’s statutory declaration;
(ii)Failing to specify which parts of the other document were in its view similar to his statutory declaration;
(iii)Failing to provide the applicant with an adjournment for the purposes of comparing these two documents and providing comment;
(iv)Failing to provide the applicant with an adjournment for the purpose of investigating the accuracy of the translation of his statutory declaration and providing comment;
(v)Reaching the conclusion that the applicant had had access to the English translation of the other statutory declaration first without allowing the applicant an opportunity to pursue the steps listed in particulars (i) to (iv).”
Prior to the hearing of the present application, the applicants issued a subpoena to the RRT seeking production of the RRT’s file relating to Mr M’s successful application for refugee status. The RRT sought to set aside the subpoena, on the ground that s 439(5) of the Migration Act 1958 (Cth) (“Migration Act”) provides that a member or officer of the RRT
“must not be required to produce any document, or to divulge or communicate any information, to which this section applies to or in:
(a)a court;
…
except where it is necessary to do so for the purposes of carrying into effect the provisions of this Act.”
In a ruling given on 22 July 1998, I held that the RRT should produce to the applicants a copy of Mr M’s statutory declaration, but not the remainder of Mr M’s file: Baroi v Minister for Immigration and Multicultural Affairs (22 July 1998, unreported) at 6-7. In my judgment, I noted that the applicants did not require access to the decision given by the RRT in Mr M’s case, since the applicants’ solicitor said that he already had a copy of that decision.
Evidence in the Present Proceedings
At the hearing of the present application, Mr Fitzgerald, who appeared on behalf of the applicants, read an affidavit sworn by Mr Baroi. Mr Baroi annexed three documents to his affidavit. These were the following:
A copy of Mr M’s statutory declaration, which had been produced by the RRT in compliance with the Court’s order. A notation on the statutory declaration indicates that it was declared on 2 April 1997 before a Justice of the Peace, to whom I shall refer as “Mr A”. Mr M’s statutory declaration is 23 pages in length, and comprises 38 paragraphs.
A copy of a handwritten document in the Bengali language which Mr Baroi said he had prepared in support of his claim for refugee status. I infer that the original of this document is in Mr Baroi’s own handwriting. There was no evidence as to whether the document bears a date, although (as will appear) it was prepared in or before January 1997.
A copy of Mr Baroi’s statutory declaration as submitted by him to the RRT. This document attaches a declaration by a Bengali interpreter, dated 26 September 1997. The statutory declaration itself comprises 36 pages and 38 paragraphs. The name of the interpreter is recorded as the same Mr A whose name appears on Mr M’s statutory declaration.
In his affidavit, Mr Baroi said that, in about January 1997, he asked Mr A to translate into English the Bengali document that he (Mr Baroi) had prepared. Mr Baroi was not cross-examined. His statement implies that he prepared the Bengali document no later than January 1997. Mr Baroi also said that Mr A provided the English translation to him in about September 1997. Mr Baroi’s affidavit does not explain the apparent delay of some eight months in obtaining an English translation of his statement.
Mr Baroi deposed to a conversation that he says occurred at the time Mr A provided him with the English translation of his statutory declaration. Mr Baroi claims that he signed the statutory declaration without reading it and without Mr A either reading the document to him in English or translating it into the Bengali.
Mr Fitzgerald also read an affidavit sworn by Mr Haque, a translator skilled in the Bengali language. Mr Haque’s affidavit is notable more for what it does not reveal, rather than for what it does reveal. Mr Haque said that he had read Mr Baroi’s statutory declaration of 26 September 1997 and compared it with Mr Baroi’s handwritten document in the Bengali language. Mr Haque then said this:
“Having compared those documents I am of the view that some of the contents of the handwritten document in the Bengali language have not been correctly translated into English. I have examined the language of the 2 documents, comparing the paragraphs in these 2 documents, in order to ascertain the similarity and dissimilarity between the 2 documents. My view is that, these 2 documents have been incorrectly translated into English. By way of example:
(a)Commencing on line 15 of paragraph 34 of the statutory declaration in English, there is a statement that ‘There are always attacks, harassment, abduction and murders being perpetrated towards the Awami league and its associates the BLC people all over in Bangladesh, though the party is currently in power’.
There is no corresponding statement using those words or words to that effect in the original handwritten document in the Bengali language.
(b)Paragraph 37 of the statutory declaration in English refers to 3 decisions of the RRT. There is no reference to those decisions in the handwritten document in the Bengali language.”
Mr Haque’s affidavit does not address whether those sections of Mr Baroi’s statutory declaration which (as will be seen) are substantially identical to passages in Mr M’s statutory declaration were correctly translated from the document prepared by Mr Baroi in the Bengali language. There seems to be no dispute that Mr Baroi, at all times, has had available to him the original or a copy of the document prepared by him in the Bengali language.
The applicants did not adduce any evidence from Mr A. Nor did their evidence address whether any effort had been made to obtain evidence from Mr A. Neither party tendered a full copy of the RRT decision in Mr M’s case, although an incomplete copy was in the applicant’s RRT file.
The Applicants’ Claim to Refugee Status
Mr Baroi set out his claim to be entitled to refugee status in written submissions to the Department (including a statutory declaration dated 6 November 1995), an interview with the Departmental Officer, written submissions to the RRT and oral evidence given to the RRT at two hearings held, respectively, on 21 October 1997 and 12 November 1997.
Mr Baroi was born in 1963 in Bangladesh and raised as a Christian. He holds an Arts degree from Dhaka University. In his application to the Department and in his Departmental interview, Mr Baroi said that he had worked for several Christian organisations in Bangladesh. He claimed that he had lost his position with World Vision, because the organisation wished to employ a Muslim in his place. He also said that he had been attacked in November 1994 by supporters of the Jamaat-e-Islam Party, after he had preached during a Sunday evening service at his church. He said that in February 1995, he had been beaten by a large group of Muslim demonstrators who were passing the Assembly of God Church where he preached. According to Mr Baroi, the incident was reported to the police. He also claimed to have received numerous threatening telephone calls telling him to renounce his Christian beliefs.
