SZBXR v Minister for Immigration
[2005] FMCA 1946
•21 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBXR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1946 |
| MIGRATION – visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of Bangladesh claiming a well-founded fear of persecution for reason of political opinion – where review applicant gave notice under s 426(2) of the Migration Act 1958 (Cth) to obtain evidence from nominated witness – witness present but did not give evidence breach of obligation in s 426(3) – breach of procedural fairness – applicant has no power to call witnesses to give evidence before Refugee Review Tribunal. MIGRATION – corroborative documentary evidence – rejection of documentary evidence – finding by Refugee Review Tribunal that letters were fakes – possibility that letters were fakes never put to applicant – breach of procedural fairness – jurisdictional error – certiorari and mandamus issued. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.361, 366D, 422B, 424A, 426, 427 |
| NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137 not followed Minister for Immigration & Multicultural & Indigenous Affairs v SZEBA [2005] FCAFC 216 - cited Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 cited SAAX v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 356 cited WADA V Minister for Immigration & Multicultural Affairs [2002] FCAFC 202 cited Nourbakhshrad v Minister for Immigration & Multicultural Affairs [2001] FCA 1248 cited Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193 cited WAAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1220 cited Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 followed WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 followed SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 cited VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 cited NAQS v Minister for Immigration [2002] FMCA 301 distinguished NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 referred to Minister for immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 referred to Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 referred to NAJO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 356 |
| Applicant: | SZBXR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2487 of 2003 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 November 2005 |
| Date of Last Submission: | 24 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave to join the Refugee Review Tribunal as a party to the proceeding.
The Refugee Review Tribunal is joined as Second Respondent to the application.
That there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal (“the Tribunal”) made on
25 September 2003.
That there be an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister on 18 June 2002 to refuse a protection visa sought by the Applicant.
That the First Respondent is to pay the Applicant’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2487 of 2003
| SZBXR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 25 September 2003 and handed its decision down on 23 October 2003.
The decision of the Tribunal was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the applicant.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on
14 March 2002. On 3rd May of that year he applied for a protection visa, which was refused on 18 June 2002.
On 15 July 2002 the applicant sought a review of that decision by the Refugee Review Tribunal. The Tribunal wrote to the applicant on
16 April 2003, inviting him to attend a hearing scheduled for
15 May 2003. The applicant’s then migration adviser, Mr Z.H. Mollah, wrote a reply to the Tribunal, rather surprisingly dated
11 April 2003, asking for an adjournment of that hearing, because the applicant wished to bring evidence from his elder sister in support of his case. The letter said, in part, :
Her oral evidence is very important for his claim.
The reason that the applicant asked for an adjournment was that the sister had a medical specialist’s appointment on the morning of
15 May and would not be able to attend the scheduled hearing[1].
[1] A copy of the letter dated 11th April 2003 appears at page 87 of the Court Book.
In his Response to Hearing Invitation form, received by the Tribunal on 4 May 2003, the applicant said that he wanted the Tribunal to take evidence from his sister. In reply to the question “What evidence will the witness give about your application?” the applicant stated:
She will give oral evidence regarding my political invol(ve)ment in Bangladesh and also the political persecution in my country of origin, incloding (sic) my family political background[2].
[2] A copy of the Response to Hearing Information appears at pages 88 and 89 of the Court Book.
The Tribunal agreed to that request. By letter dated 12 May 2003 the Tribunal informed the applicant that the presiding Member had granted a postponement of the hearing until 24 June 2003[3].
[3] A copy of the Tribunal’s letter dated 12th May 2003 appears at page 90 of the Court Book.
On 22 June 2003 the applicant’s migration adviser wrote to the Tribunal, making a lengthy written submission in support of the applicant’s case. The submission refers to the applicant’s political difficulties in Bangladesh and his family’s political involvement in that country. The only direct reference to the applicant’s sister appears to be on the first page of the submission, where the submission states:
(1) Two of (the applicant’s) family members, his own sister and brother in law, were granted political asylum by the Australian Government due to their political persecution in Bangladesh.
The applicant attended the hearing on 24 June 2003, accompanied by his adviser, Mr Mollah, and his sister. A transcript of the hearing was admitted into evidence, annexed to an affidavit of Andrea Marianne Christie-David sworn on 18 October 2005.
