NAOA v Minister for Immigration - [2003] FMCA 572

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOA v MINISTER FOR IMMIGRATION

[2003] FMCA 572

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application claiming political persecution in Bangladesh – RRT made adverse credibility findings against the applicant – RRT placed no weight on documents submitted by applicant due to country information relating to document fraud – RRT did not have to disclose that country information as its decision was not based on a rejection of the documents.

Migration Act 1958 (Cth), s.424A

NARV v Minister for Immigration [2003] FCAFC 262
WACO v Minister for Immigration [2003] FCAFC 171
WAEJ v Minister for Immigration [2003] FCAFC 188
WAGU v Minister for Immigration [2003] FCA 912

Applicant:

NAOA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1220 of 2003

Delivered on:

8 December 2003

Delivered at:

Sydney

Hearing date:

8 December 2003

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Ms R Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1220 of 2003

NAOA

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 18 March, 2003. The RRT affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is from Bangladesh and sought a protection visa on the basis of political persecution in Bangladesh. The background information relating to the applicant's claims and the consideration of them is set out in paragraphs 1.2 through to paragraph 1.6 of written submissions prepared by Ms Francois for the Minister and filed on 4 December 2003. I adopt that statement of background facts for the purposes of this judgment:
The applicant is a 35 year old national of Bangladesh. The applicant entered Australia on 25 August 2001 on a visitor’s visa. On 21 September 2001 the applicant lodged an application for a protection (Class XA) visa (court book, pages 3-34).
The applicant claimed a well founded of fear of persecution in Bangladesh on the basis of his political opinion arising from his membership of the Jatiya Party. In the applicant’s two page statement which accompanied his application he claimed that:
b)in 1992 at the age of 24 he was elected the general secretary of the Jatiya Party Kotowali Thani (court book, page 26);
c)whilst working at the Jatiya Party office at 9.00pm on 25 March 1993 a group of Bangladesh Nationalist Party (“BNP”) activists broke in and “ransacked and fired [the] office and beat [him] mercilessly”;
d)he was taken to a local clinic for treatment for an unspecified period of time and the police refused to take any action “because the then administrators were influenced by the BNP leaders”;
e)in 1994 he was elected as “the executive member of the committee”;
f)during the 1996 election the applicant worked for his local candidate, Shakhakat Hossain Heron, who was not successful (court book, pge 27);
g)at 9.00pm on 12 December 1999 he was attacked by Awami League supporters, who broke his left leg and his knee. He was in a clinic for 9 days;
h)his father reported the matter to the police but they did not take any action because “the local administration was influenced by the Awami League”;
i)“in the meantime” a number of false cases were filed against him and he left Bangladesh “in February to avoid persecution” (court book, page 26).
The applicant’s protection visa application also recorded that he had worked and resided in Brunei between 15 August 1995 to 24 August 2001 (court book, page 16).
A delegate of the Minister wrote to the applicant on 23 November 2001 and invited the applicant to an interview on 3 December 2001 (court book, pages 38-41). In that letter, the delegate put the applicant on notice that the following matters would be discussed at the interview:
a)the possible credit implications of the applicant’s failure to provide any supporting documentation in relation to his membership of the Jatiya Party;
b)the fact the applicant claimed to have resided in Brunei since 1995 and he currently held a visa that allowed him to return and reside in Brunei;
c)independent country information which indicated low level activists are not specifically targeted and high level activists do not leave Bangladesh; and
d)the likelihood that the applicant could re-locate within Bangladesh.
The applicant failed to attend the interview (court book, page 42). The applicant did not provide any further information in support of his application. His application was refused by a delegate of the Minister on 12 December 2001 (court book, pages 43-50).
The applicant disputes the accuracy of the statement in paragraph 1.4 of those written submissions. What that statement refers to is that the court book, at page 16, records that the applicant had a work permit for Brunei which he referred to in his protection visa application. In addition, the applicant was sent a letter by the Department (court book, pages 38-39) asking him to attend an interview based upon the information provided by the applicant to the effect that he had been residing in Brunei between August 1995 until August 2001. The applicant did not attend that interview.
