SZCRI v Minister for Immigration
[2006] FMCA 917
•06 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCRI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 917 |
| MIGRATION – Refugee – Tribunal’s treatment of documents – s.422B – documents provided by the applicant falls within the operation of s.424A(3)(b) – the Tribunal complied with all of its procedural fairness obligations – claims rejected based on what the applicant put to the Tribunal at the hearing – credibility findings – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.422B, 422B(1), 424A, 424A(1), 424A(3)(b) Evidence Act 1995, s.135 |
| Annetts v McCann (1990) 170 CLR 596 SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 SZEGT vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1333 SAAPv Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 |
| Applicant: | SZCRI & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 346 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 16 March 2006 |
| Date of Last Submission: | 10 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 06 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. A. Kumar (Direct Access) |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. L. Clegg |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 346 of 2004
| SZCRI & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 11 February 2004 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 December 2003 and handed down on 8 January 2004 to affirm the decision of a delegate of the respondent Minister made on
19 June 2003 to refuse a protection visa to the applicants. The Tribunal is joined as the second respondent in these proceedings. I also made an order to correctly name the respondent Minister as the “Minister for Immigration and Multicultural Affairs”.
The applicants are a mother and her three children who claimed to be citizens of India and who arrived in Australia on 2 May 2003. Only the applicant mother (“the applicant”) made specific claims under the Refugees Convention. The applicant’s claims to protection are set out in her application for a protection visa reproduced at Court Book (“CB”) 1 to CB 63, particularly in a statement dated 16 May 2003 reproduced at CB 62 to CB 63, and in the Tribunal’s report of the hearing it conducted with the applicant on 10 December 2003 (at CB 115 to CB 123). The applicant claimed to fear persecution, if she were to return to India, based on the Convention ground of religion and political opinion, and in particular that her life was at risk as she belonged to, and was involved with, the Akali Dal Party. The applicant also claimed that she and her husband had both been leaders of the Akali Dal Party in their village. In documents submitted at the hearing before the Tribunal it was claimed that she was a “fire brand activist” and “zone president of the Party”. She further claimed that she had been “hijacked”, tortured several times, harassed, and on one occasion arrested and detained for three to four days by those associated with the “enemy” Congress Party which had won the most recent (2002) elections.
The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 124.1 to CB 129.2. The Tribunal:
1)Accepted that the applicants are nationals of India, and of the Sikh religion (CB 124.1).
2)Did not accept that a number of identical claims with the same wording, and same grammatical errors, could have been genuinely made by three different applicants before the Tribunal (CB 124.2).
3)In light of this, proceeded to explore in detail at the hearing the claims made by the applicant and accepted the “version” (of events and claims) put at the hearing (CB 124.6).
4)Described the applicant’s claims to be “vague and general” (CB 124.8).
5)Did not accept, and found it unlikely, that the applicant’s claim that she was appointed president of the Akali Dal Party in her village, nor did it accept her explanation as to how the appointment came about (CB 125.1).
6)Found that the applicant had exaggerated her claims in order to “enhance her application for a protection visa” (CB 125.3).
7)Was not satisfied that the applicant had a “real knowledge” of the Akali Dal Party, nor that she was a “fire brand activist” of the Akali Dal Party, or had anything other than the most “menial association” with the Party (CB 125.6).
8)Was not satisfied that the applicant would be targeted by the Congress Party or any other Party (CB 125.7).
9)Given the above, found the documents presented by the applicant to the Tribunal were called into question. Further, for the reasons it gave it attached little weight to the letter which described the applicant as a “fire brand activist” (CB 96 to CB 97). It found, even further, that this raised doubts about its authenticity and “possibly” about other documents the applicant had provided (CB 125.8 to CB 126.3).
10)Found it was significant that the applicant could not remember when she held the position of “chief” in her village (CB 126.3).
11)Found that while she claimed that her husband and brother were also at risk for the same reasons as applied to her, she also said her husband chose to remain on their farm and not seek refuge elsewhere (CB 126.5).