It appears from the transcript that the applicant and his advisor arrived at the hearing nearly three quarters of an hour late, which drew some criticism from the Tribunal member. After the applicant was affirmed, the Tribunal member asked him about the subject that he was expecting the witness, his sister, to address in her evidence. The applicant replied that after the government came to power in Bangladesh there was “real persecution” occurring to him. His sister was not in Bangladesh at the time, but the applicant said that he used to speak to her on the telephone. He said that his sister knew the situation and he asked her to give him shelter.
The Tribunal member dealt with this information from the applicant by saying:
Okay, that’s fine thank you. Okay, I’ve got the introduction.
I’m wondering if she really has any purpose as a witness though. I mean (sic). She’s not so much a witness as she’s heard you to talk to her on the phone. So the source isn’t her but you. You know what I mean, the source is you not her. So it’s probably important for me to interview you directly rather than ask her what you said to her.
So at this stage I’m not inclining to call her as a witness because I don’t think she actually fits the bill as a witness. I tell you what we’ll do, we’ll swear her in and then we’ll ask you[4] to leave the room and we’ll be ready for her if we decide to have her here as a witness[5].
[4] By “you” it appears that this comment was directed at the applicant’s sister
[5] See Page 2 of the transcript
After hearing the applicant’s evidence, the Tribunal member said:
I’m going to close the hearing in a minute is there anything else you want to say. I’m not calling your witness, you know you are the witness in this matter. I don’t want to ask her what you told her I want to ask what happened to you. That’s the right way to proceed in the circumstances. Okay. I’m not calling her. Is there anything else you want to say[6].
[6] See page 24 of the Transcript.
After a few further statements by the applicant the Tribunal closed the hearing at 12.41 p.m. that day.
The Tribunal’s decision
The Tribunal made its decision on 25 September 2003. The only reference to the applicant’s witness appears in the “Background” section at the beginning of the decision, at page 446 of the Court Book:
The Applicant brought forward no witnesses.
This statement is clearly erroneous, as the applicant had sought that his sister should give evidence. She had attended the hearing, but the Tribunal member decided not to call her.
The Tribunal accepted that the applicant is a national of Bangladesh from an upper middle class, educated family, and that the applicant himself had the benefit of a full education.
The Tribunal expressed serious doubts about many of the factual aspects of the applicant’s claims and about his credibility in general. The Tribunal’s negative findings about the applicant’s credibility included:
·“great difficulty” with the applicant’s claims of not having started school until the age of 10;
·“inconsistent evidence about when he completed studies, when and where he first joined an AL[7] wing, and when (and during which government) he (was) at first forced to hide from BNP thugs who were seeking him”[8];
·the applicant’s evidence about the AL “was so vague as to leave the Tribunal concluding that he has never been a member of the AL or its wings, let alone an office holder. This has serious consequences for his overall case”[9];
·the Tribunal considered the letters written on the Applicant’s behalf to be fakes;
·the Tribunal found that the applicant’s claims “about the so-called attacks upon him, and about hospitalization and false charges, to be the products of ill-conceived and inconsistent fabrication”;[10]
·the applicant’s claims about membership of the Taslima Nasrin support club were “dismissed as inconsistent inventions”;[11] and
·“The Tribunal considers the Applicant an unreliable witness in the present matter.”[12]
[7] Awami League
[8] See Court Book at pages 456-7
[9] See Court Book at page 457.
[10] Court Book page 457.
[11] Court Book page 457.
[12] Court Book page 457.
The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant’s amended application
In his amended application filed on 8 September 2004, the applicant seeks writs of:
a)Certiorari;
b)Mandamus; and
c)Prohibition.
He set out five grounds in his amended application, but his counsel,
Mr Young, informed the court that he did not press the third, fourth and fifth grounds. The two grounds that were pressed are these:
a)The RRT did not allow the applicant’s witness to give sworn evidence that would have supported the claims made by the applicant; and
b)The RRT made adverse findings concerning the genuineness of letters from Awami League Party officials submitted by the applicant. In so doing the Tribunal failed to give the applicant an opportunity to dispute those adverse findings and seriously prejudiced the applicant’s claims for protection.
Submissions
For the applicant, Mr Young of counsel relied on the decision of Hill J in NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137, in which it is made clear that the very obligation imposed on the Refugee Review Tribunal to conduct a review means that whether or not the Tribunal chose to call a witness or not, it could not prevent an applicant from calling a witness, provided the evidence was relevant to the issue before the Tribunal.
