SZAPV v Minister for Immigration
[2004] FMCA 302
•25 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAPV v MINISTER FOR IMMIGRATION | [2004] FMCA 302 |
| MIGRATION – Review of RRT decision – where applicant claimed to be a well-known political activist – where documents in support of applicant’s claim were provided to the Tribunal – where Tribunal found the applicant not to be a credible witness – where applicant’s migration agent provided statutory declaration to the Tribunal outlining steps taken by him to verify the documents were genuine – whether Tribunal fell into jurisdictional error in finding that the documents were fraudulent and that the applicant was not the person he claimed he was – whether Tribunal based its decision on a finding that the applicant was not the person he said he was – whether the Tribunal failed to put this to the applicant thereby denying him procedural fairness – whether applicant denied possibility of a successful outcome – where applicant had travelled to India prior to leaving home country for Australia – whether Tribunal’s finding that this indicated a lack of subjective fear tainted by its earlier findings as to credibility. |
MIMA v Yusuf (2001) 206 CLR 323
Kalala v MIMA (2001) 114 FCR 212
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Abebe v Commonwealth (1999) 197 CLR 510
Re MIMA; Ex parte ApplicantS20/2002 (2003) 198 ALR 59
WAIJ v MIMIA [2004] FCAFC 74
WAHP v MIMIA [2004] FCAFC 87
WACO v MIMIA [2003] FCAFC 171
WAGU v MIMIA [2003] FCA 912
Meadows & Anor v MIMA (1998) 54 ALD 654
Hussain v Minister [1999] FCA 288
S157/2002 v Commonwealth [2003] HCA 2
Stead v State Government Insurance Commission (1986) 161 CLR 141
NAAF v MIMIA [2003] FCAFC 52
Re RRT; Ex parte Aala (2000) 204 CLR 82
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Appellant S395/2002 v MIMA [2003] HCA 71
Suleiman v MIMA [2001] FCA 752
| Applicant: | SZAPV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 848 of 2003 |
| Delivered on: | 25 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 May 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Court declares that the decision of the Refugee Review Tribunal made on 31 March 2003 and handed down on 23 April 2003 is void and of no effect.
The application is referred back to the Tribunal for consideration and determination according to law.
Respondent to pay the applicant’s costs assessed in the sum of $4,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 848 of 2003
| SZAPV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australian on
3 March 2001. On 26 March 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 27 April 2001 a delegate of the Minister refused to grant a protection visa and on 8 May 2001 the applicant applied for review of that decision. The applicant was represented by a migration agent. On his behalf a considerable amount of material was provided to the Tribunal. The Tribunal held a hearing on 17 December 2002. Prior to that hearing a submission was prepared to which was attached a number of documents.
The hearing was adjourned so that the applicant’s agent could provide translations of certain Bengali documents and a statutory declaration regarding the authenticity of some of the documents. On 24 January 2003 certain further documents were lodged and another set of documents was lodged on 24 January 2003. The hearing continued on 28 January 2003. After the hearing concluded, on 6 February 2003 further documents were forwarded by the applicant’s agent. On
11 February 2003 a statutory declaration was forwarded by the applicant’s agent and on 17 February 2003 a further submission was received from him. The Tribunal held a final hearing on 26 February 2003.
On 31 March 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed down that decision on 23 April 2003. The applicant seeks review of that decision.
The applicant’s claim to have a well-founded fear of persecution for the Convention reason of political opinion arises out of his claim to have become the general secretary of the college committee Jatiya Chatra Samaj. In that position:
“I led many demonstrations on the street to obtain support for this movement and all major political parties led this movement including the Jatiya party. In 1995 I completed HSC from above mentioned college (Syed Abul Hossain College) and I was admitted into Govt Barhamgonj Degree College in my own area.
While I was at the above-mentioned college I opened a branch of the Jatiya Chatra Sumaj and I was elected as the convenor of the Chatra Sumaj of the above-mentioned college. I participated in the mass movement launched by all major political parties including the Jatiya party. Gradually I became one of the reputed student leaders within the region. …
… In December 1997 a fight broke out between two rival groups of the Awami league for their coterie interest. As a result six activists were murdered in the fight.