12)Noted that she did not claim that her husband and brother had been arrested, detained, abused or subjected to any mistreatment for the last three years and that her husband continued to live and work on the same farm for 22 years. The Tribunal found this inconsistent with her claims that she had moved address and gone into hiding and did not accept these claims (CB 126.6).
13)In all, was not satisfied on the basis of the claims made and documents provided by the applicant, that there was a real chance that she and her children would experience harm amounting to persecution for a Convention reason if they returned to India (CB 126.8).
14)Accepted the applicant’s claim that she obtained her passport in her own name and left India legally and without difficulty from the police and the authorities (CB 127.2).
15)In relation to the claim that false charges had been made against her, found “no further details” were provided and the applicant did not raise this issue at the hearing, despite the opportunities that were provided.
16)In light of its other findings concerning an absence of real involvement with the Akali Dal Party, did not accept that the applicant would have been targeted by the Congress Party, or the police, and that false charges would have been laid against her in order to force her to become a party member (CB 127.5).
17)Further found that even if charges were laid, or might be laid in the future, the applicant could seek “legal redress” from the Courts in India (CB 127.9).
18)Further found, in any event, it would be reasonable for the applicant to relocate safely to another part of India (CB 128.6).
The Tribunal could not be satisfied that the applicant and her children would face any Convention related harm upon their return to India, now or in the foreseeable future.
The applicant’s originating application to this Court was filed on
11 February 2004, and this was followed by an amended application filed on 17 January 2005, which appears to have been drafted with the assistance of solicitors. When the matter came on for hearing before me the respondent Minister was represented by Ms. Clegg and the applicants were represented by Mr. Kumar, on what I understood to be a direct access basis.At the outset, Mr. Kumar indicated that he was intending to proceed on the amended application filed on 17 January 2005, and the applicant’s outline of written submissions filed on 10 March 2006. He sought leave to read the affidavit of the applicant, which appears to have been either sworn or affirmed by the applicant on 9 March 2006. The affidavit contains three short paragraphs and asserts that although the Tribunal raised various issues with the applicant at the hearing that it conducted with her, she had a clear recollection that the Tribunal did not raise the issue of the authenticity of documents that she had provided to the Tribunal at the hearing.
Ms. Clegg objected to the affidavit being received into evidence. Her submission was that it should be excluded as a matter of discretion pursuant to s.135 of the Evidence Act 1995 (“Evidence Act”). She submitted that in the circumstances the evidence should be excluded because its probative value is substantially outweighed by the danger that the evidence would be prejudicial to the Minister. She submitted further that the basis on which the Court was asked to receive the evidence was that it went to what occurred at the hearing before the Tribunal in relation to documents the applicant had provided. Ms. Clegg's submission was that the best evidence of what occurred at the hearing is a transcript derived from the tape of the hearing which is customarily the evidence that is filed before the Court in matters of this type. Ms. Clegg drew a distinction between an unrepresented applicant who may not have an understanding of these matters, and an applicant who was represented by Counsel, and who had previously been represented by solicitors. Ms. Clegg’s second set of submissions was that the applicant was not present in Court so that she could be available for cross-examination and that the evidence should not be admitted as a matter of fairness as she had not made herself available to be cross-examined. She emphasised however that even if the applicant were to appear, then the evidence should still be excluded pursuant to s.135 of the Evidence Act.
Mr. Kumar submitted that the substance of the evidence in the affidavit, essentially paragraph 3, should be admitted, and that it could then be a matter for the Court to decide the weight to be accorded to this evidence in all the circumstances. While he saw this submission as relevant to Ms. Clegg's objection on the basis of the exercise of discretion pursuant to s.135, he accepted that there could “be some problem” in that the deponent was not available. Mr. Kumar indicated that he expected his client to attend at the hearing, but was unable to say why she had not attended. There was some hope that she would arrive. On this basis the hearing proceeded without my ruling on the admissibility of this evidence in the hope that the applicant would arrive, and the issue at least of her availability for cross-examination could be resolved.
