WZANC v Minister for Immigration and Citizenship
[2012] FCA 1461
•20 December 2012
FEDERAL COURT OF AUSTRALIA
WZANC v Minister for Immigration & Citizenship [2012] FCA 1461
Citation: WZANC v Minister for Immigration & Citizenship [2012] FCA 1461 Appeal from: WZANC v Minister for Immigration & Anor (No 2) [2012] FMCA 504 Parties: WZANC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: WAD 168 of 2012 Judge: GILMOUR J Date of judgment: 20 December 2012 Catchwords: MIGRATION – whether there was jurisdictional error on the part of the Refugee Review Tribunal when it had regard to the restricted “dob-in” information provided to it by the Secretary of the first respondent’s Department, and further did so without identifying the informant who provided the information – under s 438 of the Migration Act 1958 (Cth) the Secretary was required to notify the Tribunal in writing that the provisions of s 438 of the Migration Act applied to the confidential information – whether the failure of the Secretary to do this amounted to jurisdictional error because the giving of such a notice was a jurisdictional fact required to be established before the Tribunal might, for the purpose of exercising its powers, have regard to the information – whether the case of Minister for Immigration and Citizenship v Kumar is distinguishable from the present case – whether the court below was in error in regarding itself bound by Kumar - whether there was jurisdictional error on the part of the Tribunal when it dismissed official documents provided by the appellant as fabricated or contrived to give the appellant’s claim the veneer of authenticity Legislation: Migration Act1958 (Cth) ss s 5(1), 91R(2), 359A(4), 412, 414, 418(3), 422B(2), 424A, 425, 438(2), (3), (4), 440 Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485
Minister for Immigration and Citizenship v WZANC [2010] FCA 1391
Muin v Refugee Review Tribunal (2002) 190 ALR 601
WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568
WZANC v Minister for Immigration & Anor (No. 1) [2010] FMCA 274
WZANC v Minister for Immigration and Citizenship (No 2) [2012] FMCA 504Date of hearing: 26 November 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 78 Counsel for the Appellant: Dr J Cameron Counsel for the First Respondent: Mr P Hannan Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 168 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: WZANC
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
20 DECEMBER 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, to be taxed if not agreed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 168 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: WZANC
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE:
20 DECEMBER 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
The appellant brings this appeal from the whole of the judgment of Lucev FM delivered on 29 June 2012 dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 26 February 2009, which affirmed the decision of a delegate (the Delegate’s Decision) of the first respondent (the Minister) to refuse the appellant’s application for a protection visa: WZANC v Minister for Immigration (No 2) [2012] FMCA 504.
Background
The following background facts, which are not controversial, are found in the judgment of the court below.
The appellant is a citizen of Pakistan born on 15 October 1974. The appellant’s father died in 1981 and his mother died about two years later. The appellant has four siblings, a brother born in 1972, two married sisters born in 1970 and 1976, and an unmarried sister born in 1978.
On 4 November 2003, the appellant entered Australia at Perth Airport on a temporary business visa which expired on 4 February 2004. He overstayed his temporary business visa, and lived variously in Perth, Adelaide and Bunbury. He married an Australian citizen on 18 February 2007.
The appellant, on 19 October 2007, lodged with the Department of Immigration and Citizenship (the Department) an application dated 16 October 2007 for a protection visa, prepared with the assistance of a registered migration agent who was assisting him at that time (Protection Visa Application). A statutory declaration dated 19 December 2007 was made by the appellant in support of the Protection Visa Application.
In January 2008, information was provided on an “in confidence” basis to the Department concerning the appellant (Confidential Information). The gist of that information was that the appellant had advised another person that he would:
(a)be embarrassed if anyone in the Pakistani community in Bunbury found out that he had put that he was of the Ahmadi religion on the Protection Visa Application; and
(b)not “piss” on an Ahmadi person, because he is Sunni Muslim.
The appellant’s migration agent sent the appellant’s passport, a translated transfer of land document, and a translated police report concerning an incident regarding the construction of a mosque by the appellant’s family, to the Department by letter dated 2 February 2008.
The Protection Visa Application was refused in the Delegate’s Decision on 13 February 2008.
Proceedings before the Tribunal
The appellant, on 6 March 2008, lodged with the Tribunal an application dated 28 February 2008 for review of the Delegate’s Decision not to grant a protection visa.
The appellant’s migration agent, on 26 May 2008, provided the Tribunal with a submission accompanied by the following documents:
(a)a verification of the genuineness of the appellant’s beliefs;
(b)extract from original transfer of land document;
(c)the appellant’s parents’ death certificates; and
(d)the appellant’s birth certificate.