I was not involved in the fight as it was not within my party men. But a group of Awami men put my name as an accused in the case. This news was published in the national daily’s. I was arrested in connection with this case and remained in Madaripur jail for about five and a half months. … finally I obtained bail from District Judge court. This case is pending with a District Judge Court now. …
In 1998 I was elected as the general secretary of the Shibchar Thana Jatiya party. … Because of my ceaseless efforts the organisational capacity of the party increased to a great extent.
In 1999 I was elected as one of the executive members of the Madaripur district Jatiya party. …
On 5 January 2000 at 5pm while I was returning home after completing a procession aimed at gaining support for a general strike I was attacked by a group of Awami men led by Mr Akram Khan at Hospital Road near TNO office. I was severely beaten by them and was admitted to the local hospital and was treated there for a few days. I reported this incident to the nearest police station but the police did not take any action against the Awami activists. I also reported the incident to the district committee of the Jatiya party. A protest gathering was organised later condemning this incident.
The above mentioned incident made me even more renowned in the region as a strong-minded political personality. I also gained huge popularities among my followers and also those who used to support other parties except the Awami league. As a result I became one of the main targets of the Awami league. On
20 August 2000 when I was passing through the Arialkha Bridge at Shibchar, a group of Awami activists shot me. The distance was long; as such I was saved. After this incident I left home and stayed at Dhaka. A number of times Awami miscreant visited our house to find me and also threatened the members of my family.
While I was in Dhaka it was suggested by my friends and relatives to leave the country. Finally I contacted an agent and the agent provided me with a passport including an Australian visa. With this passport in a different name, I left the country as I was afraid to leave the country with my own name.” [CB 23-25]
The applicant goes by the surname ‘M’. He does, however, claim to be the son of Mr KF. At [CB 63] there is a declaration from KF that M is his son and that he was wrongly implicated in a case. At [CB 120] there is a document purportedly from the principle of Rajendra College confirming that M (son of KF) was admitted to the college in 1996-97 and completed two of three years in an honours course in the Department of Mathematics. The Tribunal’s reasons for decision commenced with a history of the applicant’s claims and then moved on to deal with matters that were discussed at each of the hearings.
First hearing — 17 December 2002
The applicant explained to the Tribunal that he had changed his name from F to M and that his High School Certificate refers to him as M. The Tribunal and the applicant discussed his qualifications and the apparent inconsistency between his original statement that he had attended Barhamgonj College from 1995 – 1999 when he had submitted documents that he went to Rajendra College. The applicant gave an explanation for this [CB 253]. He was questioned about the courses which he studied and gave certain responses which the Tribunal later criticised. At [CB 254] the Tribunal referred to discussions concerning the passport:
“I stated that the photograph in the false passport looked nothing like him and asked if he had any trouble getting through the airport in Bangladesh or into Australia on arrival. He stated that he had not as he had been instructed by the agent to wear a moustache and to do his hair in a particular way. I stated that there appeared to be a 20 year age difference between the true passport holder and himself. …”
Second hearing — 28 January 2003
On this occasion the agent advised the Tribunal that he had confirmed by phone the contents of the letter provided by the Principal of Rajendra College [CB 120]. He also showed the Tribunal the originals of certain documents found in the Court book as copies. The agent asked for further time to produce additional information and corroborating material from Bangladesh. There was then a discussion between the Tribunal and the applicant in which the Tribunal noted that the Awami league was presently out of power in Bangladesh and that the applicant’s problems had been with the Awami league and not the BNP.
“The applicant replied that both were his enemies. When one was in power it was his enemy. His party is small and his position is not tenable in Bangladesh due to these two bigger parties. In his locality both the opposition party leaders were harassing him to kill him. There was an attempt to kill him by the Awami league, but he fortunately escaped. If he were to return, the same people are there and his case is still running and he will be attacked by both the BNP and the Awami league.”
The applicant was asked if he had ever been the subject of mistreatment by the BNP and stated that he had been twice slapped by BNP members. He was asked if he had been ill-treated by the Awami league he stated that he was beaten by their supporters and spent 4 to 5 days in hospital and had been shot at by them. He also blamed them for having to spend 5 and a half months in prison as a result of the charges made against him [CB 256] – [CB 257].
