Mzxfn v Minister for Immigration
[2006] FMCA 1274
•1 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXFN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1274 |
| MIGRATION – Refugee Review Tribunal – Protection visa – whether jurisdictional error – application of s.422B of Migration Act – whether denial of natural justice – whether common law natural justice rule applies. |
| Migration Legislation Amendment (Procedural Fairness) Act 2002 |
| WACO v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 131 FCR 511 WAGU v Minister for Immigration, Multicultural and Indigenous Affairs (2003) FCA 910 WAJR v MIMIA (2004) 204 ALR 624 Moradian v MIMIA (2004) 142 FCR 170 NAQF v MIMIA (2003) 130 FCR 458 Wu v MIMIA (2003) 133 FCR 221 NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 SZAJL v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCAFC 217 Re Minister for Immigration and Multicultural Affairs ex Parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration, Multicultural and Indigenous Affairs v Lay Lat (2006) FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs and Anor (2006) FCAFC 62 |
| Applicant: | MZXFN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1657 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 18 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms. S.A. Burchell |
| Solicitors for the Applicant: | Vernon Da Gama Associates |
| Counsel for the First Respondent: | Mr W.S. Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5.000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT melbourne |
MLG 1657 of 2005
| mzxfn |
Applicant
And
| minister for immigration & multicultural affairs |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 28 October 2005. In its decision, the Tribunal affirmed the decision of a delegate of the first respondent not to grant to the applicant a protection visa.
The applicant is a 28‑year‑old male Pakistani citizen. He arrived in Australia on 27 September 2004. He was then travelling on a subclass 456 business (short stay) visa which had been granted to him on 2 September 2004. On 11 October 2004, the applicant applied for a protection visa. A delegate of the first respondent determined on 13 April 2005 that the applicant was not a person to whom Australia had protection obligations and refused the application for a protection visa.
The applicant then applied for review of that decision to the Tribunal.
A hearing was conducted by the Tribunal on 24 October 2005 and, as indicated earlier in this judgment, the Tribunal affirmed the delegate's decision. The applicant then filed an application for judicial review of the Tribunal's decision before this court on 16 December 2005 and has relied upon an amended application dated 28 February 2006, together with affidavits sworn 16 December 2005 and 27 February 2006.
The Applicant's Claims
In support of the application for a protection visa, the applicant claimed that he had left Pakistan because of his background as a Shia minority and the violence between Sunni and Shia factions. He claimed that his house had been destroyed and his family members killed by Sunnis.
In the supporting statement, the applicant noted that the Shia sect is a minority in Pakistan. In the supporting statement, the applicant gives specific details of two incidents he refers to as occurring in May and which he describes as "two shocking incidents". One involved a bombing which had occurred and which he claimed "blew him up along with other several worshippers who became victims of this act of blind fanaticism". He claimed that he was praying when he first saw a bright light and then the explosion occurred. He claimed he opened his eyes and was lying among dead bodies and the bomb had left a two‑foot crater. The applicant was among the injured. He claimed he saw two consecutive explosions, and the latest attack was near his house when he was praying. He then claimed that he feared mistreatment from the Sunnis who threatened to kill him.
In the statement in support of his application, the applicant claimed that he would face serious persecution because of his ethnic background, a minority of Shia, based upon his "belief and ... religion background". He stated that he had seen family members killed because of their belief, and otherwise referred to suicide bombers having killed at least 40 people in a mosque and wounded more than 80 during Friday prayers.