On this basis I allowed some latitude in relation to Mr. Kumar's submissions regarding the matter raised in the affidavit, but subject to the ultimate ruling on the admissibility of the evidence. As it transpired the hearing proceeded for over an hour and a half and the applicant did not appear. Ultimately while the general discretion to exclude evidence pursuant to s.135 of the Evidence Act requires a balancing between the probative value of the material sought to be put before the Court and the danger (relevant to this case) that the evidence might be unfairly prejudicial to the Minister, (and also bearing in mind that this balancing process pursuant to s.135 should favour admission of the evidence), I was nonetheless inclined towards accepting Ms. Clegg's submission for the reasons that she gave. But in any event, I excluded this evidence on the basis of fairness as the applicant, who had the benefit of legal representation, had not made herself available for cross-examination, and no real reason for her unavailability was put forward, nor was any adjournment sought such as to enable her to make herself available at some future time. As it transpired, for the reasons set out below, this evidence in any event would not have assisted the applicant's case.
Mr. Kumar began his submissions with a complaint that in relation to the “applicant's documents” (those provided at the hearing before the Tribunal) reproduced at CB 96 to CB 108, the Tribunal breached the rules of natural justice and/or procedural fairness in making its decision in relation to its treatment of these documents. He submitted that the denial of common law procedural fairness needs to be considered as, he submitted, s.422B of the Migration Act 1958 (“the Act”) did not exclude common law procedural fairness in the circumstances of this case. This complaint did not appear to accord with either of the two grounds put in the amended application of 17 January 2005. In relation to these documents the amended application puts forward as the relevant ground that the Tribunal did not observe procedures that were required by the Act in the making of its decision.
Ultimately, given the circumstances of the case, and the relatively late introduction of Mr. Kumar into this matter, I granted leave for the applicant to file a further amended application. I note that subsequent to the hearing on 22 March 2006 the applicant filed this further amended application, and the sole ground is said to be a breach of the rules of natural justice. Mr. Kumar was allowed to proceed on his submissions on that basis, and this was done initially without abandoning the two grounds put forward in the amended application of 17 January 2005.
Mr. Kumar subsequently advised however that he would not press ground one in the amended application after the Court sought submissions on the effect of s.424A(3)(b) of the Act on the obligation to provide information, and seek comment on this information (in writing) pursuant to s.424A(1). The documents in question were clearly provided by the applicant to the Tribunal during the course of the hearing by the applicant, and it clearly could not be said that the applicant did not give this information to the Tribunal for the purposes of the application for review before the Tribunal. It was in this context that Mr. Kumar subsequently advised that he was not pressing ground one in the amended application of 17 January 2005.
In relation to ground two:
“2. The Tribunal did not have jurisdiction to make the decision.
PARTICULARS
Insofar as the Tribunal was in breach of the Act in relation to the decision including any failure to follow procedures required by the Act and any error in interpreting or applying the law, the Tribunal thereby acted without or in excess of jurisdiction in relation to the decision.”
Mr. Kumar submitted that he did not press the particular. I note that without particularity little of relevance could be discerned from the complaint as stated in ground.
In any event, finally, he sought to press one ground, which was essentially argued in paragraph 4 of his written submissions filed on 10 March 2006, and as subsequently set out in the further amended application of 22 March 2006:
“The Tribunal breached the rules of natural justice and/or procedural fairness in connection with the making of decision.