At [CB 258] the Tribunal notes:
“The applicant indicated that he visited India on 2 August 2000 for 10-12 days to visit a friend. I asked if he had any difficulty travelling due to the court case and he replied that he had not, although he was attending court regularly. He stated that it was easy to obtain a visa.” (emphasis added)
The Tribunal questioned the applicant about document fraud in Bangladesh to which the applicant responded that he believed his documents were genuine and that he did not know anything about document fraud. The adviser then made several further submissions detailed at [CB 259] and finally submitted that the documents provided to the Tribunal were genuine and that he welcomed inquiries as to their genuineness.
On 6 February 2003 further documents were provided to the Tribunal and on 11 February 2003 a statutory declaration was made by the agent [CB 211]. The declaration states inter alia:
“[6] During the interview a number of issues were raised and particularly two matters made attention of the Honourable presiding member. First, whether the applicant studied at Rajendra College or not, and second issue regarding a particular case which is pending at Madaripur District Judge Court and case number is 8/178 (Schibchar PS)
[7] After first hearing I wrote a letter to the principle of Rajendra College and on 27 January I became confirmed by the telephone [Telephone number given] that the applicant studied in mathematics honours in the above college. Later he was unable to continue this studies due to a number of cases against him. The principal of the college also confirmed me the letter which was issued it, was signed by him.
[8] I was also informed that on 8 January 2003 by two respected members of the Madaripur District Bar, namely Mr Ahsanul Haque Khan and Mr Abdul Khaleque that the above mentioned cases pending in the District Court for trial [telephone number given]
[9] I also admit that a number of documents have been submitted by the applicant for this case, in the face they seem to me genuine.
[10] In the case which the applicant was implicated it was published in the daily papers in Bangladesh; they also appear to be genuine.
[11] I believe this case is solely and fully based on genuine documents and facts.”
At the hearing the applicant was questioned again about his attendance at college and some inconsistencies between documents submitted to the Tribunal in relation to an application for bail and exam dates given by the applicant. The Tribunal advised the applicant that he had concerns whether the applicant had been in jail and referred the applicant to independent country information that indicated that there were difficulties in checking whether Court documents were genuine because of the involvement of lower court officials in document fraud.
On 7 March 2003 the applicant’s adviser provided a further statutory declaration [CB 240]. This said inter alia:
“[5] I accompanied my client … on three occasions for this particular review.
[6] During the last interview the Tribunal raised a question about whether an applicant was in Madaripur jail. With due respect to this matter I telephoned to the authority of Madiripur jail on [telephone number given] to verify the document at 2.32pm on 6 March 2003. I spoke with an officer named Sayed Ali Sarif. He informed me that the reference given by jailer was signed by jailer and it is true that the applicant stayed in Madiripur jail during the said period.”
The Tribunal commences its findings and reasons at [CB 266] with the following important finding:
“I find that the applicant’s trip to India and subsequent return to Bangladesh in 2000 for 10-12 days is inconsistent with a person holding a subjective fear of persecution.”
Later on the same page the Tribunal states:
“I consider that in the present case the applicant has demonstrated that he is prepared to alter and embellish his evidence if he believes this may be to his advantage. Overall, I do not find the applicant to be a credible or reliable witness in relation to many of his claims. The oral evidence contradicted the written evidence. Further, his oral evidence was contradictory.”
The Tribunal then goes on to deal with the contradictions which it found. At [CB 268] it states:
“I find the applicant answers not to be politically aware and not consistent with a person of his claimed political background as expressed in his submissions and supporting documentation referred to above. I accept this independent evidence in relation to document fraud and find that the documents provided in this matter are fraudulent, or they relate to another person. This finding is supported by the passport on which the applicant travelled to Australia being issued to another person. In this regard I am not convinced the applicant is who he states he is.”
This matter is taken up again at [CB 270] where the Tribunal says:
“Implicit in my findings relating to the applicant’s study and related political activities is that I accept the independent evidence in relation to document fraud and find that the documents provided in this matter are fraudulent or they relate to another person which would be consonant with the adviser’s enquires. This finding is supported by the passport on which the applicant travelled to Australia being issued to another person.
For reasons given at [CB 270] the Tribunal did not accept that the applicant was in jail and states:
“In making this finding I have had regard to the documents concerning the false claims. Activities is (sic) that I accept the independent evidence in relation to document fraud and find that the documents provided in this matter are fraudulent, or they relate to another person which would be consistent with the adviser’s enquires. This finding is supported by the passport on which the applicant travelled to Australia being issued to another person.