The applicant made further claims before the Tribunal. An interpreter in the Urdu language assisted the Tribunal and in the course of his oral evidence claims made by the applicant included those set out in the applicant's contentions as follows:-
“(1) he claimed that his brother had been killed in August 2004 and prior to that date other distant relatives had been killed whilst living in Slalkot [CB 76];
(2) he was in the mosque in Slalkot with his brother when the bomb wen toff and the applicant was injured in his side, stomach and leg [CB 76];
(3) prior to that time he had been targeted and injured in July 2004 and May 2004;
(4) he said that he feared harm in Pakistan because he is threatened as a Muslim Shia and he fears he will be killed if he returns as his brother was killed [CB 77];
(5) the applicant submitted documents at the hearing in Melbourne and the originals were faxed to the Tribunal member in Sydney on 26 October 2005 being (1) a medical report in English described as being about the applicant and dated 27 August 2004 noting injuries to his hip and thigh and referring to medications [CB 53] (2) another doctor’s report dated 10 July 2004 in English described as being in relation to the applicant and noted as ‘burn case’ [CB 46] (3) an original and copy of a certificate of domicile described as being in relation to the application [CB 47] (4) a DHL docket from a sender in Slalkot [CB 52] (5) two copies of a newspaper described as BFP Weekly and translations of two articles being an article dated 23 July to 30 July 2004 that on 10 July the named applicant was fired on and injured an done person from his family was killed [CB 43] and from 24 to 31 August 2004 stating that on 20 August there was a bomb blast at Imam Barah and thirteen people were injured and two were killed by those who opposed Shia people [CB 48].”
In relation to documents which are referred to in the Tribunal decision, it is useful to set out the relevant extract from the Tribunal's decision which appears at Court Book page 78 as follows:-
“The applicant submitted some documents at the hearing in Melbourne which were initially faxed to the Tribunal member in Sydney during the hearing. Later the originals of the faxed documents were sent to the Tribunal member in Sydney. These were received at the Tribunal in Sydney on 26 October 2005. These documents include a medical report in English described as about the applicant and dated 27 August 2004 noting injuries to his hip and thigh and referring to medications; another doctor’s report dated 10 July 2004 in English described as in relation to the applicant and noted as ‘burn case’; an original and copy of a certificate of domicile described as in relation to the applicant giving his address in Pakistan as in the district of Sialkot; an original and translation of the applicant’s birth certificate; a DHL docket from a sender in Sialkot dated 10/12/2005 (presumably this is a typographical error and should be 2004); two copies of a newspaper described as the BFP Weekly and translations of two articles therein; one article is translated as in the newspaper dated 23 July to 30 July 2004 and it states, inter alia, that on 10 July the applicant, who is named, was fired on and injured and one person from his family was killed in a conflict between Shia and Sunnis. The other translation refers to the BFP News (Weekly) from 24 to 31 August 2004 and states that on 20 August there was a bomb blast at lmam Bargah and thirteen people were injured and two were killed by those opposed to the Shia people. The article then says, according to the translation provided by the applicant, ‘Please remember that a man (the applicant is named) who is injured in the occurrence and he was include in the previous incident, had appealed to the Government to provide safety to Shia religion but Government did not act on his appeal which is clear cut proof that Shia people are facing too much problems in Pakistan and their lives are always in serious danger.”
The Tribunal's Finding
The Tribunal accepted that there was violence in Pakistan between the Sunni majority and Shia minority, and that police "do not always act to prevent the abuses or charge those responsible for committing those abuses". The Tribunal then went on to state, "Clearly, however, the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a convention reason if he returns to his country."
It is relevant to set out extracts from the Tribunal's decision which indicates that the Tribunal had expressed reservations about the credibility of the applicant. In fact the Tribunal found there was no plausible evidence that the applicant had suffered persecution for a Convention reason. It stated the following:-
“The Tribunal does not accept that the applicant left Pakistan and fears to return there because he was persecuted in Pakistan as he claims. It does not accept that his brother was killed in a bomb blast as he claims or that he (the applicant) was injured as he claims because he is Muslim Shi’a. Further the Tribunal does not accept that the applicant left Pakistan illegally as he claims. It does not accept that he had to move from an address in Sialkot to an address in Lahore because he was persecuted as he claims. The reason that the Tribunal finds against the applicant in relation to these matters is because it does not accept that he is credible.
In the Tribunal’s view the applicant’s account of his departure from his country is not plausible. While the Tribunal accepts he may have used an agent to obtain his travel documents it does not accept that he left/had to leave the country illegally or that he left on a passport that was backdated. The Tribunal considers the latter claim, namely that he believes his passport is backdated, is recent invention to assist his claims before the Tribunal; he told the Tribunal that he had never made that claim prior to giving the Tribunal this evidence. He gave no plausible explanation to the Tribunal as to why he needed to leave his country illegally. The applicant agreed that his passport was noted as issued in April 2004 and he told the Tribunal that his visa was issued in September 2004. Tribunal finds that the applicant left Pakistan legally using a passport in his own name issued in April 2004.
