SZGEH v Minister for Immigration
[2005] FMCA 1540
•25 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGEH v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1540 |
| MIGRATION – Refugee – vague and inconsistent evidence – credibility – bias – country information – documentary evidence. |
| Migration Act 1958, ss.424A(1), 424A(3)(a) Federal Magistrates Court Rules 2001, r. 21.02(2)(a) |
| Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Durairajasingham [2000] 168 ALR 407 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 |
| Applicant: | SZGEH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1095 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 August 2005 |
| Date of Last Submission: | 5 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. A. Cox |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $6800, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1095 of 2005
| SZGEH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 28 April 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 April 2005 to affirm the decision of a delegate of the respondent Minister made on 9 February 2005 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant is a national of the People's Republic of China who arrived in Australia on 8 January 1997 as a visitor with permission to remain in Australia for three months. The applicant was detained by the respondent's Department on 23 October 2004 and applied for a protection visa on 21 January 2005. The applicant’s claims before the Minister’s Department and the Tribunal were that he feared persecution by the Chinese authorities because of his involvement with an underground Christian Church which he claimed to have founded. He further claimed that on 16 June 1996 he was detained by the Chinese security police and was released on the following day on the condition that he did not attend the underground church. He claimed to fear the security police because he was a Christian and that he may be detained if he were to return to China. The Tribunal's decision record is set out at Court Book (“CB”) 138 to CB 157. The Tribunal had before it the applicant's application for a protection visa with attachments (CB 10 to CB 48), his application to the Tribunal for review (CB 64 to CB 68) and a submission on the applicant's behalf submitted by his migration adviser (CB 85 to CB 93) with attachments, some of which are in Mandarin, and did not appear to have been translated into English (CB 94 to CB 131). The Tribunal also heard evidence from the applicant who attended the hearing before it on 23 March 2005. The Tribunal's account of what occurred at the hearing is set out in its decision record as reproduced from CB 150.2 to CB 153.3.
The Tribunal saw the applicants claims as:
1)That he and a priest set up an underground church in his home town of Shantu in Guandong province of China. The applicant’s claim was that the aim of the church was to serve people in the People's Republic of China and all over the world.
2)That on 16 June 1996 the applicant was approached by two men who identified themselves as security police and that after asking his religion, took him into detention.
3)That he was detained overnight and released the next day with the direction that he leave the underground unofficial church and join a state-authorised Christian church.
4)That he feared being detained again by the security police if he were to return to China.
The Tribunal also noted at CB 143 that the applicant had submitted to it a number of documents in support of his application:
1)An untranslated statement written by the applicant.
2)Another statement, being a reference from a Presbyterian Church in Sydney, in both Chinese and English.
3)A statement that the applicant was attending another Presbyterian Church in Cabramatta.
The Tribunal also examined independent evidence, being country information, which it set out at CB 143.7 to CB 149.6, and made reference at CB 151.7 to a publication concerning the aftermath of the Cultural Revolution in China and a US State Department report relevant to that issue.
In its “Findings and Reasons” (CB 154.2 to CB 156.4) the Tribunal made the following findings:
1)That the applicant is a Christian and that he had been a member of a Protestant Church in China (CB 154.3). In relation to this claim the Tribunal found, based on the independent evidence available to it, that Christian churches were allowed to operate in China so long as they did not operate under the control of foreign organisations or structures, and that this would not be a problem for Protestants in a state approved church to which the applicant belonged during his life in the PRC (CB 154.4).
2)That at the hearing before it, the applicant was vague in providing an explanation about the differences between his family church and the state-approved Protestant Church (CB 154.9). The Tribunal was not satisfied (CB 155.2) that the applicant had any motive to set up any church, and that in any event, on his own evidence, the applicant had described himself as a person who lacked the leadership qualities and intellectual rigour to run a church group. The Tribunal gave reasons, including the applicant’s inconsistent evidence, that led it to not accepting that there had ever been a “priest” who was known to the applicant in the capacity claimed (CB 155.4). In this regard, the Tribunal found that the letter provided by the applicant about a “co-founding priest” was a solicited fabrication.
