SZEBA v Minister for Immigration - [2005] FMCA 248

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEBA v MINISTER FOR IMMIGRATION

[2005] FMCA 248

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 – corroborative documentary evidence – rejection of documentary evidence – finding by the Refugee Review Tribunal that documents were a fabrication – possibility of fabrication never put to applicant – breach of procedural fairness – jurisdictional error – certiorari granted.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424A; 430; 475A

Applicant A v Minister for Immigration and Multicultural and Indigenous Affairs (1997) 190 CR 225
Minister for Immigration and Multicultural and Indigenous Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) FCAFC 264
NAJO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356
NALZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 321
NAOB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1178
NAQG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1631
Plaintiff S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24
Re Minister for Immigration and Multicultural Affairs ex parte S20/ 2002 (2003) 198 ALR 59
WAGU v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 912

Applicant:

SZEBA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2316 of 2004

Judgment of:

Scarlett FM

Hearing date:

23 February 2005

Date of Last Submission:

23 February 2005

Delivered at:

Sydney

Delivered on:

25 February 2005

REPRESENTATION

Counsel for the Applicant:

Mr Young

Counsel for the Respondent:

Ms Gazi

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That a writ of certiorari issue to quash the decision of the Refugee Review Tribunal made on 22 June 2004 and handed down on

30 June 2004.
That a write of mandamus issue directing the Refugee Review Tribunal to determine according to law the applicant’s application for a protection visa.
Time to lodge an appeal is not to run until publication of written reasons for decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2316 of 2004

SZEBA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal handed down on 30 June 2004. In that decision the tribunal affirmed a decision by the delegate of the minister made on

8 November 1999.
The history of the matter is succinctly set out in a submission by the respondent's counsel, Ms McNaughton, on 18 February 2005.

On 17 September 1999 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs pursuant to the Migration Act. A delegate of the respondent refused to grant a protection visa on 8 November 1999. The applicant applied to the Refugee Review Tribunal for a review of that decision on 22 November 1999. On 18 December 2002 the tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant lodged an application for judicial review of that decision to the Federal Magistrates Court on 18 December 2002. The matter proceeded to hearing on 4 September 2003, and on

11 September 2003 Raphael FM dismissed that application with costs. That decision was the subject of an appeal to the Federal Court, which allowed the appeal and remitted the matter to the tribunal for reconsideration. See NAJO v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 356. That decision was handed down on 31 March 2004.
The freshly constituted tribunal again affirmed the decision of the delegate not to grant the applicant a protection visa in a decision dated 22 June and handed down on 30 June 2004. On 22 July 2004 the applicant filed an application for judicial review of that decision. The applicant served an amended application on 13 January 2005.

It was filed in this Court the following day.
The amended application relies on the following grounds:
(1) The tribunal found that it was not satisfied that the applicant had a well founded fear of persecution within the meaning of the convention. The tribunal fell into jurisdictional error in making this finding. Among other reasons, the tribunal failed to consider the independent information; rather, the tribunal considered a number of reports by DFAT which are contradictory.
(2) The tribunal by failing to give the applicant an opportunity to comment on materials which the tribunal relied on in its decision and the tribunal was denied to procedural fairness by not providing this opportunity to the applicant.
(3) The tribunal ignored the definition of the United Nations and made a jurisdictional error by saying that "I do not believe that the charges against the applicant can be said to be a form of persecution". The tribunal made a jurisdictional error in saying this.
(4) The tribunal made an error in considering the totality of the claim.
After the amended application had been filed, Mr Young of counsel accepted a brief to appear for the applicant. He informed the Court on the morning of the hearing that he would be proceeding on grounds (2) and (4) only. He also informed the Court about the earlier hearing before the Federal Magistrate, the citation to which is

