SZAGI v Minister for Immigration

[2003] FMCA 484

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAGI & ORS v MINISTER FOR IMMIGRATION [2003] FMCA 484

MIGRATION – Review of decision of RRT – where certain documents were alleged to be fabricated by DEU – where Tribunal gave applicant notice thereof – where other documents were submitted – where adverse report was received upon 3 of them – where no notice under s.424A was given – where one of the documents and its fabrication was referred to at Tribunal hearing – where complaints from applicant’s previous migration consultant were received by Tribunal – where no notice was given to applicant – whether failure to give notice in respect of two documents amounted to jurisdictional error for failure to provide a fair hearing – whether other documents formed part of Tribunal’s reasons for decision – whether Tribunal misled applicant in indicating that documents that were not referred to had not been found to be fraudulent – whether court should exercise its discretion to review under s.39B Judiciary Act.

Migration Act 1958 (Cth) ss 422B, 424A, 441A
Judiciary Act 1903 (Cth) s 39B

Applicant NAHV of 2002 v Minister for Immigration [2003] FCAFC 102
Paul v Minister for Immigration [2001] 113 FCR 396
WAEJ v Minister for Immigration [2003] FCAFC 188
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
VEAJ of 2002 v Minister for Immigration [2003] FCA 678
Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919
Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 86
Re Refugee Review Tribunal; Ex parte Aala (2002) 204 CLR 82
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
VEAL of 2002 v Minister for Immigration [2003] FCA 437

Applicant: SZAGI

Second Applicant: SZAGJ

Third Applicant: SZAGK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 348 of 2003

Delivered on: 5 November 2003

Delivered at: Sydney

Hearing date: 22 October 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr D Jordan

Solicitors for the Applicant: Ajuria & Associates

Counsel for the Respondent: Ms M Allars

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Court declares the decision of the Refugee Review Tribunal dated 12 February 2003  to be void and of no effect.

2. The Court orders:

   (i)That the matter be referred back to Refugee Review Tribunal differently constituted to be determined according to law.

   (ii)The respondent pay the applicant’s costs assessed in the sum of $4,250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 348 of 2003

SZAGI

Applicant

SZAGJ

Second Applicant

SZAGK

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicants in these proceedings are a husband, wife and child of Russian nationality.  At the commencement of the proceedings I confirmed an order which I had made in chambers that the mother  SZAGJ should be made the litigation guardian of the child SZAGK.  The family arrived in Australia on 3 May 2001.  On 1 June 2001 they lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs.  On 25 June 2002 a delegate of the Minister refused to grant a protection visa and on 10 July 2002 the applicants applied for review of that decision from the Refugee Review Tribunal. 

2. On 22 October 2002 the Refugee Review Tribunal wrote to the applicant a letter pursuant to its obligations under section 424(A) of the Migration Act 1958 (Cth) (the “Act”). The letter is in the following form:

   “SZAGI
   206/11 M Road

   DW  2099

   22 October 2002

   Dear SZAGI

   Your Application for Review – SZAGI; SZAGJ; SZAGK
   Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.

   The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.

   The information is as follows:

   The following documents submitted by you have been found to be fraudulent by DIMIA (Document Examination Unit).

   ·St Petersburg Administrative Registration Order No. …

   ·St Petersburg Kolinisky District Military Registration and Enlistment Office

   ·

   Russian Federation Ministry of Justice, Forensic Report

   
   

   No. …

   ·Certificate from Police Major Prokharenko, dated …

   ·Newspaper report in Petrovsky Kurier No …

   This information is relevant because if fraudulent, those submissions could adversely affect the claims which are supported by them.

   You are invited to comment on this information.  Your comments are to be in writing and in English.  They are to be received at the Tribunal by 14 November 2002.  IF YOU DO NOT GIVE COMMENTS BY 14 November 2002 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.

