SZGUJ v Minister for Immigration - [2007] FMCA 134

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUJ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 134

MIGRATION – RRT decision – Nepalese applicant fearing persecution by Maoists and government – submitted corroborative documents – Tribunal finding that they used imported blank letterhead – reliance on information from Departmental fraud unit not covered by s.424A notice – matter remitted.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.418(3), 424A, 424A(1), 424A(1)(a), 424A(1)(b), 424A(3)(b), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Elrifai v Minister for Immigration (2005) 225 ALR 307
Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214

Applicant:

SZGUJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1903 of 2005

Judgment of:

Smith FM

Hearing date:

1 February 2007

Delivered at:

Sydney

Delivered on:

15 March 2007

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the First Respondent:

Ms T Quinn

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 21 June 2005 in matter N03/48052.
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 18 November 2003.
The first respondent pay the applicant’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1903 of 2005

SZGUJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 19 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 May 2005 and handed down on 21 June 2005. The Tribunal affirmed a decision of a delegate made on 18 November 2003, which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A and has restructured the Court’s jurisdiction in relation to migration decisions. However, these amendments apply only to proceedings commenced after 1 December 2005 and the repeal does not affect the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which 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 (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 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 subsequent cases). I do not have power myself to decide whether the applicant’s claims should be believed or disbelieved, nor whether he qualifies for a protection visa.
The long interval between the delegate’s decision and the Tribunal’s decision appears to be accounted for by a need for the Tribunal to be reconstituted after the retirement of a member, and also by the complexity of the evidentiary issues which were required to be addressed. These issues included difficult questions as to the authenticity and veracity of a stream of documents presented by the applicant in corroboration of his claim to fear persecution if he returned to Nepal, and a need to consider changing political events in Nepal.
The Tribunal conducted what appear to be generally fair procedures to ensure that the applicant was alive to its concerns, and published an elaborate statement of reasons which suggests a careful consideration of the applicant’s claims and evidence. Unfortunately, I have concluded that one of the grounds of review must be upheld, and the matter must be remitted for further consideration. This arises due to an interpretation of the Tribunal’s procedural obligations under s.424A(1) which was established in the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, subsequent to the Tribunal’s present decision.
Section 424A(1) provides:
(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.
Counsel for the applicant argued numerous particulars of breach of this obligation, some of which involved issues as to the concept of “information” in s.424A(1), and the exclusion in s.424A(3)(b) of the Tribunal’s obligation in relation to information “that the applicant gave for the purpose of the application”. These issues do not arise in relation to the ground which I propose to uphold. I propose to address only that ground, and to provide background relevant only to that ground.
The applicant arrived in Australia in September 2003 with a person who he claimed to be his de facto spouse. They travelled with a theatre group of ten Nepalese nationals attending a cultural event in Australia, some of whom subsequently applied for refugee visas. The applicant and his partner obtained an extension of their visas, and then lodged their application for protection visas on 20 October 2003, employing an agent who also subsequently represented them before the Tribunal. The partner’s application was presented as secondary to the applicant’s application, and was refused by the delegate in the decision which was reviewed and affirmed by the Tribunal. She has not, however, joined the present proceeding in this Court, and it is unnecessary for me to consider her situation.
The applicant’s claims were set out by his agent in a covering submission sent to the Department of Immigration. Shortly, he claimed to have been an active member of the Communist Party of Nepal (United Marxist Leninist) (referred to by the Tribunal as the “CPN‑UML”), which espoused policies through democratic processes. He claimed that his activities in his local district incurred the attention of members of the Maoist Communist Party, which pursued a guerrilla insurgency from 1996. They tried to recruit him, demanded money, threatened his life and property, and carried out violent attacks on him and his home. He sought refuge in Kathmandu, but was advised by his party to leave Nepal and effected this by joining the theatre group. When his appeal was pending in the Tribunal, he claimed that his father was kidnapped by Maoists while living in New Delhi, and that his own political background placed him at risk of persecution by the Royalist government as well as from the Maoists.