NAJO v the Minister for Immigration
(2003) FMCA 385, which had been the subject of the appeal to which I have previously referred.
In his submission, counsel for the applicant put to the Court that the Refugee Review Tribunal had in the second hearing committed the very same error that had been committed in the first RRT hearing.
To paraphrase and summarise the applicant's submission, the counsel for the applicant referred to the fact that the Refugee Review Tribunal, which had apparently considered the transcript of the previous hearing, was unaware not only of which Court had set aside the previous decision but when that setting aside had occurred or, more importantly, why.
Notwithstanding that the matter was not raised in the hearing, the tribunal made the statement at page 230 of the Court book:
The documents he has provided to support his application are false or were prepared according to his instructions and contained false information.
Mr Young submitted that this is precisely the same denial of procedural fairness that led to the successful appeal in NAJO. He also referred the Court to the decision of NAQG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1631.
Mr Young submitted from the outset that the original decision maker perceived that the applicant was raising two quite separate claims: (a) that because of prior political activity he was at risk of persecution and even death at the hands of his political opponents, and (b) false charges had been filed against him. He further went on to say that it is clear from the application at page 21 of the Court book that the applicant was raising both of those matters.
The counsel submitted that the hearing before the Refugee Review Tribunal was "a farce". He said that the questioning by the member was hostile. The applicant, in his submission, was not allowed to finish. He said the member criticised the interpreter for giving a glass of water to the migration adviser who had arrived late.
The applicant had admitted carrying a knife in one incident back in his native Bangladesh and, without asking any questions or inviting any response, in the middle of a long speech about her own knowledge the member said:
Frankly, I doubt that you were involved in any of this. I think you have made it all up.
Mr Young submitted that the applicant had made responses from which it would be reasonable to conclude that he did not face false charges. He described the response of the RRT member as "astonishing". He quoted her as saying:
I don't actually have any more questions because you have just explained to me that you are not a refugee.
Mr Young went on to submit that, even given the applicant's admissions concerning the charges against him, the Refugee Review Tribunal was not entitled to cease to review his claim even on that matter.
The issue is whether there is enforcement of the generally applicable law. It is stated by the High Court in Applicant A v Minister for Immigration and Multicultural and Indigenous Affairs (1997) 190 CLR 225 and Minister for Immigration and Multicultural and Indigenous Affairs v Haji Ibrahim (2000) 204 CLR 1:
The application of discriminatory sanctions is inherently suspect and requires close scrutiny. Ordinarily the imposition of a discriminatory criminal sanction, whether in terms of the sanction or in its application or enforcement, will amount to persecution.
He referred the Court to the decision of NALZ v the Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 321.
Mr Young in his submission gave further examples of how he said the tribunal member cut the applicant off when the applicant was saying why he could not get protection. At page 9 of the transcript, in which the following exchange occurs:
Applicant: Even if they want to give some protection, still they will not be able to give because of our opponent, we always - - -
Member: Okay. Anything else that you would like to add before I ask your adviser if there are any submissions he wants to make?
He submitted that the exchange that followed between the tribunal member and the adviser went rather beyond normal exchanges from the decision maker to the adviser or advocate, saying:
I think you might want to read up a little more.
Mr Young submitted that the member can only be described as having seized upon the applicant's admission, at page 8 of the transcript, like the most zealous advocate. He said, however, that the member was not entitled to declare the hearing over, sending the defeated applicant packing. There remained his claim that he feared persecution and even death at the hands of his political opponents.
It was not merely a case, he submitted, of the Refugee Review Tribunal not dealing with the claim. It actively prevented the applicant, he said, from raising the matter. When he did raise the issue, he was cut off. Counsel referred to page 227 of the Court book to a passage under the heading "Findings and reasons", where the tribunal stated:
If the applicant was attacked, it was part of a pattern of tit for tat criminal violence between his group and other student "political" groups which operated in the local area.
The submission was that this was speculation out of thin air. The Refugee Review Tribunal had not raised the subject of attacks on the applicant and it gave him no chance to explain why he feared attack. As this was the apparent basis on which the tribunal intended to reject the applicant's claims related to fears of violence, the submission is that the tribunal ought to have raised then the matter with the applicant.
Finally, the submission was that the jurisdictional task on the Refugee Review Tribunal raised by the applicant's claim that he feared violence and being killed if he returned to Bangladesh was not discharged. The tribunal did not raise the matter with the applicant. Indeed, the submission is that it suppressed his attempts to have the matter raised.
On behalf of the respondent, Ms McNaughton provided a written submission and spoke to that submission. Her submissions are to the effect that, in order for the applicant to succeed, he must show that the decision made by the tribunal was not caught by section 474 of the Act, the privative clause. She referred to the summary by the Full Court of the Federal Court in NAOB v The Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 33 at [11], saying the effect of the High Court's decision in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 could be summarised by saying:
In summary, the High Court held that section 474, insofar as it rendered final and conclusive a privative clause decision and protected it from challenge, only did so in respect of decisions made under the act. Thus, decisions which involve a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the act are not, as a matter of statutory construction, decisions made under the act and are therefore not privative clause decisions protected by section 474. Put shortly, section 474 does not apply to decisions which involve jurisdictional error and does not apply in particular to decisions which do not comply with the principles of natural justice.
Ms McNaughton submitted that the first complaint by the applicant was that the tribunal had failed in considering independent information; rather, the tribunal considered a number of reports from the Department of Foreign Affairs and Trade. That complaint was not proceeded with, as I was informed. I do not propose to address that part of the submission any further.
Ms McNaughton went on to submit in respect of the second complaint, which was one of the two upon which counsel informed the Court was proceeding, she said that the second complaint was that the tribunal denied procedural fairness to the applicant by failing to give him an opportunity to comment on the materials which the tribunal relied on for its decision. She said the applicant had failed to particularise this ground and it was not immediately apparent to what the applicant was referring. In my view, it was made clear in the oral submissions.
Where independent country information is referred to, section 424A of the Act sets limits on what needs to be disclosed. Subsection (3) specifies that information not specifically about the applicant and just about a class of persons of which the applicant is a member need not be given to an applicant. See Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) FCAFC 264. Section 424A(1), she submitted, represents the full extent of the tribunal's obligations for disclosure of such material.
Ms McNaughton also submitted that, if on another possible interpretation of the applicant's second ground the applicant was referring to the tribunal's findings in relation to various letters he submitted and the tribunal's apparent failure to discuss their falsity with the applicant - she submitted it was apparent for the reasons the tribunal centred on the findings of credibility it made, which in turn were based on the applicant's own evidence, the tribunal did not believe the applicant for clearly set out reasons relating to his oral and written claims.
She submits the tribunal squarely put its concerns about the applicant's truthfulness to the applicant at the hearing. Whilst it is true that there is no record of the falsity or otherwise of the correspondence provided by the applicant being directly put to the applicant, that, she submitted, does not reveal error. The tribunal is entitled to find that the letters were false or concocted at the instigation of the applicant. That finding naturally flowed from the initial finding of lack of credibility already made.
It is also important to note, she submitted, that the applicant significantly changed his claims between the first and the second tribunal hearings as far as the false charges are concerned. I would comment at this stage that I am not persuaded that that proposition has been made out.
Ms McNaughton sought to differentiate this situation from that considered by Moore J in the Federal Court for the appeal from the first tribunal's decision in NAJO v The Minister. Again, it is my view that the decision in this situation cannot be distinguished from that in NAJO.
It is instructive, in my view, to quote at some length from his Honour's decision, especially as that quote incorporates a helpful quote from Re Minister for Immigration and Multicultural Affairs ex parte S20/ 2002 (2003) 198 ALR 59. The quote is from paragraph 29 of the judgment:
It may well be the case that where a tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the tribunal by the applicant.
I should before I go further, by the way, point out that the matters which are currently being quoted was in fact a quote from the honourable French J in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 912, which was quoted by Moore J in the decision of NAJO. To proceed:
There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility. To proceed otherwise risks putting the cart before the horse. But to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error. In Re Minister for Immigration and Multicultural Affairs Ex Parte S20/2002 (2003) 198 ALR 59, McHugh and Gummow JJ observed at page 70, paragraph 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 applying in inquisitorial processes, as here, to proceed on the footing that no corroboration can undo the consequences for a case put by a party to the conclusion that that case comprises lies by that party." If the critical passage in the reason 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 for going about the task presented by section 430 of the act, but it is not irrational to focus first upon the case as was put by the applicant.
French J went on to say:
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 -
and this is my emphasis:
- 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 the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.
That, to my mind, is a most clear and helpful passage, with respect, that is of particular relevance to the case before me.
In respect of the fourth ground relied upon by the applicant, which Ms McNaughton described as "that the tribunal made an error in considering the totality of the claim", she submitted that this contention is in effect an impermissible attempt to have the Court interfere with the conclusions on merits which lies only in the jurisdiction of the tribunal. Her submission was that the claim of jurisdictional error could not be sustained.