Particulars
i.The applicants were not given opportunity to comment/respond to materials;
ii.The Tribunal denied applicants natural justice by failing to make relevant enquiries in relation to documents submitted found at CB 95-108;
iii.The Tribunal proceeded to make decision without further relevant information in relation to these documents and in particular form 4;
iv.The applicants contend that the breadth of s.422B of the Migration Act is such that Tribunal proceeded to make the decision without further relevant information and without allowing the applicants opportunity to explain the documents found at CB 95--108 is such that common procedural fairness was denied to the applicants and that s.422B of the Migration Act does not exclude common-law procedural fairness in this instance;”
In essence Mr. Kumar's argument was that:
1)The Tribunal denied the applicants natural justice and/or procedural fairness.
2)The applicant submitted a number of documents to the Tribunal, being the documents reproduced at CB 96 to CB 108.
3)Section 422B of the Act did not completely “exhaust the common law natural justice requirement”.
He submitted that it was “well settled” that the rules of natural justice would apply, and sought to rely on Annetts v McCann (1990) 170 CLR 596 at 609 (“Annetts v McCann”) as authority for the principle that a decision-maker who commits an error which exceeds the authority or powers given by the relevant statute is said then to have made a decision without the requisite jurisdiction to make such a decision, and therefore has made a decision infected by jurisdictional error. I should note that clearly Annetts v McCann predates the introduction of s.422B of the Act. When pressed Mr. Kumar did not provide any authorities which have considered the issue of s.422B, and its impact on Division 4 of Part 7 of the Act to support his submission. Mr. Kumar advised the Court that he had looked at the authorities and s.422B, and that “the authorities that are found were against me”. He still sought to press however, that s.422B may not have completely exhausted the common law natural justice requirement, but submitted he was unable to take this argument any further.
4)The Tribunal relied on these documents and that its concerns about the lack of authenticity “of these documents” should have been put to the applicant to enable her to comment. Its failure to do so was a failure to provide common law procedural fairness to the applicant.
Turning first to the issue of s.422B, and the ambit of this provision and the proper construction of what is meant by “in relation to the matters it deals with”, s.422B provides:
“(1) This Division [Division 4 of Part 7 of the Act] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”
There has been a divergence of view as to the ambit of s.422B(1) and how “in relation to the matters it deals with” should be understood. This “division” between authorities was set out by Branson J., in SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 (“SZBDF”) at [11] to [17] of that Judgement. Her Honour concluded at [18] that:
“As s 424A deals with the obligation of the Tribunal to provide particulars of information to an applicant, there is no scope for a wider obligation to provide particulars of information to be implied into the Tribunal’s review process.”
Also looking at this issue, Edmonds J., in SZEGT vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514, a matter on appeal from this Court, referred to SZBDF, and said at [29]:
“It seems to me that there are a number of answers to the appellant’s argument:
(1) First, while the argument at [27](4) assumes that s 422B(1) may exclude any entitlement of the appellant of the kind described in [27](1) and (2), it further assumes that s 422B(1) does not exclude any obligation the Tribunal has, pursuant to the requirements of procedural fairness, to make a further enquiry. This latter assumption is at best doubtful and at worst wrong; its correctness ultimately depends on which of the competing views as to what the concluding words of s 422B(1) – ‘in relation to the matters it deals with’ – refer to: Whether they are to be confined to the exact text of the procedural fairness requirements to be found in Division 4 or whether they (the words) extend to something wider, such as all procedural aspects of the conduct of reviews by the Tribunal. The confined view is exemplified in the approach of French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 (‘WAJR’) at [47] – [59] and Gray J in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170 (‘Moradian’) at [35] – [37] on the one hand, and the wider view is exemplified in the approach of Lindgren J in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 (‘NAQF’) at [50] – [87] and Hely J in Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 221 (‘Wu’) at [21] – [23] on the other. See too SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCA 1493 (Branson J, 25 October 2005, unreported) where her Honour said at [12]:
‘Although NAQF involved consideration of subs 357A(1) of the Act and Wu and Moradian involved consideration of subs 51A(1), rather than subs 422B(1), the cases provide relevant comparators because the three subsections are relevantly in identical terms.’