In the course of numerous submissions to the Department and Tribunal, the applicant’s agent presented much general background material, and also a number of letters and references purporting to provide specific corroboration of the applicant’s refugee claims. For the purposes of this judgment, it is unnecessary to detail the chronology and manner in which they were forwarded to the Tribunal. I note, however, that the first three letters were first sent to the Department before the delegate made his decision on 18 November 2003, and the others were first sent to the Tribunal after that date. The letters were:
i)A letter dated 16 October 2003 in English, not on letterhead, signed by P, and addressed “to whom it may concern”. This “confirmed” that the applicant resided with the author between 2000 and 2003, and that the applicant was “a full time political activist” belonging to the CPN‑UML (CB 45, 111).
ii)A letter in Nepalese script, on paper with letterhead of a District office of the CPN‑UML, and a stamp of that party. A translation states that the letter is dated 16 May 2003, signed by the “secretary”, and is addressed “to whom it may concern”. It certifies that the applicant “has been working as this party’s active member” between 1992 and 2003, that his “works has been hampered by the Nepal Communist Party (Maoist) and has been inflicted with various threats from the Maoists and is making it difficult for him to live in this district” (CB 52, 95, 113).
iii)A letter in Nepalese script, on paper with letterhead of a school in Kathmandu. A translation dates the letter on 7 October 2003, and states that it is signed by the principal and is addressed “to whom it may concern”. It certifies that the applicant “came to my refuge” in May 2003, and that ten days later “four unknown persons came to look” for him. It states “on the same day as [the applicant] became aware of this fact, he disappeared and I have not seen him since” (CB 91, 96, 112).
iv)A letter in Nepalese script, on paper with letterhead of the Nepal Communist Party (Maoist) “West Central Command”, and a stamp of that party. A translation states that it is dated 12 February 2000, and is headed “notice on the last warning”. It “orders” the applicant to give “your full support and involvement in our great people’s war party”, payment of a fine, “leave the village within 24 hours”, and “agree death penalty” (CB 152, 153).
v)A letter in Nepalese script, without letterhead or stamps and with the western date “17 Nov 2003”. A translation states that it is a letter to the applicant from his father in Delhi, telling him “don’t come back Nepal, if you return back to Nepal, they (the Maoist) will kill you. … if you need any further documents or letter contact to you eldest brother” (CB 154, 155).
vi)A letter in Nepalese script, not on letterhead. A translation states that it is dated 6 November 2003, from a member of the local committee of “Nepal Communist Party” (i.e. the CPN‑UML), addressed “to whom it may concern”. The author states that in May 2003 he discussed with the applicant “his concerns for his personal safety”, and that “this statement about our discussion in our last meeting has been written according to the request by [the applicant]” (CB 157, 158).
vii)A letter in Nepalese script, not on letterhead. A translation states that it is dated 6 November 2003, and signed by a police inspector in Kathmandu. It states that in July 2003 the applicant told the author about “the death threat given to him from the Maoist”, and that the author “explained to him that the present condition of the country is very bad and the Police safety is difficult to provide. This letter is given to [the applicant] according his request by phone from Australia” (CB 159, 160).
viii)The Tribunal at page 12 of its statement of reasons (CB 359), refers to a second “Maoist” letter dated 8 May 2003 which was submitted to the Tribunal on 21 April 2004. It describes the letter as stating “that the Applicant met the Maoists’ demands and that it was decided that no action be taken against him. ‘However,’ the letter then accuses the Applicant of repeating his attacks on Maoism and orders him to leave Nepal immediately, advising him not to go to India where he might join the Indian and Nepalese police against the ‘revolution’”. I was unable to locate this letter in the Court Book, and therefore cannot make any finding whether it was on letterhead paper.
When the Department’s file was sent to the Tribunal pursuant to s.418(3) of the Migration Act, it contained a Minute prepared within a Fraud Analysis Unit of the Department after the making of the delegate’s decision. The Minute recorded:
On 17 November 2003, Customs intercepted a parcel containing official Nepalese stamps and documents in an air courier consignment from Singapore. Photographs and copies of these stamps and documents are attached. Following consultation with the relevant government agencies the parcel was returned into the air couriers delivery system on the 19 November 2002 [sic: 2003].
The bundle was addressed to one of the members of the theatre group to which the applicant belonged. The Minute referred to the travel and visa applications of members of the group, including the applicant and his partner, and to their current addresses. It described a visit by officers to the residence of the recipient of the parcel, which was not the residence of the applicant. The recipient admitted receiving it, but denied using the documents and stamps to assist his or other persons’ visa applications. He delivered up some, but not all, of the contents of the parcel. Officers also interviewed some other members of the group, but did not visit the applicant’s residence nor interview him. The Minute concluded with recommendations about the leader and organiser of the theatre party, and a suggestion that some persons, not including the applicant, might have committed offences under the Migration Act in relation to the submission of fraudulent documents. Its general findings and recommendations included:
·The theatre group may have been established solely for the purpose of assisting the group to enter Australia. …
·Some fraudulent documents remain in the community and may be submitted to DIMIA or the RRT in support of PV applications. …
·[Recommendation] That copies of this report be placed on each PV file, for the information of the RRT members.
The documents reproduced in the Court Book do not include the attachments to the Minute, which apparently revealed the appearance of the stamps and letterheads which were included in the intercepted parcel. There is no evidence before me which explains whether, in fact, these were attached to the copy which found its way onto the applicant’s file. However, I consider that this is possible, and that it is probable that this information was known to the Tribunal by this or by other means. Knowledge of the contents of the attachments seems implicit from the Tribunal’s s.424A letter and its ultimate reasoning which I shall extract below.
The Tribunal never showed to the applicant the Fraud Analysis Unit’s Minute nor its attachments. After the applicant’s agent had submitted all the documents listed above, the Tribunal as previously constituted discussed them with the applicant at a hearing held on 29 April 2004. There is little evidence before me as to what occurred at this hearing, but the present Tribunal’s statement of reasons states that it was put to the applicant that his two Maoist letters “appeared to be written on the same base document as other applicants from his troupe” and “the number of similarities between his case history and theirs supporting the impression of a conspiracy” (see CB 359). However, even if this provided procedural fairness to the applicant according to usual requirements, it is established by SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 that this could not overcome any deficiencies in the procedures required by s.424A.
Prior to that hearing, and before the Tribunal had received the second Maoist letter, the Tribunal wrote to the applicant on 6 April 2004 a letter (“the s.424A letter”), which stated:
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:
The Tribunal has information concerning the importation into Australia of blank Nepalese documents and official document stamps. The persons involved in the importation of these articles have links with you in that you traveled to Australia together with a theatre group – the D. Theatre. You have all applied for protection visas making the same type of claims.
The use of such blank documents and stamps for the production of false documents is an offence under Australian law. The use of blank documents and production of them is an offence under section 145.3 of the Criminal Code 1995. The submission of fraudulent documents to the Department or the Tribunal is an offence under section 234 of the Migration Act 1958.
This information is relevant because:
Your association with the importers of the documents is of itself a concern and raises the issue as to whether or not you are involved in the importation and use of blank documents and stamps. You have produced a document to the Tribunal allegedly from the Nepal Communist Party (Maoism) which appears to be on one of the blank Nepalese documents. The Tribunal is concerned about your credulity and the veracity of your claims.
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 3 May 2004.
The ground of review which I am addressing in this judgment, requires me to consider whether this s.424A letter sufficiently gave the applicant “particulars of any information” taken by the Tribunal from the Minute and its attachments, or from some other undisclosed source about the Department’s investigations into fraudulent documents, which ultimately formed “the reason, or a part of the reason, for affirming the decision that is under review” (within s.424A(1)). The applicant alleges that at least one failure is revealed in the Tribunal’s reasoning for a critical finding that “the letters of support and demand that the Applicant provided in relation to his claims are all fraudulent”.
Before setting out and analysing the relevant passage from the Tribunal’s statement of reasons, it is convenient to continue the procedural history of the matter, by noting the applicant’s response to the s.424A letter, and further corroborative material submitted by the applicant.
The applicant responded to the s.424A letter in a letter sent by fax to the Tribunal on 13 April 2004 (erroneously dated 29 March 2004). In this, he maintained that he had separated from the theatre group after its members moved to Sydney, and “did not have any contact with them for months”. He maintained: “All the documents I have submitted to the department & the tribunal are genuine documents & all the information provided with the application are correct. No any blank documents have been imported from overseas”.
Subsequent to this correspondence, and after the first hearing held by the Tribunal, the applicant’s agent forwarded to the Tribunal on 5 August 2004 a copy of a page from a Kathmandu newspaper which contained a brief report that “an unknown group has kidnapped [the applicant’s father] during his visit to New Delhi”. The dates of this event were not stated, and the report appears to be sourced upon information from “his relatives”. A second newspaper report was forwarded on 18 August 2004, purporting to be from a local newspaper circulating in an Indian town near the Nepalese border. It reports “terrifying news received that CPN (UML) of Nepal’s senior leader, [the applicant’s] father [name] has been kidnapped”.

