WZANC v Minister for Immigration (No. 2)
[2012] FMCA 504
•29 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZANC v MINISTER FOR IMMIGRATION & ANOR (NO. 2) | [2012] FMCA 504 |
| MIGRATION – Protection visa application – judicial review – Refugee Review Tribunal decision – Pakistani of Ahmadi faith – whether well founded fear of persecution – credibility in issue – confidential information provided to Tribunal – identity of informant not revealed to applicant – whether identity of informant disclosable – whether jurisdictional error. |
| Migration Act 1958 (Cth), ss.5(1), 36(2), 65, 91R(1) and (2), 357A, 359A, 376, 414(1), 416, 418, 420, 422B, 424A, 424B, 437, 438, 439, 440, 476, Part 7, Divisions 4, 7 Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) |
| Applicant S1039 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 353 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 567; [2004] FCAFC 160 WZANZ v Minister for Immigration & Citizenship & Anor (No. 2) [2011] FMCA 208 |
| Meagher, Heydon and Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (Sydney: Butterworths LexisNexis, 2002) (4th Edn) |
| Applicant: | WZANC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 32 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 3 May 2011 |
| Date of Last Submission: | 3 May 2011 |
| Delivered at: | Perth |
| Delivered on: | 29 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Dr J L Cameron (pro bono) |
| Counsel for the Respondents: | Mr P J Hannan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 32 of 2009
| WZANC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In WZANC v Minister for Immigration & Anor[1] this Court upheld the first ground of the applicant’s amended application dated 3 July 2009 seeking judicial review under s.476 of the Migration Act1958 (Cth)[2] of the Refugee Review Tribunal[3] decision handed down on 27 February 2009,[4] affirming the decision of a delegate[5] of the first respondent[6] handed down on 13 February 2008.[7]
[1] [2010] FMCA 274 (“WZANC (No. 1)”).
[2] “Migration Act”.
[3] “Tribunal”.
[4] “Second Tribunal Decision”.
[5] “Delegate”.
[6] “Minister”.
[7] “Delegate’s Decision”.
WZANC (No. 1) was successfully appealed by the Minister.[8] The appeal having been allowed, the matter was remitted to this Court to determine the three remaining grounds of the amended application.[9]
[8] Minister for Immigration and Citizenship v WZANC [2010] FCA 1391 (“WZANC Appeal”).
[9] WZANC Appeal at para.49 per Siopis J.
Background
Before dealing with the legal basis for judicial review of Tribunal decisions and the remaining grounds of the amended application, it is necessary to set out some of the background in relation to the applicant.
The applicant is a citizen of Pakistan[10] born on 15 October 1974.[11]
[10] Case Book (“CB”) 3-4.
[11] CB 2.
The applicant’s parents are dead.[12] The applicant’s father died in 1981, his mother about two years later.[13]
[12] CB 51.
[13] CB 29.
The applicant has four siblings, a brother born in 1972, two married sisters born in 1970 and 1976, and an unmarried sister born in 1978.[14]
[14] CB 21.
On 4 November 2003 the applicant entered Australia at Perth Airport on a temporary business visa which expired on 4 February 2004.[15]
[15] CB 18, 36 and 52.
The applicant overstayed his temporary business visa, and lived variously in Perth, Adelaide and Bunbury.
On 18 February 2007 the applicant married an Australian citizen.[16]
[16] CB 3, 19 and 33.
On 19 October 2007 the applicant lodged with the Department of Immigration and Citizenship[17] 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.[18]
[17] “Department”.
[18] CB 1, 2, 14, 25 and 44-46 (“Protection Visa Application”).
A statutory declaration dated 19 December 2007 was made by the applicant in support of the Protection Visa Application.[19]
[19] CB 51-53.
In January 2008 information was provided on an “in confidence” basis to the Department concerning the applicant. The gist of that information was that the applicant 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.[20]
[20] Exhibit R2 (“Confidential Information”).