Overall, these were important inconsistencies in the applicant’s evidence . As a result, I do not accept the applicant is a credible witness and reject his claims. I am not convinced the applicant is who he states he is. In this regard the applicant gave evidence of the lengths at which he went in order to fit the requirements of the bogus passport on which he travelled. However, when asked about his trip to India which was taken on 2 August 2000 only some 6 months before coming to Australia, the applicant stated in evidence that he had no trouble travelling and it was easy to obtain a visa.
As I am not satisfied that the applicant is who he states he is, the verification of documents concerning ‘M’ would not be productive. ”
When the case came before me the applicant was represented by Mr Zipser. Mr Zipser filed an amended application the grounds of which were a follows:
1.The applicant’s migration agent took steps to corroborate the applicant’s claims that he was enrolled at Rajendra College, had a case pending in the courts in Bangladesh, and spent six months in jail. The Tribunal fell into jurisdictional error in dealing with this evidence. In particular, the Tribunal fell into jurisdictional error in connection with the findings that:
a)The documents obtained from Bangladesh by the applicant’s migration agent and provided to the Tribunal were fraudulent; or
b)That the applicant was not who he stated he was.
Mr Zipser sought leave, which was granted, to call the migration agent who had provided an affidavit dated 29 April 2001. The purpose of this affidavit was to indicate that the Tribunal had never put to the applicant or suggested to him at any of the hearings that he was not, or might not be, who he stated he was. The agent goes on to say:
“If the Tribunal had raised with the applicant its concerns about his identity I would have taken steps to provide evidence to the tribunal to address its concern. … I would have arranged for the applicant’s father to be called as a witness before the Tribunal and give evidence by telephone from Bangladesh.”
Mr Haque was cross-examined by Mr Bromwich for the Minister. He agreed that he was aware that document fraud was a live issue both generally and with this particular Tribunal. He agreed that it had been open to him to have called the applicant’s father after the second hearing but responded that the Tribunal had not asked for such evidence. The Tribunal had asked for him to verify documents and he did that. He did that by making the enquires about which he deposed in his statutory declarations and also gave his general evidence from his experience that he believed the documents were genuine.
In response to a question from me the agent advised that he knew the applicant’s father. He said that he had been at school in that area. He knew that the person he would be talking to if a telephone call was made was the applicant’s father. I consider this to be an important piece of evidence because otherwise there would be little utility in telephoning Bangladesh for this type of corroboration.
The applicant argues that there are two issues to be considered in relation to this case. He describes the first as the ‘corroborative evidence’ issue and states that the Tribunal fell into jurisdictional error in the manner in which he dealt with the migration agent’s efforts to corroborate his claims that he was enrolled in Rajendra College, had a case pending in the Courts in Bangladesh and spent six months in jail. The second issue he describes as ‘the possibility of a different result issue’ where he argues that although the Tribunal found that the applicant did not have a subjective fear of persecution, if the court agrees that the Tribunal fell into jurisdictional error in dealing with the corroborative evidence, this finding would not be a basis for refusing relief.
The corroborative evidence issue
I have already described the steps taken by the migration agent to corroborate the applicant’s evidence in relation to his studies, the case against him and the time spent in prison. Mr Zipser argues that the findings made by the Tribunal in relation to these matters have two limbs.
(a)that the documents provided in this matter were fraudulent; and/or
(b)the applicant was not who he stated he was.
The applicant argues that there are four errors made by the Tribunal in relation to the first limb. Firstly, the applicant argues that the preponderance of the independent evidence summarised at [CB 264 – 265] in relation to document fraud is to the effect that it is easy for asylum applicants to obtain fraudulent documents. However, in relation to the documents which are of particular importance in this case, it was the applicant’s migration agent and not the applicant who obtained those documents. Thus, the relevant questions for the Tribunal to consider were whether the migration agent sought to obtain fraudulent documents or whether, although the migration agent sought to obtain genuine documents, the author of the documents sent him fraudulent documents. He argues that the failure of the Tribunal to consider those matters was a failure to address a relevant matter that constituted jurisdictional error: MIMA v Yusuf (2001) 206 CLR 323 at [69] and Kalala v MIMA (2001) 114 FCR 212 at [23].