These two reports were the subject of discussion at the second Tribunal hearing, attended by the applicant on 9 September 2004. The applicant then, on 22 November 2004, tendered further corroboration of the kidnapping claim, in the form of a letter in English on letterhead of a Nepalese radio station, certifying that “the news about the kidnap of [the applicant’s father] had been broadcasted through this F.M. Station” on a date in July 2004. The Tribunal subsequently requested investigations and conducted a correspondence with the applicant about the authenticity and reliability of these documents, including by serving a second s.424A letter.
It is unnecessary for me to examine further this aspect of the Tribunal’s procedures and reasons, since they are not the subject of any attack in this proceeding. Ultimately, the Tribunal disbelieved that the applicant’s father was kidnapped. It explained reasons for forming this opinion, and for a conclusion that “the Applicant introduced the claim about his father being kidnapped as a way of keeping his case alive in the face of concerns about the evidence he had provided up to that point”. This led to a further observation that “a pattern emerges of Applicants who have gone to considerable lengths to mislead DIMIA and the Tribunal with false and otherwise unreliable documents presented in connection with inconsistent and otherwise unreliable claims”.
The Tribunal’s conclusions which specifically rejected the key elements in the applicant’s claimed history in Nepal were expressed at the start of its “Findings and Reasons”, and before they were explained in detail, including by reference to its opinions about the claimed kidnapping of the applicant’s father. It said:
The Tribunal accepts that the Applicant, [name], is from a rich family. The Tribunal accepts that the Applicant may prefer the CPN-UML to other parties. However, the Tribunal considers the Applicant’s claims about being a “political” dancer for the CPN‑UML to be vague and unimpressive. The Tribunal has considered the evidence of the Applicant having been a member of the CPN‑UML and finds that it cannot rely on it. The Tribunal finds that the Applicant’s claims about the Maoists trying to recruit a person of his social profile, let alone to the position regional unit controller, to be far‑fetched and implausible. The Applicant’s evidence about being a CPN‑UML activist, which the Tribunal ultimately does not accept, clashes in any event with the claims about the Maoists seeking to win him over to a position of responsibility in their ranks. The Applicant’s evidence about this plot is dismissed as implausible, unreliable and confused.
The Tribunal said that it had only arrived at these conclusions “at the end of a very long fact‑finding process”, in which it had considered the documents provided by the applicant. It explained why it thought that the claimed Maoist ultimatums were “contradictory” and “fabricated”, and was not satisfied that they “ever happened”. It rejected the letter from the Kathmandu school principle because “for this letter to have reached the Applicant some contact between him and the author must have been made or maintained, and yet the letter says the Applicant has disappeared”.
The Tribunal then explained why it rejected the evidentiary value of all of the corroborative letters listed above, and why it concluded they were “all fraudulent”:
Generally, the Tribunal finds that the content of all the letters provided by the Applicants to be expository and self-serving, even where those letters do not contain contradictory elements, as in the case of the “Maoist ultimatum” letters. The dates of the non‑Maoist documents are dates following the Applicant’s arrival in Australia and generally indicate, by way of those dates and, in some cases, by way of explicit remarks, that they have been solicited by the Applicant. The Tribunal finds that it cannot give any weight to these letters. Importantly, the Tribunal cannot give any weight to the purported CPN‑UML letters. The evidence before the Tribunal of a conspiracy between the Applicant and other members of the dance troupe is very strong. His letters did not appear until after the intercepted material was returned to the postal service. The letterheads intercepted were blank, which a reasonable person would naturally consider to be unusual given that they were together in a parcel being shipped to Australia rather than being held in the respective offices to which they purportedly belonged, awaiting official use. The Applicant’s letters appeared on some identical letterhead samples. And his denials of any involvement in the conspiracy are, on their own, not impressive. In the context of the material the Applicants later submitted, i.e., the two newspapers, which will be discussed in more detail below, the Tribunal is all the more confident that the letters of support and demand that the Applicant provided in relation to his claims are all fraudulent. Independent evidence about fraudulent documents being easy to arrange in Nepal adds support to the Tribunal’s conclusions about these letters.