The applicant’s migration agent sent the applicant’s passport, a translated transfer of land document,[21] and a translated police report[22] concerning an incident regarding the construction of a mosque by the applicant’s family, to the Department by letter dated 2 February 2008.[23]
[21] “Land Transfer Document”; CB 75.
[22] “Police Report”; CB 76-77.
[23] CB 74
On 13 February 2008 the Protection Visa Application was refused in the Delegate’s Decision.[24]
[24] CB 83-93.
On 6 March 2008 the applicant lodged with the Tribunal an application dated 28 February 2008 for review of the Delegate’s Decision not to grant the applicant a protection visa.[25]
[25] CB 95-99.
On 26 May 2008 the applicant’s migration agent provided the Tribunal with a submission[26] accompanied by the following documents:
a)a verification of the genuineness of the applicant’s beliefs;[27]
b)extract from original transfer of land document;[28]
c)the applicant’s parents’ death certificates;[29] and
d)the applicant’s birth certificate.[30]
[26] “26 May 2008 Submission”; CB 107-112.
[27] “Verification of Belief Document”; CB 113.
[28] “Land Transfer Document (Original Extract)”; CB 114.
[29] Collectively “Death Certificates”, individually “Father’s Death Certificate” (CB 115) and “Mother’s Death Certificate” (CB 116).
[30] “Birth Certificate”; CB 117.
Following a hearing before the Tribunal on 27 May 2008,[31] the Tribunal, by letter dated 4 June 2008, invited the applicant to respond in writing to the following information:
a)an allegation concerning the Confidential Information that the applicant had told the Department’s informant that the applicant:
i)would be embarrassed if anyone in the Pakistani community in Bunbury found out that the applicant 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 applicant had heard that there was sympathy for Ahmadis in the Department;
b)the applicant made no contact with any Ahmadis or Ahmadi organisations during the four years the applicant had been in Australia; and
c)the applicant applied for a protection visa almost four years after arriving in Australia.[32]
[31] “First Tribunal Hearing”; CB 120-121.
[32] CB 122-123.
The Tribunal said that the information in:
a)sub-paragraphs (a) and (b) of the above paragraph was relevant because it indicated that the applicant had made false claims as to his religious identity; and
b)sub-paragraph (c) of the above paragraph was relevant because it suggested that the applicant did not fear persecution.[33]
[33] CB 122-123.
In a letter dated 17 June 2008 the applicant’s migration agent responded to the invitation to comment with respect to the information set out above,[34] and also attached a response from the applicant personally.[35]
[34] “17 June 2008 Agent’s Response”; CB 124-125.
[35] “Applicant’s June 2008 Response”; CB 126-127.
The gist of the 17 June 2008 Agent’s Response and the Applicant’s June 2008 Response is that:
a)the applicant denies making any statement that he was not an Ahmadi Muslim, and reaffirms that he is an Ahmadi Muslim and not a Sunni Muslim;
b)the applicant suspects that the Confidential Information was supplied to the Department, or passed on to the Department, from a fellow Pakistani with whom he had worked at a kebab shop in Bunbury, and with whom his relationship was tense;
c)the applicant had falsely used another Pakistani co-worker’s Medicare card as identification when the kebab shop was raided by Department officers, and the co-worker was angry with the applicant because of his false use of the Medicare card;
d)the Tribunal ought not ascribe credibility to the Confidential Information as it was evidently designed to harm the applicant’s interests and cannot be scrutinised by him, and was a complete fabrication; and
e)the delay in claiming protection was explained at the First Tribunal Hearing, and the applicant reiterated that:
i)he was scared and not accustomed to going to authorities for protection or fair assessment; and
ii)having bought a passport and visa which he believed entitled him to work in Australia, when he found out that he had no such rights he panicked and ran. That portrayed not a lack of genuine belief that he would not be persecuted in Pakistan, but a fear of authority arising from his experiences in Pakistan.
The applicant also made a very general plea in the Applicant’s June 2008 Response that other “people” are “making trouble for me”.[36]
[36] CB 127.
