SZELA v Minister for Immigration & Anor - [2005] FMCA 1068

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZELA v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1068

MIGRATION – RRT decision – Chinese professional fearing persecution for political activities – Tribunal found document to be fraudulent – failure of procedural fairness – breach of s.424A(1) – relief not refused despite four year delay.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 414, 422B, 424(1), 424A, 424A(1), 424A(1)(a), 424A(1)(b), 424A(3), 427(1), 441A, 477, 483A, Pt 8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8

Applicant WAFV of 2002 v Refugee Review Tribunal (2003) 125 FCR 351
Kioa v West (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 567
Peko‑Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773
Thayananthan v MIMIA (2003) 132 FCR 222
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511
WAFV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 280

Applicant:

SZELA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2873 of 2004

Judgment of:

Smith FM

Hearing date:

25 July 2005

Delivered at:

Sydney

Delivered on:

11 August 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S McNaughton

Solicitors for the Respondents:

Phillips Fox

ORDERS

Order that the Refugee Review Tribunal be joined as second respondent.
Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 26 September 2000 in matter N99/29215.
Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 21 June 1999.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2873 of 2004

SZELA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Preliminary

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders for a writ of certiorari to quash a decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 September 2000 and handed down on 26 September 2000, and for a writ of mandamus to compel the Tribunal to rehear the matter. The Tribunal affirmed a decision of a delegate made on 21 June 1999 which refused to grant a protection visa to the applicant.
The Tribunal’s decision was handed down before the Court acquired its jurisdiction under s.483A, but this does not prevent jurisdiction being exercised in the present proceeding which was commenced on 20 September 2004 (see SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 at [28]).
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). Although the Tribunal decision was made before the amendments to Part 8 of the Migration Act which inserted the “privative clause” provisions, these provisions apply to the proceeding by reason of a transitional provision (see cl.8 of Sch.1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)). As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the privative clause limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. However, it is clear from the above cases that I may grant relief if I uphold the applicant’s principal complaint that there was a denial of procedural fairness.
The four year delay before the applicant commenced his application gave rise to a further issue in the case. This was whether, if the applicant made out a ground for the issue of writs, relief should be denied in the discretion of the Court. The issue was the subject of oral evidence by the applicant and extensive cross‑examination. I shall consider the applicant’s explanation for his delay and address discretionary considerations further below.
The applicant was not held in immigration detention when the applicant filed his application and appeared before me at the first court date on 26 October 2004. I gave the application no special expedition, and fixed a hearing date for 25 July 2005. Regrettably, neither the Court nor (it would seem) the respondent’s solicitors were informed when the applicant was taken into detention in January 2005, and this was discovered only at the hearing six months later. The applicant when giving evidence appeared stressed by his current situation.

I strongly recommend that in future the Minister’s Department should follow procedures to ensure that the Court is informed as soon as an applicant is taken into detention, so that it can expedite its hearing in the matter.
When writing these reasons, I found a special need to preserve the applicant’s anonymity in accordance with the policy reflected in s.91X of the Migration Act. Rather than make non‑publication orders, I have attempted to refer to the evidence in an unrevealing way, and to make some deletions and substitutions where it is necessary to extract parts of the evidence and the Tribunal’s reasons. I am hopeful that this produces a judgment which sufficiently exposes my reasoning. However, when the matter returns to the Tribunal or reaches a superior court, it may be necessary to read the judgment in the context of the Tribunal’s reasons, and perhaps also some of the material in the court book (“CB”).

