SZDUA v Minister for Immigration
[2005] FMCA 519
•21 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDUA v MINISTER FOR IMMIGRATION | [2005] FMCA 519 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 424A, 424A(3), 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 1
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
Re Ruddock & Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437
Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576
Abebe v Commonwealth (1999) 197 CLR 510
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Straight Islander Affairs (2000) 103 FCR 539
Re Minister for Immigration; Ex parte Applicant S154/2002 (2003) 201 ALR 437
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
| Applicant: | SZDUA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1745 of 2004 |
| Delivered on: | 21 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 7 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Australia Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1745 of 2004
| SZDUA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 April 2004 and handed down on 13 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 19 November 1999 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDUA”.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 9 September 1999. On 14 October 1999 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. The delegate and the Tribunal, differently constituted, refused to grant a protection visa on 28 March 2003. The applicant sought a review of the Tribunal’s decision by the Federal Court and on 10 September 2003 the Court ordered, by consent, that the Tribunal’s decision be set aside and remitted the matter to the Tribunal to be determined according to law.
The applicant lodged his original application for a protection visa on
14 October 1999 with the assistance of Mr Sirajul Haque, migration agent. In his application the applicant claimed he was born in 1956 in Sreeram Pur, Bangladesh. He claimed he speaks, reads and writes both Bengali and English. The applicant claimed he was a married Muslim who had resided at the one address in Bangladesh from 1989 to June 1999. He was educated for twelve years from 1961 to 1974 and did not detail his employment but stated he was a “businessman”.
The applicant claimed to have departed Bangladesh legally although he stated his passport was issued with difficulty as there were a number of cases filed against him and an arrest warrant was pending. The applicant had claimed “as such I did not apply for a passport”. He entered Australia using a different name and passport which he stated belonged to someone else. The applicant’s wife and children reside in Bangladesh.
In a statement attached to the application the applicant claimed that during the liberation was he went to India to take arms training as a “freedom fighter” and fought for the nation gaining independence in 1971. The applicant stated he completed secondary school in 1972 and HSC in 1974. He claimed he joined the Freedom Party in 1986 and held a leadership position in the Lakshmi Pur Thana. The applicant claimed he participated in demonstrations against the President and attracted the attention of the Jatio Party and the Awami League. He claimed he was targeted by “Awami men”. In the 1991 elections, the applicant claimed his party supported the Bangladesh National Party (BNP). In 1996, the applicant stated that the Awami League won the elections and soon after formed government with the help of the Jatio Party. The applicant then claimed that:
“A substantial number of the Freedom Party leaders were targeted by this government and were implicated in the murder case. The Awami intention is to ruin the Freedom Party from the roots. I was in hiding here and there for three years. I had lost all of my business … A number of false cases were filed against me. I was attacked by Awami men several times. Finally I decided to leave the country.” (CB p.145)
The Tribunal’s findings and reasons
The applicant claimed to have entered Australia using an assumed name and passport (CB p.144.8). He claimed he feared persecution in Bangladesh by reason of his political opinion and that he had been targeted by the Awami League because of his association with the Freedom Party. His claims also involved an assertion that false charges had been laid against him (CB pp.144-149).
The Tribunal’s decision made reference to a document submitted by the applicant which purported to be a letter from his lawyer in Bangladesh dated 30 December 1999 (“the lawyer’s letter”). In relation to the letter, the Tribunal made the following observations:
a)The letterhead contained one spelling of the lawyer’s name, a different spelling occurring in the signature block;
b)The letterhead twice misspells “Bangladesh”;
c)The letterhead also misspells the word “Chamber”. (CB pp.55, 146)
The Tribunal noted that the document was put before the applicant at the hearing and he was asked if he could see any problems with it (CB p.147). The applicant responded that he thought the problem may be that it did not contain a telephone number. The Tribunal then proceeded to explain to the applicant that independent evidence (CB p.149.8) indicated there was a large degree of production of fraudulent documents by applicants in Bangladeshi refugee applications and that the Tribunal had doubts as to the applicant’s document being genuine. The Tribunal explained that it pointed out the misspellings to the applicant and put to him that this indicated the document was false. The Tribunal then recorded the applicant’s response as: “I don’t have anything to say” (CB p.147).