On 28 June 2008 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a protection visa.[37]
[37] “First Tribunal Decision”; CB 133 and 145.
The First Tribunal Decision was quashed by a consent order of this Court which also directed the Tribunal to reconsider the matter according to law.
The applicant subsequently provided the Tribunal with a copy of the 26 May 2008 Submission, and a further submission, on 28 November 2008.[38]
[38] CB 163-170 (“Applicant’s 28 November 2008 Submission”).
The Tribunal re-heard the applicant’s application for review of the Delegate’s Decision on 1 and 4 December 2008.[39]
[39] “Second Tribunal Hearing”; CB 181-184.
The applicant provided the Tribunal with a further submission on 21 December 2008[40] attached to which was a “Certificate for the Religion of Muslim Ahmedi”.[41]
[40] “Applicant’s December 2008 Submission”; CB 186-188.
[41] “Ahmedi Religion Certificate”; CB 189.
The Applicant’s December 2008 Submission was intended to be a submission that “would address the … [four] reasons that the member cited at the conclusion of the … [Tribunal Hearing] that could cause him to conclude that the applicant’s evidence is not credible”,[42] but the migration agent was unable to do so as the applicant had been involved in a traffic accident and had not been able to give instructions.
[42] CB 187.
The Applicant’s December 2008 Submission did, however, address new evidence, which was the 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 attestation states that the applicant:
· is personally known to him;
· is an Ahmadia Muslim by faith; and
· is a person of good character.
On the face of it that attestation answers the finding that [the applicant] is not in fact an Ahmadi …”[43]
[43] CB 187.
The Ahmedi Religion Certificate was, the applicant submitted, to be read in conjunction with the Verification of Belief Document submitted at the First Tribunal Hearing, but to which the Tribunal had given little weight in the First Tribunal Decision. The applicant 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.[44]
[44] CB 188.
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 bears a signature and stamp said to be that of Mr Rehman.[45]
[45] CB 189.
The Tribunal wrote to the applicant on 31 December 2008[46] as follows:
[46] “Tribunal’s 31 December 2008 Letter”; CB 190-193
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 know 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.[47]
[47] CB 190-191.
The applicant’s response to matters raised at the Second Tribunal Hearing and in the 31 December 2008 Letter was in a further four page submission provided to the Tribunal by the applicant’s migration agent on 27 January 2009.[48] The Applicant’s January 2009 Submission addressed four issues:
a)whether the applicant 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.
[48] “Applicant’s January 2009 Submission”; CB 196-200.
In relation to whether the applicant and his wife had separated, the applicant conceded that a statement that he made to the Red Cross on 12 May 2008, in connection with the Asylum Seeker Assistance Scheme[49] application, that he was then separated from his wife, was false. It was submitted that because the applicant was living in poverty with his family, and was desperate to obtain money to maintain the family as he perceived a male breadwinner ought to, he misled the Red Cross. The applicant 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.[50]
[49] “ASAS”.
[50] CB 198.
In relation to the Confidential Information, the applicant:
a)on the basis of information supplied to the applicant by the Tribunal that:
i)a particular interpreter was not a Western Australian based interpreter; and
ii)the provision of the Confidential Information preceded the events that the applicant surmised might have prompted it,
conceded that the applicant’s surmise as to who might have been responsible for providing the Confidential Information to the Department was not correct;[51]
b)continued to deny that he said what the informer purports he said, and asserted that the provision of the Confidential Information is evidently intended to cause him harm;[52]
c)said his mastery of the English language is such that he does not swear in English, and the expression used is not part of the vernacular that he would use if not speaking English;[53] and
d)there were factions within the Pakistani community in Western Australia, and he referred to a file note on his CASE for Refugees file in relation to the disqualification of a particular Urdu interpreter because of enmity between them;[54]
and that, therefore, the Tribunal could not safety conclude that the Department’s informant was concerned to uphold the integrity of Australia’s migration system, rather than to cause the applicant detriment.[55]
[51] CB 198.
