VWTT v Minister for Immigration
[2006] FMCA 87
•27 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWTT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 87 |
| MIGRATION – Procedural fairness – documentary evidence – opportunity to be heard on authenticity of documents – whether required. |
| NAWO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 218 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 |
| First Applicant: | VWTT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG125/2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 18 October 2005 |
| Date of Last Submission: | 26 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 27 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Condliffe |
| Counsel for the Respondent: | Mr Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG125/2005
| VWTT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This judgment arises from an application filed 3 December 2004 seeking review of a decision of the Refugee Review Tribunal which affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa
The applicant argues that the Tribunal’s decision handed down on
20 October 2004 was affected by jurisdictional error on the grounds that the tribunal failed to accord the applicant procedural fairness. The particulars were:
a)The applicant provided the Tribunal and the RRT with letters and other documents relating to his membership of a political party called the All Nigerian People’s Party (ANPP);
b)The Tribunal failed to properly inform the applicant of the issues it had with authenticity of the letters and documents so provided;
Background
The applicant is a 49 year old male Nigerian citizen.
The applicant came to Australia on 15 May 2003 on a Business (Short Stay) visa.
On 21 May 2003, the applicant applied for a protection visa. On
27 October 2003, a delegate of the first respondent determined that the applicant was not a person to whom Australia had protection obligations and refused the application.
On 19 November 2003 the applicant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal. The Tribunal refused the application on 12 November 2004.
The applicant’s claim is based upon his political opinion as a member of the All Nigerian People’s Party (ANPP) and his ethnicity as a member of the Ijaw ethnic group.
The Tribunal decision runs to 31 pages, covering the applicant’s claims and evidence in detail. The tribunal comprehensively rejected the applicant’s claims, stating at page 30 of its judgment:
The Tribunal finds that the applicant has fabricated his claims for refugee status. The Tribunal finds that he has not been a resident of Okorenkoko in Warri City. He has not been involved in the Ijaw Youth Council, not with the ANPP. The Tribunal finds that he is not at risk from PDP members, or due to his involvement with the ANPP. The Tribunal finds that he is not at risk from PDP members, or due to his involvement with the ANPP. The Tribunal does not accept that his house and shop were burnt to the ground for any reason connected with his political activities or his involvement with Ijaw ethnic issues or politics. The Tribunal finds consequently that he is not at risk from the Itsekiri Youth group or from the federal government who he claims targets politically active Ijaws. The Tribunal acknowledges that the applicant has provided photos of burnt buildings, but there is nothing from the photographs to indicate that they were the applicant’s residence or home. The Tribunal finds that much of the applicant’s post hearing submission has further contradicted the claims that he has made at his hearing, and has been an attempt to shore up his fabricated claim for refugee status.
Counsel for the minister usefully summarised the significant adverse findings of the tribunal against the applicant as:
It rejected his claim (relevant to his claim that he resided in Warri and not Benin City), that he could make the journey in 20 to 30 minutes – the Tribunal noting that this would entail travelling at speeds of between 200 to 300 kilometres per hour, and also rejected the claim that he commuted between those cities.
It rejected his explanation regarding having been married, finding that it was contrived to attempt to explain his marriage certificate that contradicted his claim to have resided in Warri.
It rejected his claim to have lived in Okorenkoko, (finding he was ignorant of certain geographical aspects), and found that he had not lived there or in the district as he claimed, or in Warri as he claimed. It found that he had in fact been resident in Benin City since at least 1994.
It rejected his claim that he had been approached or threatened by a PDP official.
It rejected his claim that his brother and uncle had been killed in ethnic clashes.
It rejected his claim that his house and clinic were burnt down due to his claimed association with the Ijaw Youth Council or the ANPP and they were not as he had claimed the motivation for his departure, as he had in fact applied for and been granted a visa prior to these events.
It rejected his claims to have been an active member of the Ijaw Youth Council and was involved in agitating for Ijaw politics, and that he was ever its secretary. In rejecting that claim it noted his delay in making the claim, his inability to describe the policies of the Ijaw Youth Council or the disputes it was involved in. Having claimed to be its secretary he should have known about its activities. It further relied upon his apparent total ignorance at hearing of the role and activities of the Federated Niger Delta Ijaw Communities (FNIDC).