In the statutory declaration of 26 September 1997 (which reached the RRT on 29 September 1997), Mr Baroi made a number of additional claims. The statutory declaration is a rather curious document. It is not merely an account of events in Bangladesh, but includes argumentative material in support of Mr Baroi’s case. Some of that material, for example, refers to RRT decisions concerning applications made by Bangladeshi citizens for refugee status. These decisions would not ordinarily be expected to be within the knowledge of an applicant for refugee status who is not familiar with the English language (although, of course, they might be known to an adviser). Some of the argumentative material is set out in the statutory declaration within parentheses and in italics, although this form of presentation is not adopted uniformly. An example of the argumentative material appears in par 33 of Mr Baroi’s statutory declaration:
“(You would be aware that fear of persecution and lack of protection are themselves are inter-related elements. The persecuted clearly do not enjoy the protection of their country of origin, while evidence of the lack of protection on either the internal or external level may create a presumption as to the likelihood of persecution and to the well-foundedness of any fear.)
This is one of the passages that appears verbatim in the statutory declaration of Mr M.
The additional claims made by Mr Baroi in his statutory declaration include the following:
In early 1984, on his own initiative, he established an organisation named “SHANTI” (Peace). This was an organisation staffed mainly by Christian workers, supported by the Bangladesh Baptist Mission.
In 1989 Mr Baroi became very friendly with a Muslim youth, who had converted to Christianity. He was blamed by Muslim agitators for the convert changing his religion. The agitation caused him to leave his job, although shortly thereafter he achieved a “lucrative position” in World Vision.
During his work for World Vision, he was intimidated, harassed and threatened by Muslim fanatics because he had become known as a devout Christian. On 17 January 1995, armed Muslims stormed Mr Baroi’s church, looking for him. The mob looted and destroyed a bookshop outside the church. Mr Baroi realised that this event had occurred because he had been assisting a Christian family whose daughter had been raped. It was the January incident that prompted Mr Baroi to leave Bangladesh. Accordingly, he applied for and obtained a Bangladeshi passport at the end of January 1995 and began searching for a safe haven outside Bangladesh.
In her application for protection visa, Mrs Baroi essentially relied on her husband’s claims. She stated that, after Mr Baroi’s departure from Bangladesh, she had to change her address a number of times. She said that supporters of Jamaat-e-Islam came to her house and threatened to beat her and torture her and kidnap her daughters. They also threatened her over the telephone. Circumstances became so difficult that she had to leave Chittagong. Her brother arranged for her to obtain a visa to enable her and the children to be admitted into Australia.
Similarities Between the Statutory Declarations
As I have said, both Mr M’s and Mr Baroi’s statutory declarations were in evidence in these proceedings. This enabled the parties and the Court to compare the two documents. There are lengthy passages in Mr Baroi’s declaration that are identical, or substantially identical, to passages in Mr M’s declaration. For example, the first six paragraphs of Mr Baroi’s statutory declaration, which set out his personal and family history use virtually the same language as Mr M’s statutory declaration, the only changes being details such as Mr Baroi’s place of birth, dates and the course for which Mr Baroi obtained a Diploma.
By way of illustration, par 2 of Mr Baroi’s statutory declaration reads as follows:
“I was born to a rich and well educated Christian family where there was no financial need. I am the fourth born of seven children in my parent’s family. My parent’s [sic] brought up all their children with the best of everything. Within the locality still now our family is wealthy well off in all aspects. From my childhood, I never saw my family in any financial trouble. All my brothers and sisters grew up with the best things in their hands.”
The equivalent paragraph in Mr M’s declaration is as follows:
“I was born to a rich and well educated Christian family where there was no financial need. My parent’s [sic] brought up all their children with the best of everything. Within the locality still now our family is quite wealthy and well off in all aspects. From my childhood, I never seen my family in any financial trouble. All my brothers and sisters grew up with the best things in their hands.”
There are other passages which are substantially the same in each statutory declaration. I have already referred to an argumentative section of par 33 of Mr Baroi’s statutory declaration which reproduces, verbatim, a passage in Mr M’s statutory declaration. Ms Backman, who appeared on behalf of the Minister, emphasised the similarities between Mr Baroi’s account of his involvement with SHANTI (made for the first time in his statutory declaration) and Mr M’s account of his involvement with a similar organisation. It is convenient, therefore, to reproduce the two accounts.
Mr Baroi’s account is as follows:
“16.In early 1984 on my own initiative along with some other Christian youths I established a new organisation named ‘SHANTI’ (Peace). The organisation was similar to other NGO’s (Non-Government Organisation) in Bangladesh. (Including me, we were a total of five full-time staff and eight other volunteers and part time workers in my NGO. Most of the workers were Christian. Mainly we were aided by the Bangladesh Baptist mission.). The purpose of the SHANTI was to provide all sorts of support among the poor and destitute women in the society to make their life better. In that projects especially, the Christian (Baptist) women’s had the priority as they were the most disadvantaged group and abandoned in Bangladesh rural society. Due to the discriminatory attitude of the Bangladesh authorities we could not get any recognition or affiliation for the SHANTI, even then we did not stop our project to help the disadvantaged Christians in the rural and some urban areas in Patuakhali. Even though it was a tiny Christian organisation with a limited work range many times we have been taunted and provoked by the local Muslim ‘Mullah’ and other fanatics.
17.Besides the SHANTI project I was involved with many other religious (Christianity) activities in the society in my own district Patuakhali. Every Sunday morning I used to sit with local poor Christian people listening to their social problems, and I counselled them on various issues. Especially the new converted Christians would face many problems in society. Through our organisation ‘SHANTI’ we spent all my efforts to help them and sort out their problems. (Please note that for these activities in November 1984 myself along with my two other colleagues were warmly greeted and had reception by the Patuakhali Baptist Church, which brought a great respect for me and my colleagues in Christian society.).”
Mr M’s statutory declaration contained the following passages:
“8.At the start of 1994 of my own initiation I established a new organisation named HEEA Bangladesh (Health, Education and Economic Advancement). The organisation was similar to other NGO’s (Non-Government Organisation) in Bangladesh. (Including me we were a total of three full-time staff and ten other volunteers and part time workers in my NGO. Most of the workers were Christian.)
9.The purpose of the HEEA was to provide all sorts of support among the poor and destitute women in the society to make their life better. In that project especially the Christian (Anglican) women’s had the priority as they were the most disadvantage group and abandoned in Bangladesh rural society. For the discriminatory attitude of the Bangladesh authorities I could not get any recognition or affiliation for the HEEA, even then I did not stop my project to help the disadvantaged Christian’s in the rural and some urban area in Khulna.