It is noteworthy that the applicant sought to alter the information he had provided about his residence in Brunei at the RRT hearing. The applicant had been warned in writing by the RRT that the RRT was unwilling to make a favourable decision based upon the information before it and invited the applicant to a hearing. The applicant provided further information to the RRT and attended a hearing. The background facts relating to the RRT proceedings are set out in paragraphs 2.1 to 2.3 of Ms Francois' written submissions. I accept those paragraphs for the purposes of this judgment:
On 18 December 2001 the applicant applied to the RRT for a review of the delegate’s decision (court book, pages 51-54). On 4 February 2003 the RRT wrote to the applicant and invited him to attend a hearing on 18 March 2003 (court book, pages 58-59).
On 17 March 2003 and at the hearing on 18 March 2003, the applicant submitted the following further documents:
a)a letter purportedly from the Jatiya Party dated 11 November 2002 certifying that the applicant was a member of the party and was “wanted by the police because of his agitating speeches” (court book, page 62);
b)a letter purportedly from the lawyer appointed to defend the charges against him stating that “a large number of political cases are pending against you” and that it was not safe for him to return to Bangladesh (court book, page 63);
c)a medical certificate stating that the applicant was treated between 12 and 20 December 1999 for a fracture of his patella (court book, page 64);
d)submissions from his migration agent (court book, pages 66-70);
e)a further letter purportedly from the Jatiya Party dated 16 November 2002 also certifying that the applicant was a member of the party and that “a number of false and fabricated police cases are pending” (court book, page 71);
f)an excerpt from his protection visa application showing he had ‘corrected’ the date he left Bangladesh from 19 December 1999 to 25 February 2000 (court book, page 72);
g)documents relating to his elective surgery in Australia in 2002 (court book, pages 73-78); and
h)purported Bangladeshi police documents naming the applicant as one of 21 accused in a charge of murder by blasting of an explosive bomb and firing (court book, pages 79-83).
The applicant gave evidence to the RRT on 18 March 2003. The RRT made its decision on the day of the hearing and signed its written reasons on 19 March 2003 (court book, pages 88-101).
Ms Francois' description of the RRTs decision and reasons is also accurately set out in paragraphs 3.1 to 3.2 of her written submissions. I also adopt those paragraphs for the purposes of this judgment:
The RRT considered that the applicant’s evidence was vague, internally inconsistent and inconsistent with the independent evidence. The RRT found that the applicant was not credible and did not have a well founded fear of persecution in Bangladesh. In particular it did not believe the applicant because:
a)the applicant’s confirmation during the hearing that he had lived in his family home both before he went to Brunei and when he returned on visits was consistent with him working there since 1995 and not as he now claimed since 2000 (court book, page 99.8);
b)the applicant’s lack of knowledge about the Jatiya Party was inconsistent with a person claiming to be as active in the Party as he claimed or even an ordinary member (court book, page 100.3); and
c)the answers the applicant gave about his knowledge of the 1996 elections and the relevant history of the Jatiya Party were factually incorrect in light of the independent country information.[1]
The RRT, after making its adverse credit finding, then stated that it placed no weight on the documents the applicant provided in support of his claims due to the high likelihood of document fraud and the inconsistency on the face of the documents. For example, one document suggests the false charges against the applicant related to making ‘agitating’ speeches but the alleged police documents referred to murder charges (court book, page 100.5). The RRT did not make any positive finding that the documents were fraudulent.
[1]CB pages 99.9 to 100.2 and see also page 95.3 to .7 (the applicant’s evidence at hearing) and pages 96 to 97 (the independent information).
The applicant relies both upon his original application for review filed in the Federal Court on 14 April 2003 and also an amended application filed on 30 September 2003. I note that on 22 May 2003 the proceedings had been transferred from the Federal Court to this Court by order of Her Honour, Stone J. The order was made on 14 May 2003 and entered on 22 May 2003. In the circumstances, the amended application was incorrectly accepted in the Federal Court registry. It should have been filed in the Sydney registry of this Court. Nothing of substance however turns on that error in filing. The applicant also relies upon written submissions filed on 27 November 2003.
The applicant also made oral submissions to me. The applicant told me that he was not familiar with the court procedures and that he was awaiting further documents which he thought might support his claims to be a refugee. He sought more time and indicated that he intended to retain a barrister. I took this to be an application for an adjournment.

