NATS v Minister for Immigration
[2005] FMCA 221
•16 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NATS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 221 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Bangladesh as a Bihari activist – applicant providing documents of identity to the RRT which were rejected as fraudulent – decision of the RRT invalid as the presiding member failed to give the applicant the opportunity to respond to the issue. PRACTICE AND PROCEDURE – Statutory authority deemed to exist for directing a constitutional writ to a tribunal although not a party to the proceedings. |
Migration Act 1958 (Cth), s.36
Kioa v West (1985) 159 CLR 550
NAJO v Minister for Immigration [2004] FCA 356
Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57
WACO v Minister for Immigration [2003] FCAFC 171
WAEJ v Minister for Immigration [2003] FCAFC 188
WAGU v Minister for Immigration [2003] FCA 912
WAJR v Minister for Immigration [2004] FCA 106
| Applicant: | NATS |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File No: | SYG1788 of 2003 |
| Delivered on: | 16 March 2005 |
| Delivered at: | Sydney |
| Hearing dates: | 11 November 2004; 3 March 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Counsel for the Respondent: | Mr J Smith Mr R Beech-Jones |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
A writ of certiorari issue, directed to the Refugee Review Tribunal, removing the record of the Tribunal into this Court for the purposes of quashing it.
A writ of mandamus issue, directed to the Refugee Review Tribunal, requiring the Tribunal to redetermine the application for review of the delegate’s decision, according to law.
The respondent shall pay the applicant’s costs and disbursements of and incidental to these proceedings, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1788 of 2003
| NATS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 27 May 2003 and handed down on 20 June 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
Relevant background is set out in paragraphs 2-8 of initial written submissions prepared on behalf of the respondent by Mr Smith.
I adopt those paragraphs as background for the purposes of this judgment:
The applicant is a citizen of Bangladesh and arrived in Australia on 22 December 2000 and lodged an application for a protection visa on 31 January 2001. A delegate of the respondent refused to grant that visa on 3 April 2001 and on 3 May 2001[1] applied to the RRT for review of the decision of the delegate.
The applicant claimed to be a member of the minority Bihari community in Bangladesh and a young leader and activist of the Stranded Pakistani Repatriate Committee (SPRC). He claimed that after the Awami League was elected to the Government in 1996 activists from that Party attacked the Bihari camp where the applicant was living in order to evict him and the other Biharis. The applicant led the barricade opposing that attack and as a result became the main target for the Awami League activists. He claimed that he was beaten by them mercilessly on a number of occasions and that when he went to the Police station for help and to file a case the Police did not take any cases against the culprits. He further claimed that he led a number of processions against Awami thugs urging the Government to punish them and that local Awami activists had filed a number of false cases against him.
The applicant attended a hearing held by the RRT on 30 April 2003 to give evidence and to make submissions in support of his claims and the RRT handed down its decision affirming the decision of the delegate on 20 June 2003.
RRT’s decision
The RRT did not accept that the applicant was a Bihari as he claimed or that he lived in any Bihari camps or was involved in Bihari protests and political activism. The applicant had produced at the RRT a copy of his passport which showed that his permanent address in Bangladesh was Pathankanda and that at the time of the issue of the passport his current address was H:D:9.Hospital Quarter Sher-E-Banglanagar in Dhaka [court book, page 30]. This was inconsistent with the applicant’s claims that he lived in the Bihari camps and elsewhere in Bangladesh, claims which were made in support of, and critical to, his claim to be a Bihari.
In addition, the RRT found that the applicant’s claims were vague, generalised and lacking specific detail. That was particularly so with regard to the evidence given by the applicant at the hearing of 30 April 2003. For example, the applicant gave no details of when, under what circumstances, how or where any of the incidents claimed had happened. Despite his claim to be the subject of false cases he provided no details of them other than that there were “arms” cases against him and that they destroyed his life. Additionally, according to the RRT, the applicant gave no details as to how he organised programs and protests for the organisation and appeared to be confused about the role and aims of the SPRC claiming that it was about repatriation to Pakistan and gaining citizenship in Bangladesh. The RRT was also unimpressed by the fact that the applicant claimed at the hearing to have started that party in 1994 when, according to the personal details provided by him, he would have been 17 years old at the time.
The RRT did not consider the applicant to be a reliable or credible witness and found that he had fabricated his claims by interposing his personal details into general accounts of what he perceived as information about the situation of Biharis in Bangladesh.
