NAEV v MIMIA

[2004] HCATrans 341

[2004] HCATrans 341

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S489 of 2003

B e t w e e n -

NAEV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 2004, AT 12.14 PM

Copyright in the High Court of Australia

MR S. HEGEDUS:   Your Honours, I am seeking leave to appear in this matter.  I believe the Registrar has contacted you in relation to this.  (instructed by the applicant)

KIRBY J:   Yes, I think we received a communication from you this morning. 

MR T. REILLY:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

KIRBY J:   Is there any opposition to the Court’s granting leave to intervene in this matter to assist the applicant?

MR REILLY:   No, your Honour.

KIRBY J:   Yes, you have the leave of the Court to speak for the applicant.  You do so with his knowledge and consent and at his request, do you?

MR HEGEDUS:   Yes, your Honour.

KIRBY J:   Does the applicant speak English or is he able to understand the proceedings or does he need the assistance of an interpreter in the Bengali language?

MR HEGEDUS:   No, your Honour, the applicant speaks adequate English in my opinion.

KIRBY J:   Very well.  Keep your voice up and say what you wish to say on behalf of the applicant.

MR HEGEDUS:   Did your Honours receive the supplementary summary of argument which I filed yesterday?

KIRBY J:   Yes, we did.

MR HEGEDUS:   I need to seek leave to introduce that to the Court because it was filed out of time.  I believe there was no objection to that.

KIRBY J:   You have that leave.

MR HEGEDUS:   Thank you, your Honour.  This case is in relation to a series of documents which was filed in front of the Tribunal.  It is essentially about documentary evidence and the manner in which the Tribunal receives such evidence.  My submissions go towards the member’s attitude to the evidence and as such attempt to say that the member’s general way of dealing with the evidence discloses an error of law in so doing in the way that he approached the receiving of that evidence. 

If I could first start off on a side issue, your Honours, the Tribunal member’s approach to the documentation in general is evidenced at page 34 of the application book.  This is what I wish to speak to predominantly.  That is at the third paragraph of that page.  The member said that the Tribunal considers various things outlined there as being self-serving frauds.  As a side issue, I would like to just raise an analogous point which comes out of civil law but which is in relation to allegations of fraud, I think it is fairly well established that where there is such an allegation of fraud, it needs to be – generally in civil law an allegation of fraud needs to be established – before an allegation can be made, it needs to be established on a much firmer basis than the mere inferences drawn from the very nature of the documentation themselves without any direct evidence as to the making of those documents or as to the manner in which they were obtained.

The member has just made these allegations of fraud based purely on what he describes as internal inconsistencies, which are readily not apparent and are also based on subjective cultural misunderstandings that, in my submission, the Tribunal member appears to have in relation to the difference between western culture and third world nations, especially those operated under Islamic rule.  The case that I am referring to in relation to the fraud is ‑ ‑ ‑

KIRBY J:   You can assume that we know that fraud should not be asserted, still less found, unless there is some strong basis and unless it has been put to the person affected so that they have a chance to respond to it.

MR HEGEDUS:   Thank you, your Honour.  So that was a side issue that I wished to raise just as an introductory point.  There is a list of documents ‑ ‑ ‑

KIRBY J:   But that is a somewhat peripheral step, is it not, in the reasoning of the Tribunal?  These are not matters that go to the very essence of his claim which related to religious conversion and political activism.  The death certificate of his mother and the discharge certificate of a leg injury is hardly at the core of those questions.

MR HEGEDUS:   Your Honour, the calling into question of in particular the mother’s death certificate, which is on page 7 of the blue book, clearly states that the cause of death was by way of bomb explosion.  The fact that the bomb explosion occurred in the wake of the applicant’s election into a student political arena and was alleged to be done by members of the applicant’s opponents’ opposition party who did not accept the election result, the fact that that death certificate shows the death of the mother – also the entry of two brothers is pleaded as well – indicates to the Court that, prima facie, if one were to accept that documentation, that death certificate, then we would be in a position where we would have a very strong case of persecution, a well‑founded fear for persecution, merely just on the acceptance of that one document.

KIRBY J:   Is the document in the application book?

MR HEGEDUS:   No, your Honour.  My understanding is that the applicant sought to file those type of documents with the High Court and was told that he was not allowed to do that.

KIRBY J:   But were they evidence before the Tribunal?  Presumably it was.

