NAOY v Minister for Immigration

[2004] FMCA 198

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOY v MINISTER FOR IMMIGRATION [2004] FMCA 198

MIGRATION – Application for review of decision of Refugee Review Tribunal – material in relation to documentary fraud in Bangladesh not put to applicant – whether failure to comply with s.424A of the Migration Act – jurisdictional error.

Migration Act 1958

NARV v MIMIA [2003] FCAFC 262
NAQZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 898
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 161
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
Stead v State Government Insurance Commission (1986) 161 CLR 141
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Re Minister for Immigration 7 Multicultural Affairs; Ex parte A (2002) 185 ALR 489
Plaintiff S157 of 2002 v The Commonwealth of Australia [2003] HCA 2
NAAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 113
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186

Applicant: NAOY

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1347 of 2003

Delivered on: 8 April 2004

Delivered at: Sydney

Hearing date: 16 March 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Sparke Helmore

IT IS ORDERED:

1. That the Court declares that the decision of the Refugee Review Tribunal made on 11 March 2003 and handed down on 1 April 2003 is invalid and of no effect.

2. That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal.

3. That a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1347 of 2003

NAOY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 1 April 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. 

2. The applicant applied for the visa on 28 December 2000.  The delegate’s decision refusing the visa was made on 1 March 2001 and the applicant applied to the Tribunal for review on 14 March 2001. 

3. The applicant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to be a prominent member of the Madaripur branch of the Purba Bangla Sarbahara Party (PBSP) which was opposed by all the leading political parties in Bangladesh. He also claimed that he had been assaulted in 1998 and 1999 by Awami hoodlums or activists in Madaripur and that a number of false cases were lodged against him. On 28 December 2002 his migration agent submitted supporting documentation to the Tribunal, in particular a letter dated 10 October 2002 allegedly from the applicant’s Bangladeshi lawyer stating that the applicant had cases pending in a Madaripur Magistrate’s Court which had been filed while he was in Bangladesh that were now ready for trial and that due to his absence from Bangladesh a number of warrants of arrest had been issued. It was suggested in this letter that if the applicant returned to Bangladesh he would be arrested due to a number of outstanding warrants. Also enclosed was a certified copy of a letter allegedly from the area commander of the PBSP dated 13 January 2002, stating that the applicant was an active member of the party and that several criminal cases had been filed against him. One such case was specifically referred to, the details of which are consistent with those given in the letter from the applicant’s lawyer. Finally a letter dated 20 February 2002, allegedly issued by the Central Committee of the PBSP, referred to the applicant’s activities in the party and stated that he had been harassed, attacked and that a number of false cases had been filed against him. It was suggested that if he returned home now he would undoubtedly be prosecuted. Further supporting documentation, including two discharge certificates from a hospital, a photograph, country information and a submission, was provided to the Tribunal prior to the hearing. The Tribunal held a hearing on 10 February 2003. After the hearing the applicant’s adviser provided further supporting letters from persons associated with Bangladeshi community groups in Australia. There is nothing in the material before the Court to suggest that the Tribunal at any stage gave the applicant particulars of any adverse information pursuant to s424A of the Migration Act 1958.

4. The Tribunal reasons for decision record in some detail what occurred in the Tribunal hearing.  Relevantly, it is stated that the applicant was referred to certain independent evidence in the course of the hearing which stated that the BNP had tolerated the non-violent faction of his party.  His comments are recorded.  In relation to the claim of false charges, the applicant confirmed that he had departed Bangladesh because false charges had been lodged against him allegedly in June/July 2000 and that despite the charges he had nothing to do with the death of two police officers and the stealing of arms as alleged in the charges.  He was asked how he could have been issued with a passport in his name in March 2001 if such serious charges were pending.  The applicant replied that such things could be easily organised in Bangladesh and that his older brother had a friend in the passport office.

5. The Tribunal in its reasons for decision referred to independent information on the situation in Bangladesh and on the PBSP and to independent evidence indicating that there is a high level of document fraud in Bangladesh and that there was a prevalence of Bangladeshi asylum seekers providing fraudulent documents. 