   Yours sincerely

   For Deputy Registrar
   Sydney Registry
   Sent to:   A & E Immigration Service
                   43 Watkins Crescent

   Currans Hill  NSW  2567”

3. On 2 November 2002 the applicant responded to the Tribunal enclosing a document received from a detective agency in Russia regarding the documentation. The letter to the Tribunal is found at [393] and a translation of the Russian text is at [CB 396 - 398].

4. The Tribunal held a hearing into the applicant’s claims on 3 December 2002.  Shortly before the hearing the applicant changed his immigration adviser.  The new immigration adviser wrote to the Tribunal requesting an adjournment of the hearing.  That adjournment was refused.  Although the second immigration adviser claimed to have another matter being heard on the same day she did manage to attend the hearing of the applicant’s review and there was tendered to me an affidavit from her dated 9 October 2003 to which was annexed a transcript of these proceedings. 

5. On 16 January 2003 following the hearing and following the receipt of additional documentation the Tribunal came to its decision, which it handed down on 12 February 2003.  The Tribunal affirmed the original decision of the delegate.  The findings and reasons of the Tribunal commenced with the following two paragraphs:

   At [498]:

   “The applicant is an unreliable witness.  On his own admission, he made false and exaggerated claims and fabricated evidence to support them.  He maintained these claims to the eleventh hour.  It is to the credit of the applicant that he takes full responsibility for the fabrications he has submitted.  However, I note that at the hearing he said the fabrications were at the advice of his previous adviser who had advised him that his true claims were insufficient to gain him a protection visa.

   The applicant stated that henceforth he was resolved to deal truthfully with the Tribunal.  He was informed that supporting material (document F), re-submitted in his revised claims, had been found to be fraudulent by DEU.  On his own admission, the applicant has dealt untruthfully with the Tribunal.  On the evidence I find that the applicant is not a truthful person and one who is prepared to compromise the truth at any point to achieve the immigration outcome he seeks.”

6. The findings and reasons of the Tribunal proceed to deal with the claims made by the applicant.  At [CB 500] there is found the following paragraph:

   “The applicant claims that he was called up for military service but refused to comply because of his religious and political beliefs and because he feared the conditions in the army.  The applicant submitted a call up order dated 14 March 2000.  At his revised application (para 26) he claims to have received his call notice in February 2000 and another on 22 May 2000.  Two call-up papers submitted by the applicant were found to be fraudulent.  On the evidence I do not accept that the applicant was called up for military service as he claims.  The applicant claims that he was subjected to persecutory harm on a number of instances because of his refusal to comply with his call up.  Evidence to support his claim of harm was found to be fraudulent.  As I have not accepted that he was called up for military service, it follows that I do not accept that he was harmed because of his refusal to render military service.  Furthermore, I note that the applicant’s narration of harm involves a number of interviews with the police.  I put to the applicant that I found it implausible that he should have been physically harmed by the police and then released.  The information before me clearly indicates that those who refuse to comply with their call-up notices are sought by the police, detained and forcibly taken to the military authorities.  (Human Rights Watch 2002, Conscription Through Detention in Russia’s Armed Forces, November NY).  On the evidence I find that the applicant’s claims of harm for refusal to comply with his call up notice - a claim I have rejected - are a fabrication.”

7. It can be gathered from these extracts of the findings and reasons of the Tribunal that by the time the applicant came to his interview he had decided to confess that a number of the documents which he had originally submitted and which he argued through the medium of the private detective’s report were genuine, were in fact fabricated.  The existence of fabricated documents is clearly a very important constituent in the Tribunal’s decision that the applicant lacked credibility and that this claims could not be accepted.

8. It will be seen from the Tribunal’s decision [CB 489] that on 30 October 2002 the Tribunal requested the documents examination unit of the department to examine nine documents submitted by the applicant which the DEU had not been able to assess when these were sent to it by the delegate.  The report was received by the Tribunal on 29 November 2002 and, according to the Tribunal, commented “adversely” on the following documents [CB 489]:

   i)The reference dated 15 December 2000 from the pastor of the applicant’s church in St Petersburg was fraudulent [CB 199 – 200].

   ii)The extract from the applicant’s case history referring to hospital treatment in June 2000 should be treated with caution [CB 206-209].

   iii)The medical certificates stating that the applicant had sought treatment for depression in September 2000 was fraudulent [CB 219-220]. 