It is not in contention that this paragraph contains important reasons of the Tribunal for rejecting the applicant’s refugee claims and for affirming the delegate’s decision. In particular, it explains why all the corroborative evidence found in the letters was given no evidentiary weight. Several reasons are given for its general opinion that they were “all fraudulent”, but it is apparent that one reason is that the Tribunal has found that the applicant was involved in a conspiracy to support immigration applications with letters concocted in Australia on blank letterhead paper sent from Nepal in the intercepted parcel, and that he then used material so imported.
The Tribunal’s conclusions that evidence was “very strong” of the applicant’s involvement in a conspiracy to prepare fraudulent documents, and its finding that “the letters of support and demand … are all fraudulent”, in my opinion, rested in part upon two particular findings of fact: (i) that all of his letters “did not appear until after the intercepted material was returned to the postal service”; and (ii) that the letters on letterhead submitted by the applicant “appeared on some identical letterhead samples”.
The information used by the Tribunal for making the first finding is not specified, but appears to be the Fraud Analysis Unit’s Minute. It stated that the documents were returned to the “delivery system on the 19 November 2002”, but the year appears to be a typing slip for 2003. The applicant’s visa application, enclosing a copy of the first (and only) CPN‑UML letter which used letterhead, was lodged with the Department on 20 October 2003, and was then held out by his agent to be a facsimile copy received by him on 19 October 2003. The Tribunal’s finding that this letter and the two other letters which were submitted with the visa application “did not appear until after the intercepted material was returned to the postal service” therefore appears to have been based upon a misreading of the Minute. The applicant was not able to point this out, since the information as to the dates when the parcel was intercepted was never given to the applicant, at least, in a s.424A letter.
I consider that failure to put the interception date information to the applicant in a s.424A letter is clear, and that this was a clear breach of s.424A(1).
In relation to the second factual finding, there were three, or possibly four, of the applicant’s letters which were on letterhead: the first letter “of support” from an officer of the CPN‑UML, the letter from the school principal, and the first – and possibly the second – Maoist letters of “demand”. The Tribunal’s finding indiscriminately found that all of these letters used letterhead which was the same as the intercepted documents, and I do not consider that this finding can be read as confined to the Maoist demands. This is because of the plural and indiscriminate expressions used by the Tribunal in this paragraph, and in particular in its finding: “The Applicant’s letters appeared on some identical letterhead samples”. I consider that this statement must be read as encompassing the CPN‑UML letterhead document submitted with the original visa application, since this finding appears partly to explain the earlier statement: “importantly, the Tribunal cannot give any weight to the purported CPN‑UML letters”. If there is doubt about this, then it should be resolved in favour of the applicant (see Weinberg J in SZEEU at [163]).
The s.424A letter did not put to the applicant that all of his letterhead letters were on the same letterhead as had been seized, including one which had been submitted before the seizure. The only document in relation to which a similarity was suggested was the first Maoist demand. The s.424A letter stated: “You have produced a document to the Tribunal allegedly from the Nepal Communist Party (Maoism) which appears to be on one of the blank Nepalese documents”.