10.Besides, the HEEA project I was involved with many other religious (Christianity) activities in the society, such as every Saturday morning I used to sit with local poor Christian people, listen to their social problems and I counselled them on various issues. Specially the new converted Christians would face many problems in the society. I tried my level best to help them and sort out their problems. (Please note that for this activities one day in Mid-94 I was warmly greeted by the Khulna Anglican Church, which brought a great respect for me in Christian society.)”
THE RRT PROCEEDINGS
First Hearing
Mr Baroi first gave evidence at the RRT hearing held on 21 October 1997. He was unrepresented at that hearing and gave most of his evidence, through a Bengali interpreter (not Mr A). The RRT Member questioned Mr Baroi concerning inconsistencies in his accounts of events. He was also asked why he had made claims in his statutory declaration that had not been referred to either in his original application or at his previous interview. In particular, he was asked about his involvement with SHANTI. Mr Baroi repeated his claims that he had founded the organisation, and that he had experienced harassment from Muslims because of his involvement with it.
The Member went on to question Mr Baroi about similarities between his statutory declaration and claims made by Mr M recorded in the earlier decision of the RRT granting Mr M a protection visa. At this stage, the RRT did not have a copy of Mr M’s statutory declaration. It did, however, have a copy of the decision in Mr M’s case, which presumably contained extracts from Mr M’s statutory declaration. It is convenient to set out the relevant portions of the transcript of 21 October 1997 relating to this question:
“ROSSER [Member Of The RRT]: Now, you have mentioned in your submissions and I expect that you’re familiar with a case that the Refugee Review Tribunal has previously decided about a Christian in Bangladesh. Is that right? This is the case in N96/12466. Are you familiar with that case?
APPLICANT: Yes.
ROSSER: I want to go through some of the things that are in that case, Mr Baroi, and see if you can explain to me why some of your claims are almost word for word the claims that are in that case? I’m not talking about your original claims or what you’ve said in the interview. I’m talking about the claims that you’ve made in this statutory declaration.
APPLICANT: We were both working for the same (inaudible) in different (inaudible) same type of activities, same type of work, Christian and then he was also working for that other organisation. He was in another area for the same organisation that was the organisation that I was working with I was in another area but same sort of work that we used to do.
ROSSER: So this is somebody that you know, is it?
APPLICANT: I know him from Bangladesh. We were both trying to do publicity for Christianity. We were practising and preaching people about Christianity and many other people were attracted and they got converted to this religion.
ROSSER: Let me go through with these claims, okay, Mr Baroi. I just find it surprising that your claims, your new claims the ones that you have never mentioned before are so similar to these ones.
You said you established this organisation called ‘Shanti’ in 1984 and that you had five full-time staff, volunteers, part-time workers added by the Bangladeshi Baptist mission, that most of the workers were Christian, that you supported women especially rural women. This applicant says, in the 1990s he had established an organisation which was funded by religious establishment, I guess by a church. That most of the workers were Christian. They were supporting women especially rural women. Now, I find the similarities between those two claims but not the same organisation, I suppose, because, one, you said yours was in 1984, this one was in the 1990s but using the exactly the same words I find that a bit concerning if you could explain to me why that’s the case. Can you say anything to reassure me about that?
Did you understand that? Shall I go over that again?
APPLICANT: I understood that but I don’t know what sort of thing that he had established I had nothing to do with that information. I don’t know what sort of things he did. I have no connections with all that.
ROSSER: It’s just that the words that you’ve used in your statutory declaration are almost exactly the same as the words that was used in this decision.
APPLICANT: I don’t know what statutory he’s given but whatever I have given, I’ve just given it and I just know the decision, I don’t know anything else. We don’t even stay together. His house in a different place than mine.
ROSSER: In your claim that you have not made before was that when you were at the CCDB that you protested against the declaration of the Islam’s State religion. This applicant also says that he protested against the declaration of Islam’s State Religion. In different times and apparently in different places. You can comment if you want to comment?
APPLICANT: I have taken an oath and whatever I’ll be saying today is the truth and I am telling the truth. Whatever I’ve written is whatever happened to me. Whatever has happened to my life and whatever I’ve gone through, I’ve written it done in detail and given it. Maybe there is some left that I could not write down or say but they are all the truth that I have given there.
ROSSER: Again, we talked earlier about the – when you said you were assaulted in November in 1994 in something that you hadn’t mentioned previously in the statutory declaration, you say you were confronted and physically assaulted by Muslim youths and that this happened after an evening prayer. The applicant in this case has stated that he was assaulted by Muslim youths after evening prayer. Using exactly the same words. Again, I find that something of a coincidence, Mr Baroi, given that you had not mentioned this assault previously. Can you understand why I have some difficulty with this?
APPLICANT: I don’t know how but I can only tell you that whatever I’ve given you is the truth from my own life and whatever had happened to me with those incidents I had written there.
ROSSER: And then another incident that is similar is you again, something that you hadn’t previously said was that you were involved in this supporting this family in a case before court and this applicant also assisted a Christian who was involved in a court case.
I find all of that quite coincidental. That claims that you had not previously made in your first application form in the interview with the Department that you make shortly before the hearing are so similar to the claims in the case where the applicant was successful.
APPLICANT: I have already said and I like to repeat in the beginning was that I had made certain mistakes and I have done some things wrong there. Another thing was the misinterpretation. Certain things were misinterpreted and because of what my solicitor had told me I could not say the whole thing but today whatever I have written in those claims are the truth or whatever that has happened in my life I have (inaudible) there.
…
ROSSER: Can you just clarify for me again, you said that you know these applicants in this decision 12466. Is that right?
APPLICANT: I know that [Mr M] is here. But whatever he has said or what he does I don’t know but know that [Mr M] is here.
ROSSER: And you said that you worked in same organisation?
APPLICANT: Not like that. I didn’t know him that way. I was in Chittagong and he was in Cornda and I was working CCDB and he was working for UNICEF.”