Having rejected all of the applicant’s claims the RRT concluded that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention and accordingly that he did not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”).
[1] This is the date of the receipt stamp on the application in the court book [court book, page 41] although the RRT in its decision refers to 30 April 2001 being the date of the application
The application
The applicant relies upon an amended application filed on 19 November 2004. That application raises a single ground, namely that the RRT denied the applicant procedural fairness. The particulars are that the applicant produced documents to the RRT, referred to at paragraph 22 of the RRT decision at page 69 of the court book. The applicant claims that the RRT did not raise with him doubt about the authenticity of the documents. At paragraph 51 of the RRT decision (court book, page76) the RRT rejected the documents as fraudulent. The application joined the RRT as the second respondent, which the Minister did not object to. For the reasons which appear at paragraph 18 below I do not think that that was necessary.
The evidence
I received the court book as evidence. I also received the affidavit of the applicant filed on 17 February 2005 annexing the transcript of the hearing before the RRT.
Submissions
Mr Young, for the applicant, produced an outline of submissions that was filed in my chambers on 24 February 2005. He augmented those with oral submissions. Mr Young notes that the applicant submitted two documents to the RRT by letter dated 8 March 2003 which appear at pages 49-51 of the court book. The documents are a certification from the President of the Stranded Pakistanis General Repatriation Committee (SPGRC) and an identity card issued by the SPGRC on
10 July 2002. At paragraphs 39 and 40 of its decision[2] the RRT referred to prevalence of document fraud in Bangladesh. At paragraph 51 of the decision[3] the RRT found that the documents produced by the applicant were of the “nature of fraudulent documents produced by Bangladeshi asylum seekers”. Mr Young submits that the rejections as fraudulent of the documents submitted by the applicant was critical to the rejection of his claims.
[2] court book, page 73
[3] court book, page 76
Mr Young notes that on page 26 of the transcript the applicant was asked about his ID card. He submits that none of the questions put to him placed him on notice that the RRT considered that the ID card he had submitted was not genuine. Reference to the questions is made by the RRT at paragraph 37 of its decision[4]. Mr Young submits that the questions put did not provide a basis for rejecting the documents submitted as fraudulent.
[4] court book, page 72
Mr Young submits that while the documents in issue were referred to in the transcript on page 15, there was no suggestion made that the documents were fraudulent.
Mr Young submits that the general law rules of procedural fairness require the RRT to raise with the applicant any doubts about the documents submitted by him before rejecting them as fraudulent[5]. Mr Young further submits that in WACO v Minister for Immigration [2003] FCAFC 171 the Full Federal Court stated that the RRT was under an obligation to raise plainly and unambiguously the critical issues on which his or her application may depend so that he or she may have the opportunity of dealing with them. To similar effect is the decision in WAEJ v Minister for Immigration [2003] FCAFC 188.
[5] WAGU v Minister for Immigration [2003] FCA 912, per French J at [34]; NAJO v Minister for Immigration [2004] FCA 356
Mr Young submits that the RRT erred in making findings at paragraph 51 of its decision[6] to the effect that the documents produced which tended to prove that the applicant was a Bihari were fraudulent. The RRT had not raised with the applicant any doubt about the authenticity of the documents. This is said to be a denial of procedural fairness establishing jurisdictional error.
[6] court book, page 76
Finally, Mr Young submits that at paragraph 52 of its decision[7] the RRT further stated that the applicant had fabricated his claims by interposing his personal details into accounts of the situation of Biharis in Bangladesh. He submits, however, that this was a finding based on credibility in relation to which the conclusion relating to the production of fraudulent documents was critical.
[7] court book, page 76
Mr Beech-Jones appeared for the Minister at the trial of this matter on 3 March 2005 and made written and oral submissions. He submits as follows:
The only ground of review now raised by the applicant is an assertion that he was denied procedural fairness by the RRT’s alleged failure to raise with him during the hearing before it doubts about the authenticity of documents submitted on his behalf at court book, pages 50 to 51.
In his protection visa application, the applicant claimed that from January 1999 to September 2000 he lived in ‘Geneva Camp Mohammadpur, Dhaka’ (court book, page 17.2). The passport which accompanied the application was issued in December 2000 (court book, page 28). It listed his address as the village of ‘Pathankanda’ and in the area ‘HD 9 Hospital Qtr Shere–Bnaglanagar’ (court book, page 30). (The applicant arrived in Australia on 22 December 2000 (court book, page 31)).