[52] CB 198.
[53] CB 198.
[54] CB 198-199.
[55] CB 199.
As to the availability of knowledge about Ahmadis in Australia the applicant conceded that information was available. The applicant said that he did not make 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. The applicant submitted that the Tribunal should not infer from those facts that his professed Ahmadi faith was not genuine.[56]
[56] CB 199.
In relation to the Ahmedi Religion Certificate the applicant submitted that:
a)the date of 16 May 2003 referred to the date on which the applicant was registered with the Ahmadi Muslim Association of Sahiwal, and that he registered when he was hiding in Lahore but went back to Sahiwal to see if he could get any help with his situation;[57]
b)prior to being registered he was a practising Ahmadi but not registered, and that that was a common occurrence amongst persons from a poor and marginalised community, but did not make his Ahmadi faith any less genuine;[58]
c)the fact that the signatures of Mr Rehman on the Verification of Belief Document and the Ahmedi Religion Certificate look different to the Tribunal should not lead to the conclusion that the documents were fraudulent, and any conclusion based on the integrity of the signatures should be based on expert evidence;[59]
d)the differences in Mr Rehman’s signature may be explained by the fact that the writer would be more familiar with the script of Urdu which is Persian in form and quite different to the script for Western European languages;[60]
e)the fact that the honorific “Choudhury” meaning landlord or land owner, which is sometimes used in a shortened form (“Ch”) in a signature, as in the Verification of Belief Document, and other times not at all, as in the Ahmedi Religion Certificate, is not evidence that Mr Rehman’s signatures are not genuine signatures;[61] and
f)the applicant repeated an earlier submission that if there were any doubts about Mr Rehman’s signature, Mr Rehman could be called to give evidence by telephone; and, further, that evidence could be taken at the Australian High Commission in Islamabad or in some other place where Mr Rehman’s identity could be established.[62]
[57] CB 199.
[58] CB 199.
[59] CB 199-200.
[60] CB 200.
[61] CB 200.
[62] CB 200.
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.[63] On 27 February 2009 the Tribunal informed the applicant of the Second Tribunal Decision.[64]
[63] Second Tribunal Decision, CB 205 and 242.
[64] Second Tribunal Decision, CB 203.
Information before Second Tribunal Hearing
The Second Tribunal Decision sets out that it is in respect of an application for review of the Delegate’s Decision.[65] The relevant law, including the definition of “refugee”, is then set out.[66]
[65] Second Tribunal Decision, CB 206.
[66] Second Tribunal Decision, CB 206-208.
The Second Tribunal Decision then:
a)sets out the personal details of the applicant;[67]
b)sets out the details of the Protection Visa Application, at length, including the statement made accompanying the Protection Visa Application;[68]
c)sets out the submissions made on behalf of the applicant explaining why he fears that he will be persecuted in Pakistan on religious grounds;[69]
d)notes that the applicant had told the Department that he did not know whether his passport was a genuine passport or not;[70]
e)notes the receipt by the Department of the Police Report, relating to a complaint about the attempted building of a mosque, the Land Transfer Document detailing the sale of land owned by the applicant and his brother in July 2003;[71]
f)refers to a memo from a case officer in the Department’s Western Australian Compliance Section concerning the Confidential Information;[72] and
g)sets out the detail of a record of a telephone interview conducted by the Department with the applicant on 18 January 2008,[73] less than a month before the application was refused by the Delegate’s Decision.
[67] Second Tribunal Decision, CB 208.
[68] Second Tribunal Decision, CB 209-211.
[69] Second Tribunal Decision, CB 211-212.
[70] Second Tribunal Decision, CB 212.
[71] Second Tribunal Decision, CB 212.
[72] Second Tribunal Decision, CB 212.
[73] Second Tribunal Decision, CB 212-213.