MR HEGEDUS:   Yes, they were.  The originals were there.

KIRBY J:   Do you have the death certificate in Court now?

MR HEGEDUS:   Yes, your Honour.

KIRBY J:   Show us the death certificate as it was evidence before the Tribunal.  Is there any indication in the Tribunal’s reasons, apart from what they took to be self‑evident appearances of the certificate, that led the Tribunal to say that that and the other certificate were frauds?

MR HEGEDUS:   In my submission, your Honour, the manner of the Tribunal’s reasoning was to do with the ‑ ‑ ‑

KIRBY J:   No, but I am asking you a question.  Is there any other explanation in the reasons of the Tribunal why the Tribunal came to the view that that certificate was fraudulent?

MR HEGEDUS:   Yes, your Honour.  If we turn to page 7 of the application book – and this is one of the strongest points, in my submission, in relation to the cultural subjectivity that the Tribunal member has placed himself into – at the fourth or fifth line from the bottom of page 7 of the application book, the Tribunal member makes aspersions based on the fact that:

The whole document is filled out in English.  The cue “Disease” has next to it the handwritten entry “Bomb Wounded” which seems unusual, and appears, for its use of English, quite amateur.  In a death certificate –

this is the important part –

following the norm in Western hospitals, one would more commonly expect to see the hospital citing only to the immediate physical cause of death, such as heart failure or embolism due to shock, or something like that.

Your Honours, the member in that situation has placed a standard on the documentation akin to that which you would expect to see in western hospitals which, in my submission, is completely inappropriate for a country that does not speak English as a native language.  This death certificate was written in 1986 and there is no reason to suspect that the hospital would have access to the world’s best interpreter and, aside from that, aspersions as to the nature of the spelling of “Dhaka” are completely wrong in historical context because the applicant instructs me that that is the manner in which “Dhaka” was spelt for many decades in the English form.

KIRBY J:   Well, “Dhaka” is a word in the Bengali language which is neither spoken nor written in English.  Therefore, any attempt to reproduce it in the English language is simply an attempt of transliteration.

MR HEGEDUS:   I agree with your Honour on that point.

KIRBY J:   Have you found that death certificate or the certificate concerning the leg injury?

MR HEGEDUS:   Yes, we have the certificate concerning the bomb injury, your Honour.

KIRBY J:   Hand those up, please.  You have no objection to the Court looking at this, Mr Reilly?

MR REILLY:   No, your Honour.

KIRBY J:   Show it to Mr Reilly first.

MR REILLY:   Your Honour, this material would, I suspect, have been before the Federal Court but just has not been included in the application.

KIRBY J:   As it was referred to in the reasons of the Tribunal, it was presumably before the Tribunal and seems to have played a part in the Tribunal’s reasoning.

MR REILLY:   Yes, it was certainly before the Tribunal, your Honour.

KIRBY J:   You have not found the death certificate yet?

NAEV:   No, I am sorry, I have not.  I had original copy but I left it home.

MR HEGEDUS:   I believe that is partly my fault as I indicated perhaps to the applicant that he should bring it but that it was not likely to be admitted into evidence as it had not been filed with the Registry, although he did indicate to me that he ‑ ‑ ‑

KIRBY J:   We have the other certificate that was said to be a fraud.

MR HEGEDUS:   That is right, and there is also the notarial affidavit.

KIRBY J:   What is this document?

MR HEGEDUS:   This is an affidavit of conversion that the applicant made to the ‑ ‑ ‑

KIRBY J:   This is an attempt to recanvass the factual matters which the Tribunal had the responsibility in law of determining.  Courts cannot retry those factual matters unless there is some error of law or jurisdiction.  What is the error of law or jurisdiction that you rely on?

MR HEGEDUS:   Yes, I am aware of that, your Honour.  My submission as to that point is firstly, in the manner that – the Tribunal member had before him authenticated copies of many of these documents.  Then on the day of the sitting the applicant presented with all of those documents and showed them to the Tribunal member but it appears from a reading of the reasons for decision that the Tribunal member did not actually look at the originals and was basing his decision on the photocopied ones that were filed with the Tribunal. 