On 8 March 2003, the applicant’s advisor lodged with the RRT a document dated 10 July 2002 from the President of the SPGRC of Bangladesh (court book, page 50) and an identity card from the same organisation also dated 10 July 2002 (court book, page 51). Both referred to his address as ‘East Feroz Shah Colony Chittagong’.
During the hearing held on 30 April 2003, the RRT first raised with the Applicant the discrepancy between the address provided in the protection visa application and the passport (transcript, “TR”, at page 6). He denied that the address in the passport was the correct one (TR 6.7) and asserted that his uncle had purchased it for him (TR 7). The RRT asked him why he should be believed as opposed to a passport ‘legally and validly issued’ (TR 7.10).
The applicant stated that he had lived in Chittagong (TR pp 12 to 13). The following exchange occurred (TR 15):
Mr Gibson: Now prior to two documents being produced to the Refugee Review Tribunal in March of 2003 there’s not one mention in there of your …. that you in fact lived in Chittagong, Mr [applicant]. Why is that?
Applicant: Because actually we’re moving every times. Like a few months there, a few months there.
Mr Gibson: In all the other documents it’s either said or it’s inferred that you lived in the Geneva camp in Mohammadpur in Dacca. Why is all of a sudden that you’re now claiming to have lived in Chittagong? Is it because of the documents that were produced?”(emphasis added)
Towards the conclusion of the hearing the RRT asked the applicant:
Mr Gibson: Do you have any original documents about any of this, Mr [applicant], do you have documents?
Applicant: Yes.
Mr Gibson: You produced a copy of a letter and a purported ID card.
Applicant: Yes and the ID card also in letter”?
Mr Gibson: what else have you got? (TR 25.10 to 26.3) (emphasis added)
The RRT then noted that the ID card was issued in July 2002 after the applicant’s departure. The applicant confirmed that he had sent for it (TR 26.4).
It is submitted the following emerges from these exchanges. First, the RRT placed the applicant on notice of its concerns about the discrepancies between the addresses in the various documents. Second, the RRT indicated at least an initial view as to the veracity of the passport. Third, the RRT raised with the applicant the fact that his evidence about living in Chittagong only emerged after he provided the letter and the ID card. Fourth, the RRT queried with him whether he had any original documents to support his case as opposed to the letter and the ID card. Fifth, it also raised with the applicant the timing of the production of those documents.
Given these matters, is submitted that it was obvious that the RRT put the applicant on notice that not only were the facts set out in the letter and the ID card not matters it was inclined to accept, but it also had severe doubts as to their authenticity because:
a)they were inconsistent with what he had been stating prior to their production (in his passport and protection visa application);
b)they were copies; and
c)they were produced so late.
If there is any doubt about this it is confirmed by the RRT’s use of the word ‘purported’ in the exchange set out in paragraph six above. It follows that there was no breach of the rules of natural justice: Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57, 98 (per McHugh J); Kioa v West (1985) 159 CLR 550 at 633, per Deane J.
Reasoning
The outcome in this case is governed by the decisions of the Full Federal Court in WACO and WAEJ which are relied upon by Mr Young. Both are binding upon me. To those, I would add the decision of French J in WAJR v Minister for Immigration [2004] FCA 106 at [51] – [56]. In that case His Honour said:
51.As to the first question, there have been two recent decisions of the Full Court of the Federal Court in which issues of procedural fairness involving Tribunal findings about tendered documents arose. They are, WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188.
52 In WACO an Iranian national claimed to have a well-founded fear of persecution if returned to Iran because of his involvement with a reformist cleric, Shirazi. After the hearing before the Tribunal the applicant’s advisers had provided translated copies of two letters which, if genuine, corroborated the claim of involvement with Shirazi. One purported to be a letter from Shirazi himself to the applicant’s father thanking him for raising a son who sacrificed himself to preserve the true meaning of the Koran. The other was from a third party testifying to his relationship with Shirazi. The Tribunal found the applicant not to be a credible witness. It was not prepared to accept either of the letters tendered to it as genuine. It found that they had been prepared in order to bolster the applicant’s claims. At no time had the Tribunal given any indication to the applicant that it doubted their genuineness, nor did it invite him to comment on that issue.