Her Honour’s view was that the approach adopted by Lindgren and Hely JJ in NAQF and Wu, respectively, is, for the reasons given by their Honours, to be preferred to the approach adopted by Gray and French JJ in Moradian and WAJR respectively. I agree. It follows that I do not think the latter assumption upon which the appellant’s argument is predicated, namely that s 422B(1) does not apply to any obligation the Tribunal has, pursuant to the requirements of procedural fairness, to make a further enquiry, is correct.
(2) Section 424(1) empowers the Tribunal, in conducting a review, to get any information it considers relevant. On the basis that the correct approach to s 422B(1) is that it extends to all procedural aspects of the conduct of reviews by the Tribunal, including the first sentence of s 424(1), the submission that the overriding requirement of procedural fairness converts what is undoubtedly a discretionary power to get information into a duty to enquire, cannot be sustained. In the face of s 422B(1) of the Act, the failure to make such an enquiry provides no basis for a claim of a denial of procedural fairness. That would be enough to dispose of this ground.”
On one hand I note particularly the approach of French J. in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 (“WAJR”) and Gray J., in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590. On the other hand, I look at the wider view of what is meant by the relevant phrase from s.422B as exemplified in the approach of Lindgren J. in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 and Hely J. in Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1333, Branson J. said in SZBDF at [17] that:
“In my view the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively is, for the reasons given by their Honours, to be preferred to the approach adopted by Gray and French JJ in Moradian and WAJR respectively.”
In the case before me the applicants’ application for review to the Tribunal was made on 24 July 2003 (CB 79). This is well after 4 July 2002, the date on which s.422B was added to the Act and inserted as part of Division 4 of Part 7 of the Act. In following the authority expressed by Branson and Edmonds JJ. (and Lindgren and Hely JJ.) the Tribunal's relevant obligations in relation to the documents referred to by Mr. Kumar (as reproduced at CB 96 to CB 108 and in particular the document set out at CB 98 dealing with a proclamation requiring the appearance of the applicant before an Indian Court (“Form number 4”)) are relevantly contained in Division 4 of Part 7 of the Act. Section 424A of that Division, and in particular s.424A(1), obliges the Tribunal to give to the applicant particulars of any information that it considers would be at least a part of the reason for affirming the decision that is under review.
Mr. Kumar submitted (albeit in the context of the common law natural justice hearing rule) that these documents were before the Tribunal, and that they formed part of the basis of the the Tribunal's reasons for its decision. Mr. Kumar submitted that the documents, and in particular the document reproduced at CB 98, had not been put to the applicant as not being authentic, and that the applicant was therefore denied the opportunity to respond to the allegation of lack of authenticity.
To the extent that there may have been some initial attempt by the applicant now to rely on s.424A(1) (as set out in the applicant's written submissions) I note Mr. Kumar’s concession as set out above and in any event given that there is no dispute that the documents were given to the Tribunal during the course of the hearing that it conducted with the applicant for the purposes of review. Such documents (encompassing the information contained in all of those documents) are excluded from the operation of the provision in s.424A(1), by the operation of s.424A(3)(b). To the extent therefore that s.422B operates to create the obligation of the Tribunal to provide particulars of information to an applicant on which it relies even in part in reaching its decision, and to the extent that as Branson J. said, there is “no scope for a wider obligation to provide particulars of information to be implied into the Tribunal's review process”, then the Tribunal has clearly complied with all of its procedural fairness obligations in relation to the documents referred to by Mr. Kumar.
But even on the “alternate view” of s.422B as set out by French J. in WAJR, in my view the applicant before me would not succeed. In particular I note what his Honour said at [57]:
“Section 422B provides that Division 4 of Part 7 is ‘taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’. The ‘natural justice hearing rule’ is not defined. It is not necessary for present purposes to attempt an exhaustive definition. It can be said, for present purposes, to reflect those aspects of the requirements of procedural fairness that relate to the presentation of an applicant’s claims to the Tribunal. Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness ‘in relation to the matters it deals with’. This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal. The ‘matters’ Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, ie the conduct of reviews by the Tribunal.”