6. The Tribunal accepted that the applicant was a member of the PBSP and that he had been assaulted and had fallen foul of a powerful parliamentarian and trade unionist in Madaripur.  However the Tribunal considered that it was reasonable for him to relocate away from Madaripur to Dhaka.  He could work at party headquarters.  The Tribunal did not consider that the applicant would be pursued if he did so, particularly as he had now been away from Bangladesh for over three years. 

7. The Tribunal rejected the claims about false charges and did not accept that supporting documentation was genuine.  It stated:

   The Tribunal has considered the applicant’s claims that false charges have been laid against him.  The Tribunal accepts the independent evidence, cited above, as to the prevalence of such claims generally based on fraudulent documents, including police and Court documents.  In the light of such evidence, the Tribunal cannot be satisfied as to the genuineness of his claims about this, nor of the genuineness of the statements about this in letters he has tendered.  The Tribunal notes that the applicant in his primary application states that he departed Bangladesh ‘legally’ (folio 12) and that he now holds a passport issued to him in March 2001 by the Bangladesh government.  The Tribunal notes the applicant’s claims that the passport was fraudulently gained through a contact in the passport office.  However, the Tribunal notes that he had procured a passport for himself after he arrived in Australia. Such a document permits him to travel internationally under the protection of the Bangladesh government and indeed to re-enter Bangladesh.  The Tribunal finds such actions to be inconsistent with his claims that the Bangladesh authorities would apprehend him should he have contact with them or return to Bangladesh.  The Tribunal finds this to be inconsistent with his claim that he is a wanted person and does not accept that he is indeed wanted by the Bangladesh authorities.

8. Nor was the Tribunal satisfied of the genuineness of a photograph submitted by the applicant purporting to indicate that fundamentalist Muslims wanted to kill him because the Tribunal found it implausible that such a photograph would not have been brought to his attention prior to his leaving Bangladesh and that he would not have mentioned it in his primary claims.  It found that the photograph was fraudulent and made to enhance the applicant’s claims.  The Tribunal also rejected a claim that the applicant would be apprehended should he return to Bangladesh on the basis of his claimed participation in a demonstration in Sydney against the Bangladesh Prime Minister as submitted in supporting letters.  The Tribunal concluded that the applicant would have been one of many people demonstrating and there was no particular reason why his identity would be known to the Bangladesh authorities because of that action.

9. The Tribunal was not satisfied by the totality of the evidence before it that there was a real chance that the applicant would be harmed now or in the foreseeable future if he returned to Bangladesh and was not satisfied that he had a well-founded fear of persecution for a Convention reason.

10. The applicant filed an application in the Federal Court on 28 April 2003 in which he relied on a number of generalised and unparticularised claims.  When the matter was transferred to this Court he was ordered to file an amended application and written submissions prior to the hearing.  No such amended application or written submissions have been filed.  In the hearing the applicant took issue with the merits of the Tribunal decision. 

11. With one exception there is no substance in the grounds raised in the application. The exception is the claim that the applicant had “filed a number of authentic documents in relation to his claim. Without any explanation the Tribunal denied its correctness.” As the applicant was unrepresented I raised with Counsel for the respondent whether such a ground and the material before the Court raised issues of procedural fairness and under s424A of the Migration Act 1958 as considered by the Full Court of the Federal Court in NARV v MIMIA [2003] FCAFC 262 insofar as the Tribunal relied on independent evidence as to the prevalence of claims about false charges being based on fraudulent documents. As set out above at [6] the Tribunal found in light of such evidence that it could not be satisfied as to the genuineness of the applicant’s claims in this regard nor of the genuineness of the statements about the charges in the letters that he had tendered.

12. Section 424A of the Migration Act 1958 provides:

    (1) Subject to subsection (3), the Tribunal must:

    (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

    (c)invite the applicant to comment on it.

    (2) The information and invitation must be given to the applicant:

    (a)   except where paragraph (b) applies—by one of the methods specified in section 441A; or

    (b)   if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

    (3) This section does not apply to information:

    (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b)  that the applicant gave for the purpose of the application; or

    (c)   that is non-disclosable information.

