NACC v Minister for Immigration

[2002] FCA 333

FEDERAL COURT OF AUSTRALIA

NACC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 333

MIGRATION:  application for review of decision of Refugee Review Tribunal affirming Minister’s delegate’s decision not to grant protection visa under the Migration Act 1968 (Cth) – application dismissed

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)

Chan Yee Kim v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to
Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24 referred to
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 referred to

NACC v Minister for Immigration & Multicultural & Indigenous Affairs
N 1548 of 2001

ALLSOP J

12 MARCH 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1548 of 2001

BETWEEN:	NACC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	12 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.  the application be dismissed; and

2.  the applicant 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	N 1548 of 2001

BETWEEN:	NACC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	12 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant in these proceedings seeks relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) dated 3 October 2001, provided to him on 25 October 2001. The Tribunal's decision was to affirm a decision which had been made by a delegate of the respondent Minister not to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. The date of the decision requires the rights of the applicant to be determined by reference to the amendments to the Act passed by the Commonwealth Parliament in the second half of 2001.  One aspect of that legislation passed by Parliament was s 91X of the Act which in terms forbids this Court from publishing, in electronic form or otherwise, in relation to the proceedings, the person’s name.  The applicant's name has been excised from discussion by both counsel, and the applicant's name does not appear on the proceedings and application.  Rather, there is an anonymous appearance of four letters.  The applicant should understand that this procedure has not been adopted through any discourtesy of this Court to his position or to the necessity to understand and evaluate his individual position, but is required by (I assume to be the constitutionally valid provision) s 91X, of the Act.

3. Returning to the application, the applicant is a national of Bangladesh who arrived in Australia on a visitor’s visa in September 1997.  It is unnecessary to identify in any detail the course of his application for a protection visa, save that he claimed to be entitled to a protection visa on the basis that he feared persecution for his political opinions should he be required to return to Bangladesh.  That is a brief encapsulation of the head of protection sought by the applicant under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Convention).

4. The decision in respect of which review is sought was, as I said earlier, made on 3 October 2001.  The reasons for decision cover some 40 pages.  They outline, from page 4 onwards, under the heading "Claims in Evidence", a detailed description of the claims and documentation put forward by the applicant to substantiate his claim that he had a well founded fear of persecution for his political opinions should he return to Bangladesh.

5. In brief, the applicant gave evidence before the Tribunal that he was, and had been for some years, a reasonably prominent participant in a political party in Bangladesh known as the BNP.  He described in some four statements, prior to a fifth statement dated 3 October 2001, his participation in political activities in Bangladesh, and he also described the activity of political opponents in Bangladesh, most typically, the Awami League.

6. In these descriptions of events, and of his history, the applicant discussed and brought to the attention of the Tribunal his claims of political enemies in the Awami League and other political or quasi-political organisations which had in the past attempted to do him harm and which, he was of the view, would continue to intend to do him harm.  For instance, in his fourth statement, dated 19 July 2001, of some 11 pages, the applicant refers to a person called Shameem Osman who was said to be an Awami League leader, popular for anti-social activities and anti-BNP activities.  It was said by the applicant that Mr Osman controlled all the terrorist activities of the area from which the applicant hailed, that is the district Narayanganj.

7. There were a number of hearings at which the Tribunal heard the material and evidence of the applicant.  There had been a previous hearing of the Tribunal which decision was set aside by consent by an order of a Judge of this Court in 2000.  The matter was remitted to the Tribunal, and the matter was heard afresh in 2001.  The applicant, by mid-2001, had a new adviser and submitted material to the Tribunal in July 2001.  A hearing took place on 5 July 2001 at which the applicant was assisted by an interpreter and at which the applicant was represented by his new adviser.  Various material was handed up and an adjournment was sought for three months.  The Tribunal, after hearing evidence, gave a further 14 days to make submissions and the hearing was adjourned. 

8. Further submissions were then received by the Tribunal, including a statement of a further 11 pages.  The applicant also on this occasion, on 20 July or thereabouts, gave further explanation as to the inadequacy of his previous representation and some of the identified inadequacies of his earlier evidence.

9. The Tribunal also heard from the applicant on 5 September 2001, at which time there was an interpreter present and the adviser also came to represent the applicant.  Further material was placed before the Tribunal.  On 14 September, the applicant gave oral evidence to the Tribunal once again.  He was assisted by an interpreter and represented by the new adviser.  All these hearings are exhaustively dealt with by the Tribunal in its chronological setting out of both the procedural history of the matter and the claims and evidence of the applicant.

10. It would not be productive for me to attempt to summarise all these matters.  The Tribunal has exhaustively attempted to recount them.  At the conclusion of the hearing on 14 September 2001, it was still the applicant's wish to put further material to the Tribunal.  The Tribunal permitted this course to occur notwithstanding the view it held that by this stage the applicant had had ample opportunity to put his case.  It was agreed that any further submissions, documents or statements would be made and provided to the Tribunal no later than 30 September.