Following a hearing before the Tribunal on 27 May 2008, the Tribunal (the first Tribunal), by letter dated 4 June 2008, invited the appellant to respond in writing to the following information:
(a)an allegation forming part of the Confidential Information that the appellant had told the Department’s informant that the appellant:
(i)would be embarrassed if anyone in the Pakistani community in Bunbury found out that the appellant claimed to be Ahmadi;
(ii)was a Sunni Muslim who would not “piss” on an Ahmadi; and
(iii)decided to make a claim that he was an Ahmadi because the appellant had heard that there was sympathy for Ahmadis in the Department;
(b)the appellant made no contact with any Ahmadis or Ahmadi organisations during the four years the appellant had been in Australia; and
(c)the appellant applied for a protection visa almost four years after arriving in Australia.
The first Tribunal said that the information variously was relevant because it indicated that the appellant had made false claims as to his religious identity and suggested that the appellant did not fear persecution.
The appellant responded to the invitation to comment with respect to this information. He denied making any statement that he was not an Ahmadi Muslim, and reaffirmed that he was an Ahmadi Muslim and not a Sunni Muslim and sought to explain away the other matters of concern to the first Tribunal.
The first Tribunal, on 28 June 2008, affirmed the Delegate’s Decision not to grant the appellant a protection visa.
The first Tribunal decision was quashed by a consent order of the Federal Magistrates Court, which also directed the Tribunal to reconsider the matter according to law.
A second Tribunal (the second Tribunal) re-heard the appellant’s application for review of the Delegate’s Decision on 1 and 4 December 2008.
The appellant proffered additional corroborative evidence. It was an Ahmedi religion certificate said to be:
... a written attestation from Choudhury Hafeez Ur Rehman who is President of the Anjuman-e-Ahmadia Muslim of Sahiwal (which translates as Ahmadia Muslim Association of Shahiwal).
The Ahmedi religion certificate reads as follows:
It is certified that I the undersigned Ch Hafeez Ur Rehman President Unjuman-e-Ahmadia Muslim District Sahiwal Pakistan am personally known to ... [the applicant] ... who is Ahmadia Muslim by Faith since 16.05.2003 and bears good moral character.
and bore a signature and stamp said to be that of a Mr Rehman.
The Ahmedi religion certificate was, the appellant had submitted, to be read in conjunction with the verification of belief document submitted at the first Tribunal hearing, but to which the first Tribunal had given little weight in its decision. The appellant had further submitted that if it was intended to give the Ahmedi religion certificate little weight, then evidence should be taken by telephone from Mr Rehman so that:
(a)his identity could be established; and
(b)he could be the subject of examination by the Tribunal member.
The second Tribunal wrote to the appellant on 31 December 2008 as follows:
Section 424A of the Migration Act 1958 states that the Tribunal must explain, and invite comment on, ‘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’.
You are invited to comment, in writing, on the following information:
•Your protection claims rely on the fact that you come from an Ahmadi family, that you have been ill-treated in the past because of your Ahmadi religion, and, in particular, that you have come to be at risk of persecution as a result of your having attempted to build an Ahmadi mosque on your family’s property in your village near Sahiwal in November 2002.
•Your protection claims indicate that shortly after this incident you fled to Lahore, and then, eventually, to Australia.
•On 26 May 2008 you submitted a petition purporting to be from the Ahmadi community in Sahiwal and to be signed by, among others, the President of the Anjuman-e-Ahmadi Muslin District in Sahiwa, Chaudry Hafeez-ur-Rehman (Attachment 1)
•On 21 December 2008 you submitted a certificate dated 6 December 2008 which was purportedly issued and signed by the same Ch Hafeez-ur-Rehman (Attachment 2) which states that he knows you personally and that you are an Ahmadia Muslim by faith since 16.05.2003.
This information is relevant for the reason that the document appears to be inconsistent with your claims because:
•it suggests you were not an Ahmadi before 16 May 2003, which might cause the Tribunal to doubt whether the events which you say gave rise to your fear of persecution did in fact take place;
•it raises the question of how the author in Sahiwal could have known you personally to have been an Ahmadi since 16 May 2003 when you claim to have fled to Lahore six months earlier.
The information is also relevant because the signatures appearing on Attachments 1 and 2, purporting to have been executed by Chaudry (or Ch.) Hafeez-ur-Rehman, bear little resemblance to each other, raising doubts as to whether they were in fact signed by the same person and therefore as to whether the documents are genuine.