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450 the majority in their joint judgment said:
“On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found” (Rejfek v McElroy (1965) 112 CLR at 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make findings that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”
Of course, a hearing before a tribunal is not a hearing before a court of law. There is no burden of proof or evidentiary onus as it is understood in curial proceedings. As articulated by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
“The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in a position of a contradictor of a case being made by an applicant. Such assumptions, if made, are wrong. The proceeding before the Tribunal are inquisitorial and the Tribunal is not in a position of contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
Cases concerning document fraud and the corroborative effect of documentary evidence such as Re MIMA; Ex parte ApplicantS20/2002 (2003) 198 ALR 59 have dealt with documents that are alleged to have been corroborative of oral testimony. In S20/2002 McHugh and Gummow JJ at [59] opined:
“It can not be irrational for a decision maker, enjoined by statute, to apply inquisitorial processes (as here) to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that the case comprises lies by that party.”
The alleged corroborative evidence in S20/2002 was evidence of a doctor and a dentist which the Tribunal did not accept because it considered the dentist to be unqualified to make the remarks attributed to him and the doctor’s evidence was entirely dependent on the history that he had obtained from the applicant. It was not “a documents case”. Documents cases have been considered by the Federal Court WAIJ v MIMIA [2004] FCAFC 74; WAHP v MIMIA [2004] FCAFC 87; WACO v MIMIA [2003] FCAFC 171 and WAGU v MIMIA [2003] FCA 912. The general tenet of these cases is that corroborative evidence should not be rejected solely on the basis that the Tribunal has doubts about an applicant’s credibility. In WAIJ Lee and Moore JJ discussed the issue of fabricated documents and corroborative evidence and said at [52]:
“The reasons provided by the Tribunal in relation to its rejection of the documents revealed that the Tribunal failed to act judicially in respect of that material. The Tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated. That was not a course open to Tribunal acting judicially. There was no material before the Tribunal that permitted it to so dispose of the documents, and thus, of the tendency of the documents to corroborate the appellant’s account.”
In this case there is purportedly double corroboration. Firstly the documents, and then the evidence of the migration agent that he personally checked their authenticity. I cannot see how the Tribunal could rely upon independent country information relating to document fraud in Bangladesh to deal with the migration agent’s evidence. With respect to the Tribunal it appears to have made an attempt to avoid making any determination about the veracity of the migration agent and seeks to come to the more comfortable conclusion that the applicant is not who he says he was. This would allow for the migration agent’s evidence to be true because there really was a person called M who attended Rajendra College, who had been imprisoned as a result of a murder charge and in respect of whom those charges were still pending. It seems to me that unless the Tribunal’s decision can be read in this way then the Tribunal could be said to have fallen into jurisdictional error by not dealing with the direct, unequivocal and unchallenged evidence of the agent that he had spoken to the relevant persons who had confirmed that these things were true. The following comment of Einfeld J in Meadows & Anor v MIMA (1998) 54 ALD 654 at 662 has relevance to the matter before this Court:
“Undoubtedly, however, determinations made in the comparative informality of a process that does not have any of the accepted safeguards for fairness must be critically scrutinised, especially when the determinations depend wholly or in major part on findings of credibility. Like such ephemeral matters as demeanour, a determination that a person has lied, or has engaged in a conspiracy to produce false claims or false evidence by others, presumably deliberately, should not be made unless the evidence is clearcut and is on any reasonable basis not capable of a more benign conclusion. It may not be made whimsically or superficially or by commencing with the conclusion and working back to the reasoning. It should not be made if it has not previously been put to the person concerned.” (emphasis added)
In WACO v MIMIA [2003] FCAFC 171 at [48] the full bench of the Federal Court referred to the following comment of von Doussa J in Meadows (supra):
“Proceedings before the Tribunal are, of course, not adversarial, but the same notion of basic fairness that underlies the rule in Browne v Dunn required that the tribunal, before making a finding of dishonesty that would be destructive of the appellant’s case, give the appellants the opportunity to address that issue in their evidence and submissions."
The suggested finding that the documents were authentic but the applicant was not who he said he was comprises the second limb of the applicant’s argument. This is that the reasons for decision of the Tribunal indicate that it did not raise with the applicant its concern that he was not who he said he was, so as to give the applicant an opportunity to be heard upon that critical issue: Meadows v Minister (1998) 90 FCR 370 at 388 (per Merkel J) and 382 (per Einfeld J) and 383 (per von Doussa J); Hussain v Minister [1999] FCA 288 at [29] – [30]; WACO v Minister [2003] FCAFC 171 at [33].