9. The report of the DEU was not contained within the Court Book.  The Tribunal made specific reference to these adverse conclusions at [CB 489].  However, it did not refer to the adverse report at the hearing nor did it refer to it when it asked the applicant’s adviser to submit a schedule of documents which had been submitted to the Tribunal indicating which the applicant accepted were fraudulent  [CB 489].  On  4 December 2002 the adviser submitted a schedule listing 23 documents and referring to six of these as fraudulent, none of them being the three documents previously discussed.  The applicant’s adviser made submissions to the Tribunal in writing on 2, 4, 9 and 13 December.  All these submissions were taken into account by the Tribunal.  The Tribunal discussed with the applicant various documents which the DEU had found to be fraudulent.  At [CB 493] the Tribunal indicates that it discussed one of the three documents referred to in the report, namely the medical certificate of 26 September 2000 but it did not discuss the other two documents.  The applicant maintained that medical report was a true document. 

10. The applicant argues that the Tribunal was obliged in accordance with subsections 424A(1) and 441A of the Act to have issued a notice giving particulars of the November report of the DEU because it is clear from the references to the submission of fraudulent claims at [CB 500] and at the first and last paragraphs on [CB 501] that the applicant’s record of submitting fraudulent documentation was a significant matter that formed part of the reason for the Tribunal’s decision.

11. The applicant submits that the Tribunal’s failure to give accurate particulars of the November report of the DEU was exacerbated by an exchange between the Tribunal and the applicant’s adviser towards the end of the hearing.  The adviser asks the Tribunal if the medical certificate referring to hospital treatment of the applicant in September 2000 had also been sent to the DEU (T 48.8 – 49.3). The Tribunal confirmed that this medical certificate had been sent to the DEU and went on to say [T 49.3):

    “As I have not brought it to your attention you must infer that there’s no evidence before me that it is fraudulent.”

12. The applicant submits that the effect of this statement by the Tribunal was misleading.  It indicated that, in the absence of specific reference to a document by the Tribunal, it was safe to proceed on the assumption that there was no evidence that the document was fraudulent. Contrary to this alleged representation:

    i)The Tribunal failed to alert the applicant of the finding by the DEU that the reference dated 15 December 2000 from the pastor of the applicant’s church in St Petersburg was fraudulent; and

    ii)The Tribunal failed to disclose the finding by the DEU that the extract from the applicant’s case history referring to hospital treatment in June 2000 should be “treated with caution”.

13. The applicant submits:

    “Importantly the applicant was denied an opportunity to explore other conclusions in the November report of the DEU which may have been favourable to him.  According to the Tribunal nine documents were sent for analysis but only three resulted in adverse findings by the DEU.  If the Tribunal had given accurate particulars of the November report by the DEU, the applicant may have been able to make submissions in relation to the remaining six documents which were not the subject of adverse findings.  Instead the applicant was denied the opportunity to make submissions of this nature and acted on the misunderstanding that, in the absence of specific reference to a document by the Tribunal, there was no evidence that the document was fraudulent.  It was in this context that the applicant did not make further submissions in support of the assertion that the reference dated 15 December 2000 from the pastor and the extract from the applicant’s case history referring to hospital treatment were genuine.”

14. This application for review by the Tribunal was lodged after section 422B of the Act came into effect. Consequently Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the Tribunal’s obligations in relation to procedural fairness. Those obligations are imposed by section 424A which is in the following form:

    Applicant must be given certain information

    424A

    (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.