The Tribunal accepted that the applicant was a citizen of Bangladesh with some knowledge of the Freedom Party, but concluded that he had fabricated his claimed association and with membership of the Freedom Party (CB pp.152-153). It was upon that basis that the Tribunal ultimately found that the applicant did not have a well-founded fear of persecution for a Convention reason (CB p.153). The Tribunal’s reasons for concluding that the core claims of the applicant’s association with and membership of the Freedom Party were concocted were as follows:
a)The Tribunal did not accept that a letter from a lawyer in Bangladesh would incorrectly spell the word “Bangladesh” and the lawyer’s own name would be spelled in two different ways. The Tribunal noted that the applicant gave no explanation and said he had no comment to make in regard to that issue. The Tribunal concluded that it did not accept the document to be genuine and it further found that the applicant must be aware that the document was not genuine and had produced the document to enhance his claims (CB p.153).
b)As a result of the Tribunal’s finding in relation to the lawyer’s letter, the Tribunal also found other documents submitted by the applicant were false (CB p.152). The other documents included a purported letter from the Freedom Party noting the applicant’s membership of that Party and his office within the Party (CB p.56). The Tribunal noted that the letter allegedly from the Freedom Party and the lawyer’s letter were submitted by the applicant’s migration agent under cover of letter dated 26 March 2002 (CB p.52).
c)The Tribunal found that the applicant had fabricated the claim that there were cases against him in Bangladesh and noted that the only evidence concerning this claim was the fabricated letter. The Tribunal considered that if the applicant’s claim was genuine, court documents could have been obtained to evidence the cases. The Tribunal did not accept as reasonable the applicant’s explanation that he could not obtain court documents as his lawyer had changed address and was unable to be contacted (CB p.152.8). The Tribunal’s questioning of the applicant in relation to this matter during the Tribunal hearing is noted at CB p.147.3.
d)The Tribunal found that the applicant, despite having some knowledge of the Freedom Party, did not know “fairly basic” information regarding the Party. The Tribunal noted that the applicant did not know where Party leaders had been whilst in exile, their present location and how large the Party was. The applicant’s lack of knowledge in relation to the Party indicated to the Tribunal that he did not have the association with the Party that he claimed (CB pp.152-153). The Tribunal’s questioning of the applicant in relation to this matter during the Tribunal hearing is noted at CB p.147-148.
e)The Tribunal also referred to aspects of the applicant’s original application as not being correct and saw this as a further indication that the applicant was fabricating parts of his history in an attempt to give him a profile of adverse interest by the provision of false information (CB p.153). The Tribunal’s questioning of the applicant in relation to this matter during the Tribunal hearing is noted at CB pp.146-147.
Application for review of the Tribunal’s decision
On 7 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). An amended application was filed on 21 October 2004 and filed in Court on the day of the hearing was a further amended application which contained the following grounds:
“1.The Tribunal made a number of adverse findings in relation to the applicant without putting the matters to the applicant and giving him an opportunity to comment. The matters are as follows:
a)In relation to a letter dated 30 December 1999 provided by the applicant to the Tribunal in support of his claims, the Tribunal found that the applicant was aware that the letter was not genuine, that he produced it to seek to enhance his claims and that these matters contributed to the Tribunal’s conclusion that the applicant fabricated his claims generally. The Tribunal did not warn the applicant that it might make these findings against him.
b)The Tribunal found that the applicant’s inability to produce court documents in support of his claims concerning false charges contributed to the Tribunal’s conclusion that the applicant fabricated his claims generally. The Tribunal did not warn the applicant that it might make this finding against him.
c)The Tribunal found that, in relation to the applicant’s evidence concerning his prior passport, the applicant “knowingly provided … false information” and this matter contributed to the Tribunal’s conclusion that the applicant fabricated his claims generally. The Tribunal did not warn the applicant that it might make these findings against him.