The applicant’s claims

The applicant has professional qualifications and was employed in a senior position in a public institution in a city in China. In the middle of 1999 he was given permission by the institution to attend a conference in Australia in a field of his expertise. He was joined at the conference by a colleague whom the Tribunal refers to as “the other applicant”. I shall do likewise. Shortly after he arrived he made an application for a protection visa without any apparent assistance from a migration agent or other source. It would seem that the other applicant made a similar application, and that decision‑making on it followed a similar course. Her appeal in the Tribunal was dealt with concurrently by the same member, and he conducted a joint hearing. However, none of the material concerning the other applicant is in evidence before me, and I do not know that person’s current situation.
In statements which accompanied the applicant’s visa and review applications, he claimed that he had come under surveillance as a student and received warnings and restrictions for participating in students’ political movements in 1989. He had then “turned underground”. In 1998 he had joined the Chinese Democratic Party (“the CDP”) and “was entrusted with the task of its organisational expansion work” in a district of his city. His activities had been clandestine, and he enjoyed “a fairly good treatment” in China due to his professional position. However, repression directed at the leaders of the CDP commenced in 1999, and he arranged to come to the Australian conference in anticipation of a crackdown. Some days after his arrival, a family member told him on the telephone that “the Chinese government was intending to arrest me and other CDP members” and that some CDP members who could identify him had been detained.
With his statement attached to his review application made on 23 July 1999, the applicant presented news reports appearing after his visa application which confirmed arrests of CDP members during June 1999. His claims were also consistent with country information identified by the delegate which referred to a “crackdown on the CDP” over the relevant period. I note also that the Tribunal in its decision in September 2000 referred to US Department of State country information which concluded that “by the end of 1999: almost all of the key leaders of the China Democracy Party (CDP) were serving long prison terms or were in custody without formal charges, and only a handful of dissidents nationwide dared to remain active publicly”.
The applicant said in his statement to the Tribunal that his family told him “that the democrats who have been arrested are kept in the detention house, and my work unit has expelled me from the work”. He said: “At the cost of giving up my (professional) career, deserting my homeland and leaving my family to come to an alien land, my purpose is to protect and preserve the effective strength and plunge once again into pro‑democracy movement in future”.
The delegate rejected his application on the ground that he reported no problems with the authorities before he departed China, and had left the country legally and without difficulty in April 1999. This was criticised by the applicant as “sophistry” because “(a number of) members of our (City) Branch of the CDP have been arrested and they have already confessed that I am a key member of the CDP, (City) Branch. Their fate would be mine too if I were to return to China. … Prior to my departure from China, my membership to the CDP was not known to the authorities”.
The applicant presented to the Tribunal a translation of a letter from his father dated 19 June 1999, which said: “Soon after you left, the (employer institution) informed our family that you were a Democratic Party member and incited the pro‑democracy movement and that you and your accomplice (the other applicant) should return to China immediately to receive investigations; you might have your crimes reduced if you confessed out other party members and would otherwise be heavily sentence”. The Tribunal in its reasons said that it “places no weight on the content of that letter”, and gave three reasons for this conclusion. These are far from compelling, and one ground of review in an amended application, prepared for the applicant under the Court’s Legal Panel Scheme, challenges this finding without clearly identifying a relevant ground of judicial review. However, due to my conclusions on the procedural fairness grounds discussed below, I do not need to consider this aspect of the matter further.
In January 2000, in response to a request by the Tribunal for further information, the applicant forwarded corroboration of his involvement in and travel to the Australian conference. This was not subsequently doubted by the Tribunal. However, before accepting his evidence, the Tribunal in February 2000 requested that information be obtained from the DIMA office in Beijing in relation to the applicant’s visit. In response it received an email dated 17 February 2000 from “Peter Flierl at AUS‑BJNG‑EMB” confirming that he had been satisfied as to the applicant’s professional position (see CB 93 and CB 94). There is no record in the material presented as the “court book”, which counsel for the Minister assured me contained all relevant documents on the Tribunal file, nor in any other evidence before me that this inquiry were ever disclosed to the applicant. I shall below identify a more serious concern arising from later involvement of the Beijing Embassy.
According to the Tribunal, the applicant also forwarded in January 2000 copies of two further documents in Chinese with English translations:
i)A one page document headed “Decision On Treatment Of Failure To Return From Overseas By (The Applicant)”. The translation dated this document 15 June 1999, but the Tribunal in its reasons accepted that this was a mistranslation of 15 August 1999. The Tribunal also came to the opinion, contrary to doubts expressed to the applicant at the hearing, that the document “is genuine”. The document does not identify an intended recipient, nor show a personal signatory, and is issued under a seal of the institution. It refers to the position held by the applicant in his employing institution, to his attendance at the Australian conference, and that he “failed to return from overseas in due time and has so far failed to contact the (institution) authority in any form”. The translation continues:
Having sought instructions from the responsible leaders concerned of the Bureau’s personnel Division, whoever fails to return from overseas three months after the due time and apply for holiday renewal formalities may be treated in light of (circular). It has now been decided that he be regarded as leaving his official post as from 13^th August 1999 when the (institution) leaders’ meeting was held and no termination benefit be paid in accordance with the above‑mentioned circular.
ii)A one page document dated 16 October 1999, with different lay‑out and character format, headed “Decision On Treatment Of Defection To A Foreign Country By (The Applicant) And (The Other Applicant)”. The Tribunal, in a key finding, concluded that this document was “not genuine” and was a “fraudulent document”. The document appears to be an internal document of the employer institution, since it is addressed to the department in which the applicant had been employed, and is signed by the “Administration Office” of the institution. It refers to the applicant as “formerly” holding an identified position, and states:
The two persons, (the applicant) and (the other applicant), took advantage of attending a (conference) to defect to Australia in May 1999. They have so far failed to return despite repeated persuasions of them through their families by the (institution) authorities. It has been found through follow‑up investigations by the Municipal Public Security Bureau that the two persons are key members of the illegal organisation of the Democratic Party of China. In accordance with the decisions by the Party Committees of (the department) and (the institution), the two persons (the applicant) and (the other applicant), be relieved of all their positions in and expelled from the (institution). This decision shall come into force from this date.
The Tribunal also received a third document, similar to the first of these documents, but relating to the position of the other applicant.