I rejected that application on the basis that the applicant had had plenty of time to prepare his case and to seek whatever legal representation he might wish. Further, as I told the applicant, whether or not he expects to receive additional documents which might support his claim to be a refugee is not material to the proceedings before me.
The original grounds of review advanced by the applicant are general. Some specificity is provided in the amended application. In part, the applicant simply contests the merits of the RRT hearing. However, it appears from the applicant's submissions that he is concerned that he was not afforded procedural fairness by the presiding member at the RRT hearing.
In any event, as I told the applicant, I would not and did not limit myself to the issues raised by the applicant in his application given that he is a self-represented litigant with no legal knowledge. Having read the material put forward by the applicant and the respondent's written submissions and having read the court book, in my view, the only legal issue that the applicant could seriously agitate in these proceedings is whether he was afforded procedural fairness.
The issue of procedural fairness centres upon the question of whether the RRT erred in not putting before the applicant material to be taken into account by the presiding member that was adverse to the applicant's claims. That obligation may arise in two ways; first from s.424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”); secondly, from the general law. In that regard, I note that the Federal Court has previously held that s.424A(1) does not exclude the operation of the obligations of procedural fairness under the general law.
It is apparent that the applicant's claims were rejected by the RRT on the fundamental issue of whether he had been a member of the Jatiya Party in Bangladesh. The presiding member found that the applicant had not been a Jatiya Party member and found that he was of no interest to the authorities in Bangladesh on account of any political activities. In coming to that conclusion, the presiding member first rejected an attempt by the applicant to amend his claim in order to confine significantly the amount of time he admitted spending in Brunei.
On the basis of the applicant's original claim for a protection visa, he would have been in Brunei at a time when he alleged he had been involved in the 1996 elections in Bangladesh. This went to the heart of his claims. He sought to amend his claim in order to confine his absence to Brunei to about 12 months, instead of a period of about five years. He claimed that the original information provided had been a mistake. His explanation was rejected by the presiding member.
The presiding member found that the applicant's claims about his political activity was vague and inconsistent. The presiding member adopted the approach of testing the applicant's knowledge about the Jatiya Party and political events in his local area against country information. The presiding member found that the applicant did not have the level of knowledge about political events that she would have expected from someone with the applicant's claimed profile. The presiding member also found that the answers the applicant gave to the questions put to him were inconsistent with uncontroversial country information.
I see no difficulty with the approach taken by the presiding member. It must be open to a presiding member to test an applicant's credibility against basic factual information. Obviously, if an applicant were forewarned about the country information against which his knowledge would be tested, the usefulness of the procedure would be destroyed. In some circumstances there may be an obligation on a presiding member to give an applicant an opportunity to explain the inconsistency of his or her answers with the country information.
However, in this case no such obligation arose from s.424A of the Migration Act because of the operation of s.424A(3). In this case also, no such obligation arose under the general law because the information used by the presiding member was simple and uncontroversial factual information. Having given answers inconsistent with that factual information, in my view, there is nothing more that the applicant could have said in order to assist his case.
Of more potential significance is the presiding member's treatment of documents provided by the applicant to the RRT. The applicant had provided a number of documents apparently sourced from Bangladesh attesting to his political involvement with the Jatiya Party and alleged false court cases raised against him. The presiding member dealt with those documents in this way (court book, page 100):
The applicant provided documents in support of his claims. The independent evidence before me indicates that there is a high level of document fraud in Bangladesh, with documents such as those provided by the applicant easily obtained with the assistance of the police. In view of the independent evidence, I do not place any weight on the documents provided by the applicant. In any event, there are other problems with the documents. For example, the applicant claimed that he was an executive member of the Barisal district committee and was wanted for murder. However, one of the documents supposedly from the Jatiya Party states that the applicant was a member of the Barisal metropolitan committee and was wanted because of his “agitating speeches” against the police.
In WACO v Minister for Immigration [2003] FCAFC 171, the Full Federal Court found that it may be a jurisdictional error arising from a breach of procedural fairness if the RRT fails to put to an applicant that documents the RRT believes were not genuine were false. The decision was recently confirmed in NARV v Minister for Immigration [2003] FCAFC 262. A similar conclusion was reached by the Full Federal Court in WAEJ v Minister for Immigration [2003] FCAFC 188.
I draw from those decisions the proposition that if a decision of the RRT is based in whole or part upon an adverse finding on credibility based upon allegedly fraudulent documents, procedural fairness requires that the issue of authenticity of those documents be put to the applicant.
It appears from the record of the RRT decision that the documents in issue in this case were not raised with the applicant as apparent forgeries. However, a distinguishing feature in this case is that the presiding member did not make a positive finding that the documents were forgeries. The presiding member simply noted the high incidence of document fraud in Bangladesh and placed no weight upon the documents. I accept Ms Francois' submission that prior to coming to consider the documents, the presiding member had rejected the credibility of the applicant. The presiding member had already rejected the applicant's attempt to explain the alleged error in his original application in relation to the period of time he spent in Brunei.
On that basis alone, the applicant's claims of political activity in Bangladesh after 1995 must have been false. Secondly, the presiding member tested, and found seriously wanting, the applicant's knowledge of the Jatiya Party and political events in Bangladesh in 1996. It is theoretically possible that the documents might have assisted the applicant. However, the applicant's credibility was so gravely damaged that that would have been unlikely. Nevertheless, if the documents might have had some impact of significance they should have been considered by the presiding member in support of the applicant's claims.
The presiding member decided to give the documents no weight, both because of the general incidence of document fraud and because the document on their face served only to further damage the applicant's credibility. I note that one issue relating to the documents was raised with the applicant at the hearing. On page 95 of the court book, the presiding member states:
I asked the applicant what would happen to him if he returns to Bangladesh. The applicant stated that there is a false case against him. He stated that he is wanted for murder. I asked the applicant why he was not arrested prior to his departure. The applicant stated that the charges were lodged against him after he left. However, I noted that the FIR provided by the applicant is dated 9 January 2000, prior to February 2000 when he said that he left Bangladesh. The applicant then stated that he used to go into hiding when he got information that the authorities were coming to the village. I asked the applicant when the murder was supposed to have taken place. He did not know, although he was able to state that he was the fifth of twenty-one accused.