It rejected his claims to have been an active member of the ANPP and chairman of the youth wing from June 2002. It found inter alia, that he did not know where the February 2003, flag-off ceremony for the ANPP presidential campaign rally was held. He did not anything about the controversy surrounding that ceremony and the hire of the venue and he did not know how the problem was resolved. He claimed at hearing the ANPP had never been known by another name and had not changed its name, which was inconsistent with independent country information that it had changed its name in late 2002. He was unable to describe ANPP policies or any of his activities with the ANPP. His evidence was vague and general. He did not know whether the ANPP had won more or less than 100 seats in elections held in April 2003.
The applicant’s submissions arise out of the tribunal’s findings at page 28 of its reasons that:
In the post hearing submission, the applicant stated that he ‘would like to comment on the change of name of our party to the ANPP in 2002 and describe what occurred.’ This statement seems in direct contradiction to his evidence to the Tribunal that the ANPP had never changed its name and was never known by any other name. The applicant’s claim that the name change was irrelevant and that they were still the same, should mean that the previous name, the APP, would be familiar to him. The applicant claimed that the reason why his ANPP membership card was dated 2001, was because his membership card was reissued in 2002 when the name of the party changed, however the date of joining the party, 18/6/2001, remained the same. However, this does not explain why on the back of the card where it appears to have a provision for payment of fees, it includes the years 1999 to 2004. If the cards were reissued, the new name and symbol on them in 2002 would not have references to the year of 1999, 2000, 2001 and 2002 on them. The applicant has also provided four letters that purport to be on ANPP letterhead. However, the letterhead is unconvincing and appears to have been photocopied. The Tribunal finds that these documents do not provide proof that the applicant was a member of the ANPP…
Following the hearing counsel agreed that:
a)These documents were handed up to the tribunal by the applicant’s advisor at the end of the hearing.
b)The tribunal asked how the applicant came to have the documents in Australia and the applicant replied that they were posted to him be a friend in Lagos.
c)There were no further comments in relation to the documents at the hearing.
It must therefore me determined whether the conduct of the tribunal member in not putting his or her concerns to the applicant in the context of this case amounts to a breach of procedural fairness and jurisdictional error.
The law
The starting point in cases concerning documentary evidence is usually WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171.
53. In the present case and in Meadows [v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370] 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 in so far 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.
55. Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the appellant to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary
The relevant factual background in WACO was that:
38. At the hearing the Tribunal member indicated that he would be unlikely to accept the claimed close relationship with Ayatolla Shirazi on the evidence which was then before the Tribunal. The appellant then indicated that he could provide documentary material supporting his claims. There was subsequently provided additional information including the translation of a personal letter purporting to be from Ayatollah Shirazi and of a letter from Mr Azizollah Vahdati, the Head of the Notary of Public Office in Tehran.
39. These letters were central to the appellant's claim in so far as they were tendered as evidence of his relationship with the Ayatollah Shirazi. However, in its reasons the Tribunal stated:
`[in] view of the Tribunal's firm findings against the Applicant in respect his religious association with Ayatollah Shirazi, the Tribunal is not prepared to accept either of these documents as genuine...the Tribunal is not satisfied that the contents of the letters...regarding [the Applicant's] claimed status as a follower and a close associate of Ayatollah Shirazi are genuine and finds that they have been prepared to seek to bolster his claims'.
40. It was, as already noted, common ground that at no time did the Tribunal indicate to the appellant that there was any question of the authenticity of the letters or that they were not genuine so as to give the appellant the opportunity, should he wish, to comment on their authenticity or call evidence that the letters were in fact genuine, for example, evidence of a handwriting expert familiar with the handwriting of the writers of them.
In WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 the Full Court said:
54 If, in truth, the RRT did not believe that the document was authentic, the RRT should have advised the appellant and his solicitor accordingly and allowed the appellant, through his solicitor, to make any inquiries that were necessary to enable the appellant to produce further material to the RRT to satisfy the RRT in respect of the document. (See: Meadows per Einfeld J at 380, von Doussa J at 383, Merkel J at 387-388). Of course, it was open to the RRT to take up the invitation set out in the document to make direct contact with the purported author, using the telephone, fax, email or website details provided in the document. At the same time the RRT could have raised any doubt the RRT held as to the link between the appellant and the author of the document. Those steps were straight-forward and could have been done with minimum delay and effort by the RRT if it decided to act itself instead of giving the appellant the opportunity to deal with the RRT's doubts about the authenticity of the appellant's document.
55 Alternatively, perhaps the RRT was not using the word "genuineness" in the sense of lack of authenticity in the document. To make a bare assertion that the document was not genuine, that is to say, a forgery, would have been an arbitrary and unreasoned conclusion by the RRT unsupported by a scintilla of material. If the RRT had acted in such a manner it would have raised the perception that the findings made by the RRT in that regard had been moulded to support a particular conclusion. (See: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [42].) If that were so the RRT would not have performed the duty imposed upon it by the Act and the purported decision would be set aside as one made in the absence of authority or jurisdiction.