13. This section would require the Tribunal to give the applicant particulars of the independent information as to claims based on fraudulent documents from Bangladesh if such information formed part of the reason for the Tribunal’s decision, unless it was information to which subsection 424A(3) refers (see NARV and NAAK of 2002 v MIMIA [2004] FCA 113 at 29).

14. The information about Bangladeshi asylum-seekers’ claims based on fraudulent documents was one basis for the Tribunal’s rejection of the applicant’s claims that false charges had been laid against him. While the Tribunal also had regard to the fact that the applicant had left Bangladesh legally and obtained a Bangladeshi passport after he left Bangladesh (inconsistent with his claim that he would be apprehended should he have contact with Bangladeshi authorities or return to Bangladesh), it cannot be said that the independent evidence about claims based on fraudulent documents did not form part of the reason for the Tribunal’s decision. Hence, unless s424A(3) applied the Tribunal was obliged to give the applicant particulars of the information for comment.

15. There is nothing in the material before the Court to suggest that the Tribunal did put the independent information in issue to the applicant in accordance with s441A (which would require the handing, posting or other transmission of a document to the applicant) or in any other way (see s424A(2)(a)).

16. Counsel for the respondent submitted that the applicant had not proved that the Tribunal did not alert him to the country information about documentary fraud or that it had failed to make it clear that there was an issue for him to deal with as to the genuineness of the documents.  It was pointed out that no transcript of the Tribunal hearing had been tendered to the Court.  It was contended that this was not a case in which the Court could infer that the Tribunal had failed to refer to the country information in the hearing as the Tribunal did not purport to set out all that had occurred in the hearing in its reasons for decision.  It was submitted that it was for the applicant to make out the factual basis for his claims and that he had not done so.  Support for this proposition was said to be found in the judgment of Hill J in NAQZ of 2002 v MIMIA [2003] FCA 898 at [86]-[88]. This decision predated NARV. Hill J considered that country information about the prevalence of forged documents of Bangladeshi applicants was not information that was required to be notified to the applicant under s424A(1) of the Migration Act. He took the view that it fell within the s424A(3) exception as “information about a class of people and not information specifically about the appellants”. His Honour then considered whether there was a denial of procedural fairness, suggesting that the only way the appellant’s case could be put was on the basis that s424A was not an exhaustive code concerning the application of rules of procedural fairness insofar as they related to documentary material of general application (see WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 161). In this context His Honour accepted that it was established in WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 that there is a denial of natural justice, “at least generally, where the Tribunal rejects documents as not being genuine without affording the party tendering them an opportunity to put to the Tribunal such matters as it may be able to so as to answer the charge that the documents are forgeries” (see WACO at [53]-[54]).

17. However, His Honour held in NAQZ that for an applicant to succeed with a claim based on denial of procedural fairness on the basis that the Tribunal had not made it known that it might rely on country information about the prevalence of forged documents among Bangladeshi applicants or because the Tribunal had not alerted him to the fact that it might find documents tendered to be forgeries, the applicant must prove that the Tribunal did not alert him to the country information in question and that it did not make it clear that there was an issue to be dealt with as to the genuineness of documents (at [86]). In that case the appellants (who were legally represented) had not sought to tender a transcript of the Tribunal hearing. The Minister did not concede that in NAQZ the Tribunal had made no reference in the hearing to country information relating to the prevalence of forged documents in Bangladesh or that the Tribunal member had made comments which would alert the appellants that the Tribunal was likely to conclude in the absence of further evidence that various documents tendered were forgeries.  Hill J found that the foundation for the case that the appellants were denied procedural fairness had not been made out.

18. However NAQZ involved a claim of a lack of procedural fairness. In so far as s.424A is in issue in this case it is not necessary for the applicant to prove, for example by tender of a transcript, that he was not alerted to the information in the course of the hearing. The issue is whether, if it was required, the Tribunal complied with s.424A. The applicant claimed that he received no “explanation”. No notification under s.424A is contained or referred to in the material before the Court. There is no suggestion that the Tribunal notified the applicant of the information by way of a letter or other notification in accordance with s.424A(2) (see s.441A) or invited him to comment in accordance with s.424B or that it notified the applicant in some other way in compliance with s.424A(1) of the information in relation to documentary fraud.