In relation to each of the above matters, the Tribunal fell into jurisdictional error.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
On the day of the hearing Counsel for the applicant tendered and applied for a further amended application to be admitted into evidence. Counsel also sought that an affidavit of Judith Gayton sworn on 6 April 2005 (“the affidavit of Ms Gayton”) be admitted into evidence. Submissions prepared by the applicant’s Counsel filed prior to the hearing contained the following contentions:
a)The Tribunal made a number of adverse findings in relation to the applicant without putting the matters to the applicant and giving him an opportunity to comment. Firstly, on 26 March 2002 the applicant’s adviser (Mr Haque) submitted a letter from the applicant’s lawyer in Bangladesh dated 30 December 1999 (CB p.55). The applicant explained that his brother had obtained the letter for him (CB p.147). The Tribunal discussed the letter with the applicant and then found that, not only was the letter not genuine, but “the applicant must be aware that it is not genuine and that he has produced it to seek to enhance his claims” (CB p.152). The Tribunal added that this was a matter which caused the Tribunal concern and led the Tribunal “to a conclusion that [the applicant] has fabricated his claims” generally (CB p.152).
The applicant’s complaint was that, while the Tribunal raised with the applicant its concerns that the letter was not genuine, it did not raise with the applicant its concerns that the applicant was aware that the letter was not genuine and that the Tribunal would use this finding as a basis for finding that:
i)the applicant fabricated his claims generally; and
ii)other documents submitted by the applicant were not genuine (CB p.152).
b)Secondly, the applicant claimed that opponents had instituted false claims against him. The Tribunal asked the applicant where the court documents were to support this claim. The applicant replied that he had not been able to obtain documents because his “lawyer has changed address and I am unable to communicate with him” (CB p.147). The Tribunal then found:
“I do not accept as reasonable that he has been unable to obtain any court documents as his lawyer changed address and he has been unable to contact him. I consider that if there were real documents to be had that the applicant could have obtained them. The fact that he does not indicates that there are no such cases against him and he had fabricated this claim.” (CB p.152)
The Tribunal added that this was a matter which caused the Tribunal concern and led the Tribunal “to a conclusion that [the applicant] has fabricated his claims” generally (CB p.152). The applicant’s complaint was that the Tribunal should have warned him that it would use the applicant’s non-production of documents as a basis for a finding that the applicant had fabricated his claims generally.
c)Thirdly, the Tribunal discussed with the applicant an inconsistency in his evidence concerning his passport (CB p.146). The Tribunal found:
“Whilst I may be prepared to accept that there was a misunderstanding of his adviser in relation to the employment question, this does not explain the evidence relating to his prior passport and the statement that he did not apply for a passport – clearly this is incorrect. I consider that this indicates that the applicant was fabricating parts of his history in an attempt to give him a profile of adverse interest with the authorities.
I consider that the applicant knowingly provided this false information.”
Again the Tribunal added that this was a matter which caused the Tribunal concern and led it “to a conclusion that [the applicant] has fabricated his claims” generally (CB p.152). The applicant’s complaint was that the Tribunal should have warned him that it would use the inconsistency in his evidence concerning the passport as a basis for finding that he had “knowingly provided false information” and that he fabricated his claims generally.
d)The applicant contended that the Tribunal’s conduct, as noted above, constituted jurisdictional error. In WACO v Minister for Immigration & Multicultural & Indigenous Affairs (“WACO”) at [42]-[46] the Full Court stated:
“An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant’s comment. However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend …”
“In the broadest sense procedural fairness requires that an administrative tribunal is bound to hear a person affected by its decision before exercising its powers. Underlying it is the entitlement of the person to know the case sought to be made against him or her and to be given the opportunity of replying to it …”
Generally where it is clear that factual matters are in dispute it will not be necessary for the decision maker to indicate to the person affected that the decision maker is likely to reach an adverse conclusion. Where the decision maker intends to reject an application for some reason which is personal to the appellant, for example, the appellant’s age, it may be necessary to give notice to the appellant that the decision maker has formed a view adverse to the appellant so as to afford the appellant the opportunity to put to the decision maker arguments or evidence to the contrary. Whether it is so will depend upon fairness. There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so.” (Citations omitted)
e)The Full Federal Court added at [58]:
“There can be a denial of natural justice where a decision maker makes a finding on an important issue in a case without notice that the issue is the subject of any dispute and where the party affected adversely by that finding is not given an opportunity to be heard.”
f)It was submitted that the propositions in WACO support the applicant’s contention that the matters outlined above constitute jurisdictional error.