The applicant has given the Tribunal copies of a newspaper and translations of two articles therein to support his claims. The applicant told the Tribunal that his brother was killed in a bomb blast in August 2004 but the translation of the article in the paper dated 23 July to 30 July 2004 states that the applicant was fired upon and a ‘person of his family killed’. Given that the applicant has told the Tribunal that the incident that caused him to leave Pakistan was the death of his brother in the bomb blast the Tribunal considers that if his brother was killed as he claims in the circumstances that he claims, the applicant would remember the correct month of his death. The applicant has produced no death certificate to support his claim that his brother was killed as he claims. The translation of the article in the newspaper for the period 24 August to 31 August 2004 mentions that the applicant was injured in the bomb blast and mentions two people were killed on 20 August 2004 but does not refer to the applicant’s brother. The Tribunal does not accept the newspaper articles support the applicant’s claims. Further it does not accept these articles as evidence of the truth of the facts in those articles. It does not accept that the applicant’s brother was killed by Sunni Muslims at any time or that the applicant was injured as he claims by Sunni Muslims. In addition, given that the Tribunal does not accept that applicant is a credible witness, the Tribunal considers that the documents he has submitted, described as from doctors in Sialkot and dated 20 August 2004 and 10 July 2004, do not provide credible evidence to support the applicant’s claims.”
(Court Book pp. 82-83)
The newspaper reports referred to in the extract above appears to be reproduced in the court book at Court Book p.45.
It is useful to further set out the additional findings of the Tribunal some of which accepted parts of the claims of the applicant. The Tribunal stated:-
“Although the Tribunal accepts that the applicant was harassed and discriminated against in Pakistan because of his religion and ethnicity as a minority Muslim Shi’a, including that a ‘long time ago’ there was a fire at the family’s farm started by those opposed to the Shia religion, the Tribunal finds that the harassment and discrimination does not amount to serious harm for the purposes of the Convention. The applicant has been living in Pakistan all his life as a Shi’a Muslim and has been assisting his father in his work during that time. Also it is the applicant’s evidence that his parents, his brother and his sisters are all still living in Pakistan and that his brother is still working at the family’s farm helping his father. The Tribunal does not accept that the family is moved addresses from time to time as he claims to avoid harm, ‘when circumstances are bad’.
In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered persecution in his country because he is in a minority religious group in Pakistan, namely Shi’a Muslim. Nor in the Tribunal’s view does the evidence establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to his country. Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in Pakistan within the meaning of the Convention.”
It is noted that in the extracts from the Tribunal's decision that it specifically found in relation to the newspaper articles provided by the applicant at the hearing that they did not support the applicant's claims, nor did it accept those articles as "evidence of the truth of the facts in those articles". That finding became significant during the course of submissions.
The Amended Application
In the amended application filed 28 February 2006, in support of the claim that the Tribunal decision was affected by jurisdictional error in that the Tribunal denied procedural fairness or natural justice to the applicant, the following particulars appear:-
“(a) the matters which caused the Tribunal to reject the genuineness of the newspaper articles and the medical reports dated 27 August 2004 and 10 July 2004 put before the Tribunal by the applicant were not raised with the applicant by the Tribunal so that he might be heard on those issues;
(b) the matters on which the Tribunal rejected the material may have been capable of explanation if those matters had been put to the applicant;
(c) the applicant is not barred by section 422B of the Act in claiming that the Tribunal failed to afford him natural justice or procedural fairness.”
Applicant’s Submissions
It was submitted by the applicant that the decision of the Tribunal does not reveal whether it put to the applicant that the documents, which did either not support the applicant's claim or did not provide credible evidence in support of the applicant's claim, were false. There was no correspondence between the Tribunal and the applicant or a s.424A notice requesting comment from the applicant in relation to the genuineness of the documents.