19. Hence it is necessary to determine whether s.424A(3)(a) applies. This case is on all fours with the decision in NARV as the material considered there was, as here, independent information in relation to the prevalence of documentary fraud in Bangladesh. In that case Ryan and Finklestein JJ held at [32] that such information was not “just about” Bangladeshi asylum seekers in the sense of merely or only being about that class of persons (see VHAJ v MIMIA [2003] FCAFC 186). Their Honours held that information about the high level of document fraud in Bangladesh was clearly not specifically about the appellant in that case nor just about a class of persons and did not fall within the exception contained in s.424A(3)(a) and that the particulars about it should have been provided to the appellant (at [32]). This approach was followed by Bennett J, sitting as the Full Court of the Federal Court, in NAAK of 2002 v MIMIA [2004] FCA 113 at [28]-[43] despite her suggestion that in some respects the decision of Ryan and Finklestein JJ was difficult to reconcile with the reasoning of the majority in VHAJ.  NARV was binding on her and similarly it is binding on me.  This is so despite the subsequent decision of a differently constituted Full Court in VHAPof 2002 v MIMIA [2004] FCAFC 82 at [14] in which Gules and Conti JJ express doubt about whether the reasoning of the majority in NARV (at [30]-[31]) in relation to s.424A(3)(a) is consistent with the decisions in NANM andNANN of 2002 v MIMIA [2003] FCAFC 99 at [19] and VHAJ at [50] and [71] in relation to the construction of s.424A(3)(a). (Also see Allsop J at [21]). In VHAP at [14] NARV was distinguished as not affecting the conclusion of the primary judge in that case that information about the situation in China and the behaviour of Chinese authorities in relation to certain movements was outside s.424A because of the operation of s.424A(3), but NARV is directly in point and remains binding on me. 

20. Accordingly, on the authority of NARV (and NAAK) s.424A(3) does not apply to information about the high level of documentary fraud in Bangladesh and the Tribunal was under an obligation to bring this information to the attention of the applicant in accordance with s.424A.

21. The country information in relation to document fraud was significant to the Tribunal decision, it formed part of the Tribunal’s reason for disbelieving the applicant and rejecting his claim of persecution and the failure to give particulars of the information and bring it to the attention of the applicant constitutes a failure to comply with s.424A. In the absence of evidence that the information was brought to the applicant’s attention in some way the breach cannot be seen as merely procedural (see NAAK at [48]) and NAHV at [33]). Such a breach of s.424A(1) constitutes a jurisdictional error not protected by s474 of the Act (Plaintiff S157 of 2002 v The Commonwealth of Australia [2003] HCA 2). In the case of a failure to comply with s.424A, it is not incumbent on the applicant to lead evidence to explain in what way he has been affected by the absence of the evidence or what evidence or material he would have placed before the Tribunal if the information had been available (see, in any event, NARV at [17]. It may be otherwise in relation to a claim based on natural justice as submitted by the respondent but it is not necessary to determine this issue (see SBBS v MIMIA [2002] FCAFC 361 at [32]-[38], Kirby J in Re Minister for Immigration & Multicultural Affairs; Ex parte A (2002) 185 ALR 489 at [51]-[54] and VHAP).  In VHAP at [15] – 17] and [27] – [30] the principle in Stead v State Government Insurance Commission (1986) 161 CLR 141 was applied in relating to a claimed denial of natural justice). However, as in NARV this is not a case where the breach of s.424A could not have affected the outcome or where the Court can infer that there was nothing that the applicant could have put, had he known that the Tribunal was minded to rely on country information about the prevalence of documentary fraud in Bangladesh (see NARV at [17] – [19]).

1. Accordingly the matter should be remitted to the Tribunal for reconsideration in accordance with law.

2. There will be no order as to costs as the applicant has not incurred any legal costs in these proceedings.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  8 April 2004