3)That having come to these conclusions, the Tribunal could find no basis for accepting that the applicant was apprehended and detained by the security police in relation to the church as claimed (CB 155.5).
4)That the applicant’s evidence about his arrest, about the accusations made against him, and the “ease” of the release by the police and lack of follow-up by the police, and his ignorance as to his status as a “charged criminal” is on its face fanciful and far-fetched (CB 155.6).
5)That the applicant's explanation at the hearing before the Tribunal, as to the applicant being able to disguise his appearance and thereby being able to leave China undetected, was a fabrication and fanciful, and that it further demonstrated that the applicant was not a reliable witness (CB 156.1).
6)The Tribunal accepted that the statements submitted by the applicant, being “witness testimonials” about his contact with community groups and churches, were genuine but the Tribunal did not accept the applicant's involvement with community groups and churches in Australia would lead to a real chance of his being persecuted in China should he return (CB 156.3).
7)The Tribunal was not satisfied that the applicant faced a real chance of Conventional related persecution were he to return to China as his claimed fear of such persecution was not well founded and on that basis it found he was not a refugee within the meaning of that term as set out in the Refugees Convention (CB 156.3).
The essence of the Tribunal's decision is, clearly, that the Tribunal had difficulties with the applicant’s own evidence as presented at the hearing before it. As the respondent submits, the Tribunal variously described the applicant’s evidence as “unimpressive” (CB 154.8), “contradictory”, “uncertain”, “inconsistent” (CB 154), “very vague” (CB 154.9) and as a “plain invention” (CB 155.9). The Tribunal also noted the “inconsistent character of the evidence” (CB 155.8) and the “poor quality of that evidence” (CB 155.6). Further it described the applicant as an “unreliable witness” (CB 156.1).
In his application to this Court the applicant sets out the following as grounds of his application:
“(1)Application for review to the refugee review tribunal.
(2) The Tribunal’s decision and a reason for decision 7 April 2005.
(3)I’m a citizen of China who claims to have a well-founded fear of persecution for reasons of my underground church activities under the Refugee Convention as amended by the Refugee protocol.
(4)The Tribunal was in error law those finding were open to it from my side fact and evidence.”
The applicant attended at the first Court date in this matter on 17 May 2005. The applicant appeared in person and was assisted by an interpreter in the Mandarin language. He signed “short minutes of order”, which subsequently became orders of the Court by consent, which among other orders required the applicant to file and serve an amended application giving complete particulars of each ground of review relied upon by 21 June 2005. No amended application has been filed. I note that the applicant did seek access to the Court's Legal Advice Scheme and on 25 June 2005 was provided with advice by a lawyer on the panel of that scheme.
I should also note that this matter had been set down for final hearing before me on 23 August 2005. Consistent with this Court's approach to providing priority for hearing to applicants who are detained by the respondent Minister, the hearing date was brought forward to 4 August 2005. I did consider, notwithstanding the fact that the applicant had not filed any amended application with particulars by 21 June 2005 in circumstances where the original application does not disclose any real discernible grounds of review let alone any grounds with any particularity, whether bringing forward the hearing date may prejudice the applicant's capacity to provide an amended application with full particulars. I took the view that the applicant had been in Australia for over 8 years, had, from the material before me, connections with community groups in Australia, the benefit of a migration adviser in his applications before the respondent's Department and the Tribunal, and also the benefit of some legal advice by way of the panel lawyer on the Court's Legal Advice Scheme. In the absence of anything further, I took the view that there would be no prejudice to the applicant's capacity to provide an amended application by bringing the hearing date forward by about 3 weeks.