53 The Full Court held that the letters were ‘central to the [applicant’s] claim in so far as they were tendered as evidence of his relationship with the Ayatollah Shirazi’ – at [39]. Their Honours held that the question whether the letters were genuine did not directly depend upon the evidence of the applicant. A finding that they were forgeries could turn upon the applicant’s credit in so far as it was a finding that the letters had been concocted to advance the applicant’s case. If this were so, fairness would require that before a finding of forgery were made the person so accused should be given the opportunity of answering it. Their Honours said:
‘A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations.’
Where the finding of fact did not turn upon the credibility of the applicant and there was nothing on the face of the documents themselves to alert the decision-maker that they were forgeries, it was likewise inherently unfair that the decision-maker conclude that they were not genuine without affording the person affected by that conclusion the opportunity of dealing with it. Their Honours said at [55]:
‘Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the [applicant] to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary.’
Their Honours held that the applicant had succeeded in showing that the purported decision of the Tribunal was affected by jurisdictional error in that it had not afforded natural justice to the applicant by failing to give him the opportunity to answer the suggestion that the letters tendered by him after the hearing were not genuine.
54 WAEJ also concerned an Iranian national. He claimed to have been a member of a branch of the Marz-e-Porgohar, also known as the Movement for Freedom, and that the group had been involved in student demonstrations in July 1999. His job in the group had been to distribute literature. He claimed to have been arrested and detained for interrogation by plain clothes officers of the security organisation, Ettela ‘at. Although subsequently released on bail on reporting conditions he was to be summoned to appear in court. He fled Iran allegedly to avoid that event.
55 One of the matters complained of in the Full Court 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. This document was an email purportedly from a Mr Farahanipour as Executive Director of Marz-e-Porgohar, forwarded at the request of parties assisting the appellant. The email stated that following the student uprising of 1999 many political activists such as the appellant and the author of the email were imprisoned and even after being released had been under constant surveillance and threat of government agents. The Tribunal made the comment that after having regard to the unsatisfactory nature of the appellant’s evidence and the ‘timing of the document’ it was not satisfied as to its genuineness. The Full Court said (at [52]):
‘On its face the foregoing was a statement by the RRT 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.’
Their Honours went on to say that if in truth the RRT did not believe that the document was authentic it should have advised the appellant and his solicitor accordingly and allowed the appellant, through his solicitor, to make any inquiries that were necessary to enable the appellant to produce further material to the Tribunal or to satisfy the Tribunal in respect of the document.
56 It may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. But where as here, there is a clear implication in the Tribunal’s reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment. I took a similar approach in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912.
WAJR is also binding upon me as a decision on appeal from this Court.
The presiding member made the following relevant findings at paragraphs 49-52 of their RRT decision[8]:
49.I am unable to accept that the applicant is a Bihari as he claims, that he lived in the Geneva or Chittagong camps, or that he was involved in Bihari protests and political activism. In this regard, I accept the evidence of the applicant’s passport, which indicates that the applicant is a Bangladeshi national, that he lived elsewhere other than in the Bihari Mohammedpur or Chittagong camps, but in Dhaka, and that he was a student until leaving Bangladesh in December 2000.
50. The applicant’s evidence in relation to his claims was so vague, generalised and lacking in specific detail, that I am unable to establish the facts of the applicant’s case. This is especially so with regard to the evidence given by the applicant at the hearing of 30 April 2003. He did not provide any details of when, under what circumstances, how or where any of the incidents he claimed happened. The applicant claimed not to have been convicted of any crime or offence or to be under investigation for any crime or offence, but also claimed that he was the subject of false cases against him. Yet the applicant provided no detail of these “false cases” other than to claim that there were “arms” cases against him and that they destroyed his life. He provided no details as to how he organised programs and protests for the organisation he claimed to have belonged to. He was confused about the role and aims of the SPGRC, claiming that it was about both repatriation to Pakistan and gaining citizenship in Bangladesh. He claimed at one stage to have started the party in 1994. He would have bee 17 years old at that time.
51.Initially, the applicant claimed that he had lived in the Mohammedpur Geneva camp from at least 1990 until leaving Bangladesh in 2000. There had been no mention of ever having lived in Chittagong prior to the hearing. At the hearing, the applicant then claimed to have gone to school in Chittagong for “the past 12 years”, and that he lived in both places, doing political activity in Mohammedpur and retreating to Chittagong for security. I am of the view that these claims were made as a consequence of the documents that he produced in support of his Bihari claims in March 2003. I note that the documents are dated 10 July 2002, after the applicant arrived in Australia, and are in general and vague terms. I also note the independent information above concerning the nature of fraudulent documents produced by Bangladeshi asylum seekers. I am of the view that the documents produced by the applicant are of that nature.