Respondent’s submissions
Counsel for the respondent filed written submissions prior to the hearing some of which were withdrawn at the commencement of the proceedings due to the applicant filing a further amended application and abandoning a number of grounds originally pleaded. The remaining relevant submissions were as follows:
a)There was no illogicality in the Tribunal’s reasoning. In WACO it was acknowledged at [41] that:
“It would not involve an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an appellant’s credit: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (“Applicant S20/2002”) per McHugh and Gummow JJ at [49].”
See also WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs at [52]. However, if there had been an illogicality in the Tribunal’s reasoning that would not of itself suffice to show jurisdictional error: VWST v Minister for Immigration & Multicultural & Indigenous Affairs at [16]-[19]; NACB v Minister for Immigration & Multicultural & Indigenous Affairs at [24]-[30].
b)Findings as to the credibility of an applicant are generally matters for the Tribunal par excellence: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham per McHugh J at [67].
c)No denial of natural justice was involved in reaching the findings that the applicant seeks to impugn. The course of the Tribunal’s hearing was such that the applicant had to be aware that the authenticity of the lawyer’s letter, its contents and the applicant’s claimed association with the Freedom Party were all in issue. These were in any event matters that were obviously in issue on the known material – and the problems with the purported letter from the lawyer were plainly open on the face of the document itself (CB p.55). Also, the applicant was on notice from the Tribunal’s letter dated 19 November 2003 (CB p.65), that the Tribunal was unable to make a decision in his favour on the material already submitted, which included the purported lawyer’s letter and the Freedom Party.
d)With respect to the country information relied upon to support the finding that the lawyer’s letter was false, and the consequential finding that other material submitted by the applicant was false, the Tribunal put to the applicant the substance of the adverse material. In particular, it was noted that:
“The Tribunal put to him that independent evidence indicated that there was a large degree of production of fraudulent documents by applicants in Bangladeshi refugee applications”. (CB p.147)
The Tribunal also noted that the applicant had nothing to say when specific concerns about the purported lawyer’s letter were put to him. It was submitted that natural justice required no more than was done by the Tribunal.
e)The applicant was clearly on notice from the Tribunal’s questioning that there was an issue as to his knowledge of the Freedom Party and its affairs and that there was also an issue as to whether false documents were involved.
f)All the country information to which the Tribunal referred was information not specifically about the applicant or another person. Upon proper application of the principles decided by Minister for Immigration & Multicultural & Indigenous Affairs v NAMW at [69]-[71] per Beaumont J and per Merkel and Hely JJ at [138], the country information was not required to be disclosed to the applicant under s.424A of the Act and was material falling within s.424A(3). Further, had there been something which would otherwise have been a breach of s.424A or of the rules of natural justice, no practical injustice was shown and, in those circumstances, relief should be denied on discretionary grounds: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs per Kiefel, Weingberg and Stone JJ at [57]. Reference has already been made to the applicant having nothing to say when the difficulties with the purported lawyer’s letter were put to him. The Tribunal also noted that the applicant’s adviser was invited to make submissions and ask questions at the end of the hearing and that the applicant had also made concluding remarks (CB p.149).
g)The respondent submitted that the Tribunal was not under any obligation to reveal in advance of its decision its provisional reasoning as to whether it accepted what the applicant was putting forward, or to cross-examine the applicant, or to prompt him for further detail. It was for the applicant to put forward what he wanted to have considered and it was for the Tribunal to be satisfied, or not, as to the fulfilment of the applicable criteria. Authorities advanced in support of these propositions were: Re Ruddock & Anor; Ex parte Applicant 154/2002 (“Applicant 154/2002”) per Gummow and Heydon JJ, at [48], [54] and [57]-[58] and Gleeson CJ agreeing at [1], referring to the principles in Commissioner for ACT Revenue v Alphaone and Abebe v Commonwealth; NAOA v Minister for Immigration & Multicultural & Indigenous Affairs (“NAOA”) at [27] referring to Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Straight Islander Affairs at 555-557.