He submitted that the Tribunal did not decide that the evidence of the applicant’s proposed witness was not relevant, but rather that the evidence was in the nature of hearsay from the applicant to his sister. This did not make the evidence irrelevant.
In the circumstances where the Tribunal doubted the applicant’s claim of not having started school until the age of 10, and on the basis of the applicant’s having advanced this claim the Tribunal doubted his credibility generally,[13] the Tribunal had a witness available who could give evidence about that very subject. He went on to submit that in the circumstances where the Tribunal regarded this issue as central to credibility, it could not properly refuse to hear evidence from the applicant’s sister. Even if the Tribunal chose not to call her itself, it was bound to advise the applicant that he could have the sister called so that the Tribunal could hear the evidence.
[13] See at page 456 of the Court Book.
Counsel for the applicant also submitted that the sister was also in a position to provide support for the applicant’s claims that he had been attacked by political opponents. The Tribunal had dismissed those claims as fraudulent.
Turning to the other issue, the Tribunal’s findings that the letters written on the applicant’s behalf were fakes, Mr Young submitted that the issue was not raised with the applicant at the hearing. This, he submitted, was a denial of procedural fairness (see Minister for Immigration and Multicultural & Indigenous Affairs v SZEBA [2005] FCAFC 216).
It did not inevitably follow that because the applicant had not been in contact with the Awami League since leaving Bangladesh that the letters were fakes. The Tribunal had made a positive finding of fact without any inquiry and without according procedural fairness to the applicant. This amounts to jurisdictional error.
For the Respondent Minister, Mr Lloyd of counsel submitted that the Tribunal is under no duty to permit a requested witness to give evidence. Its duty is to consider any request made within a specified period, which it clearly had done in this case. He submitted that there is no error disclosed in the Tribunal’s decision not to receive evidence from the witness.
As to the claim that the Tribunal erred by failing to give the applicant an opportunity to dispute the Tribunal’s conclusion that a letter tendered by the applicant was a fake, Mr Lloyd submitted that the Tribunal’s decision was based upon a natural and obvious inference from the applicant’s own evidence that he had not been in contact with the party since he had arrived in Australia. The letter supporting the applicant’s visa application was dated after the applicant had arrived in Australia. He submitted that it was open to the Tribunal to reject the letter on the basis of conflicting evidence from the applicant.
The Tribunal was under no obligation to do more than it did (see Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islanded Affairs (2000) 103 FCR 539 at [72]-[73]).
Counsel for the Respondent Minister further submitted that the decision of Hill J in NAQS v MIMIA (supra) should not be followed for three reasons.
First, Hill J’s remarks about the construction of s.426 at [24]-[29] were obiter. The applicant’s solicitor in that case had not sought to put on oath before the Tribunal what was the nature of the evidence the applicant wished to call, his Honour was not in a position to conclude whether the proposed evidence was relevant and might have affected the outcome (see at [30]-[31]).
Second, he submits that Hill J’s construction is not consistent with authority and does not take into account all of the relevant aspects of the legislation. It is a construction that depends on the relevant provisions of the Migration Act accommodating two ways in which a witness may be called to give evidence:
a)by being summoned to do so by the Tribunal; or
b)by doing so, presumably voluntarily, upon request from an applicant.
Although there is express provision in s.427 (3) (a) entitling the Tribunal to summon a person to give evidence, there is no corresponding provision entitling an applicant to call evidence from a witness. Mr Lloyd further submitted that s.427 (6) (b) stipulates that an applicant is not entitled to examine or cross-examine any other person appearing before the Tribunal to give evidence. He submits that it is difficult to see how this provision could co-exist with a positive entitlement on the part of an applicant to call evidence from a witness.
The third point in the Respondent’s submission is that the weight of authority is against the view propounded by Hill J in NAQS. Courts have consistently held that the Tribunal must have regard to the applicant’s wishes to call a particular witness where a notice is issued under s. 426(2), but the Tribunal is not required to call that witness (see SAAX v Minister for immigration & Multicultural & Indigenous Affairs [2002] FCAFC 356 at [31]; WADA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 202 at [38]; Nourbakhshrad v Minister for Immigration & Multicultural Affairs [2001] FCA 1248 at [37]; Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193 at 201; WAAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1220 at [30]).
Mr Lloyd submitted that it is not open to distinguish the above decisions on the basis that they deal with the entitlement of the Tribunal to obtain evidence rather than that of the applicant to call evidence on the basis of the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118. In construing the corresponding provisions of the Migration Act concerning the Migration Review Tribunal, namely s.361, the Full Court was referred to the decision of Hill J in NAQS at [24]. His submission is that, in the context of the similar provisions that apply in respect of the Migration Review Tribunal:
It is the Tribunal, and not the applicant, who ‘obtains’ or ‘acquires’ the evidence for the purposes of a review, whether or not the evidence is volunteered or compulsorily acquired.[14]
[14] MIMIA v Maltsin (supra) at [38].
He went on to submit that the Full Court held that, so long as the Tribunal considered an applicant’s wishes, the proper construction of the Act was that the Tribunal was not obliged to take oral evidence from anyone other than the applicant.[15]
[15] See Maltsin at [37].
Counsel for the respondent submitted that in the present case there could be no doubt that the Tribunal considered the applicant’s wish to call his sister to give evidence. The Tribunal actively sought to understand the nature of the evidence that the applicant’s sister would give, and further sought to explain to the applicant why the Tribunal member considered that the evidence would not be of probative value, in that it would simply involve the applicant’s sister re-conveying to the Tribunal information that the applicant had “allegedly” previously conveyed to her (see page 2 of the Transcript). He submitted that the Tribunal did what the statute obliged the Tribunal to do, which is to consider the applicant’s request that it take oral evidence from a witness.
Counsel for the respondent submitted that the Tribunal was under no obligation to raise at the hearing the issue of whether the letters said to be written on the applicant’s behalf were fakes. He submitted that despite the Tribunal’s description of the letters as “fakes” it is evident from a reading of the Tribunal’s reasons that the letters were rejected, not because the Tribunal considered that there was some independent or positive basis for concluding that the documents were fraudulently prepared or forged, but because they could not be given any weight in light of their inconsistency with other claims made by the applicant.[16] He submitted that, consistently with the principles discussed in Minister for Immigration & Multicultural & Indigenous Affairs v SZEBA (supra) and WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912, the Tribunal was not required to raise with the applicant the question of the genuineness of the letters.
[16] See at page 457 of the Court Book.
Mr Lloyd further submitted that s.422B of the Migration Act stipulates that Division 4 of Part 7 is an exhaustive statement of the requirements of natural justice in relation to the matters it deals with (see SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FA 1493). Section 424A, which appears in Division 4, relevantly requires the Tribunal to give the applicant particulars of any information it considers would be the reason or part of the reason for affirming the decision under review. In this case, s.424a would only require the Tribunal to put to the applicant a suggestion that the letters may be false if this were:
i)“information” communicated to it;
ii)that was the reason or part of the reason for affirming the delegate’s decision.
In the present case, neither (i) nor (ii) applies. He submits that the perception that the letters were fake was a conclusion on the evidence before the Tribunal and not “information” (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24]). In addition, the reason why the Tribunal affirmed the delegate’s decision was because it rejected the applicant’s reliability as a witness rather than its view about the letters.
It is for these reasons that he submits that there is no jurisdictional error and the application should be dismissed.
Conclusions
The first matter to be considered is whether it is open to an applicant to require the Refugee Review Tribunal to have regard to oral evidence of a witness called by the applicant, provided that the evidence of the witness is relevant to the issues before the Tribunal. In other words, given that the Tribunal has the power to call witnesses to give evidence, is there an independent power in an applicant to do so as well? In my view, the answer is no.
The applicant in this case relies on the decision of Hill J in NAQS v MIMIA (supra), where at [27] his Honour set out two different interpretations of s.426 of the Migration Act:
Section 426 is open to two possible interpretations. The first is that s. 426(2) is designed to ensure that only the Tribunal itself can call witnesses to give evidence and that the Tribunal can decide contrary to the wishes of an applicant what witnesses it will call. On this view the Tribunal has an absolute discretion whether to do so. The other view is that s. 426(2) is concerned only with the power of the Tribunal to summon witnesses and is silent on the right of an applicant to call relevant evidence to enable the Tribunal to carry out its duty to review a decision of the Minister. I prefer the latter construction in the absence of clear language to the contrary…
His Honour went on to say at [29]:
In my view, it is implied in Division 4 of Part 7 of the Act and indeed from the very obligation imposed on the Tribunal to entertain a ‘review’ that an applicant is entitled to require the Tribunal to have regard to oral evidence of a witness called by the applicant, although only if that evidence is relevant to the issues before the Tribunal.
As I mentioned in [30]-[33] above, counsel for the respondent Minister submits that NAQS should not be followed for three reasons:
a)His Honour’s remarks were obiter;
b)His Honour’s construction is not consistent with authority; and
c)The weight of authority is against the view propounded by Hill J.
With respect, it appears to me that counsel’s second and third points are essentially similar.
The authority to be followed in my opinion is Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (supra), an appeal from the Federal Magistrates Court, where the Full Court considered the effect of s.361 of the Migration Act, which is essentially similar to s.426 except that it contains a sub-s.(2A) relating to written evidence and other written material.
It is clear from the decision in Maltsin that only the Tribunal has the power to call witnesses, and it is within the absolute discretion of the Tribunal to decide what witnesses it will call, and not call.
The rationale for this scheme is set out in the decision of Kenny and Lander JJ (with whom Spender J agreed) at [36]:
The provisions of Pt 5 of the Act, including ss. 361(3) and 366D, emphasise that the Tribunal’s process is essentially inquisitorial in nature. A review by the Tribunal is not to be conducted on the adversarial model of the courts. Under the regime established by the Act, it is for the Tribunal, not the applicant, to gather the evidence for the purposes of a review and to decide the manner in which the evidence will be taken…Only the Tribunal can examine a witness whose oral evidence the Tribunal has determined to obtain…
Maltsin is a decision on an appeal from the Federal Magistrates Court and is therefore binding on this Court. The decision in NAQS is a first instance decision by a single judge and not an appeal decision from the Federal Magistrates Court (even though there is a totally unrelated Federal Magistrates Court called decision called NAQS v Minister for Immigration [2002] FMCA 301).
In the case before me, I am satisfied that it was only the Refugee Review Tribunal that had the power to call witnesses to appear before it. The applicant is given the right to request that a person be called as a witness but has no power either to call witnesses independently of the Tribunal or to force the Tribunal to call a particular person to give evidence. As the Full Court said in Maltsin at [37]:
It is in keeping with the Tribunal’s inquisitorial nature that the Tribunal does not err if it decide that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s. 361(2)[17], it decides not to obtain such evidence, always providing that it acts in conformity with s. 361 (3)[18] of the Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant.
[17] The equivalent of s 426(2)
[18] Similar but not identical to s 426(3).
In the case before me, the applicant’s migration adviser had written to the Tribunal to advise that the applicant’s sister’s evidence was “very important” to the applicant’s case. The applicant stated in his Response to Hearing Invitation form that his sister would give evidence about his political involvement and his family’s political background.
The adviser’s submission set out the fact that the applicant’s sister and her husband had been “granted political asylum by the Australian Government because of political persecution in Bangladesh”.
It was clear that the applicant was putting to the Tribunal that his sister would be able to give relevant evidence about his case. At the beginning of the hearing, the Tribunal Member expressed scepticism about the value of the applicant’s sister as a witness, as he said in effect that her evidence would be hearsay. As counsel for the applicant submitted, this did not make the sister’s evidence irrelevant.
Section 420(2) of the Act provides that:
The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
Hearsay evidence is not inadmissible before the Refugee Review Tribunal by virtue of s.420(2). The fact that evidence is hearsay may well go to the weight of that evidence, but does not of itself make it irrelevant.
The Tribunal member even went to the unusual step of having the applicant’s sister affirmed before asking her to wait outside during the hearing of the applicant’s evidence. After hearing the applicant’s evidence and telling him that he was “not a very impressive witness”[19] the Tribunal member told the applicant that he was not going to call the sister to give evidence. I have set out the Tribunal member’s statement at paragraph 12 above.
[19] See at page 23 of the transcript
What has to be considered is whether the Tribunal gave genuine consideration to the applicant’s wishes concerning the evidence to be taken at the hearing. The test is set out by the Full Court in Maltsin at [38]:
…By virtue of s. 361(3), the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss. 361(2) of (2A) of the Act.[20] This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. …The authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”: NALQ[21] at [30]; SCAR[22] at [37]; and Mazhar[23] at 188 [31]. It follows that the consideration that the Tribunal must give to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine.