The respondent argues that the Tribunal in making it clear to the applicant that it was concerned about document fraud in Bangladesh and the possibility that these documents were fraudulent implicitly raised the possibility that he was not who he said he was. Thus it could not be argued that the matter was not put to him. I do not accept this argument. I do not think that the question of document fraud and the question of identity fraud are the same thing. If the Tribunal wished to come to the finding which I have read its conclusions to be, namely that the applicant was someone else and that the documents referred to this other person and were therefore probably genuine, it should have put that possibility clearly to the applicant. The agent has gone on affidavit to say what might have occurred if that was put. He would have contacted the father and got him to give evidence. The agent would have given evidence that he knew the father and that he could confirm that the man they were speaking to was him (this is the purport of the evidence he gave me). If the Tribunal did not accept this evidence he would be clearly facing a case of fraud being engineered by the migration agent. If that finding was to be made then the authorities previously cited make it clear that it would have to be put to the witness.
I would distinguish this case and the type discussed by the High Court in S20/2003 at [49]. The Tribunal’s reasons for not believing the applicant revolved around his answers to questions concerning his schooling:
“Having regard to the applicant’s answers at hearing in relation to his academic pursuits which were hesitant and imprecise when one could expect precision (such as when exams were held and what subjects had been studied and remained to be studied and what degree one would be awarded) I find that the applicant’s evidence in relation to his studies was not credible and I am unable to accept it. Accordingly I find the applicant does not have the academic history that he has claimed at Barhamgonj College and Rajendra College.”
The corroborative evidence goes directly to this point. It attempts to make it clear that the applicant did attend Rajendra College as he had stated and undertaken the courses that he had stated and further that those courses were interrupted by a time in prison as he had also stated. This evidence, if accepted, leaves the applicant’s evidence vague but true instead of vague and therefore untrue. It seems to me so central to the whole issue that in the absence of “a well that has been poisoned beyond redemption” (S20/2002) the corroborative evidence should be preferred and the vagueness excused.
During the course of the hearing it was suggested that if the Tribunal was to act judicially in the way explained by Lee J in WAHP v MIMIA [2004] FCAFC 87, it should have done more than just take the evidence of the agent (for that is what it was, it was not mere submissions.) It should have asked the agent to go into the witness box and questioned him on the matters contained in his statutory declaration so that it was able either to reach or not reach the state of satisfaction that is required under s.36 Migration Act 1958. I think there is much in that point.
I have considered whether or not the discussion between the Tribunal and the applicant about his entry into Australia upon a false passport could be a sufficient indicator that the Tribunal was considering that he was not the person who he said he was. I am not able to make that finding. Given the apparent discrepancy in age between the real owner of the passport and the applicant it cannot be implied that the Tribunal was suggesting that the applicant was that person. The Tribunal did not suggest to the applicant that the passport that he had tendered was not the passport upon which he entered Australia. The exchange seems to me to be no more than an inquiry into how the applicant managed to delude the immigration officials at Dhaka and Sydney airports.
In S157/2002 v Commonwealth [2003] HCA 2 Gleeson CJ indicated at [25] that the phrases “duty to act judicially”, “duty to observe the requirements of natural justice” and “the requirements of procedural fairness” were historical expressions of the same duty. He felt the essential elements of that duty included fairness and detachment. Fairness and detachment involved “the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard.” I cannot be satisfied that the applicant was given an opportunity to be heard in relation to the suggestion that he was not the person he said he was. I do not think that this conclusion follows naturally from a rehearsal of the evidence put before the Tribunal. It proceeds from a basis that the applicant has stolen the persona of a third party, wilfully misled his migration agent and utilised him for the purposes of obtaining corroborative evidence not just in the form of documents but by speaking to persons who allegedly prepared them. This type of activity does not follow naturally from the use of a false passport, although the Tribunal seems to indicate that that is how it supported its findings [CB 270]. I would find that in not putting this matter to the applicant clearly, the Tribunal denied him procedural fairness and fell into jurisdictional error.
The consideration of this case does not end with this finding. One must always be conscious that the responsibility of the Tribunal is to decide whether the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and any failure in its decision making process must bear directly upon that obligation. The respondent argues that the applicant failed before the Tribunal for several independent reasons. Any one of those reasons, if not infected by error, would render the applicant’s case devoid of any basis for the Court to find a jurisdictional error affecting the outcome and thus giving rise to an entitlement to relief.