The above information could lead the Tribunal to infer that you have made false protection claims and/or that you have submitted inauthentic documents in furtherance of your protection claims, and consequently to draw an adverse inference about your credibility generally.
The above information could therefore form the reason, or part of the reason, for affirming the decision under review.
You are invited to give comments or respond to the above information in writing.
The appellant’s response to matters raised at the second Tribunal hearing and in the December letter was contained in a further four page submission provided to the second Tribunal by the appellant’s migration agent on 27 January 2009. It addressed four issues:
(a) whether the appellant and his wife had been separated;
(b) the Confidential Information;
(c) the availability of knowledge about Ahmadis in Australia; and
(d) the Ahmedi religion certificate.
As to whether the appellant and his wife had separated, the appellant conceded that a statement that he made to the Red Cross on 12 May 2008, in connection with the Asylum Seeker Assistance Scheme (ASAS) application, that he was then separated from his wife, was false. He explained that because he had been living in poverty with his family, and was desperate to obtain money to maintain the family as he perceived a male breadwinner ought, he misled the Red Cross. He submitted that his conduct was not a reflection on his general credibility because of the circumstances in which the representation to the Red Cross was made.
As to the Confidential Information, the appellant denied the allegations made by the informant.
As to the availability of knowledge about Ahmadis in Australia, the appellant had conceded that information was indeed available. He said that he had not made the effort to access it because he was scared of making any contact that might necessitate his migration status being revealed, and he therefore mixed in limited circles. He had submitted that the second Tribunal should not infer from those facts that his professed Ahmadi faith was not genuine.
Second Tribunal Decision
In the second Tribunal decision handed down on 26 February 2009, the Tribunal affirmed the Delegate’s Decision not to grant the Protection Visa Application.
The second Tribunal considered the Confidential Information and noted that some of it had been put to the appellant at the first Tribunal hearing. This, as well as other information which the first Tribunal had considered relevant, credible and significant was also put to the appellant at the second Tribunal hearing. The second Tribunal relied upon the Confidential Information in relation to the appellant’s Protection Visa Application because:
(a)it had not been provided anonymously to the Department; and
(b)it was not demonstrably not credible information.
The second Tribunal noted that the same source had provided information to the Department concerning the appellant working illegally as early as June 2006, which information had proved to be correct as the appellant had in fact been caught working illegally in March 2008. Because the Confidential Information was from the same source, the Tribunal considered that the reliability of the employment related information meant that it could place considerably more weight on the Confidential Information because it:
(a) was from the same source; and
(b) pre-dated the appellant being caught working illegally.
The latter fact meant that no vengeful motivation could be attributed to the provision of the Confidential Information, which the second Tribunal observed “appears ... to be credible because it proved to be accurate, and it was also both relevant and significant because it reflects on the [appellant’s] credibility, which is in issue in the present case.”
The second Tribunal found that the claim that there was an attempt to build a mosque on land owned by the appellant and his brother defied common sense because of the history of hostility, discrimination and abuse the appellant claimed to have already suffered by reason of being Ahmadi. The second Tribunal found that it was more likely than not that the Mosque incident did not occur, and that it was apparent from the appellant’s evidence, and the country information generally, that for an Ahmadi to build a mosque “would, unfortunately, be asking for trouble”. Therefore, it concluded that the claim concerning the Mosque, including the fact that the appellant did not appreciate the consequences which might follow, was not a sensible one. It also found that the claim, belatedly made by the appellant, to have returned to Sahiwal in May 2003, was clearly at odds with his claimed fear of persecution. The second Tribunal said that it was difficult to see and understand why a person would return to a threatening environment namely, Sahiwal, in order to register as an Ahmadi and obtain a certificate to that effect, when to return was to return to an environment threatening to an Ahmadi, according to the appellant’s claim.
The second Tribunal also observed that it was puzzled by the appellant’s lack of contact with Ahmadi groups in Australia, to which the appellant had responded that he was scared to make such contact in case his migration status was revealed, but had otherwise observed that he could attend regular mosques in Australia with Muslims. The Tribunal indicated that it was sceptical of that assertion as it:
... suggests that the [appellant] had no difficulty acquiring information about the practise of mainstream Islam in Australia, which belies his claimed reluctance to reveal his migration status. ... it makes no sense ... to avoid his co-religionists but engage with members of the allegedly persecutory group. In circumstances such as those claimed by the [appellant], the [appellant’s] engagement with mainstream Muslims would appear potentially far more likely to lead to the revelation of his migration status than if he were to seek out and engage with the group which ... if he were in fact a genuine member of the Ahmadi faith, would give him a more sympathetic reception.