It is apparent to me from this description by the presiding member that the answers given by the applicant to the presiding member were important in creating in the mind of the presiding member an adverse view about his credibility. It is also apparent that the presiding member formed the view that the documents provided by the applicant did not assist him. In WAGU v Minister for Immigration [2003] FCA 912, His Honour French J dealt with the issue in these terms at paragraph 44 of his decision:
One of the matters complained of in the Full Court [in WAEJ v Minister for Immigration] was that there had been a breach of the rules of natural justice in the failure of the Refugee Review Tribunal to give the appellant the opportunity to deal with concerns held by the Tribunal but not disclosed to him regarding the genuineness of a document submitted by the appellant to the Tribunal in support of his application.
His Honour then described the document and the RRT’s adverse view about the genuineness of it. His Honour then quoted the Full Court in these terms:
On its face the foregoing was a statement by the RRT [that] the document was not authentic. This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, [a] non‑authentic, or forged document which the RRT could disregard. There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.
Significantly, in this case there was a finding by the presiding member that the applicant had been untruthful in critical elements of his claims. The RRT did find that the applicant's evidence was so discredited that purportedly corroborative material presented on his behalf could be discarded without further analysis. On that basis, I find that this case can be distinguished from those in WAEJ, WACO and NARV.
Having regard to the findings on credibility by the RRT in the application for a protection visa considered by the RRT and the applicant's oral evidence, procedural fairness did not require that the RRT put to the applicant their rejection of his further documentary evidence. I find that there was no jurisdictional error in the decision of the RRT.
Accordingly, I will dismiss the application.
On the question of costs, the application having been dismissed, Ms Francois has sought an order for costs and tells me that the Minister's costs and disbursements on a solicitor and client basis are in the order of $4,000. On a party-party basis I consider that costs should be fixed in the sum of $3,000. The applicant referred to his inability to pay costs of that order. However, impecuniosity is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the Minister's costs and disbursements of an incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 16 December 2003