The information upon which the Tribunal made its findings that each of the applicant’s letterhead documents was fraudulent may have included information gleaned from the documents themselves and otherwise given by the applicant. However, I also find that it was partly constituted by information which was obtained by the Tribunal from the Fraud Analysis Unit Minute and its attachments, or from some other Departmental or Tribunal source.
The issue in relation to the identical letterheads information is, therefore, whether particulars of the information that all of the letterhead letters submitted by the applicant used letterhead identical to the intercepted documents, was sufficiently suggested by general information given in the s.424A letter as to the applicant’s association with the importation of blank documents.
The Minister’s representative argued that it was not necessary for any reference to be made to letters other than the Maoist demand being similarly suspect, since the s.424A letter suggested generally that the applicant was associated with importers of blank documents intended to be used fraudulently, and because it explained “the Tribunal is concerned about your credulity [sic] and the veracity of your claims”.
She also argued that the sufficiency of the s.424A letter in respect of information showing that other letters were on suspect letterhead paper, was evidenced by the applicant’s understanding of the letter as revealed in his response. She pointed out that the applicant responded generally by maintaining that “all the documents I have submitted to the department & the tribunal are genuine documents … No any blank documents have been imported from overseas”.
However, I consider that the general suggestions in the s.424A letter did not provide the applicant with the “particular” information which was subsequently relied upon by the Tribunal: that not only the first Maoist letter was “on one of the blank Nepalese documents”, but that other letters were also on “some identical letterhead samples”. In the context of serious allegations of fraud, I consider that s.424A(1)(a) required particulars of each of the documents submitted by the applicant which might be found to have used the suspect letterheads. The reference only to the Maoist letter and the omission of particulars or explanations clearly including reference to the CPN‑UML letter had the capacity to mislead the applicant into thinking that he faced only an allegation that one of his letters was suspected of using the imported letterhead. A failure under both paragraphs (a) and (b) of s.424A(1) is, in my opinion, established (c.f. Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 at [34] and [40]‑[41]).
I do not consider that this finding can be avoided by reference to the applicant’s response. The sufficiency of a s.424A letter should be found by reference to its content when considered in its context of contemporaneous circumstances, and not by hindsight reference to the response of its recipient (c.f. Elrifai v Minister for Immigration (2005) 225 ALR 307 at [48]). Moreover, I would not infer from the generality of the applicant’s response that the s.424A letter conveyed, and that the applicant understood, that the Tribunal was suggesting that it had information from the Department’s Fraud Analysis Unit that the CPN‑UML letter submitted by him with his visa application “appeared on some identical letterhead” contained in the imported parcel.
I accept that the Tribunal had other contextual and circumstantial reasons for concluding that the letterhead documents, and all the other letters submitted by the applicant, were “fraudulent” in various respects. The implicit finding that the CPN‑UML letter could be so found because it was on “identical letterhead” might be regarded as only a minor reason for the finding of fraud, and possibly insignificant in the general body of reasons found by the Tribunal for rejecting the credibility of the applicant’s claims to be a refugee. However, SZEEU established that such a characterisation cannot avoid the requirements of s.424A(1) (c.f. Weinberg J at [158] and [164], and Allsop J at [227]).
I therefore conclude that the above two particulars of a failure to invite comments under s.424A(1) in the manner required by SZEEU has been established. A finding of jurisdictional error affecting the Tribunal’s decision must therefore be found under the High Court’s reasoning in SAAP (see SZEEU at [110]‑[111] and [230]‑[231]).
No discretionary reason for refusing relief to the applicant was argued by the Minister, in the event that I upheld this ground of review.
For the above reasons, I consider that the applicant is entitled to the issue of writs of certiorari and mandamus, and to his costs of this proceeding.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 15 March 2007