The applicant appeared at the hearing before me on 4 August 2005. He was assisted by an interpreter in the Mandarin language. Mr. Cox appeared for the respondents. The applicant sought an adjournment of the hearing on the basis that he claimed he had not received any legal advice and was not able to proceed without such advice. He claimed that this had been set out in a document which had been sent by facsimile to the Court earlier that day. This document (now on the Court file) is in Mandarin characters and there is no translation attached. In any event the applicant explained that the document was a request for further time so that he could obtain legal advice. I pointed out to the applicant that he had received advice from the lawyer on the panel of the Court's Legal Advice Scheme, on 27 June 2005, following a consultation on 25 June 2005. The applicant at first claimed that he had not received any advice, and then claimed that he had spoken to the panel lawyer, who had advised that he would come to see him again. The Court registry subsequently confirmed with the panel lawyer, and subsequently confirmed again on 5 August 2005 by letter from the lawyer to the Court registry, that he had consulted with the applicant at the Villawood Immigration Detention Centre on 25 June 2005 and spoke to him with the assistance of a telephone interpreter and that written advice was sent to the applicant on 27 June 2005. In any event some little while later into the hearing the applicant appeared to change his complaint and stated:
“I trust the Court will give me a fair decision and appoint another legal adviser for me, not like this person is really terrible.”
It was clear that at this point the applicant's complaint was dissatisfaction with the advice that he received, and he was seeking from the Court another panel lawyer. I advised the applicant that the Court's scheme provided for one panel lawyer to be allocated to each case. Nor could I see anything in the material before me, as there were no grounds discernible, such that would benefit from further legal counsel. I also noted that the applicant had been in Australia since January 1997, and had over three months since filing his application to arrange for legal advice or representation. Nonetheless, given that I had an unrepresented applicant before me who was insistent that he was unable to proceed with the hearing, and wanted the opportunity to obtain further legal advice, I adjourned the matter until 10 August 2005 to enable the applicant to pursue whatever avenues were available to him to obtain such advice.
The hearing resumed on 10 August 2005. The applicant remained unrepresented. Apart from contacting the Court Registry to obtain referral to another panel lawyer, despite my earlier advice to him, the applicant did not advise of any other steps that he had taken to arrange for legal advice. The applicant proceeded with the hearing. He was assisted by an interpreter in the Mandarin language. Mr. Cox continued to appear for the respondents at this hearing. The applicant made a number of complaints concerning what occurred at the hearing before the Tribunal. The complaints essentially concerned the conduct of the Tribunal member and in particular that the Tribunal member:
1)Questioned him “unfairly” and did not allow him to answer questions.
2)Did not give him enough time to give evidence.
3)Did not pay any attention to the photos and documents that the applicant had provided; and
4)That the Tribunal was biased against him in that it discriminated against him and heard the case “according to his own view”, and that there were a number of misunderstandings during the hearing.
5)The applicant claimed that the tapes of the hearing would “prove” his claims that he did not obtain a fair hearing from the Tribunal. He could not provide any particulars or specifically refer to where and how, and on what issue or issues he was not dealt with fairly at the hearing before the Tribunal, other than the broad assertions above. The applicant was insistent that I listen to the tapes and that this would confirm his claims. Mr. Cox very fairly agreed to provide the relevant tapes so I could listen to them. Following the hearing, the respondent, by way of affidavit and attachments of Kelly Louise Price, an employee of the respondent's solicitors, provided two tapes of the hearing that the Tribunal conducted with the applicant.
I subsequently listened to those two tapes. In short, the tapes do not support the applicant's complaints:
1)The Tribunal's account of what occurred at the hearing before it as set out in its decision record at CB 150.2 to CB 153.6 is an accurate record of the matters that it reports. Clearly the Tribunal's record is not a transcript of the hearing and it does not report on each and every detail discussed at the hearing. But I am satisfied, after listening to the tapes, that the Tribunal reported, identified and dealt with the key issues in the applicant's claims.
2)The tapes confirm the Tribunal's finding as to the vague and uncertain nature of the applicant's evidence as presented at the hearing.