Reasons
The further amended application filed by the applicant on the day of the hearing reduced the claim to three issues in which the applicant claimed the Tribunal made a number of adverse findings without putting the matter to the applicant and giving him an opportunity to make comments upon it. Counsel for the respondent raised no objection to the filing of the further amended application and assisted the Court by not pressing any of the issues contained in his written submissions that were no longer relevant to the new further amended application.
Ground 1 – Purported lawyer’s letter
The first argument raised by the applicant related to the letter dated 30 December 1999 from the applicant’s lawyer in Bangladesh (CB p.55). This letter was supplied to the Tribunal by the applicant’s migration adviser, Mr Haque (Mr Hark as recorded in transcript) on 26 March 2002. Counsel for the applicant took the Court to the transcript annexed to the affidavit of Ms Gayton and highlighted the following references.
Transcript (p.10.9) (The applicant answered through an interpreter)
Tribunal:OK. While we’re talking about the lawyer we might as well have a look at that lawyer’s document that you sent in.
Interpreter: -
Tribunal:Is that the original document you sent?
Interpreter: No
Transcript (pp.11.3-12)
Tribunal:Where did you get that document from?
Interpreter: My brother ? from that lawyer and he sent it to me.
Tribunal:Is it a real document?
Interpreter: Yes
Tribunal:Is it on the letterhead of the lawyer, is that his, the top of the page there is that his document page?
Interpreter: ??? he ???
Tribunal:Do you see any problems with it?
Interpreter: He didn’t put his telephone number here.
Tribunal:See any other problems with it?
Interpreter: -
Tribunal:You don’t see it? How do you spell Bangladesh?
Interpreter: -
Tribunal:Do you see the problem there?
Interpreter: -
Tribunal:This is supposed to be the lawyer’s official letterhead and it doesn’t even spell Bangladesh correctly.
Interpreter: -
Tribunal:And you see on the right hand side where it says chamber, that’s not how you spell chamber.
Interpreter: -
Tribunal:And you see the lawyer’s name?
Interpreter: -
Tribunal:At the top. Now go down to the signature, see the first word, well first off he’s left off Mohammed so Mohammed is not in the letterhead but I’d be prepared to let that one go. Look at the next word.
Interpreter: -
Tribunal:It’s not spelt correctly, is it?
Interpreter: -
Tribunal:And see the last name?
Interpreter: -
Tribunal:That’s not spelt correctly either. I have some difficulty in believing that this document could be produced by a solicitor or lawyer firstly because I have difficulty believing that in a lawyer’s letterhead he’s going to spell Bangladesh incorrectly.
Interpreter: -
Tribunal:And my second problem with it, even if I could believe that someone is going to be so, well so careless to have those things in their letterhead I’d have serious difficulty believing that the lawyer is going to spell his own name wrong.
Interpreter: -
Tribunal:You see the problems I have with that document.
Interpreter: ??? they have send it.
Tribunal:Yes. One of the, some country information in relation to Bangladesh documents indicates to me that there’s widespread fraud amongst document production of people who present refugee claims. In particular there was a study done by the US Department, I think it was Department of State, they backtracked I think it was a hundred cases of Bangladesh applicants in the US and they got all their documents and went back to Bangladesh and checked out every document to see if it was true and they found out that one hundred percent of them were false, all of them. That makes me somewhat suspicious that Bangladeshi documents and looking at your document confirms that that document is probably fake.
Interpreter: -
Tribunal:OK. Do you understand the issue that I am putting to you in relation to that?
Interpreter: I don’t have anything to say.