The hearing continued for some time after these exchanges. At the conclusion of the hearing, the RRT member asked Mr Baroi whether there was anything more he wished to say that was relevant to his claim. Mr Baroi made some observations, but did not address the similarities between his statutory declaration and the terms of the RRT decision in Mr M’s case. The Tribunal member advised Mr Baroi that she would make a decision as soon as she could, and that Mr Baroi would probably receive the decision within about three weeks.
The Second Hearing
Mrs Baroi’s case was listed for hearing before the RRT on 12 November 1997. It appears from the RRT’s reasons that this occurred because it became apparent to the RRT member during the hearing on 21 October 1997 that a separate application had been made by Mrs Baroi. In any event, on 24 October 1997 Mrs Baroi was notified in writing that the RRT was unable to make a decision on the papers and that a hearing would take place on 12 November 1997. The letter contained the following passage:
“The Tribunal would also like your husband to attend the hearing, as he may be required to give evidence.”(Bolding and underlining in original.)
At the hearing on 12 November 1997, Mrs Baroi, who was also unrepresented, gave evidence through an interpreter. Mr Baroi was present at the commencement of the hearing. The RRT member, in the presence of both Mr and Mrs Baroi, said that she would be taking account of the information in Mr Baroi’s file and the evidence given by him on 21 October 1997. The Tribunal member also said that she would take into account the evidence to be given by Mr Baroi at the second hearing. She also said that there would be one decision which would cover the cases of both Mr and Mrs Baroi.
In the event, Mrs Baroi gave evidence and was questioned by the RRT Member. Mr Baroi was not present when this questioning occurred. After Mrs Baroi’s evidence had concluded, Mr Baroi gave further evidence. The RRT Member advised him that she had some questions arising out of Mrs Baroi’s claim and that she wished to put further questions in relation to his own claim.
After questioning Mr Baroi about some aspects of his wife’s claim, the following exchanges took place:
“[ROSSER]: You remember, Mr Baroi, on the last occasion I raised with you the tribunal’s decision in [Mr and Mrs M’s] case. In fact, if you’ll remember I didn’t know the name of the case I just gave the number of the case. You remember that? Do you remember what you told me about [Mr M]?
THE INTERPRETER: Yes.
[ROSSER]: Can you tell me again what you told me about [Mr M] on that occasion?
THE INTERPRETER: What I told you was that [M] was involved with…and I wasn’t involved with…I was member of….
[ROSSER]: Yes, I know that organisation. You also told me that you didn’t know [Mr M] very well, that you knew him from Bangladesh but you hadn’t seen him in Australia. That was right?
THE INTERPRETER: Sorry, can I ask him to repeat[?] I also told you that I was a member of that organisation and I was working in an organisation. I told you that.
[ROSSER]: You told me that. You told me that you knew nothing about the [M’s] case and that you did not see the [M’s] in Australia.
THE INTERPRETER: Okay. Can I ask – He was distantly related to us and his daughter was kidnapped in Kuna. I was aware of that incident when I was in Bangladesh.
[ROSSER]: At the last hearing, Mr Baroi, you implied that you had not seen the [M’s] in Australia. Is that true?
THE INTERPRETER: I knew about this – I knew that he is in Australia.
[ROSSER]: Mm mm, yes.
THE INTERPRETER: But I didn’t see him.
[ROSSER]: So you don’t see the [M’s]? Not at all?
THE INTERPRETER: Since I arrived in Sydney I’ve never seen him in Sydney.
[ROSSER]: So he’s never been to your house?
THE INTERPRETER: No. Maybe the time when I was not – sorry. In my presence he was never in my house.
[ROSSER]: And you haven’t seen him in anybody else’s house?
THE INTERPRETER: No.
[ROSSER]: Can you tell me how [Mr M] is related to you?
THE INTERPRETER: The [M’s] countryside home and my uncle’s home, in the same place. My grandmother’s house and [M’s] house in the same country area…(reads)…district.
[ROSSER]: I’ve missed it now. Your grandfather, grandmother?
THE INTERPRETER: Yes, that’s right, grandfather – mother’s side grandfather.
[ROSSER]: So your maternal grandfather and [Mr M’s] house are in the same area.
THE INTERPRETER: Same area.
[ROSSER]: Are you or your wife related to [Mr and Mrs M]?
THE INTERPRETER: They asked him just to keep house. [Mr M] is also, from my side, is related and as well as my wife’s side, [M’s] wife and her aunt used to live in Rashad.
[ROSSER]: So you are related to the [M’s]?
THE INTERPRETER: This is our relation.
[ROSSER]: But even though you are related to the [M’s] you have not seen them since you’ve been in Australia?
THE INTERPRETER: The ties was not very close and it was not that much close to go their house and they really not come there.
[ROSSER]: You didn’t go to each other’s[?]
THE INTERPRETER: Didn’t go to each other’s.
[ROSSER]: Okay. Mr Baroi, your wife told me when she was giving evidence that you have seen the [M’s] since you’re been in Australia on several occasions at Christian Fellowship and that on one occasion the [M’s] did come to your home. Do you want to comment on that?
THE INTERPRETER: Maybe in my absence, not in my presence. At the fellowship gathering, many people from Bangladesh Christian community, they gather.
[ROSSER]: Yes. So now are you telling me that you have seen the [M’s] in Australia?
THE INTERPRETER: Yes, at the gathering, if you want to say it that way, yes, that way.
[ROSSER]: So what you told me before about not seeing the [M’s] since you’ve been in Australia is not true.
THE INTERPRETER: Not any discussion, not any…but just for the fellowship gathering.
[ROSSER]: Mr Baroi, you will recall that at your hearing the last time I went through your statutory declaration and I asked you for explanations of the similarities between your statutory declaration and the claims by the [M’s] as they appeared in the decision in their case. Since that time I’ve obtained the [M’s] file. On that file is a statutory declaration from the [M’s]. I compared that statutory declaration to the statutory declaration that you have provided to the Tribunal. Mr Baroi do you need me to point out the similarities between the statutory declaration that you provided and the statutory declaration that [Mr M] provided?
THE INTERPRETER: I know from my knowledge that he was involved with my mother…and all of us used to work for Angio.