The Tribunal’s investigations

After receiving these documents, the Tribunal member requested that a further request for information be sent to Mr Flierl in Beijing. The request dated 4 July 2000 (see CB 99 – compare date formatting at CB 94) said:
Tribunal member Bruce MacCarthy is seeking further information on two applicants listed below: …
The Member has asked and received information previously. However, he would like documents faxed to the Tribunal before the 19 July 2000, if possible.
The Member is specifically after documentation that has been given to the Embassy regarding the work area that the two applicant’s came from, what they did in their work areas and any release forms that the work area has given to them along with the reasons for release from their work areas. …
No document has been included in the court book which explains this request, nor how it was dealt with and responded to, nor has the respondent called any witness to explain what happened in relation to these inquiries. The court book does not contain a print‑out from the Tribunal’s case management system for recording communications. No mention of the request for investigation and any oral or written response is made by the Tribunal in its reasons. There is no suggestion in the documentary evidence that the applicant at any time was informed of it, and I accept his evidence that prior to the Tribunal’s decision he had no knowledge of any inquiries being made in China in relation to his employment by or at the request of the Tribunal. I shall indicate below the applicant’s concern, raised clearly in his original application to this Court, that an improper approach was made by the Beijing Embassy to his former employer at the request of the Tribunal. This document gives his hearsay account of one or more such approaches some corroboration, as does a report from a DIMA document examiner which I shall refer to below.
The Tribunal member held a hearing on the morning of 19 July 2000, which was attended by the applicant and the other applicant. Neither of them at that time, or subsequently, was represented by a lawyer, migration agent or other person. Neither party has put into evidence a transcript of the hearing, and the only evidence as to what happened is provided by the Tribunal in its statement of reasons.
It seems that the applicant gave evidence about his claims which was consistent with his written statements.
The Tribunal says that it then “discussed the significance of the various documents tendered by the applicant and the other applicant, and a number of issues which suggested they might not be genuine”. It summarised a discussion about the first of the documents described above, in which the applicant gave explanations for various points raised by the Tribunal. It then said that it raised what it saw as inconsistencies between the two documents and the letter from the applicant’s father:
The Tribunal referred to a conflict between the document dated 15 June (or 15 August) and the letter dated 19 June. While the letter said that the applicant was dismissed because of his membership of the CDP, the document said that he was regarded as having voluntarily left his employment when he failed to return. It makes no reference to his being suspected as a member of the CDP. The applicant said that the (institution) would never set down the “real reason” for his dismissal. He said that the reference to the (institution’s) action “in the light of” ( he used the words “in the spirit of”) an official circular should be interpreted as meaning that such a circular did not really exist, and that the document did not report the real circumstances. He said that all the documents issued by the (institution) were issued in consultation with the PSB, who could issue documents saying whatever they wanted to. He said this document was aimed at exerting pressure on him to return to China. He said his father had been told orally, not officially, of his dismissal.
The Tribunal pointed out that the (institution) document dated 16 October 1999 is inconsistent with the earlier one, in that it refers to the two applicants being relieved of their position and expelled from the (institution) with effect from that date. This makes no sense if the applicant has already been regarded as having left as from 13 August. The applicant said his previous explanation was relevant. He said the characters which were interpreted as indicating that the document was sourced in the “administration department” should have been translated as indicating the “(professional)‑political division”. The 16 October document was, he said, the formal, official version of his dismissal.
The Tribunal pointed out that the detailed questions about the documents indicated that there were some doubts about their authenticity. If the first (institution) document relating to the applicant was indeed dated in August, some of those doubts would be resolved. The applicant offered to leave the two (institution) documents for further examination, indicating that they were both original documents as posted to his home by the (institution). The Tribunal took up that offer. This matter is dealt with later.
In concluding his evidence, the applicant reaffirmed that he was seeking protection because the Chinese Communist Party wants to persecute him because he joined the CDP. He said other such members are being persecuted with criminal charges leading to imprisonment and re‑education. He said the CCP’s policy of getting rid of dissidents has never varied for a moment. He said newspaper accounts bear this out. As a (professional), he was receiving a high salary in China, and did not wish to leave home, but was forced to do so to escape persecution. He said he has been told the PSB want to lure him home with a promise to go easy on him if he informs on others, but he will not do that.