11. That date came and passed without any further material being so provided.  However, on 3 October 2001, further material was provided.  It was in the form of a short submission by the adviser, a further (the fifth) statement by the applicant together with original documentation, to which I will come.  The reasons of the Tribunal reveal that it read and recognised the existence of this material.  Paragraphs 117 and 118 of the Tribunal’s reasons deal with this material.  Before coming to the material, it is necessary to return to the substance of the approach of the Tribunal to put this fresh material in context.

12. As I said earlier, I do not propose to go through the totality of the reasons of the Tribunal dealing with the evidence.  It is sufficient to say that the Tribunal, having seen and heard the applicant on a number of occasions, came to the view that his evidence was entirely unsatisfactory for reasons of vagueness, inconsistency and lack of specificity together with the view gained from its advantage of seeing the applicant, that his evidence could not be relied upon.  These findings were made by reference to criticisms and difficulties with a great many aspects of the applicant's evidence which are littered throughout the reasons of the Tribunal.

13. I should say for the benefit of the applicant, to the extent that he may be concerned, that it is not this Court's function to agree or disagree with these types of findings by the Tribunal, unless there is legal principle which invalidates the approach of the Tribunal.  The Tribunal's job is to deal with the facts and make a factual assessment as to the worth or otherwise of the evidence of persons before it.  He should not take it that, by the recounting of these findings, any personal criticism of him is made by the Court.  However unpleasant and unpalatable it may be to him, these findings have been made.  Absent vitiating legal principle, I can do nothing about the findings. 

14. Material which had been provided to the Tribunal prior to 3 October 2001 included copy documents which on their face substantiated the complaints and fears of the applicant.  However, the Tribunal referred to country information of reputable sources, including country information of 1998, which indicated the prevalence of fraudulent and forged documentation supporting claims by Bangladesh nationals for political asylum and refugee status.  The Tribunal had regard to this information.  It examined it in the light of the otherwise unsatisfactory nature of the applicant’s evidence as found by it.  It concluded that it could not place any real reliance at all upon the documentary material which had been placed before it prior to 3 October 2001.  It was not part of that rejection that the material had only been copy documents.  The difficulty went deeper than that.  The difficulty went fundamentally to the fact that the Tribunal rejected the truthfulness of virtually the totality of the relevant evidence provided by the applicant.  In that light, apparently corroborating documentation was assessed in the light of the clear and unequivocal country information as to the prevalence of false documentation from the country in question. 

15. On 3 October 2001 further information was provided.  As I have said, there were three classes of information.  There was a submission by the new adviser.  It is a short two page submission which referred to well known dicta in Chan Yee Kim v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 of Mason CJ and contained an exhortation to the Tribunal to believe the applicant and to undertake further investigation. One assumes that the further investigation is in relation to the balance of the matters and material provided on 3 October.

16. The first of those additional matters was a statutory declaration, or statement of the applicant, being, as I said, his fifth statement provided to the department and the Tribunal.  It is said in submissions that this statement became fresh material which demanded an approach beyond that which was displayed by the Tribunal.  I will come in a moment to the precise legal foundation of that submission.  But first I should deal with its factual aspects.

17. The new material is identified in paragraph 23 of the written submissions prepared by Mr Burwood on behalf of the applicant.  The first group of new material said to be raised by the statement is the applicant’s fear of political persecution by the Awami League in the district from which the applicant comes, Narayanganj.  It is certainly the case that the 3 October statement dealt with the applicant’s fear of persecution in that district.  However, a review of the earlier statements indicates to me that infused within the whole of the claim by the applicant was a fear that he would be persecuted in, amongst other places, his home district where he had first begun, he said, to be politically prominent.  Thus, I do not think that the factual foundation of new material is properly laid out in subparagraph 23(a) of these submissions.

18. The next new matter is said to be the applicant’s assertion that he may be a target of Mr Shameem Osman, a local terrorist.   I have already said in dealing with the claims of the applicant that Shameem Osman figures in earlier statements in the alleged fear the applicant has for return to Bangladesh.  Thus, I cannot agree that what appears in sub paragraph 23(b) has material which is new. 

19. The third aspect of what is said to be new material raised by the statement is that the applicant was suspected of involvement in a terrorist attack on Mr Shameem Osman.  This was raised by the statement of 3 October and was a new matter.

20. The complaint is that it should not have been brushed aside in the way it was in paragraph 118 of the reasons of the Tribunal where the Tribunal said:

    I have read the additional materials.  There is nothing in the adviser's submissions, the applicant's statement or in the documents which adds to the applicant's case or necessitates any further inquiries into the applicant's case.

21. The difficulty with the submissions of the applicant, that this new matter necessitated proper investigation, is that, though new in one sense, it belongs to a class of fact which has as its foundation a premise that the applicant, as a BNP member, had something to fear from political opponents.  The wholesale rejection by the Tribunal of the evidence of the applicant dealing with his political associations entirely washes away that premise for this new material.

22. The Tribunal had already rejected the proposition or propositions that the applicant faced any form of political persecution by reason of connection with the BNP.  From that kind of wholesale rejection there is an implicit rejection of the underpinning relevance of this new material.  I do not think that anything in the statement required the Tribunal to go back and revise conclusions which it had reached after the attendance of the applicant before it and the giving of oral evidence on the number of occasions on which he gave it.