[ROSSER]: Mr Baroi, I’m not even talking about the similarities in the claims, I’m talking about the fact that there are whole paragraphs that are identical in your statutory declaration and [Mr M’s] declaration. Not just similar but identical. Like, identical, the same. I’ll read you out a paragraph [of] your statutory declaration which is here and a paragraph from [Mr M’s] statutory declaration. I’ll read it out in English, okay. I don’t think that it needs to be interpreted. Your paragraph 2 of your statutory declaration says:
‘I was born to a rich and well educated Christian family where there was no financial need. I’m the fourth born of seven children in my parents’ family…(reads)…best things in their hands.’
[Mr M’s] statutory declaration says:
‘I was born to a rich and well educated Christian family where there was no financial need. My parents brought up all their children with the best of everything…(reads)…with the best things in their hands.’
There are many many paragraphs in these statutory declarations that are the same. I find it, the similarities are too extensive for it to be a coincidence. It is clear to me, Mr Baroi, that you must have had access to [Mr M’s] statutory declaration in providing your statutory declaration. Do you want to comment on that?
THE INTERPRETER: Whatever I said before and whatever I want to say, I did not take anybody’s assistance. Whatever my fact, I gave it from me and as it was translated.
[ROSSER]: Are you saying it’s the translation that’s the problem?
THE INTERPRETER: Maybe. I give it in Bengali and that was translated into English.
[ROSSER]: Is it not the case, Mr Baroi, that if it was the same in Bengali, that it would turn out the same in English?
THE INTERPRETER: I don’t know. Whatever happened to me, that’s what I---
[ROSSER]: Do you want me to go through and find all the similarities in this statutory declaration? Do you need me to do that?
THE INTERPRETER: That’s what I cannot decide.
[ROSSER]: So you have no explanation for how, for why these two statutory declarations would have whole paragraphs that are identical?
THE INTERPRETER: No.
[ROSSER]: No explanation?
THE INTERPRETER: I don’t want it.”
RRT’s Findings
The RRT observed that, before determining whether the applicants were entitled to protection in Australia, it was necessary to make findings of fact on the claims made by them. If the applicants’ case were rejected on the facts, there would be no foundation for a claim that they had a well-founded fear of persecution in Bangladesh.
The RRT accepted that both Mr and Mrs Baroi were Christians. It also accepted, on the basis of documentation provided by Mr Baroi, that he had been employed in Bangladesh as he had claimed and that he had been physically injured on 12 February 1995. However, the RRT did not accept the claims made in Mr Baroi’s statutory declaration. The RRT said this:
“I am of the opinion that Mr Baroi fabricated these claims in order to manufacture for himself a profile which he thought would lead the Tribunal to find that he is a refugee. Firstly, I consider that Mr Baroi’s failure to make these claims either in his application for a protection visa, at his interview with the Department, or in his application for review to the Tribunal to be significant. I do not find Mr Baroi’s explanation for his failure to do so to be persuasive. Secondly, I am of the view that the later claims made by Mr Baroi are so similar to those made by [Mr M], both in form and substance, as to exclude the possibility that the similarities are coincidental. Thirdly, I consider that other aspects of Mr Baroi’s statutory declaration, including paragraphs concerning background information, are so similar to aspects of [Mr M’s] statutory declaration that it is impossible to escape the conclusion that Mr Baroi had access to [Mr M’s] statutory declaration in preparing this claim.”
The RRT concluded that, despite Mr Baroi’s initial denial that he had had any contact with Mr M in Australia, he had been in contact with Mr M and had access to Mr M’s statutory declaration which he used to prepare his own declaration. The RRT did not accept Mr Baroi’s explanation that similarities in the wording of the statutory declaration resulted from the translation of the document.
While the RRT considered that Mr Baroi’s fabrication of his claims in the statutory declaration cast doubts on his credibility generally, nonetheless it accepted certain claims made in his application and in his interview with the Department. In particular, the RRT accepted that Mr Baroi had been physically assaulted when some of the demonstrators from Jamaat-e-Islam had targeted Mr Baroi and his colleagues outside the church. This incident was consistent with the independent evidence concerning sporadic outbursts of communal violence against Christians and other minority groups. The RRT also accepted that Mr Baroi had experienced conflict with members of the Bangladeshi community because of disagreements over religion.
The RRT acknowledged that Christians in Bangladesh had been the subject of discrimination and were sometimes the targets of communal violence. Nonetheless, it considered that Mr Baroi’s treatment was neither systematic nor serious enough to amount to “persecution” within the meaning of the Convention. The incident of 12 February 1995 was an isolated example of communal violence of which Mr Baroi “was unfortunately the target”. It did not, of itself, amount to persecution.
The RRT noted that, notwithstanding Mr Baroi’s status as a member of a religious minority, he had been able to gain a tertiary education, obtain employment and change that employment on two occasions. While it was true that he might not have been able to obtain a job in the private or government sectors, that treatment was insufficient to amount to persecution. Accordingly, the RRT was not satisfied that Mr Baroi was subjected to treatment amounting to persecution, nor that he faced persecution at the hands of Jamaat-e-Islam, Muslims in general, or anybody else by reason of his religion.
The RRT also rejected a number of claims made by Mrs Baroi. It rejected her assertions that she had been threatened after her husband had left Bangladesh. It also rejected her claim that an attempt had been made to kidnap one of the daughters. In the light of the RRT’s findings on these matters, it was not satisfied that there was a real chance that either Mrs Baroi or her children would face treatment amounting to persecution if they were returned to Bangladesh. The RRT, accordingly, was not satisfied that Mr and Mrs Baroi or their children were persons to whom Australia had protection obligations under the Convention.
THE SUBMISSIONS
Common Ground
The applicants did not challenge the RRT’s statement of the principles governing claims for protection visas. Nor did they challenge the application of those principles to the case. They relied solely on what they said was the failure of the RRT to accord procedural fairness in the manner particularised in the further amended application.
The applicants’ starting point was that a failure by the RRT to provide procedures which are fair and just constitutes a breach of the obligation imposed by s 420(2)(b) of the Migration Act, to “act according to substantial justice and the merits of the case”. Such a breach involves a failure by the RRT to observe procedures required by the Migration Act to be observed in connection with the making of the decision, thereby providing a ground for review of the decision under s 476(1)(a) of the Act. Mr Fitzgerald submitted that so much flows from the majority judgments in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (FC), followed in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 (FCA/FC), at 546, per Wilcox J, at 554-555, per Burchett J.