The Tribunal then described its questioning of the other applicant in the absence of the applicant. It says that at the conclusion of the hearing it told both of them that there was only one minor difference between their testimonies, and that “the evidence each had given was generally consistent with the other, but that that fact alone was not conclusive”.
As noted above, the Tribunal “took up” an offer by the applicant “to leave the two (institution) documents for further examination”. On the afternoon of 19 July 2000, the Tribunal member wrote a request to a Tribunal officer:
By now you should have received from the hearing team three documents in Chinese which were handed over at this morning’s hearing.
They all purport to come from the same place, the (City) (Institution), and relate to two former employees. One document relates to one of them, one relates to the other, while the third (the one with Blue letterhead), relates to both.
My concerns about the documents are:
·The use of English characters on the blue letterhead and in the text of that document.
·The different quality paper and quality of printing on the other two.
·The differences in style of the two documents with black letterhead, which are supposed to be the same type of memo. (One has a signature above the top horizontal line, and writing below the red seal. The other has neither).
·One document which refers to an event having occurred in August 1999, is dated June 1999. This could be a translation error. The reference numbers of the two similar documents are consecutive, notwithstanding the differences in dates. This is not impossible, but implausible.
Could you refer them to the Department’s document examination section, for their urgent opinion as to whether or not they are genuine. The applicants say they are all original documents and genuine.
The Tribunal officer sent a request in these terms on 20 July 2000 to the Document Examination Unit at the Department of Immigration and Multicultural Affairs.
A minute by a “Document Examiner” dated 7 August 2000 said:
CHINESE DOCUMENTS
As requested the following documents were examined:
1.Chinese document numbered [1999]21.
2.Chinese document numbered [1999]22.
3.Letter from “(INSTITUTION) OF (CITY)”.
The following observations were made:
Items 1 and 2
a.The base documents do not exhibit any security features.
b.The documents have been produced using a laser printer (photocopier).
Item 3
c.The base document does not exhibit any security features.
d.The letterhead has been produced using a letterpress technique.
e.The text has been produced using an inkjet printer.
As a result of the examination:
Items 1 and 2
A.Information from overseas advises that these documents are genuine.
Item 3
B.Information from overseas advises that this document is fraudulent.
There is no evidence in the court book which explains what was the “information from overseas” which allowed such categorical advice as to the genuineness of the first document and the fraudulent nature of the second document. This may be significant, since the inference a reader draws from the report itself is that the examiner’s expressed conclusions were, in fact, not the result of her examination of the documents, but the result of her adoption of unidentified but authoritative “information from overseas”.
Counsel for the Minister conceded that this report was never shown to the applicant. However, the Tribunal on 9 August 2000 did send a letter to the applicant in these terms:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection Visa.
The information is as follows: As requested by the Tribunal the following documents were examined by the Document Examination Section of the Department of Immigration and Multicultural Affairs.
Item 1. Chinese document numbered [1999] 22, ‘Decision On Treatment Of Failure To Return From Overseas By (The Applicant)’ (original returned herein).
Item 2. Letter from the “(INSTITUTION) OF (CITY)” (original returned herein).
This information is relevant because, as a result of the examination on item 1, the Document Examiner advises that this document is genuine.
As a result of the examination on item 2, the Document Examiner advises that this document is fraudulent.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 30 August 2000.
I consider that this letter gave a misleading impression as to the document examiner’s report. It suggests that the examiner had given the Tribunal an opinion that the second document was “fraudulent” based on her “examination on item 2”. This failed to alert the applicant that, in fact, the report adopted advice given in “information from overseas”.
The Tribunal also failed at this or any other stage in its proceedings to provide any other indication which might have alerted the applicant to the possibility that investigations by or at the request of the Tribunal had been conducted and may have included inquiries with his former employer in China. The Tribunal’s letter is also significant for its lack of any particulars upon which its recipient could understand the particular basis upon which an official conclusion as to fraud had been arrived at. These are matters to which I shall return below when considering whether there was a denial of procedural fairness to the applicant. They are also relevant to deciding whether the Tribunal complied with its duties under s.424A(1) of the Migration Act.
On 24 August 2000, the Tribunal received a response from the applicant:
I was shocked to receive your letter of 9^th August 2000 and was puzzled at the word “fraudulent” you have allegedly described my document as being. This document was served to my brother by the (institution’s) administration section, who in his turn gave it to me. I swear that this document is genuine. There is no reason why my family member should deceive me. Nor should I deceive you.
Upon the requirement of the RRT, I produced all the documents that I was able to. I have told you the truth. I have never had the attempt to lie to the Tribunal. There is no reason for me to tell a lie or produce a “fraudulent document”.
…
While alleging that my document was “fraudulent”, you failed to explain where the “fraud” lay. On what ground did you come to such an absurd conclusion?
Finally I wish to reiterate once again that the documents that I have submitted are all genuine.
The Tribunal did not reply to this request by the applicant.