The second Tribunal considered that the above matters were illogical and inconsistent elements of the appellant’s claims and tended to cast doubt on the truth of his claims. It then turned to the question of falsity of statements and documents, and said that the appellant had “displayed a propensity to make misrepresentations and rely on fraudulent documents”.
The second Tribunal was concerned with the appellant’s actions in Australia, including his use of another person’s identification document (a Medicare card) while working illegally in Australia and, at least initially, lying to officers of the Department by denying his true identity as well as statements made by him when applying to the Red Cross under the ASAS which he subsequently conceded were false.
The second Tribunal took the view that the giving of false evidence and the making of false statements were such as to undermine the appellant’s credibility generally. It also dealt with the delay of four years between the time that the appellant arrived in Australia and his making a protection claim. It did not accept that the appellant had a good reason for the delay. It concluded that the appellant’s claims had been invented, that he was not in fact of the Ahmadi faith, and therefore had not suffered the alleged discrimination, insult, assault and abuse which he had claimed.
Consequent upon its findings adverse to the appellant’s credit, the second Tribunal found that the purportedly corroborative documents submitted by the appellant had all been “fabricated or contrived to give his claims a veneer of authenticity”.
The second Tribunal, in arriving at this conclusion, also placed weight upon country information which disclosed that Pakistani documents which are genuine, insofar as they are issued by the relevant agency, may nevertheless be false because the level of corruption is such that officials accept money or other inducements to issue apparently genuine but actually false documents.
The second Tribunal, in all the circumstances, was not satisfied that there was a real chance that the appellant would experience serious harm capable of amounting to persecution for the purposes of s 91R(2) of the Migration Act 1958 (Cth) (the Migration Act), and the Tribunal affirmed the Delegate’s Decision not to grant the appellant a protection visa.
WZANC (No. 1) and WZANC Appeal
The second Tribunal decision was subsequently the subject of the judgment of this Court in WZANC v Minister for Immigration (No 1) [2010] FMCA 274 (WZANC No 1), in which the appellant succeeded in establishing jurisdictional error on ground 1.1. The judgment of the Federal Magistrates Court in WZANC (No 1) was overturned on appeal in Minister for Immigration and Citizenshipv WZANC [2010] FCA 1391, and remitted to the Federal Magistrates Court to determine the three remaining grounds of the amended application.
Remitted proceedings before the Federal Magistrates Court
The three remaining grounds of appeal below were that:
1.The Tribunal committed jurisdictional error and constructively failed to exercise jurisdiction when it failed to refer the so-called "dob-in" material to the applicant and his migration agent and adviser in compliance with the provisions of s 424A of the Migration Act absent notification by the Secretary of the Department of Immigration and Citizenship in accordance with the provisions of s 438(2) of the Migration Act.
The particulars of [this ground were] that the Tribunal acted on the basis of "dob-in" material without referring sufficient particulars of the material, including the identity of the informant, to the applicant and his migration adviser for comment pursuant to the provisions of s 424A of the Migration Act, without there being a notification from the Secretary of the Department under the provisions of s 438 of the Migration Act that the section applied, and without a claim that it was "non-disclosable information" within the meaning of ss 424A(3)(c) and 5 of the Migration Act.
2.The Tribunal fell into jurisdictional error and thereby constructively failed to exercise its jurisdiction when it dismissed documentary evidence supporting the applicant's claim to be a member of the Ahmadi faith, and to have suffered persecution on the grounds of his religion, without giving the applicant an opportunity to comment on the evidence, and when there was no evidential basis for dismissing the evidence.
The particulars of this ground were that:
a) the Tribunal dismissed the evidence provided by the applicant that he was of the Ahmadi faith in his birth certificate and in the death certificates of his parents without there being any or any sufficient evidence that the contents of the documents had been falsified, or that the documents had been fraudulently obtained;
b) the Tribunal dismissed evidence in the form of a police report concerning an incident supporting the applicant's claim to have been persecuted on the grounds of his Ahmadi faith without there being any or any sufficient evidence that the contents of the document had been falsified, or that the documents had been fraudulently obtained;
c) the Tribunal dismissed evidence in the form of land transfer documents supporting the claim that following this incident the applicant's brother had sold land to finance the applicant's travel to Australia without there being any or any sufficient evidence that the contents of the document had been falsified, or that the documents had been fraudulently obtained; and
d) the Tribunal failed to warn the applicant or his migration adviser that the Tribunal proposed to treat these documents as having been falsified or fraudulently obtained and to disregard them as evidence in support of the applicant's claim, and failed to give the applicant an opportunity to comment.