3)It is clear that in some aspects this was not an easy hearing for the Tribunal to conduct, but it is equally clear that this arose from the applicant's inability to provide clear answers to the Tribunal's questions and to respond directly to the Tribunal's questions. For example, at one point the interpreter sought a short adjournment of the hearing, which the Tribunal subsequently granted. The interpreter stated that he needed a break because of the difficulty of his task. The difficulty was not that he did not understand the meaning of the words used by the applicant, but that the applicant's answers were lacking in contextual meaning (“non-responsive” appeared to be what was meant) and were incoherent and that this made it difficult for the interpreter to translate. I did not see this in itself as leading to a situation where the applicant was prevented from putting forward his claims. The difficulty was the applicant's inability to coherently articulate those claims. Further, I noted that the applicant was represented by a migration agent before the Tribunal, and the agent, or a representative of the agent, was clearly present at the hearing. No complaint was made during the hearing about the level of the competence of the interpreter by the applicant or the applicant's adviser, or that the applicant was prevented from putting forward his claims. Nor is there any evidence of a complaint of that nature being put to the Tribunal after the hearing it conducted with the applicant.
4)In relation to the applicant's specific complaints:
(a)That the Tribunal questioned him unfairly and did not allow him to answer questions. It is clear that, left to his own devices, the applicant had much to say. However, I could see no error on the part of the Tribunal in its attempts to focus the applicant on relevant issues and to attempt to obtain from the applicant relevant and responsive answers.
I could hear no unfair questioning and no specific example was evident where the Tribunal did not allow the applicant to answer questions on issues that were relevant to his claims.(b)The applicant also complaints that he was not given enough time to give evidence. This again is not apparent from the tapes of the hearing. The applicant's complaint, when put in context, appears to be one of an applicant who wished to have unlimited time to put forward irrelevant matters. For example, at one point, while reading from a prepared statement, the applicant said that he “liked singing” (This could have been some reference to hymn singing). The Tribunal was entitled, in these circumstances, to ask the applicant to focus on issues relating to the setting up of his unofficial church and any harm that he claimed had occurred from the Chinese authorities. On a number of occasions the Tribunal asked the applicant to deal with the matters relevant to his claims.
(c)The applicant also complained that the Tribunal did not pay any attention to the photos and documents that the applicant had provided to it. Clearly the Tribunal did deal with the photos and documents provided by the applicant, and provided an opportunity to the applicant to read, and for the interpreter to translate, from the documents that the applicant had provided to the Tribunal. These had been provided to the Tribunal without translation from the Mandarin characters in which they had been written. In this regard, I note that the Tribunal's letter of 15 February 2005 to the applicant, setting out the process for dealing with the application for review, which was sent to the applicant, and relevantly to his migration adviser (CB 75 to CB 76), states at CB 76.4 that the applicant should send any “documents, information or other evidence” that he wanted the Tribunal to consider, and that any documents not in English should be translated by a qualified translator. Neither the applicant, nor his adviser, took any steps to have these documents translated, whether by a qualified translator or otherwise. In any event, the Tribunal went through this material with the applicant at the hearing. Again I note that there is no error in seeking from the applicant that he focus on those parts of the documents that were relevant to his claims. The Tribunal repeatedly asked the applicant to go to those parts that dealt with the church, or harm from the authorities. In relation to his photos, the Tribunal clearly put to the applicant that the photos did not go to support his claims. For example, the photo reproduced at CB 128 (at the top of that page) was described by the Tribunal as showing a line of people in front of a wall, and did not of itself go to support the applicant's claims of his involvement in religious activities in Australia. But in any event, in relation to his activities in Australia, the Tribunal accepted (CB 156.2) that the witness testimonials about the applicant’s contact with community groups and churches in Australia were genuine, but found that it did not accept that the applicant’s involvement with such community groups or churches in Australia would lead to a real chance of his being persecuted in China.
(d)The applicant did not say what the misunderstandings were that occurred at the hearing with the Tribunal. But it is clear on listening to the tapes that what the applicant has characterised as “misunderstandings” were attempts by the Tribunal to obtain some certainty and clarity out of the applicant's responses.