The Tribunal’s reasoning

On 26 September 2004, the Tribunal handed down its decision, affirming the delegate’s refusal of a protection visa. Its reasons set out the history of the matter, omitting reference to its inquiries to Beijing as indicated above. Its reasons maintained the suggestion that the document examiner’s advice was based on her examination, by saying about her report: “The Tribunal received a minute from a Document Examiner of the Department advising that the first two of these documents are genuine, but the third is fraudulent”. Its reasoning about this document was:
Turning now to the alleged (institution) document dated 16 October 1999. This document is inconsistent with the document dated 15 August 1999 (and with the analogous document dated 6 July 1999 relating to the other applicant), in that it states that the two applicants were “relieved of all their positions in and expelled from the (institution)” on 16 October 1999. This could not have been the case if they had left the (institution) in August and June respectively. The Tribunal notes the applicant’s explanation that this document was produced after investigations had been concluded and so referred to the “official” version of events. However, had that been the case, one would have expected a reference to the earlier decision having been superseded in the light of later events. Moreover, the Tribunal entertained doubts about the document because it was on a different letterhead to that of the other two, and used English writing in the letterhead and part of the text. The advice of the Departmental document examiner that this document is fraudulent supports the Tribunal’s own doubts as to its validity. The Tribunal finds that the document dated 16 October 1999 is not genuine.
I need not examine the Tribunal’s reasoning concerning inconsistencies between the two documents. It is enough to note that the Tribunal has placed weight on the advice received from the Department document examiner before reaching its finding that the document “is not genuine”.
The Tribunal then gave a broader effect to this finding, by making a further finding that “the applicant’s provision of a fraudulent document to establish his membership of the CDP, is damaging to his credibility”. This finding is made in the Tribunal’s concluding paragraphs:
The Tribunal is therefore left with only the applicant’s assertion, and that of the other applicant, that he was a member of the CDP. The applicant’s provision of a fraudulent document to establish his membership of the CDP, is damaging to his credibility. The Tribunal also regards the applicant’s decision to take an oath on the Bible when he has no religious beliefs, as damaging to his credibility. Further, the Tribunal’s conclusion that he was not advised, as he claimed, that the Chinese authorities were looking for him in early May 1999, indicates that the Tribunal does not accept his evidence as wholly truthful. Against this background, and given that the Tribunal has found he was not suspected by the Chinese authorities of being a member of the CDP, the Tribunal is not satisfied that he actually was a member, and therefore might face persecution if that membership were discovered at some stage in the reasonably foreseeable future.
Having found that the document dated 15 August 1999 is genuine, the Tribunal accepts that the applicant has lost his job at the (City) (Institution). However, it finds that this was pursuant to the circular instruction identified in the document applicable in cases where a person is absent from work for an extended time. The Tribunal is satisfied that this was the only reason for his losing the job, and notes that it is not linked to any of the Convention reasons.
The Tribunal is therefore not satisfied that the applicant has a well‑founded fear of persecution for a Convention‑related reason.