Further to that, my broader submission is that where there is a purported authentic document with a court seal, a national court seal, on the document - this particular court seal says, “Notary public, Government of Bangladesh”.  Where there is an original document purported to be produced of that nature and where it is apparently worn and there is nothing on the face of the document to indicate that it is fraudulent, surely the Tribunal member has to come over some kind of significant hurdle in establishing that it is a fraudulent copy.  Merely to attempt to say that the copies are fraudulent based on the use of English for a big part within the documents, and especially when it is a non‑English speaking country by native origin, is culturally inappropriate and ridiculous and does not pay heed to the nature of the Tribunal member’s role and obligations under the United Nations Convention and the Protocol in relation to refugees and does not furthermore reflect, as your Honour mentioned in a case previous to this, the Tribunal member’s role as a non‑judicial or quasi‑judicial officer on a fact‑finding mission attempting to discover the truth rather than acting in a manner which appears to be very judicial and putting an evidentiary burden on the admission of documents which is far in excess of anything that would be required even in a civil matter. 

He has placed a burden on the admission of documents which is more akin to a reasonable doubt type case in a criminal matter except it is in reverse as if the applicant is required to submit beyond reasonable doubt that he has a well‑founded fear of persecution and is simply out of order in relation to the accepted cases on the nature of what a well‑founded fear is, particularly in relation to the leading case of Chan Yee Kin v Minister for Immigration and Ethnic Affairs, where it has been accepted by Justice McHugh in deference to the well‑accepted United States Supreme Court case of Immigration and Naturalization Service v Cardoza‑Fonseca 94 L Ed 2d 434, per the judgment of the majority, where the reasoning has tended to suggest that for there to be a well‑founded fear of persecution, a chance of as little as 10 per cent is within the means of a well‑founded fear and not a remote possibility.

In putting an evidentiary burden on these documents of such a high standard, the Tribunal member has in effect made that test almost impossible to operate.  There is a very good chance that many of these applicants who have appeared before us today are going to go home and that the High Court in sending them home will be in breach of its refoulement obligations under the United Nations Convention.  On the level of this evidentiary burden, I cannot see how that cannot happen.  There are bound to be cases like this where that will happen on such a strict ‑ ‑ ‑

KIRBY J:   I understand that submission but the difficulty that you face is that you have to show that the Tribunal has either declined or refused or failed to exercise its jurisdiction or has stepped outside the jurisdiction in the way in which it exercised it.  That is a very limited class of case.  This is not an opportunity for a merits review.  A lot of your submissions are addressed to how this Court might itself react to the documents.  I have to tell you that if I had that document, the discharge certificate, before me, I see nothing whatsoever unusual or different or peculiar about it, especially in the context of the Indian subcontinent, nothing at all.  The Tribunal appears to have thought it was a fraud.  I do not myself understand that finding but it looks to me like a finding within the Tribunal’s jurisdiction.  You have to show that it is a failure of jurisdiction or a stepping outside of the jurisdiction.  How do you attempt to do that?

MR HEGEDUS:   Your Honour, I understand that point.

KIRBY J:   Well, what is your answer to it?

MR HEGEDUS:   I seek to respond to that on two bases.  I understand this is not a matter under the Administrative Decisions (Judicial Review) Act because of ‑ ‑ ‑

KIRBY J:   Focus, please, on the question.  We are not concerned with what it is not; I am concerned with what it is.  Your only way to get the applicant into this Court is if you can show error of jurisdiction or other error of law that permits this Court to consider the application within that limited class.  What is the answer?

MR HEGEDUS: Your Honour, the first limb of my submission on that is that there was no material whatsoever on which the Tribunal could make these decisions in relation to the fraudulence of these documents and therefore committed an error of law based on the unreasonableness of such a position. My second submission in relation to that is that the Tribunal member has completely misunderstood the nature of his obligations under section 36 of the Migration Act in issuing protection visas to applicants who have a well‑founded fear of persecution as defined under the terms of the Convention. The Tribunal member is, by virtue of the incorporation of the Convention into Australian law under section 36 of the Migration Act, an agent of the contracting State and as such has obligations pertaining to the Convention.

In putting this burden of proof, as I call it, your Honours, on the admission of these documents, the Tribunal member has erred at law in the misunderstanding of his duty and as such has committed jurisdictional error because he has totally misunderstood the nature of what his role is as a Tribunal member.  The member, as has been suggested, is not a judicial officer but is an agent under the Convention put there for the purposes of properly determining whether or not an applicant is a refugee.  That is the central nature of their role.  The nature of the role is not to act in a quasi‑judicial manner to exclude documentation on a basis of a fairly high evidentiary standard of proof which would be overly burdensome even in a civil proceeding.  They are my submissions, your Honours.