Counsel for the applicant submitted that the Tribunal did not raise with the applicant that the lawyer’s letter was fraudulent. It was further submitted that the Tribunal did not put to the applicant that it may use the fact that the document was fraudulent to dismiss all of the applicant’s claims.
Counsel for the respondent submitted that the applicant’s proposition, that he had not been made aware in the course of the Tribunal member’s questioning that serious doubt had been raised as to the genuineness of the lawyer’s letter and the applicant’s knowledge of its fabrication, was disingenuous. The respondent Counsel claimed that the decision of WACO did not support the applicant’s proposition and referred to paragraph [41] where the Full Court stated:
“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: Minister for Immigration & Multicultural Affairs 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 appellant’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].”
The respondent Counsel, in his written submissions which were vigorously pressed together with his oral submissions, submitted that the Tribunal was under no obligation to reveal in advance of its decision provisional reasoning as to whether it accepted what the applicant was putting forward, or to cross examine the applicant, or to prompt him for further details. It was for the applicant to put forward what he wanted to have considered and it was for the Tribunal to be satisfied, or not, as to the fulfilment of the applicable criteria: Applicant 154/2002 per Gummow and Heydon JJ at [48], [54] and [57] –[58].
In support of this same proposition, Counsel for the respondent also referred me to the decision of NAOA per Beaumont, Merkel and Hely JJ at [27] as follows:
“As an additional aspect of the application of the rules of natural justice, the appellant further submits that the Tribunal was also obliged to make known its concerns about the documents produced by the appellant, and failed to do so. We do not accept that submission. In general, the Tribunal is not obliged to inform an applicant of its preliminary or evaluation conclusions about the material before it: see Pilbara at 555 – 557 and the cases there cited. In any event, the exchange extracted from the transcript reveals that the Tribunal did raise with the appellant the concerns it had about document fraud in Bangladesh and it was a matter for the Tribunal to evaluate the appellant’s response to those concerns.”
In support of the respondent Counsel’s submission that the applicant was aware that the Tribunal had doubts about the authenticity of the information being provided by the applicant and the likelihood that the lawyer’s letter was fake, Counsel took the Court to the first part of the transcript to highlight that the applicant’s adviser was present at the Tribunal hearing and together with the applicant was given the opportunity to make submissions or ask questions in relation to the applicant’s case both before and during the hearing. The transcript is as follows:
Transcript (pp.2-3)
Tribunal:Now you also have your advisor, Mr Hark with you today.
Interpreter: -
Tribunal:Mr Hark if at the end of the questions that I’m asking if you’d like to make any submission or ask any questions of your own, please feel free to do so.
Interpreter: -
Tribunal:OK. Is there anything anyone wants to raise before we actually start the hearing?
Interpreter: -
Tribunal:OK. Anything from you Mr Hark?
Interpreter: No.
The presence of the applicant’s adviser at the Tribunal hearing indicated that both he and the applicant were on notice as to the issues raised by the Tribunal.
Commencing on page 10 of the transcript, the Tribunal member raised with the applicant the issue of the letter from the lawyer in Bangladesh, Md Tofzzal Hossain Byuiyan (CB p.55). The Tribunal member, on page 18 of the transcript also made reference to the letter from the Freedom Party (CB p.56). In the Tribunal’s letter dated 19 November 2003 inviting him to a hearing, the Tribunal stated that, having considered the material before it in relation to the applicant’s application, it was unable to make a decision in his favour on the information alone. From the sequence and contents of the correspondence and issues raised in the transcript of the Tribunal hearing, it was indicated that the applicant and his adviser would have been aware well before the hearing had commenced that the Tribunal had considered the material provided by the applicant. The applicant and his adviser would also have been aware that the material was not viewed favourably as noted in the Tribunal’s letter dated 19 November 2003. I accepted the respondent’s submissions in respect of this ground for the reasons I have given.