3.The Tribunal fell into jurisdictional error and thereby constructively failed to exercise its jurisdiction when it based its finding on errors of fact which were unsupported by any or any sufficient evidence. The particulars of [this ground were that]:
a) the Tribunal found that the Applicant could have made contact with adherents to the Ahmadi faith in Adelaide and Western Australia by accessing the website of the Australian Ahmadi Association when there was no evidence to support any such finding; and
b) the Tribunal confused the city of Sahiwal with the applicant's village which was some 25 kilometres distant from Sahiwal.
As to the first ground, Lucev FM considered Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (VEAL). His Honour distinguished VEAL on a number of grounds, but in particular that neither s 424A nor s 438 of the Migration Act were engaged, that it predated the introduction by amendment of s 422B of the Migration Act concerning the natural justice hearing rule, and that accordingly, the common law principles of procedural fairness had application, albeit, the content of the obligation to accord procedural fairness had to be identified by reference to the relevant provisions of the Migration Act.
His Honour also had regard to Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 (Kumar) as a case providing analogous support for the Minister’s contentions.
The court below concluded that the requirements under s 438(2) with the obligation under s 418(3) of the Migration Act, was a mandatory obligation on the Secretary of the Department (Secretary) and not the Tribunal. Accordingly, his Honour held that the admitted failure by the Secretary to notify the second Tribunal of the Confidential Information in compliance with s 438(2)(a) of the Migration Act did not give rise to jurisdictional error.
As to the second ground, Lucev FM rejected the argument that the second Tribunal had constructively failed to exercise its jurisdiction when it dismissed documentary evidence adduced by the appellant in support of his claim to be a member of the Ahmadi religion and to have suffered persecution on the grounds of his religion, without giving him the opportunity to comment on the evidence and where there was no evidential basis for dismissing the evidence.
His Honour held that the second Tribunal was entitled to arrive at the adverse credibility findings made concerning the appellant, and that the second Tribunal was able to reject the authenticity of the documents on the basis of these adverse credibility findings which included findings that the appellant had a propensity to make misrepresentations and rely on fraudulent documents as established by the evidence.
This was not the only basis which his Honour found entitled the second Tribunal to reach this conclusion. There were, in addition, logical flaws in some of the documents, for example, the different signatures said to be those of the same official, Mr Rehman.
Moreover, the country information described how commonplace, by corrupt means, it was that such “genuine” documents, in fact false, could be obtained. That evidence sat in the context of the well-founded and related findings of adverse credit.
The court below rejected the appellant’s submissions that he had been denied an opportunity to comment on these matters. His Honour concluded that the transcript of the second Tribunal hearing established to the contrary.
The third ground asserted a failure by the Tribunal to exercise jurisdiction by basing its findings on errors of fact. The Federal Magistrate found that no such errors had been made and this ground failed for that reason.
Appeal to this Court
The three grounds of appeal are that the Federal Magistrate erred when he held that:
1) [T]here was no jurisdictional error on the part of the Tribunal when it had regard to the restricted "dob-in" information provided to it by the Secretary of the first respondent's Department, and further did so without identifying the informant who provided that information to the appellant.
Particulars
a)There was no evidence before the learned Federal Magistrate that in forwarding the restricted material to the Tribunal the Secretary had provided the written notice required by section 438(2) of the Migration Act 1958 ["the Act"].
b) The written notice was in the circumstances a jurisdictional fact without which the Tribunal had no jurisdiction to receive and consider the restricted material.
c) The existence of the notice prior to consideration of the restricted material formed part of the natural justice that the Tribunal was required to afford the appellant.
d) Even if it had been open to the Tribunal to receive and consider the restricted material, it was, in the circumstances, required to identify the informant to the applicant in order to reach a fair and just determination of the issues raised by that material.
e) In considering the restricted material without written notice from the Secretary that it was material to which section 438 of the Act applied the Tribunal fell into jurisdictional error.
2) He was bound by stare decisis to follow and to apply the principles applied by the High Court in Minister for Immigration & Citizenship v Kumar ["Kumar"].