The High Court has granted special leave to appeal in Eshetu. See also Sun Zhan Qui, at 565, per North J. Nonetheless, as Ms Backman correctly conceded, the approach outlined by Mr Fitzgerald should be followed in this Court. In substance, then, the only issue is whether the RRT failed to accord fair and just procedures to the applicants.
Applicants’ Submissions
The applicants argued that the rules of procedural fairness require the RRT to give an applicant an adequate opportunity to respond to deal with an “unfavourable animadversion” upon his or her conduct, at least where the criticism or the unfavourable comment is not an “obvious natural response” to the conduct. (This language is derived from the judgment of Keely J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (FC).) In the present case the RRT took an unfavourable view of Mr Baroi’s claims, by reason of the similarities between the English version of his statutory declaration and Mr M’s statutory declaration. This led the RRT to conclude that Mr Baroi had fabricated the new claims in his statutory declaration, notwithstanding that there might be other explanations for the similarities.
Mr Fitzgerald contended that, where an unforeseen issue arises at an oral hearing before a tribunal, “substantial justice” can call for the proceedings to be adjourned so that the affected party can have an adequate opportunity to deal with the unforeseen issue. In his written submissions, Mr Fitzgerald argued that the RRT had raised the “unfavourable animadversion” for the first time at the hearing of 21 October 1997, and that an adjournment should have been offered at that point to Mr Baroi so that he could have undertaken a comparison of “two lengthy documents in a language foreign to [him]”. It was said that the two documents (that is, the statutory declarations) were lengthy and that the similarities should have been particularised.
Mr Fitzgerald accepted that the requirements of procedural fairness in a particular case will depend on the circumstances. He submitted that, in this case, an important consideration was that the RRT relied on the similarities between the statutory declarations in order to draw the very serious conclusion that the first applicant had deliberately set out to mislead the RRT. Since it is a requirement of substantial justice that the RRT proceed on rationally probative evidence, the RRT should be especially alert to provide an adequate opportunity to respond to unfavourable material upon which it may rely in order to find deliberate misconduct.
Minister’s Submissions
The Minister submitted that the RRT’s obligation to accord procedural fairness must be understood in the context of the Migration Act. Section 427(1)(c) provides that, subject to ss 438 and 440, the RRT “may…give information to the applicant”. While ss 438 and 440 are not directly relevant to this case, s 431(2) prohibits the RRT from publishing any statement which might identify an applicant. Section 439(3) prevents an RRT member from divulging or communicating to any person any information obtained by the RRT member in the course of performing functions or duties or exercising powers under the Migration Act, unless the information is divulged or communicated for the purposes of the Migration Act or in connection with the performance of a function or duty or the exercise of a power under the Act. Having regard to these provisions, the RRT was obliged only to disclose to Mr Baroi information in Mr M’s statutory declaration that had not been addressed in the material submitted by Mr Baroi. The RRT had directed Mr Baroi’s attention to the similarities between the RRT’s decision in Mr M’s case and Mr Baroi’s statutory declaration at the first hearing. It expressly drew attention to the similarities between the two statutory declarations at the second hearing, on 12 November 1997. Mr Baroi was offered an opportunity to explain the similarities and he had been unable to do so.
Ms Backman submitted that it was not incumbent on the RRT to offer Mr Baroi an adjournment to investigate the accuracy of the translation of his own statutory declaration and to provide additional comments. Particularly was this so having regard to the three week interval between the first and second RRT hearings. Mr Baroi had been on notice of the similarities between his statutory declaration and the RRT decision in Mr M’s case. It could hardly have come as a surprise to be confronted with the similarities between the two statutory declarations. Thus he had been afforded procedural fairness.
Ms Backman submitted that, even if the RRT had breached the requirements of procedural fairness, the Court should decline to grant relief in the exercise of the discretion conferred by s 481(1) of the Migration Act: see Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153 (FCA/Gummow J), at 170-171.Despite having the opportunity to adduce evidence in these proceedings, the applicants had not demonstrated that there were significant disparities between Mr Baroi’s notes in Bengali and the English translation provided by Mr A. Mr Haque’s evidence merely showed that some material in the English translation was not in Mr Baroi’s version. Mr Haque’s evidence did not address the many instances where Mr Baroi’s statutory declaration employed language substantially identical to that used by Mr M. Nor had the applicants adduced evidence from Mr A, the translator. Thus, there was nothing to suggest that, even if the applicants had been provided with a copy of Mr M’s statutory declaration or had been granted an adjournment, they could have provided an innocent explanation for the identical passages.
REASONING
A Clarification
The written submissions of both the applicants and the Minister proceeded, to some extent at least, on a misapprehension as to the course of events before the RRT. These submissions assumed that the RRT, at the hearing of 21 October 1997, had access to Mr M’s statutory declaration. The applicants complained of the RRT’s failure to make that statutory declaration available to Mr Baroi at that hearing. I think it is clear from the transcript of the proceedings on that day and from the terms of the RRT’s decision of 24 November 1997, that the RRT Member did not have a copy of Mr M’s statutory declaration on 21 October 1997, although she clearly did have a copy of the RRT’s decision in Mr M’s case. Mr Fitzgerald, in the course of his oral argument in this Court, accepted that this was the position.
As I have noted, neither party tendered a complete copy of the RRT’s reasons in Mr M’s case. However, the applicants’ file, which was in evidence, included a copy of pp 9-17 of the decision. There was no explanation for the apparent absence from the file of the remainder of that decision. However, it can be inferred from the portion of the decision in Mr M’s case that was in evidence that the RRT’s reasons were given after January 1997, since they include a reference to a report prepared by the US Department of State on 30 January 1997. While pp 9-17 of the RRT’s decision do not quote from or paraphrase Mr M’s statutory declaration, I infer that the earlier section of the RRT’s decision did extract or paraphrase sections of Mr M’s statutory declaration. If this were not the case, it is unlikely that the RRT member in the present case, at the hearing on 21 October 1997, would have been able to characterise passages in Mr Baroi’s statutory declaration as “almost exactly the same as the words…used in this decision”.
Principles
It is a fundamental principle of procedural fairness that, when an order might be made that will deprive a person of some right or interest, that person is entitled to know the case to be made against him or her and to be given an opportunity of replying to it: Kioa v West (1985) 159 CLR 550, at 582, per Mason J. In the same case Brennan J said (at 629) that, in the ordinary case where no problems of confidentiality arise,
“an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.”