Ground 2 – inability to obtain documentary evidence
The applicant’s second argument concerned his inability to supply documentary evidence that opponents had instituted false claims against him. The Tribunal expressed concern that this material was not available and it led the Tribunal to the conclusion that the applicant’s claim was fabricated. The applicant’s argument was that the Tribunal should have informed him that his failure to produce documents in respect of the false claims would be the basis of its finding that the applicant fabricated his claim. Counsel for the applicant took the Court to the transcript as follows:
Transcript (p.10)
Tribunal:OK. Now would you like to tell me why you can’t go back to Bangladesh or why you think you can’t?
Interpreter: ??? two cases have been lodged against him ??? and that was in 1988, 1998, one in 1998 and ?
Tribunal:1998 and 1999. And what are they about?
Interpreter: One case is arms and another one in a criminal case, how he wants to make murder other peoples like that.
Tribunal:And did you murder someone or did you have any arms?
Interpreter: No
Tribunal:And where is your documentation relating to those cases?
Interpreter: ??? document from my lawyer but other documents ??? document I could not obtain it. I didn’t have anybody to obtain it ???
Tribunal:Well you had your lawyer? He could obtain it.
Interpreter: That lawyer he ??? his address and I had no ??? to contact with him. My brother who is working with me before he is now ???
Tribunal:He’s sick?
Interpreter: Yes ???
Counsel for the applicant then took the Court to the Tribunal’s decision where it stated:
“In relation to his fears concerning Bangladesh he claimed that the Awami League has implicated him in two court cases one from 1998 (an arms case) and the other from 1999 (a murder case). He was asked where the court documents were and said that he had submitted a letter from his lawyer but had not been able to get anything else. He was asked why not as he has a lawyer in Bangladesh and said “the lawyer has changed address and I am unable to communicate with him”. The Tribunal asked about the document and was told that the applicant’s brother had obtained it for him from the lawyer. He was shown the document and asked if he could see any problems with it. He thought that it may be that there was no phone number on it. The Tribunal put to him that independent evidence indicated that there was a large degree of production of fraudulent documents by applicants in Bangladeshi refugee applications. It was put to him that I had doubts as to the document being genuine and pointed out to him my concerns – in particular that the letter head misspelled Bangladesh in two places, misspelled Chamber and also there were two different spellings of the lawyers name. It was put to him that this indicated that it was false. He was asked if he understood my concerns and said “I don’t have anything to say”. (CB p.147)
The submission on behalf of the applicant was that the Tribunal did not warn the applicant of the consequences of his inability to obtain documentary support in respect of the two charges claimed. I accepted the respondent’s submission that the applicant and his adviser were clearly on notice from the nature of the Tribunal’s questions as to the issues of the applicant’s knowledge of the Freedom Party and the false documentation and for the same reasons, I accepted the respondent’s submissions in relation to ground 2 that the applicant and his adviser were clearly on notice as to the Tribunal’s concerns regarding the lack of documentary evidence to support the applicant’s claim.
Ground 3 – inconsistency in evidence concerning the applicant’s passport
The third issue raised by the applicant was based on the Tribunal’s failure to warn the applicant that the inconsistencies in his evidence concerning his passport could be used by the Tribunal to form an adverse view of the applicant. The relevant passages of the transcript to which the Court was taken are as follows:
Transcript (pp.4-5)
Tribunal:OK. Did you come to Australia as a tourist or on a business visa?
Interpreter: I’m not sure about this ??? things ??? passport.
Tribunal:Were you interviewed by the Department of Immigration in Bangladesh about your travel?
Interpreter: -
Tribunal:OK. One of the questions that’s asked here it says have you ever had or used any other passport or travel document and you’ve given an answer no.
Interpreter: The first time I came to Australia I didn’t use any other passport ???
Transcript (p.7)
Tribunal:What you’re saying here in this document is firstly that you never had a passport other than the false one you used to come to Australia and then secondly you’re saying that you never applied for a passport so twice in two questions you’re actually telling the Department that you never had a passport and you never sought one until before coming to Australia?
Interpreter: -
Tribunal:Do you understand what the issue is? And what I want you to explain to me is why in those two different questions in the document you’re telling the Department you don’t have a passport, a real one and in fact you go further you say that because of difficulties you’ve never been able to apply for one and yet clearly that’s not true. You had a passport and you’d had it for three years.