Conclusions on procedural fairness

In my opinion, the Tribunal’s decision was attended by a failure of procedural fairness, because it failed to afford the applicant a reasonable opportunity to know and respond to significant evidence upon which the Tribunal formed its key conclusion that he had provided a “fraudulent document” to establish his case. I shall explain my reasons, after indicating how the applicant has raised this issue before the Court.
The applicant’s application filed on 20 September 2004 attaches a letter to the Court which may be treated as setting out his grounds. It said:
While being surprised at and regretting over the decision by the RRT, we could not understand what was happened to the decision as the RRT failed to follow the legal procedures in assessing our cases.
1.We were never told the reasons for the rejection to our initial applications by the Immigration Department.
2.The “evidence” which the RRT used to reject our application was based on the “independent government information”, which was not provided for us; nor did it have any discussion with us. We never knew at all what evidence which RRT used to reject our applications.
3.We were not given a chance to submit our views or to argue for our application.
4.The RRT went so far as to make use of the letters which we submitted and which constituted the evidence as how the (institution) under the leadership of the CPC to persecute us by letting the Australian Embassy in Beijing make an open investigation with the authorities of the (institution) where we had worked. This alerted the authorities of the (City) Committee of the Communist Party of China and led to an upgrading of the persecution of us by the authorities of the Communist Party of China. The way the RRT assessed our applications went counter to the Geneva Convention and the Handbook governing the application for a protection visa by refugees.
This complaint was framed by the applicant’s legal panel advisor in an amended application:
(iv)the Tribunal failed to accord procedural fairness to the applicant. The Tribunal informed the applicant that one of the documents he had supplied was found by the Document Examination Unit (DEU) to be fraudulent. The applicant was invited to comment on this information but was furnished with no particulars with regard to how or why the document was found to be fraudulent. If he had been furnished with particulars and given a real and adequate opportunity to comment, the applicant would have given evidence about why the advice of the employer, as a government‑run body, should not be relied upon. The Tribunal failed to comply with s424A of the Migration Act 1958 at the time of the decision which required the Tribunal to give to the applicant “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” and ensure that he understood why the information was relevant;
(v)the Tribunal failed to exercise jurisdiction and failed to conduct a review of the decision of the respondent as required by s414 of the Migration Act 1958. The Tribunal found that it was not satisfied that the applicant was a member of the CDP party in China such that at the time of his departure from China he would hold well‑founded fear of persecution as a result of his political opinion. However, the Tribunal failed to assess whether, regardless of this, the applicant would now be attributed with an anti‑government political opinion such that he would now hold a real fear of persecution on his return to his home country on account of that imputed or real political opinion as a result of having made an application for a Protection visa while in Australia, particularly given his background of political activity;
Paragraph (iv), in my opinion, sufficiently raises the failures of procedural fairness and compliance with s.424A which I shall address below. The argument in support of paragraph (v) is unclear, and has not been developed in submissions by or on behalf of the applicant. I think that the applicant might be contending that the Tribunal was, or should have been, aware that the effect of inquiries to the applicant’s employer which were initiated by the Tribunal or the Beijing Embassy would have given rise to a further, sur place, basis for fearing persecution for a Convention reason, and that the Tribunal failed to address this element when affirming the delegate’s decision. There may well be substance in such an argument, but I have not found it necessary to explore it further. To do so may require allowing the applicant to use the Court’s processes to obtain further records of the Tribunal, the first respondent’s Department and the Beijing Embassy, so as to be able to present a clearer picture as to how the Tribunal’s review was conducted by it or on its behalf.
In relation to the natural justice grounds, it is sufficient that I conclude that the applicant’s concern that the Beijing embassy approached his employer appears to have substance, and gains support rather than the converse from the Tribunal’s records which I have described above. He amplified the basis of his concern under oath and with pertinent details. I consider that over‑all he was a credible witness, and I do not disbelieve what he said nor what he was told by other people. No evidence has been led by the respondents to disprove his claims.
In short, and preserving his anonymity and the anonymity of people he named, the applicant said in evidence that after he received the Tribunal’s decision he had telephone conversations with family members who had spoken to senior personnel at his former employer who were his friends, and they said that they were aware of an Australian Government letter sent to the institution inquiring about the two letters which had been produced by him to the Tribunal. These colleagues had attended, or were aware of, meetings at which the institution’s response was discussed, and where it was decided that the authenticity of the internal document which drew attention to the political disgrace of the applicant would be denied. Many people in the institution heard rumours of this. He suggested that he had also heard of these events in direct telephone conversations with former colleagues, some of whom he preferred not to name. He had become concerned that, as a result of an improper inquiry, he would now be regarded by the Chinese authorities as a person who had embarrassed them in foreign countries, and would suffer retribution on this account if he returned.
The applicant’s case is that he might have discovered these events and drawn them to the attention of the Tribunal before it made its decision, if it had been more forthcoming about the basis of the advice to it that the document was “fraudulent”. I accept this as a reasonable possibility.
Counsel for the Minister accepted that in the present case s.422B of the Migration Act had no application, and that the Tribunal was under obligations to afford procedural fairness even where the required procedure was not specified in the legislation. The Tribunal’s powers to conduct its own inquiries and to initiate inquiries by the Secretary in ss.424(1) and 427(1) are given by the Migration Act without express safeguards of procedural fairness except under s.424A (discussed below). However, it has been held that s.424A is not exhaustive in relation to matters not subject to s.422B, and that generally the legislation intends procedural fairness to be afforded to applicants (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57).
There have been many cases which have identified the importance of allowing an applicant before the present Tribunal a real opportunity to meet allegations of fraud and to respond to any information upon which they are based. Thus in WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at 524, a Full Court explained:
[53] In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant insofar as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence.
[54] 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.

In my opinion, the opportunity to meet the allegation in the present case would not be “real” nor “reasonable” unless the Tribunal squarely brought to the applicant’s attention that it, or the official source which was advising it, was acting upon information obtained in China. The Tribunal failed to do this, and moreover – as I have found above – sent an invitation to comment which was misleading in this respect. The letter was certainly unnecessarily uninformative and, in the circumstances, was inadequate. The Tribunal undoubtedly had before it, at least, the Departmental report identifying that the basis of the allegation was “information from overseas”. The Tribunal received a plain and reasonable request for clarification of its bald invitation for comment, but ignored it.
No argument has been presented to me seeking to justify the withholding of the report, and I consider that the Tribunal was under a duty to show it to the applicant. I consider that its failure to do so materially affected the applicant’s ability to deal adequately with “adverse information that is credible, relevant and significant to the decision to be made” (c.f. Brennan J in Kioa v West (1985) 159 CLR 550 at 629, applied in many cases, including NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 at [15], and c.f. McHugh J in Miah (supra) at [140]). The withholding of the report was similar to the withholding of the linguistic analysis in Applicant WAFV of 2002 v Refugee Review Tribunal (2003) 125 FCR 351 (see French J at [57], upheld on appeal on this point in WAFV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 280 at [1] and [39]).
In my opinion, the fact that the document examiner’s report itself failed to identify what was the “information from overseas” did not justify the withholding of the report. If procedural fairness required only that the report be given to the applicant, the applicant may still have been alerted to consider whether he needed to make inquiries as to what had happened in China, and may then have obtained the information which he has presented to the Court. Without such a warning, the possibility that the allegation of fraud was based on advice obtained from Beijing was not a matter which was so obvious that it should have been anticipated (c.f. Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100 at 108-9, 119-120 and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at [144]).
My conclusions above are sufficient for me to hold that a breach of procedural fairness occurred, and resulted in the Tribunal’s decision being affected by jurisdictional error. However, I should not be understood to have decided that procedural fairness did not require more than the disclosure of the document examiner’s report. An allegation of fraud has always been regarded in both judicial and administrative proceedings as one which should not be made nor acted upon without sufficient particularisation of the information or other basis upon which it is made. In the present situation, the Tribunal had a compelling request for particulars from the applicant, and it had readily available the ability to obtain clarification of the nature of the “information from overseas” given to the document examiner, assuming that this was unknown to it. I consider that the present circumstances gave rise to a duty on the Tribunal itself to clarify this aspect of the report which it had obtained, and to consider how best to allow the applicant a real opportunity to deal with the information upon which the opinion of fraud was based. If confidentiality issues arose (and there is no evidence before me to suggest that they did), then the Tribunal would still have been obliged to undertake the “reconciliation” referred to in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 567 at [85‑90].