What constitutes a fair opportunity to deal with adverse information depends on the circumstances of each case. In Ansell v Wells (1982) 43 ALR 41 (FCA/FC), Lockhart J commented (at 58) that there are no universal standards applicable to every kind of tribunal. The application of what his Honour described as the “rules of natural justice” must depend on the nature or subject matter of the inquiry, the extent to which the decision might affect the rights or interests of the individual, specific procedural rules governing the tribunal and the other circumstances. See also at 52, per Davies J, citing Russell v Duke of Norfolk [1949] 1 All ER 109, at 118, per Tucker LJ.
In some circumstances, it is not enough for a decision-maker to inform an applicant verbally of the contents of a document adverse to his or her interests. Although counsel did not refer me to it, Ansell v Wells was just such a case. There the appellant had applied for a position in the Public Service. She complained, inter alia, that she had not received a copy of a Departmental report which had made unfavourable statements about her and compared her credentials unfavourably with those of other applicants. She was informed about part of the report, at her interview, when the section was read out to her.
Lockhart J, after considering the relevant statutory provisions, expressed the view (at 62) that an applicant should be told the substance of anything adverse in writing, prior to the interview, unless this was not possible. The applicant should have an opportunity quietly to consider the allegations and, if necessary, to obtain material to rebut them. Moreover, this entitlement is not dependent on the applicant making a request. Since the Committee had not disclosed to the applicant the substance of the adverse material prior to the interview, it had breached the rules of natural justice (at 64). The observations of Franki J (at 47) and Davies J (at 54-55) are to similar effect. Ansell v Wells was applied in Mair v Bartholomew (1992) 108 ALR 182 (FCA/Davies J) (a promotions case). See also Moore v Guardianship and Administration Board [1990] VR 902 (Gobbo J) (an investigator’s report was of such significance that it should have been provided prior to the hearing, notwithstanding that the person alleged to be under a disability had not requested it).
It is also clear that, in some circumstances, if a tribunal raises an issue not foreseen by the person whose rights or interests are at stake, procedural fairness may dictate that an adjournment be granted to enable the issue to be considered, even though the person does not request an adjournment. This will be so, for example, if a person liable to be adversely affected by a decision is confronted at a hearing for the first time, with a report containing allegations of misconduct or neglect: Barnes v Oliver (1970) 16 FLR 366 (Cth Ind Ct/FC), at 395, per Sweeney J (with whom Spicer CJ and Kerr J agreed). Ansell v Wells also illustrates the proposition.
The Present Case
In the end, however, it is necessary to consider carefully the circumstances of the particular case, including the nature of the adverse material and the opportunity offered to the person affected by the decision to address and rebut that material. This will determine whether there has been a breach of the requirements of procedural fairness.
Prior to the hearing of 21 October 1997, the RRT Member had clearly formed the view that the apparent similarity between Mr Baroi’s statutory declaration and the claims recorded in the RRT’s reasons in Mr M’s case called for an explanation by Mr Baroi. The Member at that stage did not have a copy of Mr M’s statutory declaration, but she did have a copy of the RRT’s reasons which quoted or paraphrased Mr M’s claims. She asked Mr Baroi at the hearing whether he was familiar with the RRT’s decision, a question presumably prompted by the reference to it in Mr Baroi’s statutory declaration. Mr Baroi answered that he was familiar with the case. Later in the interview Mr Baroi repeated that “I just know the decision”. It is not clear whether Mr Baroi’s knowledge of the decision in Mr M’s case extended to having a copy of the decision available to him. In any event, no complaint has been by or on behalf of the applicants that Mr Baroi was not given a copy of the RRT’s decision on 21 October 1997 or at the later hearing.
At the first hearing, the RRT Member put squarely to Mr Baroi that certain claims he had advanced for the first time in his statutory declaration were framed in exactly the same words as the claims recorded by the RRT in Mr M’s case. Mr Fitzgerald accepted that the Member’s assertion that parts of the RRT’s reasons were substantially identical to passages in Mr Baroi’s statutory declaration was correct . Mr Baroi offered no explanation to the RRT on 21 October 1997 for the identity of language. He did not say (as he has since said in the affidavit read in these proceedings) that he signed his statutory declaration in English without reading it or having it translated to him. Similarly, he did not suggest that there might have been a problem with the translation of his handwritten statement into English. Nor did Mr Baroi suggest that Mr A (or someone else) used or might have used Mr M’s statutory declaration or the RRT’s reasons, without Mr Baroi’s authority, to recast and embellish his (Mr Baroi’s) original Bengali statement in an attempt to create a more persuasive document for the RRT. When asked by the RRT Member about SHANTI, Mr Baroi repeated the substance of the claims recorded in his statutory declaration.
The applicants challenge the RRT’s finding that Mr Baroi fabricated portions of his statutory declaration. It is their case that prior to the 21 October 1997 hearing, Mr Baroi, despite his admitted knowledge of the RRT’s decision in Mr M’s case, had not appreciated the identity of language between his statutory declaration (in English) and the RRT’s reasons. In these circumstances, as I think Ms Backman accepted, it would be wrong to approach the question of procedural fairness on the basis that Mr Baroi could not have been taken by surprise by the matters put to him at the first hearing. It should be accepted, for the purposes of the procedural fairness issue, that Mr Baroi had not previously been alerted to the similarities between his statutory declaration and the language in the RRT’s reasons recording Mr M’s claims.
Had matters rested there, the applicants’ submissions would have had considerable force. I agree with Mr Fitzgerald that the issue raised by the RRT Member was of great importance to Mr Baroi’s case, as the RRT’s reasons for rejecting his claim subsequently demonstrated. Mr Baroi had been given no prior warning by the RRT of the similarities between his claims and those of Mr M. In these circumstances, procedural fairness might well have required the RRT to give Mr Baroi an opportunity to obtain further information or to make further submissions in relation to such important and apparently damaging material. That might well have been the case even if Mr Baroi had not specifically asked for an adjournment. As the cases show, if adverse material is presented without warning, the decision-maker may be obliged, in the interests of fairness, to grant or at least offer an adjournment to the person affected to consider and counter the unexpected information. Particularly is this so where the person affected is unrepresented and does not speak English.