It was submitted that the Tribunal did not put any of its concerns as to the genuineness of the material to the applicant during the hearing or subsequent to the hearing. It was submitted that the Tribunal denied the applicant procedural fairness or natural justice, including the rules in relation to a fair hearing resulting in jurisdictional error in its findings about the material provided by the applicant on 24 October 2005 by facsimile to the Tribunal at the hearing. It is noted the originals were apparently provided to the Tribunal in Sydney on 26 October 2005.
In the circumstances it was submitted for and on behalf of the applicant that the Tribunal ought, as a matter of procedural fairness, to have brought to the attention of the applicant its findings concerning the material. Reference was made to WACO v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 131 FCR 511 (WACO) and in particular paragraph 33 where the court states:-
“33. The Tribunal must give the appellant an opportunity to appear before it and give evidence: s 45 of the Act. If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them: Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 at 388 (per Merkel J) and see 382 (per Einfeld J) and 383 (per Von Doussa J); Hussein v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 297 at [29]-[30] per O’Connor, Tamberlin and Mansfield JJ.”
In that case it is clear that the court was required to consider an issue as to whether or not the Tribunal denied the appellant an opportunity to be heard on the genuineness of letters. It refers to that issue in paragraphs 38-45. It is perhaps relevant to further set out, however, what the court stated at paragraph 46:-
“46. Generally where it is clear that factual matters are in dispute it will not be necessary for the decision maker to indicate to the person affected that the decision maker is likely to reach an adverse conclusion. Where the decision maker intends to reject an application for some reason which is personal to the appellant, foe example, the appellant’s age, it may be necessary to give notice to the appellant that the decision maker has formed a view adverse to the appellant so as afford the appellant the opportunity to put to the decision maker arguments or evidence to the contrary, cf Re HK (an Infant) [1967] 2 QB 617 referred to by Mason J in Kioa v West at 587. Whether it is so will depend upon fairness. There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward.”
Further, it was noted that reference was made to paragraph 54 in WACO where the court states:-
“54. Where the finding of fact does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.”
It was submitted that in the present case, the treatment of the material provided by the applicant effectively resulted in a finding that the documents were false in the same sense as described in the Waco decision. It was submitted on behalf of the applicant that the applicant was denied natural justice or procedural fairness because the Tribunal failed to raise with the applicant as an issue the material it relied upon as part of its reasons for decision. It made a finding that the documents were unauthentic and did not give the applicant an opportunity to comment on that view. Accordingly, there was a breach of procedural fairness.
It was argued that if the court was of a view that the Tribunal determined the weight to be given to the content of a document provided no support to the genuineness of the applicant's claim (an interpretation not supported by the applicant) then arguably, it was submitted, it was a conclusion available to the Tribunal and is within jurisdiction. However, it was submitted this is not a case where in the context in the light of the findings that the problems of the applicant's evidence made his claims "inherently impossible", that the Tribunal could not give weight to the documents.
In this case it was noted that the credibility of the applicant had been destroyed by "comprehensive findings of untruthfulness by the Tribunal that permitted it to attach no weight to any purportedly corroborative material that he sought to rely upon" (see Applicant S20/2002 per McHugh, Gummow JJ at [49]). In this case it was submitted that there was no antecedent finding of dishonesty of the applicant that would justify the Tribunal in concluding without the benefit of further material that no weight should be given to the material which it is noted included newspaper articles and medical certificates (see WAGU v Minister for Immigration, Multicultural and Indigenous Affairs (2003) FCA 910 at [36] (WAGU)).
If the court concluded that the Tribunal doubted the authenticity of the documents in a Waco sense, then it was submitted this would be a failure to accord procedural fairness to the applicant to at least not put to him the Tribunal has concerns about the authenticity of the material.
In the submissions for the applicant it was argued that the material in this instance could properly be regarded as central to the applicant's claim in the same manner as the documents in Waco were regarded as central to that claim.