52.In light of this evidence, I do not consider that the applicant was a reliable or credible witness. I am of the view that the applicant has merely fabricated his claims by interposing his personal details into general accounts of what he perceives as information about the situation of Biharis in Bangladesh. The lack of credibility of the applicant’s evidence leads me to conclude that I am unable to be satisfied that the applicant had faced Convention related persecution in Bangladesh or that he faces a real chance of Convention related persecution in the foreseeable future if he returns to Bangladesh.
[8] court book, pages 75-76
It is clear from the above extract from the RRT decision that the presiding member had credibility concerns about the applicant’s claims, apart from his concerns about the two documents in issue. However, the presiding member, while considering that the applicant’s evidence in support of his claims was “vague, generalised and lacking in specific detail” was simply unable to establish the facts of the applicant’s case from it. But for the documents tendered by the applicant, it was probably open to the presiding member to find that he was not satisfied, on the available evidence, that the applicant had a well-founded fear of persecution as a Bihari in Bangladesh. The problem for the presiding member was that the two documents produced by him provided strong corroborative evidence of his claims on their face. At paragraph 51 of the reasons, the presiding member stated that claims made by the applicant at the hearing as to him residing at Chittagong were made in order to bolster his claims “as a consequence of the documents he produced in support of his Bihari claims in March 2003”. The presiding member then had regard to country information about document fraud in Bangladesh in order to determine that the two documents produced by the applicant were fraudulent. The critical sentence is the first sentence in paragraph 52 of the decision:
In light of this evidence, I do not consider that the applicant was a reliable or credible witness.
The sentence immediately follows the finding that the two documents in issue were fraudulent. In my view, the evidence to which the presiding member was referring was the documents. The documents were critical to the following finding by him that the applicant had fabricated his claims. This is consistent with the presiding member’s earlier finding that, apart from the documents, he was unable to form a clear view about the applicant’s claims. This is not a case where the credibility of the applicant was destroyed independently of the documents in issue: NAJO v Minister for Immigration [2004] FCA 356 at [30]. In the circumstances, procedural fairness required that the presiding member give the applicant the opportunity to respond to his concern that the critical documents were fraudulent.
I find that the presiding member did not give the applicant that opportunity. The portion of the transcript relied upon by Mr Beech-Jones does not assist the Minister, notwithstanding the heroic attempts of Mr Beech-Jones to persuade me that it did. In that discussion, the presiding member was merely alerting the applicant to his concern about the inconsistency in the evidence as to his place of residence in Bangladesh. At its highest, this discussion would have alerted the applicant to the fact that the presiding member appeared to prefer the evidence on his passport to anything else. The applicant would have had to have been a mind reader to discern from that discussion that the presiding member regarded the two documents supporting his claim to be a Bihari to be fraudulent. Nothing else in the transcript points to any disclosure by the presiding member of his concern that the two documents were fraudulent.
The applicant should receive relief in the form of constitutional writs of mandamus and certiorari directed to the RRT. The Court is, in my view, able to direct constitutional writs to the RRT, whether or not it is a party to these proceedings. The Migration Act confers on this Court and the Federal Court jurisdiction to issue constitutional writs and stipulates that the only respondent is to be the Minister. The apparent parliamentary intention was that there would only be one respondent (the Minister) to any judicial review proceedings, whether or not the decision under review was found to be a privative clause decision. That intention has not presently been achieved but may in the future be achieved. The jurisdiction would be unworkable if the Court could not direct appropriate relief against decision makers other than the Minister. I take this to be a statutory authorisation to direct constitutional writs to the RRT as a non party. In my view, the appropriate relief is an order for the issue of the appropriate writs. There is no need for the writs to be actually issued unless the Minister or the RRT requires them.
As to costs, costs should follow the event. I take into account that the applicant is subject to an earlier interlocutory order in these proceedings to pay the respondent’s costs and disbursements thrown away by reason of the adjournment of the hearing of this matter on 11 November 2004. That order can be set off against the costs order in favour of the applicant that I shall make now. As discussed with counsel at the hearing on 3 March 2005, this case properly calls for a costs order in the range of $4,000-$5,000. I will order costs in favour of the applicant fixed in the sum of $4,000.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 March 2004
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