But matters did not rest there. Although the RRT Member told Mr Baroi at the conclusion of the hearing of 21 October 197 that a decision would probably be made in his case within about three weeks, Mrs Baroi was advised within a few days that a hearing on her case would take place on 12 November 1997. That letter specifically stated that Mr Baroi was to attend in order to give further evidence. It is true that the letter was not addressed to Mr Baroi and that it did not specifically state that any evidence given by him would be relevant to both cases. Nonetheless, I think it clear that the letter came to Mr Baroi’s attention shortly after it was written (he does not suggest otherwise). I also think it clear that Mr Baroi realised that he might be required to give further evidence at the second hearing. Certainly he must have known that he would have an opportunity to give additional evidence bearing on both his case and that of his wife.
Mr Baroi had been put on notice at the first hearing that the truthfulness of the fresh claims made in his statutory declaration was being challenged. Mr Baroi also had been clearly put on notice that a critical factor in assessing the veracity of these claims was the apparent identity between the language used in his statutory declaration and the claims made by Mr M in the earlier case as recorded in the RRT’s reasons. It must have been apparent (again, Mr Baroi’s evidence does not suggest the contrary) that these issues would be explored further if he were to give evidence at the second hearing.
It is true that Mr Baroi did not have a copy of Mr M’s statutory declaration prior to or at the time of giving evidence at the second hearing. But he did have his own statement in Bengali which, according to his affidavit, had been prepared in or before January 1997, that is, prior to the RRT’s decision in Mr M’s case. He also knew of that decision which (as I have explained) either quoted from or paraphrased Mr M’s claims. Mr Baroi’s affidavit sets out some inquiries that he says he would have made had he been given a copy of Mr M’s statutory declaration. But no explanation has been given as to why Mr Baroi, once he knew he would be likely to give further evidence did not, for example, make inquiries of Mr A or cause a fresh translation to be made of his handwritten statement to demonstrate (if it be the case) that the statement could not have been based on Mr M’s claims.
At the second hearing, the RRT Member informed Mr Baroi that his answers would be relevant to his own claim. The RRT Member put to Mr Baroi specific passages from his statutory declaration that were identical to passages in Mr M’s statutory declaration, and offered to go through all such passages. That the passages in the two statutory declarations were identical could hardly have come as a surprise to Mr Baroi on 12 November 1997, having regard to the fact that he had been asked at the first hearing about the identity of passages in his statutory declaration and Mr M’s claims as recorded in the RRT’s reasons. To adopt the language used in Somaghi, the questions relating to the two statutory declarations were an “obviously natural response” to the issues raised at the first hearing. Despite being alerted to the issue at the first hearing and knowing that he might be required to give evidence at the second, Mr Baroi was unable to provide any explanation for the undoubted fact that the similarities between his statutory declaration and that of Mr M could not have been coincidental.
The RRT Member did not at any stage make Mr M’s statutory declaration available to Mr Baroi. She may have been motivated by the confidentiality provisions of the Migration Act, although it is difficult to see why those provisions would have prevented her making a copy available in advance with features identifying Mr M blacked out if necessary. But the issue is not whether the RRT might have taken additional steps to alert Mr Baroi to the difficulties his claim faced. The issue is whether, in the circumstances of the case, the RRT gave him a fair opportunity to understand and respond to the adverse information which the RRT proposed to take into account into assessing the credibility of his account of events.
At the second hearing, Mr Baroi did not seek to have the RRT Member read out all the similarities between the two statutory declarations, despite the RRT’s invitation. More importantly, it is not easy to see how Mr Baroi’s position would have been improved materially had he been given a copy of Mr M’s statutory declaration. He could not have disputed the similarities between the two documents. Nor could he have disputed that the similarities transcended coincidence. He had been aware, since 21 October 1997, that there were similarities between his statutory declaration and claims made by Mr M (as recorded by the RRT) and that they could not be explained as mere coincidence. The question was whether Mr Baroi had an explanation for this state of affairs.
At the second hearing he was asked to explain the identity of language in both statutory declarations. That was, in substance, the issue with which he was confronted at the first hearing. The question was not the precise extent of the similarities between the two declarations, but whether he had an innocent explanation for the similarities. Mr Baroi, having been advised that he should attend the second hearing and that he might be required to give further evidence, had an opportunity to make additional inquiries and to put forward an explanation for the identity of language that was troubling the RRT. If, for example, Mr Baroi thought that Mr A, on his own initiative and without Mr Baroi’s knowledge, had incorporated and adapted Mr M’s language into Mr Baroi’s statutory declaration, Mr Baroi could have asked Mr A for an explanation. He could have obtained or asked for a fresh translation of his own handwritten statement to show that it did not use any language derived from Mr M’s claims. Even in this Court, Mr Baroi has not offered an explanation as to why he did not take advantage of the interval between receipt of the RRT’s letter and the second hearing to undertake further inquiries.
This case is different from Ansell v Wells and the authorities to which I have referred. Mr Baroi was not confronted, without notice, with reports containing adverse material personal to him and denied an opportunity to rebut it. He was confronted at the first hearing with similarities between his own statutory declaration and claims made by Mr M which demanded explanation. He was given an opportunity at a further hearing, of which he would have had about two weeks notice, to provide that explanation. The reference by the RRT to Mr M’s statutory declaration, in substance, simply reinforced the need for an explanation of an important matter to which Mr Baroi had previously been alerted.
In my view, the RRT did not breach the requirements of procedural fairness. Thus, the applicants have not made out the grounds of review upon which they rely.
Alternative Argument
In view of the conclusion I have reached on the procedural fairness issue, it is not necessary to consider the Minister’s alternative argument. I therefore do not need to analyse further the gaps in the applicants’ evidence.
CONCLUSION
The decision of the RRT made on 24 November 1997 should be affirmed. The applicants should pay the Minister’s costs.
| I certify that this and the preceding twenty-seven (27) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville |
Associate:
Dated: 21 August, 1998
| Counsel for the Applicant: | Mr J Fitzgerald |
| Solicitor for the Applicant: | Goldsmiths Lawyers |
| Counsel for the Respondent: | Ms F Backman |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 31 July, 1998 |
| Date of Judgment: | 21 August, 1998 |
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