Even on this view reference to the particular provisions is a reference to s.424A(1). As I have already set out above the Tribunal did not fail in its obligations in this regard by way of operation of s.424A(3)(b) of the Act. Despite opportunity Mr. Kumar was unable to submit how even on this interpretation s.422B would not operate to exclude any common law procedural fairness requirements. I note that when pressed he conceded that the authorities were against him.
I should note also that even if the applicant's evidence contained in her affidavit which Mr. Kumar sought to have admitted before me, was admissible (that the Tribunal had not raised the issue of the documents with her at the hearing that it conducted, and therefore did not provide her with an opportunity to comment on the Tribunal's view of these documents), then this still would not have assisted the applicant. Any such failure, given the operation of s.422B, and as applied to s.424A(1) and the operation of s.424A(3)(b), means that there was no obligation on the Tribunal to have done so in any event. Given the High Court’s majority view in SAAPv Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) such information (but for the operation of s.424A(3)(b)) would in any event have had to have been put to the applicant in writing and not at the hearing.
Further to what is set out above I should just note for the applicant's benefit in particular, that even if s.422B did not operate to make Division 4 of Part 7 the exhaustive statement of the matters that it deals with, that I still would not have found for the applicant on the ground put forward by Mr. Kumar. Mr. Kumar’s submission was that the Tribunal had rejected the applicant's documents as not being authentic, that it did not put the documents to the applicant as not being authentic, or call on the applicant to comment on the documents. The submission was that the Tribunal made adverse credibility findings based on these documents without putting this to the applicant. In particular in written submissions he relied on WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (“WACO”) at [54] to [55]:
“Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.
Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the appellant to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary.”
In her submissions Ms. Clegg sought to distinguish the circumstances in the case before me from the situation in WACO, and for that matter other cases including WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 (“WAGU”), a Judgement of French J. She submitted that in those cases there were important findings made by the respective Tribunals in relation to fraudulent documents, and the relevant Tribunal's thoughts about those documents were not put to the relevant applicants. This can be distinguished from the circumstances in the current case on the basis that the Tribunal made credibility findings in the absence of its views about the documents. This can be discerned from a plain reading of the Tribunal’s “Findings and Reasons” as contained in its decision record.
In relation to the issue of the applicant's credibility the Tribunal:
1)(At CB 125.3) Recounts an exchange with the applicant at the hearing it conducted with her, and in particular the applicant's statements and claims put at the hearing, and was concerned with her statement that the president of the Akali Dal Party would have directly intervened on her behalf in a village of at most 150 people. The Tribunal noted this was unlikely and found that it raised “serious doubts” about her claims made at the hearing. Further, the Tribunal found that she had “exaggerated her claims” in order to enhance her application for protection.
2)(At CB 125.5) In relation to its questions about the philosophy of the Akali Dal Party and what it stood for, found that it could not be satisfied from the claims made by the applicant, and her response to questions at the hearing, that she had knowledge of the Akali Dal Party, or was involved other than in the most basic manner.
3)(At CB 126.3) Again in looking at certain matters that the applicant claimed at the hearing before it, found it significant that the applicant could not remember certain things, for example when she had been appointed as the “chief” of her village. The Tribunal clearly formed an adverse view of the applicant's credibility based on her inability to remember a critical matter that was within her capacity to remember, and further based on inconsistencies in her claims as put at the hearing before the Tribunal.
Ms. Clegg's submission was that there was no finding that the documents were not authentic such as would have required it to have put this to the applicant in the way established in WACO and WAGU. I accept her submission that when the Tribunal's decision is read as a whole, plainly the approach the Tribunal has taken in this case is to assess the credibility of the applicant independently of the documents, and then find that it would not attach any weight to those documents, in light of that finding. As such in those circumstances there is no denial of procedural fairness as envisaged in the circumstances found in WACO or WAGU. The Tribunal clearly stated in its “Findings and Reasons” that it proceeded to assess the applicant’s claims in light of what the applicant herself gave as sworn testimony at the hearing before the Tribunal (CB 124.6).