15. I interpose here that the applicant makes an additional submission concerning the Tribunal’s failure to comply with section 424A in relation to certain complaints made by the applicant’s former migration agent. It is common ground that these complaints, although referred to by the Tribunal at [CB 491] were not discussed with the applicant and they do not form any part of the Tribunal’s reasons for decision. I am prepared to imply from the nature of the documents [CB 445 – 450] that the documents (or the information contained therein) did not constitute information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review. I say this because I am of the view that an experienced Tribunal would be aware of the real evidentiary value of claims of this type and was unlikely to have had regard to them when it had in its possession far better evidence concerning the genuineness of documents from the DEU. I appreciate that in taking this view I may be trespassing on ground covered by Merkel J in VEAL of 2002 v Minister for Immigration [2003] FCA 437 where at [16-29] His Honour discusses the situation where a “dob in letter” of a type similar to the ones provided by the applicant’s former agent had been received but avowably not utilised by the Tribunal. Merkel J after considering the authorities took the view that:

    “Thus, the disavowal of reliance on the letter is not sufficient to justify the failure of the Tribunal to provide any of the information contained in the letter to the applicants.  It would follow that, in the usual course, procedural fairness would require that the gravamen of the prejudicial allegations contained in the letter be brought to the applicants’ attention.”

16. The decision was made in relation to a pre July 2002 application so that the general law relating to procedural fairness applied.  The decision before me does not appear to have that advantage.  As His Honour’s decision was made under the general law I believe it can be distinguished.

17. The operation of section 424A(1) of the Act has been considered recently in three cases although none of them involved decisions made in respect of applications made subsequent to the insertion into the Act of section 422(B) which is in the following form:

    422B  Exhaustive statement of natural justice hearing rule

    (1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

    (2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

18. The first case is Applicant NAHV of 2002 v Minister for Immigration [2003] FCAFC 102. The Full Bench in that case followed the decision of Emmet in Paul v Minister for Immigration [2001] 113 FCR 396 and came to the conclusion that a court could exercise its discretion not to set aside a decision where there was a breach of section 424A if it found that there was no substantive failure to comply with what it described as “the surrogate for natural justice” [22]. When, at [23], the Full Court came to the view that it could not be concluded that invalidity of the Tribunal’s decision was the necessary consequence of any failure to comply with subsection 424A(2), irrespective of the absence of any unfairness whether of a substantive or procedural kind, it went on to say:

    “Quite different considerations might attend the analysis had there been a breach of subsection 424A(1).”

19. In WAEJ v Minister for Immigration [2003] FCAFC 188 the court said at [36]:

    “Section 424A of the Act in the form the legislation took prior to July 2002 (which includes this matter), did not represent a complete statement of the RRT’s obligation to afford procedural fairness to an applicant for a protection visa.” (Compare section 422B of the Act which was introduced with effect from 3 July 2002.)

    The Full Bench in WAEJ did not agree that the decision in WAAJ mandated a conclusion that section 424A of the Act represented a complete statement of the RRT’s obligations to afford procedural fairness [36]. In support of that conclusion the Full Bench in WAEJ cited Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.

1. In WEAJ the breach of section 424A(1) alleged was that the Tribunal did not put to the applicant a Reuters’ report upon which it relied to reach a conclusion that the applicant had fabricated claims that he had been taken into custody in September 1999. The court held that this constituted a breach of section 424A(1). However, in addition there was a claim relating to a document in respect of which the Tribunal had indicated it was not satisfied as to its genuineness. At [52] the Court said:

   “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.  (cf: Re Minister for Immigration & Multicultural Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [12], McHugh, Gummow JJ at [49]).”

2. At [54] the Full Bench said:

   “If, in truth, the RRT did not believe the document was authentic, the RRT should have advised the appellant and his solicitor accordingly and allow the appellant, through his solicitor, to make any inquiries that were necessary to enable the appellant to produce further material to the RRT to satisfy the RRT in respect of the document.”