First Tribunal Decision – summary of evidence and claims
The Second Tribunal Decision then sets out the summary of the applicant’s claims and evidence from the First Tribunal Decision.[74] Having referred to “the review by the Tribunal at first instance” and the “decision of the Tribunal as previously constituted”,[75] the summary, set out in full below, is as follows:
[74] Second Tribunal Decision, CB 213-215.
[75] Second Tribunal Decision, CB 213.
“At a hearing of the Tribunal on 27 May 2008, the applicant said his family were harassed a lot after he left, and had no work or property, so they moved to Lahore about a later. [sic] He said they were the only Ahmadi family in their village. Both their parents were Ahmadi. He presumes they were Ahmadi families since before Partition. He was very young when his parents died so he knows little of the family history.
The applicant said his family worshipped at home, however their home was very small. His sister married (an Ahmadi) and had moved away from home but his brother and sister-in-law lived with him and his two other sisters. The Tribunal observed that in his first written statement the applicant had suggested he became the head of the household after his brother married and moved away.
The applicant said the nearest Ahmadi mosque is 22 kilometres away in the district centre (Sahiwal). This was also the location of the nearest Ahmadis. The applicant said he and his family would go there every few months. Otherwise they worshipped at home but their house was too small. They decided to build a mosque in front of the house. The Tribunal asked the applicant how far they got with the building. The applicant said they were attacked as soon as they started. They were “getting ready to start” or were “just starting”. The Tribunal asked the applicant precisely what he meant by that. The applicant did not answer, so the question was repeated. The applicant said they had just started to dig, and the building materials were ready. Asked what the building materials were the applicant said they had no steel, it would be built of sand and clay. The Tribunal asked what they had on site. The applicant said they had nothing on site. He said everyone else was digging and the applicant had gone to obtain materials. Asked to elaborate, the applicant said he had gone to get digging tools from the Christian family.
The Tribunal commented that the building project did not seem very well-planned, from the applicant’s account. The applicant said they would have got what they needed as they went along.
The applicant provided reasonable answers to the Tribunal’s questions about the Ahmadi faith and why and how it was persecuted.
The applicant said he was next door when he heard the attack on his family – he could see it taking place as well. So he ran away and caught a wagon to Lahore which is about 150 to 200 kms away. It took 4-5 hours to get there. Asked why he went so far away, the applicant said his father’s best friend was there. He hid there.
The Tribunal asked the applicant why he didn’t go back to his family. The applicant said the attackers were looking for him and would kill him. Asked what happened to his family (after the attack) the applicant said they went to hospital (about 2 kms away) and then they lodged a complaint with the police.
The Tribunal observed that it appeared from the applicant’s account that his family went home and nothing happened to them after that – why would the applicant be sought out and killed? The applicant said the villagers believe that he is the religious one in the family.
The Tribunal asked the applicant what he believed the 1 million rupees he paid the smuggler was for – it was a lot of money and he could have applied to the Pakistan authorities himself for a passport? The applicant said he was not educated. Later he confirmed that the money was also to obtain a four-year visa for Australia. He said he did not sign any forms in relation to his travel documents. The signature and fingerprint on the passport are not his.
The applicant confirmed he had had no involvement with Ahmadis in Australia. He does not know where to worship and has not met any one in the community. He has been very stressed about his situation. He follows his religion at home.
The Tribunal observed that the applicant did not make a protection visa application until he had been here for four years. The applicant said that was because he was uneducated, and he was afraid. He thought he would be imprisoned if he came forward, and did not even know the word “immigration”.
The Tribunal put to the applicant that there had been an allegation that he was not Ahmadi. The applicant said he was an Ahmadi and that was the truth. He wanted to stay in Australia and practice his religion freely.
The adviser highlighted the evidence in support of the applicant’s claims – the police report, the transfer of land and the letter from the Sahiwal Ahmadis – all of which put it beyond doubt that the applicant’s claims were true. After his family returned from hospital they were still prevented from practising their religion and had to go to Lahore.
The applicant at this point claimed that his enemies also searched for him in Lahore – they asked his father’s friend about him. The Tribunal noted that this appeared to be a new claim.”[76]
[76] Second Tribunal Decision, CB 213-215.