Particulars
a) Contrary to the holding by the learned Federal Magistrate the High Court did not "deal with" section 436, or the relevant section 376, of the Act in Kumar.
b) The Court had no occasion to do so, the "dob-in" material in that case having reached the Tribunal directly, and not having been provided by the Secretary did not engage the provisions of section 436.
c) It was open to the appellant in Kumar to rebut the allegations in the dob-material without knowing the identity of the informant, whereas it was not feasible for the applicant in the present case to deny that the conversation relied upon had occurred without knowing the identity of the person with whom it was claimed to have taken place.
d) Fairness and justice in the circumstances of the present case required that the identity of the informant be disclosed, or that the evidence be rejected.
e)Kumar was not a case that could have attracted a duty to protect the applicant under the provisions of the Convention on the Status of Refugees and Protocol.
f) The Tribunal fell into jurisdictional error when it failed to disclose the name of the informant to the appellant.
3) There was no jurisdictional error on the part of the Tribunal when it dismissed official documents provided by the appellant as fabricated or contrived.
Particulars
a) The Tribunal dismissed the documents in part on the basis that such documents were readily available in Pakistan without considering whether there was anything on the face of an individual document, or in its provenance, to indicate that it had been fabricated or contrived.
b) The Tribunal dismissed the documents provided by the Sahiwal Ahmadi community as contrived and fabricated, while denying the appellant the opportunity to call evidence from the maker in support of the document.
c) The appellant twice requested the Tribunal to telephone the maker of the document to take evidence in support of its authenticity, offering to give the Tribunal the telephone number of that person.
First ground
Section 438 of the Migration Act provides:
Refugee Review Tribunal's discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a)the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
It is common ground that the Secretary was required to, by virtue of s 438(2)(a), but did not, notify the second Tribunal in writing that the provisions of s 438 applied to the Confidential Information. The question then is whether this failure amounted to jurisdictional error because the giving of such a notice was a jurisdictional fact required to be established before the Tribunal might, for the purpose of exercising its powers, have regard to the information or any of it as provided in s 438(3)(a).
The appellant submits that the so-called “dob-in” material contained within the Confidential Information includes allegations that the appellant was working in breach of his visa conditions, that he smoked marijuana, was involved in unspecified illegal activities, looked more like a Bangladeshi than a Pakistani, despised officials of the Department, and was planning to make a false application for a protection visa on the basis that he was of the Ahmadi faith. He says, correctly, that the source of each allegation is unclear from the material provided.
I reject the submission that non-compliance by the Secretary with s 438(2)(a) amounts to jurisdictional error on the part of the Tribunal.
As in WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 (WAGP) at [62], which dealt with s 418(3) of the Migration Act, but analogously, the question is “whether the failure by the Secretary to comply with [s 438(2)(a)] will result in the Tribunal - even though it has conducted its review in accordance with Div 4 of Pt 7 and has provided the visa appellant with procedural fairness … committing jurisdictional error, or in some way being disempowered from making a valid review”.
I do not consider the failure to have that effect for the following reasons.
The obligation to give the notice was upon the Secretary. Section 438 is concerned with the natural justice hearing rule as is evident from s 422B(2), which relevantly provides that s 438, in so far as it relates to Division 4 – the conduct of a review, is to be taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.
Section 438 operates to put the Tribunal on notice that the document(s) and/or information were provided to the Department in confidence and governs the use to which they may be put by the Tribunal and whether or not in part or whole make disclosure of them to the appellant and in turn to others.
It has the effect of significantly confining the entitlement of an appellant and other persons to access such documents or information. Indeed, although the Tribunal may have regard to any matter contained in such documents or to the information (s 438(3)(a)) it is not obliged to disclose any such matter in the documents or the information to the appellant (s 438(3)(b)) in the exercise of the statutory discretion. If it does make any disclosure then it is required to give a direction under s 440 of the Migration Act if it is satisfied in the public interest that further disclosure should be confined. The disclosure of such documents or information to an appellant or other persons accordingly lies within the discretion of the Tribunal.
The importance of s 438(3)(a) is to expressly enable the Tribunal to make use of such documents and information despite it being given, in the first instance, in confidence to the Department.
That no notice was given under s 438(2)(a) does not, in my opinion, mean that the Tribunal cannot have regard to any matter contained in the documents and to the information in the exercise of its powers. Such a failure may visit an injustice on the informant in that the documents and information may be treated as not having been given in confidence which may lead to their inadvertent disclosure or publication where, had a notice been given, such publication or disclosure may have been restricted in the exercise of the Tribunal’s discretion under s 440 pursuant to subs 438(3) and (4).