This is also clear in looking specifically its “Findings and Reasons” where the Tribunal refers to the various documents:
1)(At CB 124.9) The Tribunal, after reporting that it put to the applicant that her claims were vague and general, makes reference to the documents, and in particular that the applicant was described in those documents as a member of the Akali Dal Party and was a “fire brand activist” and a “zone” president of the party. It is clear however, that in this part of its decision record the Tribunal made no finding in relation to the documents (as to being authentic or otherwise), but merely drew from the documents the applicant’s own claims of active political involvement with the Akali Dal. The Tribunal's rejection of this claim clearly turned on its assessment of what the applicant said at the hearing before it (CB 125.3).
2)(At CB 125.8) The Tribunal makes further reference to the documents provided by the applicant, and in particular the letter describing the applicant as a “fire brand activist”. It is clear that the Tribunal here has not made a finding that the documents were fabrications or fraudulent. The Tribunal had already clearly formed a view of the credibility of the applicant’s claims in relation to her being a member of the Akali Dal Party. It was not satisfied, based on the answers to questions at the hearing, that she had any knowledge of this party, or was involved in it in any way, other than in the most basic manner. It was clearly (CB 125.7) because of the applicant's responses at the hearing that the Tribunal did not accept that she was a “fire brand activist”. By the time it came to look at the documents at CB 125.8, when read plainly, the Tribunal's decision record shows that it was the applicant's unsatisfactory responses at the hearing which led it to then say that this called into question the documents provided by the applicant.
3)I should also note that the Tribunal's reference to the style of the letter (this is the letter in which the applicant is described as a “fire brand activist” – see CB 96 to CB 97) as being one of advocacy, rather than evidence, was a matter that was clearly open on the face of the letter and was not of such a nature as to ground a complaint that the applicant was caught unawares. The Tribunal, at CB 126.2 states, “given all the above” that it could attach little weight to this particular letter as doubt had been raised about the authenticity of this, and “possibly” the other documents she had provided. When read in context it is clear that the Tribunal focused on what the applicant herself said at the hearing and saw that this (and in one respect what was apparent on the face of one of the documents – advocacy rather than evidence) raised doubts about the authenticity of the documents. In context it is what the applicant herself has said that leads to little weight being attached to the letter. At best the Tribunal has only said there were doubts about the authenticity of this letter and possibly the other documents. This is not a finding of fabrication of documents or that the documents were clearly not authentic.
4)By the time the Tribunal came to consider the document specifically raised in this context by Mr. Kumar (the document described as “Form number 4”, at CB 127.3, where it was claimed that false charges had been made against the applicant), the Tribunal stated:
“Having already found that the applicant only had a very limited involvement in the Akali Dal party the Tribunal does not accept that she would have been targeted by the Congress Party or the police (either for their own reasons or at the instigation of Mr. Charanjit Singh) and false charges would have been made against her in order to somehow force her to become a Congress Party member.”
5)Further it is also relevant that while the Tribunal said it could not accept that false charges had been made against the applicant, nonetheless independent country information available was such that the applicant could, in the circumstances put forward under “Form number 4”, seek legal redress from the Courts in India. Clearly there is no finding of fabrication, or that this particular document, was fraudulent. The Tribunal again rejected the applicant's claims to have been the subject of false charges for reasons not involving the document itself.
On a plain reading of the Tribunal's decision it is clear that in its analysis the Tribunal rejected the applicant’s claims based on what the applicant herself put to the Tribunal at the hearing. It then dealt variously (with the one exception referred to above relating to the letter – advocacy rather than evidence) with the weight that it would, and could, accord to those documents. The applicant's claims were not rejected because of the documents. They were rejected because of what the applicant herself put to the Tribunal and the circumstances that she presented. The Tribunal dealt with the documents (and clearly it was required to do so given they formed part of the applicant's case), but dealt with them in such a way that the documents could not in the Tribunal's view be seen to be such as to outweigh the very clear view that it had formed about the applicant's claims.