Counsel for the applicant provided the Court a copy of the transcript of the hearing, which was useful. Counsel for the respondent tendered a tape of the decision, which was also useful. The tape was played in open Court and I had the opportunity to hear it. The tape supported Ms McNaughton's contention that the tribunal member had not cut the applicant off when he was trying to make the point, as it is clear that there was something else said that was indistinct and did not appear on the transcript.
To my mind, after considering all the evidence, including reading the transcript of hearing and listening to the tape, there are two matters raised by the applicant that are of concern. In all other respects, I accept the submissions of counsel for the respondent.
That said, the two matters raised are of such concern that I consider that they amount to jurisdictional error. First of all, the statement by the tribunal at page 230 of the Court book forms one of the bases of the applicant's attack on the tribunal's decision. In that paragraph, the tribunal member had said that she did not accept that the applicant was a leading member of a particular political group in his local area or that he was attacked or had charges laid against him for political reasons. She went on to say this:
I believe that his claims were all concocted to support his application for a protection visa. I also believe that the documents he has provided to support his application are false or were prepared according to his instructions and contained false information.
To my mind, this is the very same error that was criticised by the Federal Court in the appeal in NAJO. The finding is a positive finding of concoction of the document, preparing false documents or giving instructions for the preparing of false documents. It is not just a failure to accept the document; it is a positive finding of improper conduct. This, from the transcript, was not put to the applicant.
The second matter is that the tribunal member appears to have made up her mind during the hearing that the applicant was not a refugee and said so. I have before me the transcript of the proceedings. Beginning at page 8, about point 5:
And you say that there were false charges laid against you. What exactly were you charged with?---The first one is they found arms with me and the case was possession of illegal arms and, the second one, the allegation that I throw bomb in the meeting.
But you didn't do either of those things?---I did.
Then these aren't false charges. You should be in Bangladesh facing the Courts, don't you think?---It's not exactly true, but I was involved with that incident and I tried to put myself innocent in front of the Court, before the Court, but I could not.
Look, if that's true, and I mean it's a bit difficult to judge anybody's character just by a brief encounter in a hearing, but you don't strike me as a particularly violent man and I have a sneaking suspicion that it might not be true, that you made everything up. But if what you are telling me now is true, then you just simply cannot be a refugee because you committed criminal offences and have been charged with criminal offences. Countries are allowed to do that. Bangladesh is allowed to do that. If you were charged here in Australia - I mean, do you understand what I'm saying or do you want the interpreter to interpret? I don't actually have any more questions because you have just explained to me that you are not a refugee.
Even though the tribunal member did ask the applicant, page 10, if he wanted to say anything else -
Okay. Anything else that you would like to add before I ask your adviser if there are any submissions he wants to make?
to my mind it was too late. The damage had already been done as the tribunal member seems to have already made it clear that her mind was made up. In my view, a reasonable observer would gain the impression that the tribunal member had already made up her mind and that anything else would be a waste of time. The tone of the member’s comments from then on makes it clear that she wanted to finish the hearing as soon as possible.
In my view, it is a vast over-simplification to say that if a person is facing a criminal charge, he or she cannot be facing persecution for a convention reason. It is possible for the two facts to sit side by side, although it would be an unusual situation. It appears to me that the member has misinterpreted the law and, in making her mind up prematurely, has denied the applicant a fair opportunity to present his case. The application will be granted.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 7 March 2005