There is nothing in the Migration Act that leads to a conclusion that compliance with s 438(2)(a) is “either a precondition to the tribunal’s conduct of review proceedings or to its making of a decision on review”: see by analogy Muin v Refugee Review Tribunal (2002) 190 ALR 601 per Gaudron J at [46] and WAGP. Those were not cases concerning s 438 but rather s 418(3) which requires the Secretary to give documents to the Tribunal for the purposes of a review. However, as I say, they are analogous and the reasoning leading to the conclusion in both cases, that no jurisdictional error arose, supports the conclusion to which I have come in this case.
The Tribunal’s obligation to conduct a review proceeds from the making of an application: ss 412 and 414 of the Migration Act. That obligation is not triggered by the giving or receipt of confidential information or by the giving of a notice under s 438(2)(a). Accordingly, the giving of a notice under s 438(2)(a) is not a jurisdictional fact. It is not an essential preliminary to the existence of the Tribunal’s powers to conduct a review. There is no ground of appeal that the appellant was denied procedural fairness or that the Review was not conducted in accordance with Div 4, and in particular s 424A and s 425 of the Migration Act. Even so, the submission by the appellant exposed in the particulars to this first ground, that the existence of the notice prior to consideration of the restricted material formed part of the natural justice that the second Tribunal was required to afford the appellant, is without foundation. Section 438 significantly limits the appellant’s rights to access documents and information if they were given in confidence. These “rights” are overridden by the discretion vested in the Tribunal to have regard to, but not necessarily disclose to, the appellant any matter in documents or to the information given in confidence.
The first ground fails.
Second ground of appeal
I have taken the references to s 436 in the Notice of Appeal concerning this ground to be a typographical error and that the appellant intended to refer to s 438 of the Migration Act. The appellant’s written and oral submissions on appeal bear out this reading.
The thrust of this ground is that the case of Kumar is distinguishable from this case, and accordingly the court below was in error in regarding itself bound by it. The appellant points to two distinctions. First he submits that the material given in confidence in Kumar was delivered directly to the Tribunal by the informant and not to the Tribunal through the Secretary as in this case. This distinction, the appellant submits, results in the non-engagement of s 438(2). Second, the appellant submits that the allegation in Kumar, by the informant, of a sham marriage, was readily rebuttable by the appellant before the Tribunal by other evidence, although he failed to do so. In other words, in Kumar, the identity of the informant was not essential to and would not have assisted such rebuttal.
However, the appellant submits that in this case the identity of the informant is essential to have enabled the appellant to make meaningful denials.
The court below was alive to the fact that Kumar’s case, which concerned the Migration Review Tribunal, did not concern s 438. His Honour stated at [81]-[83]:
[81]The submission of the visa applicant in Kumar was remarkably similar to that made in this case:
[31] Mr Kumar submits that knowledge of the identity of the informant and the content of the information assists in understanding and thus in testing the cogency of the case against him and better discharges the obligation of procedural fairness of which s 359A is relevantly the "exhaustive statement" spoken of in s 357A.
[82] The High Court responded to that submission in the following way:
[32] However, although spoken in the application of general law principles of procedural fairness rather than in the application of s 359A, the following passage from VEAL points to the answer in this appeal:
"To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations."
[33] Upon the proper construction of the Act, the circumstance that the information supplied in confidence to the Tribunal may have disclosed or related to the commission of offences by Mr Kumar or others did not deny to the information and the identity of the informer the character of non-disclosable information within the meaning of s 359A(4).
[34] The Tribunal was obliged by s 359A(1) to give "particulars of any information that the Tribunal considers would be ... part of the reason, for affirming the decision" of the delegate. The "information" there spoken of did not include the non-disclosable information (s 359A(4)). The Tribunal complied with s 359A(1) by notifying Mr Kumar that it had received information, in confidence, which stated that his marriage was contrived for the sole purpose of his migration to Australia, and inviting his response.
[83]The applicant suggested that Kumar was not on point or was distinguishable because it did not refer to s.438 of the Migration Act. Whilst literally true, that is a submission apt to mislead. Kumar is on point insofar as it deals with the directly equivalent provisions of ss.442B (sic – should be s 424B), 424A and 438 of the Migration Act, namely ss.357A, 359A and 376 of the Migration Act, with respect to the powers, duties and functions of the Migration Review Tribunal. The equivalent sections are, for all practical purposes, the same, and so too, therefore, are the powers, duties and functions of the Tribunal.
(Original emphasis.)