The Tribunal found that the applicant’s trip to India and subsequent return to Bangladesh in 2000 for 10-12 days is inconsistent with him holding a subjective view of persecution [CB 266]. Mr Zipser argues that if the Tribunal had accepted the authenticity of the documents, it might have believed the applicant in relation to other matters including his claim that he had a subjective fear of persecution. There is some force in this argument. I have already discussed above the seriousness attached to identity theft. In what is an articulation of the frequently quoted principle in Stead v State Government Insurance Commission (1986) 161 CLR 141 the full court in NAAF v MIMIA [2003] FCAFC 52 noted at [31]:
“ Once a non-observance of the requirements of natural justice is established, it is only if it is positively concluded that observance of the requirements could not possibly have produced a different result that the decision impugned would be allowed to stand.”
In Re RRT; Ex parte Aala (2000) 204 CLR 82 Gleeson CJ opined at [4]:
“It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal’s ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the Tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility.”
The judgment of Kirby J in Aala emphasises that the courts should be wary of reaching a conclusion that compliance with procedural fairness would be irrelevant to the outcome. His Honour commented at [131]:
“ In this case, what was at stake could hardly have been more important, being the credibility of the prosecutor and whether his statements to the second Tribunal were, as it concluded, in a critical respect, a “concoction” and so should be rejected. Many if not most, cases of this kind turn on the assessment of the credibility of the applicants for refugee status. There are already enough obstacles to be overcome. Adding to these a mistake affecting the credibility of the applicant is not tolerable.”
Numerous High Court and Federal Court judgments have established that the Convention definition of refugee contains subjective and objective elements: see Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559; Appellant S395/2002 v MIMA [2003] HCA 71. Whether or not a Tribunal determines that an applicant has a subjective fear of persecution is virtually inextricable from its findings of credibility. As the full court said in Suleiman v MIMA [2001] FCA 752 “Subjective fear would, ordinarily, be established if the applicant said he or she had that fear and his evidence was accepted.” It is the balancing of any subjective fear of persecution against the objective well-foundedness requirement that ensures that the protection obligations owed by signatory states are limited to those genuinely at risk of persecution.
The Tribunal’s finding that the applicant’s trip to India (a non-Convention country) and return to Bangladesh whilst on bail for the alleged charges indicated he did not have the subjective fear necessary. That is a finding of fact at the heart of the applicant’s credibility. The Tribunal did not believe his claim of fear. But the Tribunal had, in its own mind, already made a damning rejection of the applicant’s credibility. It had determined, in its mind, that he was not who he said he was. That finding was infected by jurisdictional error. It would be inconsistent with the authorities if I were to dismiss the application on the grounds that this other finding was so independent of the impugned credibility finding that a different result could not possibly have been produced.
It is beyond contention that the applicant claimed to fear persecution for the Convention ground of political opinion. The Tribunal’s finding that the applicant was not the renowned political activist he claimed to be is in my opinion of sufficient relevance and importance as to be a factor influencing the outcome. It is important to note that the applicant claimed he was shot at by Awami activists after he returned from India. It is possible that if the Tribunal had not made such grave findings as to the applicant’s credibility, it would have made a more favourable determination of the applicant’s subjective fear of persecution, viewing the shooting incident as an indicator of the heightened risks he faced as a result of his political activities.
The Tribunal also found that the applicant’s political awareness was not consistent with his claimed political background. This finding was used to suggest that the applicant did not suffer the persecution that he said he did. But one of those incidents of persecution was the imprisonment for the false charge. That was a matter very much placed in issue by the migration agent. A similar criticism can be made of the finding that the applicant was at most a low-level member of the Jatiya party. Even if he was, he may have suffered the false charges and imprisonment alleged. Finally, the Tribunal disbelieved the applicant’s story of an attack on him by Awami men on 5 January 2000. Once again, even if this event did not occur it does not mean that the other events deposed to did not occur and that the applicant did not suffer persecution.
For these reasons I unable to discount the real possibility that the failure of the Tribunal to afford the applicant procedural fairness denied the applicant a successful outcome. In the circumstances it is appropriate that the matter to be referred back to the Tribunal for consideration according to law. I order that the respondent pay the applicant’s costs assessed in the sum of $4,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Raphael FM
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