(e)I could not see that the applicant's claim that the tape would show that the Tribunal was biased against him, bearing in mind the relevant test to establish bias, could be made out. For the applicant’s benefit, allegations of bias, whether bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. An allegation of bias carries with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The tapes of the hearing which the Tribunal conducted with the applicant do not support his claim now. Further, alleged apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28, [27]-[32]). This claim also cannot be sustained.
The applicant, with his adviser present at the hearing before the Tribunal, was not responsive to the Tribunal's questions and did present vague and uncertain answers to questions. If anything, the tapes confirm the findings by the Tribunal, and do not support the applicant's complaints about what occurred at the hearing with the Tribunal.
Other than a mere reference to error of law, there are no particularised grounds put forward in the application to this Court other than perhaps an implied assertion that the Tribunal's findings were not open to it. This is a case where the Tribunal's assessment of the applicant’s evidence was open to it on the material before it, and it gave reasons for its findings. As the respondent submits in written submissions, this is a situation consistent with what His Honour McHugh J., said in Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Durairajasingham [2000] 168 ALR 407 at 67, that a finding on credibility is the function of the primary decision maker “par excellance”.
The Tribunal's findings are derived largely from the evidence provided by the applicant at the hearing before it, and on country information which it took into account. In relation to this information from independent sources, it is clear that it is not information that is required to be put to the applicant pursuant to s.424A(1) of the Migration Act 1958 (“the Act”) as it falls within the exception found in s.424A(3)(a) of the Act, the meaning of which is now explained by the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, and in QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92. The Tribunal did make reference in its decision record to claims and material submitted by the applicant to the respondent’s Department in connection with his application to it. This is at CB 143.1 to CB 143.6. To a large extent the applicant's claims to the first respondent’s Department were repeated to the Tribunal, either in the statement translated at the hearing before the Tribunal, or generally in the claims made to the Tribunal. In any event, the other reference by the Tribunal in its decision record (under the heading “Claims and Evidence”) to the applicant's claims (as contained in his protection visa application) that he had economic difficulties and that these were the cause of his troubles with the PSB (Chinese security agency), do not form part of the basis for the Tribunal's findings in relation to the applicant's claims.
The Tribunal generally accepted the documentary evidence provided by the applicant in support of his application. In one respect however, the letter provided by the applicant to the Tribunal, stating that the “priest” alleged to have been a co-founder of the church with the applicant had died, was rejected by the Tribunal as a “solicited fabrication” (CB 152.3). At CB 152.6 the Tribunal reports that at the hearing before it the applicant tabled a letter on the letterhead of a named company and claimed that it was from a church friend, dated
16 December 2004. The Tribunal states that letter reports that the priest named as the co-founder of the applicant's church had died. In its “Findings and Reasons” the Tribunal concluded that the letter about this priest was a solicited fabrication dressed up on company letterhead to look authoritative but having no authority at all. I can see no error in how the Tribunal approached this issue. The Tribunal clearly had considerable credibility concerns with the applicant’s claims, and made findings in this regard that were part of its central role, that were open to it. It is clear that in the case before me that the Tribunal formed a view about the applicant's lack of credibility, and that the applicant's evidence that he had set up an unauthorised church was not accepted by the Tribunal. To the extent that the Tribunal had already formed a clear adverse view as to the applicant's credibility, then the “well” had been well and truly poisoned by the time the Tribunal came to look at the letter submitted by the applicant during the course of the hearing. (WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 and Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 on corroborative evidence). Having found that the applicant never set up an unauthorised church, a subsequent finding, even if it was dependent on this letter that there was a “priest” who founded the church with the applicant, was unlikely in this circumstance, and would not have been capable of assisting the applicant. In any event, as the Tribunal’s account of what happened at the hearing before the Tribunal confirmed that the Tribunal did raise some concerns with the applicant about what appeared on the face of the letter and did give the applicant an opportunity to comment.In all the circumstances of this case and on the material before me, and having listened to the tapes of the hearing that the Tribunal conducted with the applicant, I can see no jurisdictional error in the Tribunal's decision. The applicant was represented by a migration agent throughout the processing of the application before the Tribunal and the migration agent was present at the hearing. The applicant was given the opportunity to fully set out his claims and matters relevant to these claims. On what was before it, it was open to the Tribunal to make the findings, particularly the credibility findings that it did. I can see no jurisdictional error. This is a privative clause decision. The application is dismissed.