Reference was made to the Migration Legislation Amendment (Procedural Fairness) Act 2002 which came into force for an application for review made after 4 July 2002. In that Act, s.422B is claimed to be exhaustive of procedural fairness. It was argued by the applicant that there was a division of authority in relation to the ambit of s.422B. The division of opinions, it was submitted, appeared on the one hand to be those adopted by French J in WAJR v MIMIA (2004) 204 ALR 624 (WAJR) at [47]-[59] and Gray J in Moradian v MIMIA (2004) 142 FCR 170 (Moradian) at [35]‑[37] where in both cases it was found that s.422B is only exhaustive of the Act and not common law procedural fairness. It was argued that the statutory provisions of the act do not deal with common law and as such procedural fairness and natural justice survive.
It was noted that the alternate view expressed by a justice of the Federal Court is found in the decision of Lindgren J in NAQF v MIMIA (2003) 130 FCR 458 (NAQF) at [60]-[87] and Healy J in Wu v MIMIA (2003) 133 FCR 221 (Wu) at [21]-[23] where in those cases the view is expressed that there is no scope for a wider obligation beyond the requirements found in Division 4 of the Migration Act. The applicant sought to persuade the court that the correct approach is found in the decisions of French and Gray JJ.
First Respondent’s Submissions
The first respondent submitted that the proper reading of the Tribunal's decision reveals that the principal findings were adverse credit findings against the applicant. The Tribunal rejected central claims made by the applicant. It was submitted that findings of fact, including findings in relation to credit, are a matter solely for the Tribunal. Reference was made to the Full Court of the Federal Court decision in NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 (NADR) where at [9] the court states:-
“9 The second ground of appeal was that the primary judge erred in not finding an error of law in the credibility finding of the Tribunal. The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].”
It was submitted that in its reasons the Tribunal gave consideration to the documents sought to be relied upon by the applicant. Specifically reference was made to two articles from newspapers claimed to be published in "BFB Weekly" dated 23 July to 30 July 2004, and 24 August to 31 August 2004 (Court Book page pages 45 and 48) and the two doctor's prescriptions or certificates dated 10 July 2004 and 20 August 2004 (Court Book pages 46 and 53). The consideration of those matters is set out in the extract of the Tribunal's decision earlier in this judgment.
It was submitted that the consideration by the Tribunal of the documents were different in this case to the consideration of the material in WACO. It was noted that WACO applied before the operation of s.422B of the Act to which further reference was made by the first respondent in submissions. It was noted, however, that in WACO the Full Court found that before a finding of forgery could be made fairness required that the person so accused be given the opportunity of answering it. Reference was made to the Full Court decision at [53]-[54] as follows:-
“[53] In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant insofar as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence.
[54] Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.”
In the present case it was submitted that apart from the fact that s.422B did not apply at the time of the WACO decision, the Tribunal in the present case in any event did not find the documents were forgeries or not genuine as submitted by the applicant. So much is clear from the extract of the Tribunal's decision set out earlier in this judgment. It was submitted the Tribunal did no more than to reject the evidence because it did not sit with other evidence given by the applicant himself. If the Tribunal had concluded the documents were fraudulent, then it could have said so, but in this instance it did not. It was submitted that the position is similar to that considered by the Full Court in SZAJL v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCAFC 217 where, at [34], the Full Court said:-
“34 In the absence of particulars, it is not clear what is meant by the second part of the first issue. It appears to be an attempt to raise an argument based on the decision of the Full Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 1 at [54], where it was held, in the circumstances, that the Tribunal denied the appellant procedural fairness by not giving him an opportunity to address its concerns about the authenticity of letters produced by him in support of his claims. That argument, however, is irrelevant to the circumstances of this case. There was no finding of forgery or of any collusion by the appellant to create documents to support his case. In light of this, the ground appears to be part of a generic formulation of grounds of appeal made without regard to the judgment from which the appeal is brought.”
Further, and in the alternative, it was submitted that even if the Tribunal's findings were findings that the documents were forgeries, that does not involve an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an applicant's credit (see Re Minister for Immigration and Multicultural Affairs ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49].