56 If, however, the RRT used the word "genuineness" in a loose sense intending to convey not that the document was a forgery but that the weight to be given to the content of the document provided no support to the "genuineness" of the appellant's claim as to his degree of connection or involvement with Farahanipour, or the Marz-e-Porgohar group, then perhaps that was a conclusion available to the RRT, notwithstanding the inappropriate or infelicitous expression of that conclusion.
57 Having regard to the reasons of the RRT in their entirety the latter construction should be accepted.
In WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 French J said:
56 It may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. But where as here, there is a clear implication in the Tribunal’s reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment. I took a similar approach in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912.
In this case the tribunal did not make a finding that the documents were ‘fabricated’ or the result of fraud on the part of the applicant. Rather, the membership card, on its face, was inconsistent with other evidence that the applicant gave to the tribunal. The tribunal found the letters ‘unconvincing’ and that they did not provide proof that the applicant was a member of the ANPP. Such a finding appears to fall within the third category referred to by the Full Court in WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188. The tribunal rejected that applicant on a large number of factual basis, and concluded that the letters did not provide proof: the tribunal did not find that the applicant had concocted the letters for the tribunal.
I note the comments of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 where McHugh and Gummow JJ said, at [40]:
‘In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.’
The application of this principle can be seen in NAWO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 218 where the court said:
22 The appellant claimed that the Tribunal had failed to accord him natural justice. This allegation took a number of forms. It was said that the Tribunal did not put to him doubts about documents containing information personal to him from different sources of India and those doubts form part of the reasons for the Tribunal’s decision. It was said that the Tribunal member had failed to "internalise the circumstantial grounds of my protection visa application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents". It was said that the Tribunal member failed to warn the appellant about "the document’s fraud and was not going to be treated as genuine in my case". There is no foundation for these allegations. The reasons of the Tribunal show a comprehensive analysis of why the appellant was disbelieved. The decision of the Tribunal did not turn upon document fraud. It turned upon a comprehensive rejection of the appellant’s evidence. The reasons of the Tribunal indicate that the appellant had matters thought relevant by the Tribunal to the credibility of his evidence brought squarely to his attention during the hearing. The assertion of a denial of natural justice is not made out.
In WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 the Full Court said:
27 The first point to note is that this was not a case where the credibility of the applicant had been destroyed by comprehensive findings of untruthfulness that permitted the Tribunal to attach no weight to any purportedly corroborative material that person may have sought to rely upon. (See: S20/2002 per McHugh, Gummow JJ at [49]). Indeed the Tribunal accepted the appellant’s evidence. The issue in the present case was whether the apprehension of the appellant, grounded on the contents of the letter said to have come from his mother, was based on material that could be shown to be false, therefore providing no reasonable ground for the appellant’s fear. Only if the letter were able to be dismissed from the Tribunal’s consideration could the Tribunal find that if returned to Afghanistan the appellant faced no real risk of persecution on grounds set out in the letter. The letter was central to the appellant’s claim that he may suffer harm at the hands of the Commander by reason of imputed political opinion if he were returned to Afghanistan.
...
29. The reasons of the Tribunal implied, but did not state, that the appellant had arranged for a letter to be forwarded from Iran presenting false grounds for his "claims for refugee status in the light of the changed situation in Afghanistan which would otherwise indicate that it was safe for him to return there". That latent allegation was not supported by any material before the Tribunal and was not put to the appellant for comment. There was no antecedent finding that the appellant was dishonest that could, in some way, justify the Tribunal in concluding, without the benefit of any further material, that the appellant had engaged in such conduct. (See: WAGU v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 912 at [37]).
In this case, unlike in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87, comprehensive findings against the applicant’s credit were made by the tribunal independent of the documents provided. In this case, the letters were not central to the applicant’s claims, merely potentially corroborative of his claims to be a member of the ANPP. The tribunal had earlier written to the applicant advising of its concern that the ANPP had only been formed on a date after the date that he alleged to have joined, which had led it to an inference that the documents that had been provided before the hearing were not legitimate.
The tribunal made no finding as to the authenticity of the letters. Rather, the tribunal found that the weight to be given to the content of the letters and membership card provided offered no support to the applicant’s claims.
In the circumstances of this particular case I am not satisfied that the applicant has established an error or failure on the part of the tribunal that provides a basis for the relief sought. I therefore dismiss the application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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