Breach of s.424A(1)

If I am wrong in concluding that the Tribunal’s decision was vitiated by failure to afford procedural fairness as applicable generally to the Tribunal’s proceedings, then I need to address whether there was a breach of s.424A(1). As the High Court has recently made clear, the obligation under this section to give a written invitation for comments on adverse information may not be co‑extensive with “common law” procedural fairness (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24). The High Court also made clear that a failure to observe the statutory requirements would amount to a jurisdictional error (SAAP (supra) at [72‑75], [173], [208]).
At the relevant time, s.424A provided:
424AApplicant must be given certain information
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non‑disclosable information.
On the evidence before me, this provision gave rise to an obligation on the part of the Tribunal to serve an invitation in relation to information adverse to the applicant which the Tribunal obtained from the document examiner’s report. In my opinion, it undoubtedly used the information concerning the document which was “item 3” as “part of the reason for affirming” the delegate’s decision. Counsel for the respondent did not argue otherwise. Nor did she argue that the obligation was excluded under any of the paragraphs in s.424A(3).
The issue therefore is whether the Tribunal complied with the requirements of subsection (1) in relation to that information in its letter of 9 August 2000 extracted above at [26]. In my opinion, it did not. It did not provide “particulars” of the information, if only because it omitted to inform the applicant that the document examiner based her opinion upon “advice” given by “information from overseas”. As I have explained above, I consider that this was a very material aspect of the information in the document examiner’s minute, and its omission materially diminished the applicant’s ability to answer the allegation.
I also consider that the Tribunal failed in its invitation to “ensure … that the applicant understands why it is relevant to the review”. Patently, the Tribunal did not expressly provide any such an explanation. Perhaps it thought that the bare information that “the Document Examiner advises that this document is fraudulent” carried a sufficient and implicit explanation of relevance. However, the object of s.424A(1)(b) is, in combination with the “particulars” required under para.(a), to allow an applicant to focus his attention upon the adverse material so as to allow him to appreciate its potential significance in the case and to allow him a real, rather than a token, opportunity to prepare a response. As the present applicant’s letter of 23 August 2000 should have alerted the Tribunal, its invitation failed to allow the applicant to do this. The Tribunal’s invitation also failed to draw to the applicant’s attention that the Tribunal might draw the further inferences from the examiner’s “advice” that the applicant himself was responsible for the fraud, and that this might cause the Tribunal to reject entirely all his claims to fear persecution on grounds of his political opinions.
I therefore consider that the applicant has also made out jurisdictional error arising from breach of the Tribunal’s obligations under s.424A(1). On both grounds, the Tribunal’s decision is not a “privative clause decision”, and the applicant has an entitlement to relief under s.39B of the Judiciary Act.