KIRBY J:   Hand this file of documents back to Mr Reilly for the moment, please.  Mr Reilly, I would like you to address, please, the comment on page 34 where the Tribunal said that the discharge certificate citing the leg injury was a self‑serving fraud.  What is there in the document that warrants that rather serious conclusion?

MR REILLY:   Your Honour, I understand the Tribunal to deal with this document on page 10 of the Tribunal reasons.  I can read out what is said or just invite your Honours to read from about halfway down page 10 over to the top of page 11.  Perhaps I should hand this back if your Honour wishes to ‑ ‑ ‑

KIRBY J:   No, you hold it.  I have a clear recollection of it.

MR REILLY:   The Tribunal has plainly examined it carefully.

KIRBY J:   I suspect that if the member of the Tribunal had gone to Bangladesh as often as I have, he would not be surprised at the presence of a misspelling in a stamp or a slight juxtaposition in the language, “Injury [by] bomb of the left leg or foot.”

MR REILLY:   I do not know how many times this member has travelled but I do know he is a very experienced member.  Your Honours will be aware that members are expected to, and I believe do, develop expertise in particular countries that they hear applications from.

KIRBY J:   The basis of the allegation of fraud seems very thin.

MR REILLY:   Not in my submission, your Honour, especially the other matter that I wish to draw the Court’s attention to and also to the applicant’s friend in Court today.  It is probably well known to the Court that it is country information concerning document fraud from asylum applicants from Bangladesh which is quoted at page 21 of the Tribunal’s reasons.  Against that general background of voluminous false documentation being submitted by Bangladeshi asylum seekers and against the fact that the Tribunal plainly disbelieved the applicant for a whole range of reasons, not just related to this particular document, and then having regard to the fact that the Tribunal carefully examined the document and has several reasons why it considers the document must be regarded as fabricated, one cannot really say that it was not open, which would be the only conceivable legal point on this issue, for the Tribunal to find as it did.

KIRBY J:   It is a matter of concern to me that a finding of fraud would be found in respect of the certificate on such a flimsy basis.

MR REILLY:   Your Honour, in my submission, it is not a flimsy basis at all.  This is a very detailed and lengthy consideration of the applicant’s claims.  He was comprehensively disbelieved in every aspect.

KIRBY J:   That is true but there is this finding which at least causes me anxiety because of maybe my knowledge of the Indian subcontinent.  I mean, there is nothing at all – I would accept that some of the other documents may be the subject of doubt, especially the father’s certified statement and other documents of that kind and statements from the political organisation, but I see nothing in the medical document that rises to the level of a self‑serving fraud.

MR REILLY:   Your Honour is getting into the merits of the ‑ ‑ ‑

KIRBY J:   Your point is that this is a matter for the assessment of the Tribunal within its own jurisdiction?

MR REILLY:   That is my point, your Honour.

KIRBY J:   Is there anything else that you wish to say?

MR REILLY:   No, your Honour.

KIRBY J:   What do you have to say in reply?

MR HEGEDUS:   Your Honour, the applicant informs me that he is willing to show the Court his leg.  I am not sure if that is appropriate but I thought I would mention it.

KIRBY J:   We deal with matters on the record.

MR HEGEDUS:   Yes.  There is another document which, in my submission, is perhaps even more so.

KIRBY J:   This does not seem to be in reply.  This seems to be a new matter.

MR HEGEDUS:   Yes, your Honour.  Can I limit my submission to matters in reply.  In relation to the learned counsel for the respondent raising the matter of the circulation or the apparent existence of numerous purportedly false Bangladeshi claims relating to the authenticity of documents, if I could turn your Honours to the case, I believe, of – if you will just bear with me one second, your Honours ‑ ‑ ‑

KIRBY J:   I do not think that is a particularly relevant matter.  We are dealing with this case.  I have no knowledge of false Bangladeshi claims or false documentation.  The only matter that is before the Court is this particular applicant’s case.