Interpreter: I did not understand the question but the fact is I had a ? one before.
Tribunal:The answer you have given there isn’t true.
Interpreter: ??? I made a mistake but it doesn’t mean that ???
Tribunal:Well so far we’re only half way through the forms and you’ve made two mistakes and one of them is or both of them are not true, you haven’t filled in some other details such as where you lived. I need to understand why you didn’t fill those things in and you didn’t fill them in correctly.
Counsel for the respondent submitted that these inconsistencies and errors were brought to the applicant’s attention in the presence of his migration adviser. I accepted the respondent Counsel’s submissions that the applicant and his adviser would have been aware of the Tribunal member’s concerns in relation to the inconsistencies in the applicant’s answers regarding his passport and the authenticity of the documents supplied in support of his visa application. I also accepted the respondent Counsel’s submissions that the Tribunal was not obliged to convey to the applicant the knowledge that the Tribunal was forming an adverse opinion of the applicant during its decision making process and prior to the formulation of its final decision. The applicant’s submission cannot be sustained.
Counsel for the applicant referred to the passage in the Tribunal’s decision which, in effect, took the applicant by surprise as to the serious nature of the finding on adverse credibility and which, Counsel submitted, should have been drawn to the applicant’s attention in order for him to address it:
“Whilst I may be prepared to accept that there was a misunderstanding of his adviser in relation to the employment question, this does not explain the evidence relating to his prior passport and statement that he “did not apply for a passport” – clearly this is incorrect. I consider that this indicates that the applicant was fabricating parts of his history in an attempt to give him a profile of adverse interest with the authorities.
I consider that the applicant knowingly provided this false information.” (CB p.153)
I accepted the respondent Counsel’s submission that the Tribunal had raised these two issues with the applicant fairly and the final weighting of these issues was for the Tribunal. It was submitted that the Tribunal put to the applicant the nature of the false statements and the context in which they had been raised together with the false documentation. An argument that these issues and the conclusion that the Tribunal drew from them were a surprise to the application cannot be sustained. I accepted the respondent’s submissions in respect of ground 3.
A separate issue, not specifically raised by either Counsel, but the subject of concern to the Tribunal, was the inconsistency and lack of knowledge on behalf of the applicant regarding the membership and operation of the Freedom Party. Notably, the applicant’s statement regarding the number of successful Party candidates fielded in the last election in which the applicant was involved was not credible nor was the membership number quoted by the applicant. The exchange between the Tribunal and the applicant (at pages 18-20 of the transcript) was an issue going to credit in respect of the applicant’s claims indicated the applicant’s lack of basic knowledge of the Freedom Party involvement in the last election. This was clearly put to the applicant by the Tribunal member. An exchange was also made by the Tribunal and the applicant in respect of the nature and circumstances of the operation of the Freedom Party. This issue was treated by the Tribunal in a consistent manner and was also clearly put to the applicant.
I accepted the respondent Counsel’s submissions that the Tribunal was under no obligation to set out or provide to the applicant, prior to the making of its decision, and particularly during any oral hearing undertaken by the Tribunal as part of its inquisitorial function its decision making process or the conclusion that it was considering or may eventually adopt. I believe this is clearly stated in the authorities of Re Minister for Immigration; Ex parte Applicant S154/2002 and NAOA in the passages set out above. Both parties have referred me to the decision of WACO but I believe the submission on behalf of the respondent that the critical segment in that matter is contained in [41] and is fundamental to the matter in this decision. I also note WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs at [52] which acknowledges there are cases, as indicated by Applicant S20/2002 at [49] per McHugh and Gummow JJ and at [1] per Gleeson CJ where the evidence of an applicant is so discredited that any purported corroborative material presented on his behalf could be discarded without further analysis.
Conclusion
The applicant in these proceedings has failed to identify any grounds of review of the Tribunal’s decision. A fair reading of the Tribunal’s decision on its face does not disclose any error in the decision making process. As there is no evidence of jurisdictional error, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 21 April 2005
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