3. The third case in which section 424A(1) was considered was VEAJ of 2002 v Minister for Immigration [2003] FCA 678. At [33] Gray J noted the importance of the Tribunal’s obligation under the section not only to provide the material which was likely to be information that the Tribunal considers would be the reason for affirming the decision but also the other obligations to reduce the material to particulars and direct the applicant’s attention as to why the information is relevant to the review. At [46] His Honour says:

   “The question then arises whether this failure to comply with a statutory obligation amounted to a jurisdictional error.  If 424A can be regarded as a statutory expression of the content of the rules of procedural fairness in the particular circumstances, as Merkel J (with whom the other members of the Court expressed agreement) said in Al Shamry (Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 there is little difficulty. See also Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140.”

4. The court then goes on to consider the discretionary nature of its jurisdiction noting at [48]:

   “Not all cases of failure to comply with section 424A will be cases in which an applicant is deserving the grant of relief compelling the Tribunal to deal with the case all over again. There will be cases where the failure to comply with section 424A is technical but, as a matter of substance, there has been no disadvantage to the applicant. … A further example might arise in a situation such as occurred in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 86 in which the relevant applicant’s position could not have been improved even if the Tribunal had performed its obligation. Such cases are best dealt with by recognising that the relief the court can grant pursuant to section 39B of the Judiciary Act is discretionary. The discretion not to grant such relief can be exercised against an undeserving applicant.”

5. I am satisfied that the failure by this Tribunal to provide this applicant with details of the DEU investigation cannot be fitted within the type of situation envisaged by S20/2002.  In that case the Tribunal disregarded evidence that was intended to assist the applicant.  The case here is different.  The Tribunal had itself obtained information from its own sources which discredited the applicant and which corroborated other evidence that it had previously obtained and to which the applicant had made an admission.  The very fact that the applicant had made the admissions in respect of some of the previously investigated documents makes it more important that the Tribunal should have told him about the subsequent reports.  This was so that he did not lose the value of his previous confession. 

6. In addition I am concerned that the conduct of the Tribunal was not just a failure to comply with section 424A(1) but also a misleading of the applicant by the use of words which could have been (and were) read as saying that if documents were not directly discussed by the Tribunal then the Tribunal had no evidence that they were fabrications. The importance for considerations of relief of the Tribunal’s actions in misleading an applicant has been considered by the High Court in cases such as Re Refugee Review Tribunal; ex parte Aala (2002) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 [2003] HCA 60. The High Court has been prepared to find that a jurisdictional error has occurred where the actions of the Tribunal have misled an applicant.

7. In this particular case I would also so find.  I would add that if I was wrong concerning the Tribunal’s failure to put the information from his former immigration adviser to the applicant I think this would add weight to this view.  The question is whether I should exercise my discretion in favour of the applicant to grant review.  The applicant’s current immigration adviser has put on an affidavit whereat at paragraph 18 she says:

   “If I had known about the adverse findings of the DEU in relation to these documents:

   (i)In relation to the church reference I would have asked the Tribunal to contact the author of the letter, Father Yuriy, Church Pastor, at the contact details provided on the letter, to verify the document.

   (ii)In relation to each of the documents in question, I would have asked for the reasons for the DEU’s findings.  I would then have had the opportunity to obtain instructions from the Applicant, and make further submissions in relation to the DEU’s reasons. 

   19I would also have requested access to the DEU’s report on the other six documents which were examined at the Tribunal’s requested as it may have provided a basis for further submissions in relation to the authenticity of the documents provided by my client.”

8. I am satisfied that the applicant has met the necessary test of indicating what disadvantage he has suffered by the jurisdictional error identified. I am not satisfied that in these circumstances it could be said that his situation would not have changed if he had been given the notice to which he was entitled under the section. Section 424A is now the sole indicator of an applicant’s rights to procedural fairness in respect of proceedings before the Tribunal. The requirements of that section therefore become more important as, I believe, the various judgments which I have cited from the Federal Court would tend to indicate.

9. I declare pursuant to section 39B of the Judiciary Act 1903 (Cth) that the decision of the Refugee Review Tribunal in these proceedings to be void and of no effect. I will order that the matter be referred to the Tribunal differently constituted to be decided in accordance with law. I will order that the respondent pay the applicant’s costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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

Associate: 

Date: