SZBYB v Minister for Immigration
[2005] FMCA 1957
•21 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBYB v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1957 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Bangladesh claiming a well-founded fear of persecution for political opinion – independent country information – natural justice – whether Refugee Review Tribunal required to advise applicant of adverse information in its possession – obligation of the RRT to disclose to applicant the substance of adverse information that is credible, relevant and significant – whether Tribunal entitled to rely on information that came into existence after the hearing – procedural fairness – if there is a denial of natural justice the court should only refuse relief if confident that the denial of natural justice could not have had any bearing on the outcome. MIGRATION – Section 422B of the Migration Act 1958 (Cth) – date of commencement – applies to applications for review made on or after date of commencement. MIGRATION – Documents – rejection of documents – evidence of forgery not always necessary – it is not an error of law to reject corroborative evidence on the basis of the Tribunal’s view of an applicant’s credit. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.357A, 422B, 427, 474 Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) Schedule 1, items 6, 7 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed Kioa v West (1985) 159 CLR 550 followed Re Refugee Review Tribunal; ex parte Miah (2001) 206 CLR 57 cited Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 131 FCR 511 considered Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 followed Abebe v The Commonwealth (1999) 197 CLR 510 cited Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 cited Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 cited VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 cited WAGJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277cited W389/01A v Minister for Immigration & Multicultural Affairs (2002) FCR 407 cited NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 followed Minister for Immigration & Multicultural & Indigenous Affairs v NAMV (2004) 140 FCR 572 cited Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 cited Annetts v McCann (1990) 170 CLR 596 followed Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 followed Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 followed Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 followed NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 referred to WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 distinguished Immigration and Multicultural Affairs, Minister for v Djalal (1998) 51 ALD 567 referred to Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 referred to WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 followed NAJO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 356 followed Minister for Immigration & Multicultural & Indigenous Affairs v SZEBA [2005] FCAFC 216 followed |
| Applicant: | SZBYB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2502 of 2003 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 November 2005 |
| Date of Last Submission: | 15 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr L.J. Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Ms S.A.H. Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That 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
29th 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 22nd April 2002 to refuse a protection visa sought by the Applicant.
That the First Respondent pay the Applicant’s costs fixed in the sum of $6,474.30.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2502 of 2003
| SZBYB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 29th September 2003 after a hearing that took place on 28th March 2003. The Refugee Review Tribunal handed down its decision on 23rd October 2003.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 22nd April 2002 not to grant a protection visa to the Applicant.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 30th November 2001. He applied for a protection visa on
13th December 2001, but it was refused. On 16th May 2002 he applied to the Refugee Review Tribunal for a review of the delegate’s decision.
On 30th January 2003 the Tribunal wrote to the applicant and invited him to attend a hearing of the tribunal to give oral evidence and present arguments in support of his claim. The applicant completed the Response to Hearing Invitation, stating that he wished to attend and would require the assistance of a Bengali interpreter.
The applicant’s migration adviser forwarded copies of some documents to the Tribunal, including a book entitled ‘Rape of a Nation’.
On 24th March 2003 the Tribunal wrote to the applicant re-scheduling the hearing from 25th March to 28th April 2003. This proved to be an error, and the correct date was 28th March 2003.
The applicant attended the hearing on 28th March 2003 and gave oral evidence. He was accompanied by his migration adviser. He told the Tribunal that he was a Muslim from Chittagong who left Bangladesh after working as a seaman aboard a ship. He apparently ‘jumped ship’ when the ship docked at Fremantle on 30th November 2001.
He claimed that he had been a member of the Awami League, a political party that is in opposition in Bangladesh. He alleged that he and his family were being persecuted by supporters of the party in government, the BNP.
The Refugee Review Tribunal’s Decision
Although the hearing took place on 28th March, the Tribunal did not make its decision until 29th September 2003, some 6 months later.
The Tribunal’s Findings and Reasons began with the ominous statement:
The applicant’s evidence lacks credibility in several significant aspects.[1]
[1] See Court Book at page 188.
The Tribunal, relying on independent country information, made a number of findings, including:
Firstly, given the independent evidence before me, I do not accept that the Awami League is a persecuted party in Bangladesh.
All the independent evidence before me shows that the Awami League (including its junior wings) operates openly and freely at all levels throughout Bangladesh.[2]
Even though the party is now in opposition, having lost to the BNP in the 2001 general election, country information does not show that Bangladeshis face persecution in the expression of a pro-Awami League political opinion[3].
[2] See at Court Book page 188.
[3] See at Court book page 189.
The Tribunal quoted from a newspaper report dated 1st September 2003 about an Awami League rally and commented:
As the independent evidence above shows, the Awami League’s practices do not suggest that it feels threatened in the expression of political views.[4]
[4] Ibid at page 189.
The Tribunal went on to make other findings about the practice of politics in Bangladesh, including:
The general country information before me indicates that politics is being practised according to the Bangladeshi norm, that is, in a turbulent fashion by all parties seeking to bully each other but not in a manner that prevents free political activity. A recent news report reinforces these views.
The Tribunal then went to refer to a news report dated
18th August 2003. There were other references to news reports on various dates, up to 11th September 2003.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh even if there were truth in his claims of being an Awami league activist, pressured by false charges filed against him by political opponents. As the Tribunal said at page 198 of the Court Book:
The fact is that I find that those claims lack credibility.
The Tribunal found it implausible that a committed and active party such as the Awami League would choose to have as a branch
vice-president (as the applicant had claimed to be) a person who remained in hiding for many months, relaying instructions through intermediaries. The Tribunal was not satisfied that the applicant faced persecution over his political profile.
Equally, the Tribunal was not satisfied that the applicant’s claim of facing false charges was a credible claim. The Tribunal was not satisfied that he faced harm in this regard and, even if there were false and politically motivated charges, the Tribunal did not accept that the applicant had a well-founded fear of persecution because he had the protection of the courts.
The applicant had submitted some photographs and two letters.
The applicant admitted that the photographs were posed well after the event, and it is hardly surprising that the Tribunal gave them no weight.
Of the two letters, the Tribunal had this to say:
The letter submitted by the applicant which purports to be a letter from the Awami League leader, endorsing his claims, is a fabrication according to advice given to DFAT. Sheikh Hasina did not sign or issue the letter (DFAT Report 00235 – RRT Information Request: BGD15851, 9 April 2003).
I have not investigated the authenticity of the other letter that the applicant has submitted from other claimed Awami League officials but I am strongly inclined to doubt its authenticity because the applicant has demonstrated readiness to fabricate evidence such as the alleged letter from the Awami leader and the photographs of the alleged attack on his brother.[5]
[5] See Court Book at page 199.
In summary, the Tribunal found implausible the applicant’s evidence regarding his claimed political role and that he faced a real chance of persecution over false charged filed against him. The Tribunal was “of the firm view that he has fabricated these claims.”[6]
[6] Ibid at 199.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in terms of the Convention in Bangladesh. Consequently, the Tribunal affirmed the delegate’s decision not to grant a protection visa.
Further Amended Application
On the morning of the hearing, the applicant’s counsel, Mr Karp, filed in Court a Further Amended Application for Judicial Review. In the Further Amended Application, the applicant seeks the following:
a)A Writ of Certiorari;
b)A Writ of Mandamus;
c)A Writ of Prohibition; and
d)Costs.
The applicant relies on two grounds. The first ground states:
(1) The applicant was denied natural justice because the second respondent failed to disclose the substance of information adverse to him in the following documents,
a) Documents created prior to the Tribunal hearing (There follows a list marked (a) to (o) of documents including DFAT cables, country information reports and newspaper reports of varying dates from 1st May 2000 to, surprisingly, 11th September 2003).
b) Documents created after the Tribunal hearing (There follows a list marked (p) to (s) of news reports dated from 18th August to 11th September 2003).[7]
[7] One item “Hasina Tells Ctg Rally Unseat Govt Thru Mass Movement”, The New Nation 11 Sept 2003, appears in both lists, at (f) and (r). This is clearly an error, as the item should only appear in List B.
The second ground states:
(2) The applicant was denied natural justice because the second respondent failed to disclose her[8] proposed rejection of documents which were on their face genuine, being those documents at pages 152 and 153 of the Court Book.
[8] The reference to “her” is due to the fact that the Tribunal Member who heard the case is a woman. The use of the pronoun is incorrect, as the second respondent is not the individual member but the Refugee Review Tribunal itself, which has no gender.
The documents referred to are letters dated 6th April 2003 purporting to be from the Bangladesh Student League (Chittagong District (North)) and the Bangladesh Awami League (Chittagong District (North)) relating to the applicant.
The Applicant’s Submissions
In respect of the first ground, the applicant submits that the Tribunal’s opinion of the applicant’s credit was based at least partly on the country information referred to, so any errors in the Tribunal’s assessment of the country information would infect its ultimate decision. The Tribunal did not disclose any of the country information on which its decision was based to the applicant, other than in the most vague and general of ways.
The applicant submits that the rationale for natural justice and the hearing rule in particular, is that the applicant should know the case against him or her and have an opportunity to meet it. This necessarily implies that sufficient detail must be disclosed to give an applicant a meaningful opportunity to meet the case against him (or her). It was submitted that the Tribunal was required to disclose the substance of the adverse material that was in its possession. The applicant’s counsel relied on[9] Kioa v West (1985) 159 CLR 550 at 628; Re Refugee Review Tribunal; ex parte Miah (2001) 206 CLR 57 at 86 [99], 96-7 [140]-[144], 117-8 [194]; Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 610-612, 618, 630-635, 653-655.
[9] And quoted from extensively in his oral submission
The applicant submitted that he was entitled to be provided with a précis of the information that was in the possession of the Tribunal, and which the Tribunal considered was contrary to his claims, in sufficient detail to permit him to respond in detail.
In particular, the Tribunal used several documents that were created after the date of the Tribunal hearing, and which referred to incidents that occurred after the Tribunal hearing. The applicant could have had no inkling that such information was to be used against him and, it is submitted, the use of this information against this applicant was inherently unfair.
The other issue relates to the other letters from the Awami League, both dated 6th April 2003, submitted to the Tribunal after the hearing.
The Tribunal expressed a strong inclination to doubt the letters’ authenticity because of the applicant’s demonstrated readiness to fabricate evidence. The applicant submits that natural justice required the Tribunal to disclose to the applicant its proposed rejection of a document that was on its face genuine, relying on the decision of the Full Court of the Federal Court in WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 131 FCR 511 at [40]-[42].
The applicant submits that the letters went directly to the applicant’s fear of persecution and also to his credit, both of which were centrally relevant to his case. The letters, if accepted, could, it is submitted, have been decisive. It was unfair, therefore, for the Tribunal not to have raised its objections to the letters with the applicant.
The Respondent’s Submissions
Counsel for the respondent Minister prepared a 12 page outline of submissions, which included the entire text of the applicant’s Further Amended Application[10].
[10] Presumably in case the Court omitted to read the document when it was filed.
The respondent submitted that the Tribunal decision is a privative clause decision for the purpose of s. 474 of the Migration Act 1958 and can only be set aside where there has been a failure to discharge imperative duties or to observe inviolable limitations or restraints (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]).
The respondent submits that “the decision of the Tribunal was made prior to 2nd July 2002 and accordingly s. 422B was not in operation at that time”. Unfortunately, that statement is not correct. It can clearly be seen that the decision of the Tribunal was made on
29th September 2003, but that is not the determining feature for the operation of s. 422B of the Migration Act.
Section 422B was inserted into the Migration Act by Schedule 1, item 6 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). Section 357A, which applies to proceedings in the Migration Review Tribunal, was inserted at the same time.
The effect of item 7 of Schedule 1 is that s. 422B applies to any application for review made on or after the date of the commencement of item 6. The operative date is 4th July 2002.
In this case, the application for review was made on 16th May 2002, so s. 422B does not apply. It is the date of application that is the determining factor, not the date of the Tribunal decision.
The fact that s. 422B does not apply means that the procedures in Part 7 Division 4 of the Act are not necessarily exhaustive of the requirements of natural justice. As counsel for the respondent correctly submits, s. 424A of the Act was in operation (with effect from
10th August 2001). It is further submitted that the Tribunal did comply with s. 424A and, by implication, that the Tribunal’s compliance with
s. 424A was sufficient to constitute disclosure to the applicant.
The respondent submitted that the primary finding of the Tribunal was that it was not satisfied that the applicant had a well-founded fear of persecution even if his claims to have been an Awami League activist of rank who was the subject of false charges were true, because those claims lacked credibility.
In the alternative, she submitted that the Tribunal did afford the applicant procedural fairness in disclosing the relevant information and this can be seen from the transcript of the Tribunal hearing, which was annexed to an affidavit of Nicholas Alexander McNally and filed in court on the morning of the hearing.
The respondent submitted that the applicant was deemed to have been put on notice of the use of general independent country information referred to by the delegate in the decision not to grant a protection visa made on 22nd April 2002: see Abebe v The Commonwealth (1999) 197 CLR 510. The delegate gave the applicant an opportunity to comment on relevant extracts of independent country information by means of the letter dated 13th March 2002, a copy of which appears at page 36 of the Court Book. The delegate included references to independent country information in its decision record, which is found at pages 48 to 53 of the Court Book.
The respondent’s submission is that the Tribunal and the delegate put to the applicant all relevant country information in such a way as complied with any notice provisions enlivened by s. 424A and the principles of procedural fairness.
Turning to the issue of the Tribunal’s view of the letters
of 6th April 2003, counsel for the respondent also referred the Court to WACO v Minister for Immigration & Multicultural & Indigenous Affairs (supra at [42]). She referred to the letter purportedly from Sheikh Hasina which DFAT had found to be fabricated and noted that the Tribunal had written a letter to the applicant on 11th April 2003 complying with s. 424A asking for the applicant’s comments. She also submitted that the Tribunal had raised its doubts with the applicant at the hearing about the authenticity of the Sheikh Hasina letter.
The submission is that the applicant was clearly on notice that the authenticity of the documents was in question.
The respondent further submitted that the present case can be distinguished from WACO “as the letters were provided to the Tribunal before hearing[11], not after, as occurred in WACO: see WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [200] FCAFC 87 at [62] per Carr and Tamberlin JJ.”[12] The Tribunal did not investigate the second letter but it did not have a positive duty to do so (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]). Whilst the Tribunal has the power to obtain further information it does not have a duty to investigate the applicant’s claims, nor is it under any duty to consider utilising such permissive statutory powers which might enable it to do so (e.g. s 427 (1)(d)); see VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 at [21] and [24]-[25]; W389/01A v Minister for Immigration & Multicultural Affairs (2002) FCR 407 at [74]-[78].
[11] Although this is not in fact correct.
[12] Respondent’s Outline of Submissions 29 November 2005 paragraph 22 (c).
It is submitted for the respondent that the Tribunal complied with its statutory obligations as well as any duty to accord procedural fairness which may, at that time, have existed over and above its statutory procedural obligations. Further, those matters that were relevant and significant to the Tribunal’s decision were put to the applicant: see Kioa v West (supra at 629) as cited in NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 at 503 per Ryan and Finkelstein JJ; Minister for Immigration & Multicultural & Indigenous Affairs v NAMV (2004) 140 FCR 572 at [140] per Merkel and Hely JJ.
The respondent submits that the Tribunal’s primary finding was one of adverse credibility and the Tribunal reached that finding having regard to the view that it had formed of the applicant’s credibility by reason of the applicant’s own evidence and other general information.
The Tribunal was entitled to do so, as credibility is solely a matter for the Tribunal: see Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. As counsel for the respondent so quaintly put it “there is not jurisdictional error extant”.
Submissions in Reply
At the conclusion of the hearing, it was agreed that both parties would be given leave to make further written submissions. Counsel for the applicant prepared Submissions in Reply with the explanation:
These submissions are made with the permission of the court, because time would not permit extensive oral submissions in reply to those of the respondent.[13]
[13] This is partly due to the fact that counsel for the applicant had already made extensive oral submissions in chief.
In his submission in reply, Mr Karp dealt first with what he characterised as the respondent’s submission that the Tribunal had only to comply with the requirements of s. 424A of the Migration Act. Beginning from the conceded position that s. 422B does not apply in this case, he took issue with what he said was a necessary implication of the respondent’s argument, that the existence of s. 424A in some way restricts the Tribunal’s obligation to provide procedural fairness.
He submitted that it is a settled rule of statutory construction that procedural fairness can only be restricted or excluded by “plain words of necessary intendment” (see Annetts v McCann (190) 170 CLR 596 at 598). In Plaintiff S157/2002 v Commonwealth of Australia (supra, at [30]), Gleeson CJ said:
“…courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakeable and unambiguous language. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.”
Counsel for the applicant also referred to the decision in Minister for Immigration v NAMW [2004] FCAFC 264, where the Full Court found that although there was not a breach of s. 424A because the exception in s. 424A (3)(a) applied, nonetheless there had been a denial of natural justice because the Tribunal had failed to disclose relevant country information upon which it had relied (see at [145]).
Counsel for the respondent disagreed with the respondent’s submission that s. 424A is a code governing disclosure of adverse material to an applicant. He referred to Re Refugee Review Tribunal; ex parte Miah (supra) where a majority of the court held that the inclusion of some obligations of procedural fairness does not exclude others. As McHugh J said at [139]:
The respondents argue that, because the statute establishes a mandatory duty to inform applicants about certain kinds of information, Parliament could not have intended that a similar duty should be imposed in relation to other types of information. But to so argue is to fall into the error of inferring from the presence of some matters concerned with natural justice that Parliament intended to exclude natural justice in all other respects.
He submitted that the respondent’s submission that s. 424A is a code governing disclosure of adverse material must fail.
Counsel for the applicant did not agree with the respondent’s submission that the Tribunal merely gathered information in response to claims put to it by the applicant. First, he said, the Tribunal did not merely gather information in response to the claims put to it by the applicant. It went into the hearing having conducted considerable research and gave the applicant the conclusions stemming from that research.
Second, non disclosure is not excused because the Tribunal did obtain certain information in response to the claims put at the hearing.
He referred to the rule in Kioa v West (supra) at 628:
“…in the ordinary case…an opportunity should be given [to the applicant] to deal with adverse information that is credible, relevant and significant to the decision to be made.”
Mr Karp went on to submit that the disclosure of broad conclusions which are in fact based on numerous individual pieces of information is not sufficient to give an applicant a real opportunity to answer the case (to use his words) “that the Tribunal has amassed against him.” It is difficult, if not impossible, for an applicant to deal with these conclusions without knowing the specific sources, events, statements etc upon which the Tribunal has based its conclusions.
As to the submission that there is no evidence of prejudice, counsel for the applicant submitted that no evidence of prejudice is necessary.
He referred to NARV v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [17], where the majority rejected the notion that where there is a denial of procedural fairness it is incumbent upon the complainant to lead evidence to explain in precisely what way the complainant has been adversely affected by a particular omission.
Their Honours referred to Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82, where McHugh J said[14]:
Once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome, because it is no easy task for a court … to satisfy itself that what appears on its face to be a denial of natural justice could have had no bearing on the outcome.
[14] At page 122.
In short, he submitted that all that is necessary is that there could be prejudice that may have affected the outcome.
Counsel for the respondent Minister provided Supplementary Submissions in Reply, where she submitted that what is required of a Tribunal in relation to the disclosure of adverse information to an applicant, in accordance with the ratio of Brennan J in Kioa v West (supra) at 615 is a disclosure of the substance of the information (see also Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 at [4], [7], [27] and [29].
The respondent maintains that there has been a substantive disclosure to the applicant, which is borne out by the Transcript. The applicant was given the information by the Tribunal in a summarised or general way, but that is the way it was applied in the Tribunal’s findings.
In respect of the s. 424A issue, the respondent does not submit that procedural fairness obligations do not necessarily exist above and beyond the Migration Act in cases prior to the commencement of
s. 422B, but in this case the respondent says that there has been no derogation from those obligations.
Counsel for the respondent submits that Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (supra) can be distinguished on its facts. The relevant passage appears at [144]:
There is nothing in the reasons of the RRT or in the material to which we were taken that suggests that the relevant information, or the use to which it was put, was so obvious to the first respondent that he should have been aware that it was incumbent upon him to address that information.
The submission goes that in the present case it cannot be said that the Tribunal did not put the information to the applicant. The submission then states:
…nor that the use to which it was put was so obvious to the applicant that he was aware it was incumbent upon him to address it.[15]
[15] Respondent’s Supplementary Submissions in Reply, paragraph 8.
It appears to me with respect that the word ‘not’ may have been left out of that part of the submission. What I understand the submission to mean is that it cannot be said that the use to which the information was put was not so obvious to the applicant that he was not aware that it was incumbent upon him to address it[16]. As counsel points out, the matters were raised with him and they were raised in such a manner that he not only knew to address them, but actually did so.
[16] This appears to be a triple negative, but it is easier to understand if the negatives are removed.
Counsel then went on to submit at paragraph 10:
Merely because the Court found in NAMW that despite compliance with s. 424A, the Tribunal had failed to accord procedural fairness, does mean[17]that in all cases where there is an obligation beyond the Act there exists a jurisdictional error.
[17] The word ‘not’ appears to have been left out again
I interpret this submission to mean that even though the court found in NAMW that the Tribunal had made a jurisdictional error despite having complied with s. 424A, it does not mean that in all cases where there is an obligation beyond the Migration Act there will be a jurisdictional error. If that is what the submission means it is, with respect, a statement of the sanguinary obvious. Each case has to be decided on its merits, and the case before me turns very much on its own facts.
If the submission means something other than that, I am unable to discern what it is.
Counsel for the respondent essentially repeated her earlier submissions in respect of the other matters raised in the applicant’s submission, except for two issues. First, counsel for the respondent submits that the independent country information gathered by the Tribunal went to nothing further than the information that had already been disclosed, and was not used in any other manner, there is no error.
Second, in respect of the “no prejudice” submission, the respondent submits that the benchmark advanced by the applicant is that he ought to have been given an opportunity to understand the case put against him and respond. It is clear that from the interchange between the Tribunal member and the applicant at pages 13 to 15 of the Transcript that this actually occurred, and so there was no prejudice.
The applicant’s solicitor sent an email to my associate drawing my attention to the recent decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (supra) and citing the decision in relation to these propositions:
a)Procedural fairness requirements exists in addition to s. 424A; and
b)The Tribunal is required to convey the substance of information.
With respect, there is nothing unexpected in respect of these two propositions. Counsel for the respondent repeats her earlier submissions in respect of those matters.
Conclusions
There are three issues for determination. The applicant claims to have been denied natural justice because:
a)The Tribunal failed to disclose the substance of information adverse to him in documents created prior to the Tribunal hearing.
b)The Tribunal failed to disclose the substance of information adverse to him in documents created after the Tribunal hearing.
c)The Tribunal failed to disclose the Tribunal’s proposed rejection of documents being letters dated 6th April 2003 from the Bangladesh Student League Chittagong District (North) and the Bangladesh Awami League, Chittagong District (North), said to be genuine documents on their face.
It is relevant to the determination of the first two issues that s. 422B of the Migration Act did not apply at the time. The application for review by the Tribunal had been filed before 4th July 2002, the commencement date of s. 422B. The effect of this fact is that the procedures in Division 4 of Part 7 are not to be taken to be an exhaustive statement of the natural justice hearing rule.
Whilst s. 424A of the Migration Act was in operation at the time, compliance with s. 424A would not necessarily mean that there could not be a denial of natural justice (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (supra). If s. 424A covered the field, there would have not been a need to enact s. 422B.
It was not until s. 422B came into force that the requirements of the natural justice hearing rule were exhaustively covered by Division 4 of Part 7, because that is what s. 422B specifically provided (see Annetts v McCann (supra); Plaintiff S157/2002 v Commonwealth of Australia (supra)).
If there is a denial of natural justice, the court should only refuse relief if it is confident that the breach of natural justice could not have had any bearing on the outcome (Re Refugee Review Tribunal; ex parte Aala (supra); NARV v Minister for Immigration & Multicultural & Indigenous Affairs (supra)).
The obligation on the Tribunal is a disclosure of the substance of adverse information that is credible, relevant and significant to the decision to be made so that the applicant has an opportunity to deal with it (Kioa v West (supra); Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (supra)).
Dealing with the first issue for determination, whether there was a denial of natural justice because of a failure to disclose to the applicant the substance of adverse information in documents created prior to the hearing, I am satisfied that there was no denial of natural justice.
A perusal of the transcript of the proceedings and a comparison with the Tribunal’s decision persuades me that the Tribunal did disclose the substance of the material to the applicant. I refer to the table of comparison prepared by counsel for the respondent Minister in the Respondent’s Supplementary Submissions in Reply, which illustrates this point quite clearly.
It is also clear that the applicant was not only made aware of the adverse information at the hearing but that he addressed this information in his replies to the Tribunal member. I am satisfied that in this regard the Tribunal did disclose the substance of the information that was adverse to the applicant’s case from the independent country information, and the Tribunal gave the applicant sufficient opportunity to answer it.
There is no denial of natural justice in this regard, and therefore no jurisdictional error.
Turning to the second issue for determination, whether there was a denial of natural justice because of a failure to disclose to the applicant the substance of adverse information in documents created after the hearing, in this case I am satisfied that there was a denial of natural justice amounting to jurisdictional error.
The documents created after the hearing date from the period between 18th August and 11th September 2003 and are more than just a repeat of the same type of material put to the applicant at the hearing.
The documents were not just created after the hearing, they relate to incidents that did not take place until after the hearing (see pages 189, 192 and 193 of the Court Book). The applicant could not possibly have known that these incidents were to occur and clearly could not have addressed this information at a hearing on 28th March 2003. It is clear from the Tribunal’s comments at pages 189 and 193 of the Court Book that the Tribunal relied on that information as part of the reason for affirming the delegate’s decision.
Even though the hearing took place in March, the Tribunal obviously did not prepare the decision until late September 2003. Whilst the delay is nowhere near the extraordinary delay referred to by the High Court in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77, it would have been preferable if the Tribunal had written this decision some months earlier than the six months that elapsed between the hearing and the making of the decision.
I am satisfied that there has been a denial of natural justice and that this constitutes a jurisdictional error. I cannot say with any confidence that the denial of natural justice could not have had any bearing on the outcome, and I am inclined to believe from the Tribunal’s reasons that, if anything, the reverse may be true. Accordingly, I propose to make orders in the nature of certiorari and mandamus.
It is important to note that this finding relates to circumstances that occurred prior to the commencement of s. 422B of the Migration Act.
It does not necessarily follow that if the application for review had been filed on or after 4th July 2002 the outcome would be the same.
The third and final issue for determination is whether the applicant was denied natural justice by the failure to disclose the proposed rejection of the two letters dated 6th April 2003 from the Bangladesh Student League and the Awami League.
The short answer is ‘no’.
The documents concerned were created after the hearing and submitted after the hearing, despite the respondent’s submission[18] to the contrary. The Tribunal did not raise the authenticity of “both letters” with the applicant at the hearing, again, despite the respondent’s submission to the contrary.[19] It could not have done, as the documents were not even in existence at the date of the hearing.
[18] See Respondent’s Outline of Submissions at paragraph 22(c).
[19] See Respondent’s Outline of Submissions at sub-paragraph 22(c)(ii).
Clarification
With respect, in the consideration of the third issue, it appears to me that the submissions by counsel are at cross purposes, which has not made it any easier to decide the issue. In order to make it clear what issue is the subject of my decision, it is necessary for me to set out my understanding of the documents concerned and the relevant sequence of events.
First, the applicant’s counsel filed in court, without objection, a Further Amended Application for Judicial Review.
The applicant’s legal advisers provided an unsealed copy of that document to the respondent’s legal advisers prior to the hearing date; the respondent’s Outline of Submissions dated 29th November 2005 not only refers to the proposed Further Amended Application but quotes the grounds of review in full[20].
[20] See Respondent’s Outline of Submissions at paragraph 9.
Ground 2, which is the third issue for determination, alleges a denial of natural justice because of the Tribunal’s failure to disclose the “proposed rejection of documents which were on their face genuine, being those documents at pages 152 and 153 of the Court Book”.
The documents at pages 152 and 153 of the Court Book are the two letters dated 6th April 2003 from the Bangladesh Student League and the Awami League at Chittagong North.
On 21st February 2003 the applicant’s migration adviser wrote to the Tribunal enclosing, inter alia, a “certified copy of a letter issued by Sheikh Hasina MP and the opposition leader of the Parliament and the former Prime Minister of the Bangladesh – A”.[21]
[21] See Court Book at Pages 63 and 64.
It was this letter, which I will describe as the “Sheikh Hasina letter” that was the subject of queries by the Tribunal at the hearing, which took place on 28th March 2003. The Tribunal member expressed doubt about its genuineness and said (at page 4 of the Transcript):
I think I will investigate whether this letter is genuine or not, okay. I’m telling this to you because it needs to go back to the authorities in Bangladesh to be checked.
On 11th April 2003, fifteen days after the hearing, the applicant’s migration adviser wrote to the Tribunal[22], enclosing, inter alia, faxed copies of the two letters referred to on pages 152 and 153 of the Court Book. They were both dated 6th April 2003, and for convenience I will refer to them as the “6th April letters”.
[22] Court Book page 151.
Later that same day, the Tribunal replied to the applicant’s migration adviser, acknowledging receipt of those documents and saying that they would be given consideration.
In the same letter, the Tribunal advised the applicant that the Sheikh Hasina letter was a fabrication:
The Tribunal has information that would, subject to any comments that 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:
As foreshadowed at your hearing, the Tribunal investigated the letter you submitted in support of your claims, purportedly from the leader of the Awami League, Sheikh Hasina. The Department of Foreign Affairs has ascertained that the letter was not signed by Sheikh Hasina and was not issued by her.
This information is relevant because it may lead to an adverse finding of credibility in relation to your application[23].
[23] Court Book page 173.
This letter, which clearly complies with s. 424A of the Migration Act, gave the applicant until 8th May to provide comments in writing.
The applicant’s adviser wrote to the Tribunal on 8th May 2003, seeking a further ten days in which to provide comments.[24] The Tribunal replied the same day, refusing the request:
Your client has been given 7 working days plus 14 calendar days to submit a response. The Tribunal does not consider that further time needs to be allowed for a response.[25]
[24] Court Book page 174.
[25] See Court Book at page 176. The index to the Court Book erroneously describes this letter as “granting extension of time”.
Despite this refusal, it was not until 29th September 2003 that the Tribunal made this decision.
In the decision at page 188 of the Court Book the Tribunal refers to the 6th April letters as one letter:
Another letter submitted by the applicant is purportedly from the president and secretary of a Chittagong branch of the Awami League, stating it was not prudent for him to return to Bangladesh while the BNP was in power since he would be harmed by the BNP and Jama’at.
At page 199 of the Court Book, the Tribunal dismissed the Sheikh Hasina letter as “a fabrication”.
The Tribunal then went on to refer to the 6th April letters, again describing them as one letter, saying:
I have not investigated the authenticity of the other letter that the applicant has submitted from other claimed Awami League Officials but I am strongly inclined to doubt its authenticity because the applicant has demonstrated readiness to fabricate evidence such as the alleged letter from the Awami leader and the photographs of the alleged attack on his brother. Even if the letter was genuinely issued by its signatories I consider that it was written for partisan reasons.
Those are the facts and the sequence of events that I understand to be the case and on which I propose to make a decision.
Whether the Tribunal denied natural justice to the applicant by failing to disclose the proposed rejection of the 6th April letters
The applicant relies on the decision in WACO v Minister for Immigration & Multicultural & Indigenous Affairs (supra at [40]-[42]). The respondent seeks to distinguish the decision in WACO on its facts, relying on the decision of the Full Court of the Federal Court in WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 at [62].
In my view, it is the decision in WAHP v Minister for Immigration & Multicultural & Indigenous Affairs (supra) that can be distinguished on its facts. In WAHP the letter concerned had been provided to the Tribunal before the hearing (per Lee J at [23]) and, unless the account in the letter was untrue or the document had been fabricated by others, the circumstances described in the letter provided reasonable grounds for the appellant to fear persecution (at [25]).
In WAHP, Carr and Tamberlin JJ, referring to the transcript of the hearing, found that the Tribunal did raise with the appellant the critical issues which were contained in the letter and did give him an opportunity to respond during the hearing.
The facts in WAHP are so different from the issue to be decided that I consider that the decision should be distinguished.
If the decision in WACO (supra) is to be distinguished, it is certainly not for the reasons suggested by the respondent, which are quite wrong. In WACO, the letters that were submitted after the hearing were done so after the applicant’s adviser obtained permission from the Tribunal at the hearing to provide further information on one particular critical issue. Both letters if they were accepted as genuine corroborated a critical element of the appellant’s claim (at [13]).
In the case before me, the two 6th April letters were submitted after the hearing without any prior indication that they were coming. In my reading of them, even if taken at their highest they would provide little corroboration of the applicant’s claims. The wording of the two letters is almost identical, and it is not hard to see why the Tribunal would describe the letter(s), even if they were genuine, as having been written “for partisan reasons”.
In my opinion, the Full Court’s comments at [41] are relevant to this case:
A finding that documents are not genuine might, in a particular case, depend upon factors external to the documents.
Direct evidence that a document is a forgery will not always be necessary: Immigration and Multicultural Affairs, Minister for v Djalal (1998) 51 ALD 567. It would not involve an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an applicant’s credit: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49].
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.
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.
In this case, the Tribunal did not make a positive finding that the
6th April letters were faked or fabricated. The Tribunal was “strongly inclined to doubt its (sic) authenticity”[26] because of other relevant matters, namely the applicant’s history of fabricating evidence, such as the Sheikh Hasina letter and the photographs of his brother.
Those issues had been canvassed by the Tribunal with the applicant at the hearing and he had been given ample opportunity to meet those issues. The Sheikh Hasina letter had been the subject of a letter in accordance with s. 424A, to which the applicant never made reply.
[26] Court Book page 199.
In my view, the Tribunal was entitled to cast doubt on the 6th April letters which the applicant chose to submit after the hearing.
The Tribunal did not fall into error in this regard.
For the reasons contained in paragraphs 66 to 79 above, the application will be granted. I will make orders in the nature of certiorari and mandamus.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 January 2006
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