I should however deal with one further matter. The applicant complained at the hearing before me that “the photo in the green book is not my real photo”. He alleged that the photo had been changed. I confirmed with the applicant that this was a reference to the document reproduced at CB 52, being a photocopy of part of the material before the first respondent’s Department. The applicant claimed that the photographs of him at this page showed him with a beard, and he provided me with a photograph taken of him at the Villawood Immigration Detention Centre which showed him without a beard. It is not clear whether the process of photocopying documents for the purposes of compiling the Court Book resulted in some shadowing that could be mistaken as a beard around the applicant in the photograph. The applicant was insistent that the photograph had been altered and that it was not as a result of the photocopying process and that it had been done to make him look like a “terrorist” to give the wrong image “to other people”. He further complained that it was unfair because it made him look “like an idiot” and that this had been intentionally done by persons at the Villawood Immigration Detention Centre. The applicant referred to the photocopy of a photograph taken, he said, at the Villawood Immigration Detention Centre which clearly showed him without a beard. The applicant’s complaint in this regard could perhaps also be seen in the context of one of the issues referred to by the Tribunal in its decision record, as it set out at CB 152.9:
“The Tribunal put it to the Applicant that his unhindered use of his passport seemed to be evidence of the authorities having no interest in him. In reply, he said he disguised his appearance one month before his departure from the PRC in January 1997.”
The Tribunal stated that there were problems with the applicant’s claim in this regard, that he changed his appearance (CB 153.2). It put the applicant on notice of this, and one of its subsequent findings (CB 155.9) was that the applicant had unhindered use of this passport.
It is clear that this issue does not go to show error on the part of the Tribunal. The Tribunal's decision clearly turned on the applicant's credibility, and in particular the view formed of the credibility of the applicant's claims at the hearing the Tribunal conducted with him. There is nothing to show that, in any way, the Tribunal was influenced by this photograph now reproduced at CB 52, whether changed intentionally or unintentionally, or that it formed any view about the applicant as a result of this photograph. Nor is there any evidence that the photograph appeared in its current state in the original document on the first respondent’s file that was put before the Tribunal. However, it is also quite clear that this applicant, as indeed any applicant, who is detained in the first respondent’s Immigration Detention Centre is entitled to be treated with respect, and that his dignity should be maintained at all times. I well understand that the applicant is aggrieved by what appears at CB 52. I would ask that the Minister's legal representatives bring this issue to the attention of the Minister and those who advise her. I ask that those who advise the Minister ascertain whether the photographs appearing on the document reproduced at CB 52 are in their present state as the result of some element of the photocopying process while preparing the Court Book, or whether the applicant’s photograph or photographs, as appearing on the relevant part of the file relating to the applicant with the Minister's Department, had been in some way altered. If the first, then I would ask that in future greater care be taken by those who prepare Court Books, while understanding fully that photocopying of large amount of documents can cause some difficulties in this regard. Nonetheless the process of preparing documents for matters before the Courts should not lead to distress, or a lessening of dignity of any applicant before the Court. If the second, and the photograph has been intentionally altered in some way, then I would leave to the Minister's discretion, and to those in her Department responsible for the care of detainees in Immigration Detention Centres as to dealing with the inappropriateness of photographs being altered, for whatever reason in this fashion. This may appear to some to be a minor matter in the greater scheme of things. But it was important to this applicant, and of concern to this Court that even if it was as a result of an “honest” mistake in photocopying, the applicant was entitled at all times to be treated with respect and his dignity maintained. In any event, I have already said, this issue, while important, not only from the applicant’s perspective, but for the general perception as to how those in the Minister's care and custody are treated, is not however relevant to showing jurisdictional error in the Tribunal's decision before me.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 25 October 2005
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