At [85] Lucev FM stated:
[85]For relevant purposes the facts in Kumar are on all fours with the facts in this case, namely:
a)that confidential information was provided to the Tribunal in confidence (by the Department);
b)the gist of that confidential information, but not the identity of the informant, was provided to the applicant for comment;
c)the applicant denied the allegations made in the confidential information provided by the Tribunal; and
d)the applicant asserted that he was denied procedural fairness because the identity of the informant was not revealed to him, and that the identity of the informant would assist him to more fully, or properly, answer the allegations in the confidential information provided to him by the Tribunal.
(Original emphasis.)
The appellant is correct that in Kumar the confidential information was not provided to the Tribunal by the Department, however, the Federal Magistrate, contrary to the appellant’s submission, did not say otherwise. I understand what the Federal Magistrate to be describing at [85(a)-(d)] are the facts in this case and not in Kumar’s case. His Honour, in setting out the facts for “relevant” purposes, in effect, noted the difference between this case and Kumar by putting the words “by the Department” in parenthesis. The relevant fact in Kumar, as in this case, was that the information was given in confidence. That the document in Kumar was given directly to the Tribunal and, in this case, by the Department to the Tribunal, is not a relevant fact. It follows that it is of no importance that s 438 was not engaged in Kumar.
The conclusion in Kumar at 458 per French CJ, Gummow, Hayne, Kiefel and Bell JJ, was that the information in that case and the identity of the informant constituted non-discoverable information (as defined in s 5(1)) and by reason of s 359A(4) of the Migration Act, did not require to be disclosed to the appellant. So too is the case here in respect of the analogous s 424A. Section 424A of the Migration Act obliges the Tribunal to give to the appellant clear particulars of the information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. This obligation does not arise in respect of non-disclosable information by virtue of s 424A(3)(c). There was compliance by the second Tribunal with s 424A(1)(a) by sending to the appellant the letter dated 31 December 2008, the relevant contents of which I have set out at para [20] above.
The second ground fails.
Ground 3
The appellant describes the documents in question as official, semi-official, and informal documents, some of which were adduced in support of his claim to be of the Ahmadi faith. Others related to an incident upon which he relied as evidence of past persecution in support of his claim that he held a well-founded fear that he would be persecuted in Pakistan in the future. The documents were rejected by the second Tribunal on the basis that such documents were readily available in Pakistan and “have been fabricated or contrived to give his claim a veneer of authenticity”. The appellant submits that this is, in effect, a charge of fraud and criminality and should not be readily made by an administrative Tribunal in the absence of clear evidence, as in this case. He complains that there is nothing in the second Tribunal’s reasons to indicate that any steps were taken to undertake checks that had established their fraudulent character.
The approach of the second Tribunal, so the appellant contends, revealed a failure to act judicially in respect of that material, in that it appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated which was not a course open to a tribunal acting judicially. The appellant contends that there was no material before the Tribunal that permitted it to so dispose of the documents, and, thus, of the tendency of the documents to corroborate the appellant’s account. He submits that it is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an appellant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts. He cites WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [52] to [53].
It follows, the appellant argues, that absent evidence upon which a finding of fraud could be based, the second Tribunal was not entitled to exclude them from its consideration and fell into jurisdictional error in so doing, and the Federal Magistrate erred in not so finding.
I do not accept these submissions. The second Tribunal did take the documents into account after making serious adverse credit findings generally in relation to the appellant and made findings in relation to them by reference to their provenance, and the relevant country information. The documents were put forward as corroboration of the appellant’s claims that he was an Ahmadi Muslim and had been persecuted on that account. The documents included a birth certificate and two death certificates, a police report and land transfer documents.
This approach is supported by authority. Jurisdictional error does not arise where the Tribunal first makes an assessment of the appellant’s credit and then gives attention to the corroborative evidence: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [37] per North and Lander JJ. There the Tribunal had found the appellant was not credible and for that reason gave no weight to a corroborative witness statement. Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 and Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 provide further authority for this proposition. This is what the second Tribunal did in this case. It did not commit jurisdictional error in so doing and the Court below was correct in reaching that conclusion.
As the Full Court said in SZMOK at [68],
[W]hile the tribunal has a duty to raise clearly with the appellant the critical issues on which a review may depend, there is no general rule that the tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document.
So much at the very least occurred in the present case. More than that, the second Tribunal expressly put the appellant on notice about the different appearance of signatures on two of the documents purporting to be by the same official, Mr Rehman. It also referred to the express terms of one of these documents. These matters were all directed to the questioned genuineness of the documents.
The third ground fails.
For all these reasons the appeal will be dismissed. The appellant is to pay the costs of the first respondent, to be taxed if not agreed.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 20 December 2012
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