Reasoning
In my view, a proper reading of the Tribunal's decision indicates that it did no more than consider the material and draw a conclusion that the material either did not support the applicant's claims or that the articles otherwise provide corroborative material for the applicant sufficient to encourage the Tribunal to find the applicant was a witness of credit. Having found difficulties with the applicant's credibility, the Tribunal was entitled to consider the material offered by the applicant as a means of corroboration, and to then reject those items without necessarily proceeding to make a specific and express finding that the newspaper articles were forgeries.
It is of some concern that during the course of its reasoning, the Tribunal stated that it did not "accept these articles as evidence of the truth of the fact in those articles". That statement is somewhat confusing. But nevertheless it does not go far enough to suggest that the articles, or indeed other material provided by the applicant, could properly be regarded as fraudulent or forgeries.
The newspaper articles themselves, whilst it is common ground at least refer to the applicant as having been injured, only refer to one of his family having been killed and do not specifically refer to the applicant's brother. In the absence of other corroborative evidence it was open to the Tribunal to make that finding.
Similarly, when considering the medical evidence provided by the applicant, I accept, as submitted by the respondent, that the documents provided (see, for example, Court Book page 46) appears to be simply a prescription and, likewise, the other document (Court Book page 53) whilst referring to, in brief terms, burning “on side of hip and front of thigh” does not provide any further detail. Hence it is not surprising that the Tribunal did not place significant weight upon that material along with the newspaper articles to which reference has been made.
In my view the Tribunal has simply proceeded to make an adverse credibility finding against the applicant, having heard his claims and considered the material provided by the applicant which in part was sought to provide what might be described as corroboration. It has found that material did not assist or support the applicant's claim. It has not found that the material could properly be described as forgeries or fraudulent. Hence in doing so, in my view, there is no obligation on the part of the Tribunal to then alert the applicant to its findings concerning the material provided by him in support of his claim.
Accordingly, it is my conclusion that there is no jurisdictional error arising from the Tribunal's consideration of the material and on that basis, regardless of the full extent and operation of s.422B of the Migration Act, I am satisfied that there has been no jurisdictional error, as I am satisfied that in any event there has been no denial of procedural fairness or natural justice.
I should add, however, for the sake of completeness, that the debate concerning the operation of s.422B of the Migration Act appears in part to arise from what is asserted to be obiter dicta in the decision of the Full Court in Minister for Immigration, Multicultural and Indigenous Affairs v Lay Lat (2006) FCAFC 61 (Lay Lat) where in that case the Full Court when dealing with s.51A of the Migration Act and the corresponding provisions of s.357A and 422B noted that they have been the subject of a number of judgments of single judges of the court. It was noted that in Lay Lat the court relevantly stated the following:-
“66. What was intended was that Subdivision AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
67. Other aspects of the common law of natural justice, such as the bias rule are not excluded; see VXDC at [27].
68. The intention to exclude the common law rules in the present case is especially plain when s 51A(1) is read with s 57(3). The Legislature could hardly have intended to provide the full panoply of common law natural justice to visa applicants who are required to be outside Australia when the visa is granted, while conferring a more limited form of statutory protection upon onshore applicants.”
Counsel for the first respondent correctly submitted, however, that if the decision of the Full Court in Lay Lat could properly be regarded as obiter dicta in relation to s.422B, then that matter was clarified by a further brief decision of the same Full Court in a decision delivered on the same day as Lay Lat, namely, SZCIJ v Minister for Immigration and Multicultural Affairs and Anor (2006) FCAFC 62 where the court relevantly states the following at paragraphs 7 and 8:-
“7 In another decision handed down today, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61, we have dealt with the same point in relation to s 51A of the Act, which is the equivalent of s 422B in relation to visa applications at Departmental level (see also s 357A in relation to reviews by the Migration Review Tribunal).
8 For the reasons given in Lay Lat at [59]-[67] we hold that the common law natural justice hearing rule did not apply. The appeal will be dismissed with costs.”
In this case applying those authorities I am satisfied that the common law natural justice hearing rule cannot be used in aid of this application as a basis for asserting jurisdictional error as s.422B would exclude a claim for breach of that rule in this instance. However, for reasons already advanced I am satisfied in any event that there has not been a denial of procedural fairness or natural justice and the application accordingly should be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 1 September 2006
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