MR HEGEDUS:   Yes, your Honour.  I was not attempting to seek to suggest that there were Bangladeshi ‑ ‑ ‑

KIRBY J:   Some of the documents in the file that was handed up did appear fairly to answer to the description of being self‑serving, in particular the document that followed the hospital certificate concerning the association with a political organisation.  It looks as though the applicant has gathered these documents in order to establish his case when he made his application out here.  Anyway, that is a matter for the Tribunal to assess. 

The only basis for this Court’s intervention is if you can show a jurisdictional error.  It is a very small class of case.

MR HEGEDUS:   Your Honour, as I stated before, I believe there is jurisdictional error in the way that the Tribunal has considered many of these documents to be false without any evidence on the documents themselves, especially in relation to the claims of fraud.  I was going to direct your Honours to the case of Shatku v Minister for Immigration and Multicultural Affairs, which is an unreported case of the Federal Court, which appears in the Federal Court bundle.  At paragraph [24] of that case Justice O’Loughlin spoke of a similar argument to what the learned counsel for the respondent mentioned in terms of many of the documents from Albania being false.  The honourable Justice in that matter found that such an application – using that as a basis for excluding documents was placing “an evidentiary onus that exceeds that which the authorities require.”  That is at paragraph [25] of that particular judgment. 

That is my submission as to the legal error here, that the evidentiary onus imposed by the member is far in excess of anything that is permissible or possible under a true construction of the member’s responsibilities and obligations under section 36 of the Migration Act.

KIRBY J:   The Tribunal did not reject your client on an onus of proof basis; it positively disbelieved the applicant.

MR HEGEDUS:   Your Honour, it is my submission that if any of those documents relating to the bomb wounding or the death of the applicant’s mother were admitted into evidence or allowed to be – I know that that is not the correct term for the Tribunal’s receipt of evidence, but if any of those documents were credible or were seen to be credible by the member, then a prima facie case for a well‑founded fear would be established and as such the applicant would have a very good chance of attaining the status of refugee.

My submission is that the member is using this means of complete discrediting of every document.  It is not just one document or some.  It is a systematic approach to all of the evidence, attempting to discredit it without having any real examination of the applicant.  It is a systematic approach which is designed in my view to subvert judicial review and as such is evident of jurisdictional error.  They are my submissions.

KIRBY J:   The applicant is a national of Bangladesh and he claims to be entitled to protection under the Refugees Convention as given effect by the Migration Act 1958. His grounds are fear of persecution for reasons of religion and political opinion. The applicant’s claim was rejected by the Minister’s delegate and by the Refugee Review Tribunal. Judicial review was refused by the Federal Court of Australia. The applicant now seeks special leave to appeal to this Court.

The Tribunal disbelieved the applicant’s claim that, whilst in Bangladesh, he had converted his religion from Islam to Christianity.  It also disbelieved his account of political conversion and of his being an active political campaigner.  The Tribunal said that it considered his evidence inconsistent, illogical and unreliable.  It said that his religious political history was entirely disingenuous. 

Perhaps surprisingly the Tribunal found that a death certificate of the applicant’s mother and a hospital certificate concerning the applicant were instances of self‑serving fraud.  It is necessary to remind the Tribunal that fraud should not be alleged or found without clear evidence and after proper procedures are followed.  Nevertheless, any error in the acceptance or rejection of the applicant’s evidence was apparently an error within jurisdiction.  It was not an error that took the Tribunal outside its jurisdiction.

The Federal Court rejected the claim for judicial review on the basis that no error of law or jurisdiction was shown but that the applicant’s case was simply an attempt to reargue the factual merits and evidentiary findings.  In this Court the applicant challenges those conclusions, complains that the Tribunal has imposed an excessive onus and burden of proof and charges that the Federal Court judges erred in failing to find that the fact‑finding process in the Tribunal was inadequate.  In effect, that was the jurisdictional error that was pressed upon us.

In our view there are no prospects of success in this appeal.  The conclusions reached by the Tribunal were open to it on all of the evidence.  There is no detectable error of law or jurisdiction.  The Federal Court was correct to so hold.  The applicant asked specially to be relieved from an order for costs in favour of the Minister on the basis of poverty.  However, the usual order should be made.  Whether it can be enforced is quite another matter.  Special leave is accordingly refused with costs.

(To the interpreter)  Would you tell the applicant the order just made and explain to him that the reasons that have just been delivered will be available to him within the space of the next few days.

AT 12.50 PM THE MATTER WAS CONCLUDED