[20] There is no equivalent of subsection 2A in s 426, but that is not relevant here.
[21] NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
[22] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
[23] Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188
The Full Court at [55] goes on to state that the Tribunal must not decline to comply with the applicant’s wishes “capriciously”. In giving genuine consideration, the Tribunal must:
a)Take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness;
b)The sufficiency of any written evidence that has already been given by a witness; and
c)The length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal.
Even though the Full Court’s remarks were directed towards the Migration Review Tribunal, in my view the relevant sections are so similar that the Full Court’s remarks apply equally to the Refugee Review Tribunal. It appears to me that the MRT and the RRT have the same obligation to give a genuine consideration to the notice given by an applicant.
In applying the Full Court’s test, it must be born in mind that the Full Court has made it clear that it is the Tribunal, and only the Tribunal, that has the power to call witnesses to give evidence. The applicant has no power to call a witness otherwise, just as the applicant has no power to examine or cross examine any witness (ss.366D & 427(6)).
The consideration must be genuine and not perfunctory of superficial.
I am not satisfied that the evidence allows me to find that the Tribunal gave a genuine consideration to the applicant’s request that his sister be called to give oral evidence. Despite the repeated advice from the applicant and his advisor that the sister’s evidence would be important to support the applicant’s claims about the issue of his political involvement, the Tribunal expressed a lack of interest in the ability of the applicant’s sister to give meaningful evidence based apparently on the fact that it would be hearsay. There was no mention by the Tribunal during the applicant’s evidence as to whether the applicant’s sister would be available to throw any light on the issues of the family’s involvement in politics.
The Tribunal member’s announcement at the end of the hearing that he would not be calling the sister to give evidence, though not unexpected, was more in the nature of a “throwaway line” than an explanation of the reasons why the witness’s evidence would not be taken.
I am satisfied that there is a lack of procedural fairness for this reason, and accordingly I find that a jurisdictional error has been made out.
It seems to me that it would have been comparatively easy for the Tribunal to have heard the witness’s evidence. She was available at the hearing; she had already been affirmed and was waiting to be called.
If indeed there was little or nothing that she would be able to add, her evidence would have been over very quickly, as the applicant has no right of examination or cross examination. On the face of the material before the Tribunal sister appeared to be able to give relevant evidence
For the above reasons, I am satisfied that a ground for relief has been made out.
The second issue to be considered is the finding by the Tribunal at page 457 of the Court Book that letters written on the applicant’s behalf are “fakes”. Counsel for the applicant submits that the issue was not raised at the hearing with the applicant and that this was a denial of procedural fairness.
Counsel for the respondent submitted that, despite the Tribunal’s description of the letters as “fakes”, it is evident from a reading of the Tribunal’s reasons that the letters were rejected, not because the Tribunal considered that there was some independent or positive basis for concluding that the documents were fraudulently prepared or forged, but because they could not be given any weight in light of their inconsistency with other claims made by the applicant.
I do not agree with this submission. The Tribunal made a very blunt and unambiguous finding:
The Tribunal considers the letters written on the Applicant’s behalf to be fakes. Their existence do (sic) not fit in with his claimed position about not having had contact with the party since his arrival in Australia[24].
[24] See Court Book at 457
The Tribunal has made a positive finding about the documents that was never put to the applicant. The word “fake” as a noun is described in the Macquarie Dictionary (Revised Third Edition) as ‘something faked up; anything made to appear otherwise than it actually is’. This is more than just a finding that the letters were rejected as being of no weight because they do not accord with the balance of the applicant’s account.
The law is quite clear, in my view. In WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912, French J said at [36]:
Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness.
This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to a decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party’s credibility.
The decision in WAGU has been followed in NAJO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 356 and considered in Minister for Immigration & Multicultural & Indigenous Affairs v SZEBA [2005] FCAFC 216.
It appears to me that a finding that letters are “fakes” is indeed a positive finding of fraud or forgery, and as this was not put to the applicant by the Tribunal during the hearing I am satisfied that there has been a breach of procedural fairness. This is a jurisdictional error.
I am satisfied that the application should be granted with costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 9 January 2006
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