23. The other basis of the claim that the Tribunal fell into error was the lack of treatment of, or dealing with, the documents provided on 3 October 2001.  It is plain from paragraph 117 of the reasons, and it is not disputed, that the documents which the applicant provided the Tribunal on 3 October were the so-called originals of the copies which had already been provided.

24. As I said earlier, the fact that these documents were not earlier provided as originals, but only as copies, had not been a foundational factor in the Tribunal finding them to be not genuine.  Rather, that conclusion had arisen as an integrated finding being based on the view it took of the applicant and the view it took of the reliability of documentation coming from Bangladesh.  Thus, when original typewritten documents were provided, as opposed to copies, there was no call for the Tribunal to deal with these documents in any different fashion.

25. The applicant bases its case, primarily, on an alleged lack of natural justice or procedural fairness.  It was put in a number of ways, in particular in paragraph 30 of the written submissions.  It is not to do any injustice to Mr Burwood's submission if I reduce them to the propositions that the Tribunal, faced with this further material, should have done a number of things.  It should have taken further steps to assess the legitimacy of the original documents and should not have retained the confidence in its findings as to the applicant's evidence which it had hitherto come to.

26. Though expressed in terms of a denial of natural justice and though expressed in terms of the inherent difficulty faced by people in the position of the applicant to disprove a negative, that is to disprove the fraudulent state of these documents, the real complaint which seems to be made is that the Tribunal could have readily authenticated these documents and so readily been able to come to the view that it had misjudged the applicant in his evidence.  There are a number of difficulties with this proposition.

27. First, it is not at all clear to me how ready authentication could have been made.  The documents were typed originals.  The evidence was that there was a ready availability of facilities in Bangladesh for people to create false original documents.  As I have said earlier, the absence of the original, as opposed to the copy, documents was not central to the conclusions of the Tribunal.  Secondly, it is not just a matter of document authentication.  The view which the Tribunal expressed about the applicant's evidence was one which was based on a number of meetings and a considered assessment of the unsatisfactory nature, in the regards expressed in the reasons, of that evidence.

28. It is that integrated and entangled relationship between the view of the applicant's credit and the likelihood of the falsity of the documents which makes it impossible to argue, in my view, that the mere production of the original paper necessitated a wholesale withdrawal from, and reconsideration of, the reasons that the Tribunal otherwise expressed.

29. I have elsewhere expressed in Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24 my views as to the possible existence of a duty to inquire or a duty to consider inquiry. I noted in particular at [102] and following a number of decisions of this Court which deal with the possibility of such obligations. However, it does appear that if some duty exists upon the Tribunal, from the interstices of the Act and the common law, to make further inquiries, that would only likely arise in rare and exceptional cases. See in particular Azzi, [111], [112] and [113].

30. I do not think such exceptional cases encompass what is before me here.  For reasons I have earlier discussed, in particular the integrated nature of the approach of the Tribunal, I do not see why the material of 3 October 2001 necessitated steps being taken other than those which were, that is, the consideration of the material and its integration within the framework of the reasons already reached in the light of having seen the applicant and all his evidence hitherto provided.

31. Thus, notwithstanding the careful and full submissions of Mr Burwood, to which I have had careful regard, including his written submissions, I do not see any jurisdictional error revealed by the conduct of the Tribunal.  This makes it unnecessary for me to express a view upon the effect of s 474 of the Act and the extent and content of the so-called ‘Hickman Principle’.

32. In these circumstances, it would be inappropriate for me to deal with that beyond saying the following.  The extent to which s 474 may have expanded or widened the lawful conduct of the Tribunal in approaching a matter such as this may well be unclear, but no suggestion is made that the Tribunal here lacked bona fides.  The Tribunal plainly dealt with the correct subject matter before it, that is the opinion which it was obliged to form as to the existence or not of protection obligations.  Also, plainly, there was a reasonable foundation for the decision on the material before it.

33. There may be other aspects to the application of R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598, but in this case, at the very least, the three matters referred to by the respondent have been satisfied, that is the decision did not on its face exceed the authority conferred by statute, the decision was a bona fide attempt to exercise the power and the decision related to the relevant subject matter of the statute.

34. There may be cases in which conduct which may well otherwise be of a vitiating character has been displayed such as a clear denial of natural justice, a clear failure to take into account a statutorily mandatory relevant consideration and the like.  However, in this case I see no denial of natural justice, I see no duty arising to make any further investigation, and so what might, in other cases, be the difficult question of the inter-relationship between general jurisdictional questions with the notion of inviolable jurisdiction does not arise.

1. In summary, while the applicant may well deeply and strongly feel wronged by the factual findings of the Tribunal he has not shown that there is any jurisdictional flaw in the approach of the Tribunal on any ground with, or without, the existence of s 474 of the Act.  In those circumstances I see no alternative but to dismiss the application with costs. 

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             2 April 2002

Counsel for the Applicant:	Mr D Burwood
Counsel for the Respondent:	Mr M Wigney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	12 March 2002
Date of Judgment:	12 March 2002