Discretionary considerations

However, I must address the first respondent’s submission that relief should be refused in the discretion of the Court due to unwarranted delay in bringing the present proceeding.
It is clear that relief by way of mandamus may be withheld if an applicant is “guilty of unwarrantable delay” (c.f. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; see also R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 at 570), and that delay may also make it “the proper course” to refuse relief by way of prohibition and certiorari (c.f. Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194, adopted by Gaudron and Gummow JJ in Aala (supra) at [51‑53] with whom Gleeson CJ and Hayne J agreed, and by Kirby J at [148‑149]; see also Merkel J in Thayananthan v MIMIA (2003) 132 FCR 222 at [28‑31]).
More recently, McHugh J in SAAP (supra) at [80] said:
Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome (and c.f. Hayne J at [211] with whom Kirby J agreed at [174‑176]).
However, long delays have at times been explained or excused. The onus is on the respondent to “demonstrate circumstances justifying withholding the remedy”, and emphasis can be given to the need to uphold the obligation of those who exercise statutory power to exercise their powers lawfully (c.f. Miah (supra) at [106], [150‑153], [223‑224]). The conduct of a claimant for refugee status should, in my opinion, be assessed in the light of the personal, cultural and economic difficulties facing him or her, and I consider that “a broad and realistic approach is required” (c.f. Sheppard J in Peko‑Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532 at 561, not criticised on appeal in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 31, 47, 67, 71). In refugee matters, I consider that it is relevant to take into account the possible effects of not recognising the invalidity of a refugee decision on Australia’s international obligations and on the claimant for refugee status. Overall, there must be a broad consideration of the values which come within the concept of “the administration of justice” in relation to the issue of writs against officers of the Commonwealth.
In the present case, the applicant anticipated an objection based on delay, and in the letter attached to his application summarised his explanation:
(1)We are on financial difficulties, since we have been on exile in Australia. We only rely on our friends for survival;
(2)We don’t know English, and thus don’t quite understand the Australia law. Nor do we have money to employ a solicitor;
(3)We have the fear to return to China because we have the fear of being even more seriously persecuted by the CPC authorities;
(4)While waiting, we were dreaming of an opportunity for a further application for a sort of protection.
The applicant gave evidence and was cross‑examined on these matters. I accept the truth of the above statements as to his state of mind, and that he never abandoned hopes of being able to overturn the Tribunal’s decision.
In his evidence to me, the applicant accepted that he had received notice of the Tribunal’s decision soon after it was delivered, and was aware that there was a 28 day time limit for an appeal by way of judicial review. His reasons for not commencing a judicial review proceeding were unclear, but appear to have been the result of confusion about what was involved in a court challenge and the expenses and prospects of mounting one. As I have indicated, he had pursued his refugee and review applications without any professional assistance. Moreover, I find that it is probable that he did not become aware, or did not appreciate the possible significance, of what he was told about the Australian Government inquiries of his former employer until the appeal period had expired.
My general impression from his evidence is that over the whole period leading to his commencement of these proceedings he has been unable to obtain useful legal advice concerning his situation. He has been reliant upon second hand and inadequate informal advising, which gave him confusing advice on whether he could come to court after the expiry of the 28 day time limit.
The practical and legal situation in relation to time limits on judicial review proceedings in relation to migration decisions reasonably excuses much of his confusion. It will be recalled that when the Tribunal gave its decision in September 2000, a 28 day time limit applied to the former limited Federal Court jurisdiction under Part 8 of the Migration Act, but that the High Court later indicated, for example in Miah (supra) decided in May 2001, that it was willing to exercise its Constitutional jurisdiction over the “gap” covering procedural fairness and other grounds. However, in October of 2001 the new regime of judicial review under the “privative clause” amendments came into effect, and it was only after the High Court gave judgment in Plaintiff S157 (supra) in February 2003, that even experienced practitioners could start to advise reasonable prospects of overcoming the 28 day time limit in s.477. From that time, and currently, there has been no time limit applied to proceedings commenced in this Court, provided that a jurisdictional error can be identified.
By 2003, on the applicant’s evidence, he was living in fear of detention and deportation, confused by conflicting informal advice about his prospects in judicial review, and fearful of what he would face if returned to China. He never became proficient in English, and had no understanding of our legal system. He said that he only decided to mount an application once his friend, the other applicant, was taken into detention in September 2004. They there received advice which encouraged them both to lodge applications for judicial review.
The personal circumstances of the applicant excite my understanding and sympathy, but absent a countervailing factor I would have difficulty accepting them as sufficient to allow me to overlook the four year delay. However, my examination of the documents tendered by the respondent and of the evidence of the applicant which I have accepted above at [38‑39] does persuade me that the applicant should be given the relief he seeks.
The evidence before me has raised a significant concern in my mind that there was an improper inquiry by the Beijing Embassy into the authenticity of the applicant’s documents. This has given rise to what I consider to be a serious failure of procedural fairness as described above. It also has given rise to fears on the part of the applicant which, on the evidence before me, may be well‑founded and may entitle him to receive Australia’s protection under the Refugee’s Convention. I cannot make findings more positively about this. However, in the circumstances of the grounds of review which I have upheld, I consider that it would be in the interests of justice and of good public administration for the Tribunal to be ordered to review afresh the delegate’s decision to refuse protection. Balancing all the considerations arising in this case, I am not persuaded that relief should be refused.
I shall therefore order the issue of writs of certiorari and mandamus. I record my opinion that the Tribunal should not be constituted upon the rehearing by the same member, and I make clear that all aspects of the applicant’s claims should be reviewed afresh.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 11 August 2005