In this regard I note relevantly what the High Court said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [49]:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot 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 case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
Further, as Ms. Clegg submitted, it also falls within what French J. said in WAGU 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 its 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 circumstances before His Honour in that case can be clearly distinguished with what is before me. In WAGU His Honour found that there had been a definite finding of a lack of authenticity of the documents, and that this should have been raised with the applicant. Indeed his Honour in that case found that the lack of authenticity in the Tribunal’s view depended on some sort of conspiracy. That is not the situation in the case before me. I cannot see in these circumstances that any obligation was imposed on the Tribunal in terms of procedural fairness to have put this to the applicant. Again therefore, I note that even if the applicant's affidavit, and in particular the matter at paragraph 3 of that affidavit, was admitted into evidence before me, it still would not have assisted the applicant.
Towards the conclusion of the hearing Mr. Kumar sought to raise another issue which was not raised in his submissions, nor in his proposed ground for review. He described this as the “identical claims information”.
In its decision record, and firstly in its record of what occurred at the hearing with the applicant (CB 120.1), the Tribunal reports that it put to the applicant, amongst many other matters, that her protection visa application made “a number of identical claims with exactly the same wording” and same “grammatical mistakes” as several other applicants had made to the Tribunal. The Tribunal said it found it “impossible” that the wording of such statements could be exactly the same, and invited the applicant to respond. The Tribunal returns to this issue in its “Findings and Reasons” where at CB 124.5 it recalls that it discussed with the applicant at the hearing the issue of a number the identical claims. It then goes on to say that in view of this, and as had been put to, and acknowledged by the applicant at the hearing, that the Tribunal preferred to proceed on the basis of the applicant's claims as provided under sworn testimony, rather than on the “unsustained” claims that had been made in the written application.
If the “identical claims” issue, formed at least a part of the reason for its decision, then clearly pursuant to the authority in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”), Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 and SAAP the Tribunal would have been required to provide the applicant with written notice pursuant to s.424A(1), and given the applicant an opportunity to comment on this information.
Ms. Clegg submitted, and I accept this submission, that a plain reading of the Tribunal's decision record reveals that the Tribunal specifically excluded this information from its analysis. It clearly stated (CB 124.7) that it assessed the applicant's claims by reference to the information both by way of oral evidence given by the applicant, and documentary evidence provided by the applicant to the Tribunal at the hearing. It is particularly relevant to be mindful of what Allsop J., said in SZEEU at [216]:
“One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason).”
A plain reading, and analysis, of the Tribunal's decision record shows that the Tribunal did not rely on what was described as the “identical claims” information in rejecting the applicant's claims. In fact, quite to the contrary, the Tribunal relied on what the applicant herself said at the hearing before the Tribunal. I agreed with Ms. Clegg that there was no breach of s.424A(1) in this regard, and therefore no jurisdictional error. I should also note that after listening to Ms. Clegg's submission on this point Mr. Kumar submitted that he did not seek to press this issue any further.
In all therefore, the applicant's complaint that the Tribunal's decision was infected by jurisdictional error in that it did not fulfil its obligations of procedural fairness towards the applicant does not succeed for the reasons set out above. The Tribunal did not breach the relevant statutory obligation relating to procedural fairness. But further even if that were not the case (and I do not believe it to be so) then for the reasons set out above the applicant was not denied procedural fairness at common law. The Tribunal plainly dealt with the applicant's claims as put by the applicant at the hearing that it conducted with her. It rejected those claims essentially on what she said, and as assessed in the circumstances of her case. I cannot see any jurisdictional error on the basis as put forward by Counsel for the applicant. This application is dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 06 June 2006
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