The Second Tribunal Decision then notes that “the decision of the Tribunal at first instance was set aside” by consent by this Court and remitted “on the basis that the Tribunal at first instance had apparently failed to have regard to the evidence suggesting that the applicant’s parents were Ahmadi.”[77]
[77] Second Tribunal Decision, CB 215.
Evidence before the Second Tribunal Hearing
The Second Tribunal Decision then sets out, in great detail, the evidence given by the applicant on the first and second days of the Second Tribunal Hearing and identifies the issue of concern for the Tribunal as being whether the applicant’s claims to have been an Ahmadi, and therefore to experience persecution for that reason, were true.[78]
[78] Second Tribunal Decision, CB 219.
The evidence canvassed:
a)the applicant’s Ahmadi religious affiliation;[79]
b)the decision to build a mosque in the yard of the home of the applicant and his brother, and why that was done in circumstances where the applicant claimed to have been experiencing prior adverse treatment from Muslims in the neighbourhood;[80]
c)why the applicant was particularly targeted for abuse and attack, rather than his brother or other members of his family;[81]
d)his relocation to Lahore;[82]
e)why he had not applied for a protection visa sooner after arriving in Australia;[83]
f)information concerning the identity of the Departmental informant, what the applicant had to say concerning the Departmental informant, and the reasons for the Departmental informant submitting the Confidential Information to the Department;[84]
g)questions about the applicant’s marriage in Australia, how he met his wife, where they lived, and her knowledge of his Protection Visa Application;[85]
h)questions about a statutory declaration made in respect of the applicant’s ASAS application on 12 May 2008 indicating that he and his wife had separated, and he explained that they were separated briefly but had got back to together;[86]
i)questions about the applicant’s efforts to contact other members of the Ahmadi community, in response to which the applicant indicated that he was not very literate and that he made efforts but did not know about Ahmadi groups in Western Australia and South Australia referred to by the Tribunal;[87] and
j)questions about how the applicant had obtained his passport and an Australian temporary business visa. The applicant said it was all done through an agent, and that he had simply provided a photo, and that there was no basis for his being granted an Australian temporary business visa, but denied that he had used false documents.[88]
[79] Second Tribunal Decision, CB 219-220.
[80] Second Tribunal Decision, CB 220-221.
[81] Second Tribunal Decision, CB 221.
[82] Second Tribunal Decision, CB 221.
[83] Second Tribunal Decision, CB 222.
[84] Second Tribunal Decision, CB 223-224.
[85] Second Tribunal Decision, CB 224.
[86] Second Tribunal Decision, CB 224-225.
[87] Second Tribunal Decision, CB 225.
[88] Second Tribunal Decision, CB 225-226.
The Tribunal referred to the Confidential Information and suggested that it was relevant as it specifically stated that the applicant was not Ahmadi and was in fact contemptuous of Ahmadis, and that was relevant because it cast doubt on the genuineness of the applicant’s claims.[89]
[89] Second Tribunal Decision, CB 228.
The Tribunal also clarified that an interpreter whom the applicant believed was responsible for the provision of the Confidential Information was not in fact that person. That interpreter was not therefore a person connected to the applicant. The Tribunal indicated that this may be relevant because the applicant had suggested that the interpreter had a vengeful motive related to an incident where the applicant was caught working illegally. However, the Tribunal noted that the applicant had been caught working illegally after the Confidential Information had been provided to the Department. The Tribunal said that the Confidential Information could not, therefore, have been motivated by revenge as the applicant claimed, and that there was no obvious motivation for provision of the Confidential Information, which meant that the Tribunal was likely to accord the Confidential Information material weight. The Tribunal also noted that there was other information on the Department’s records which suggested that allegations had been made about the applicant working illegally as long ago as 2006. The applicant denied those allegations.[90]
[90] Second Tribunal Decision, CB 228.
Findings and reasons – Second Tribunal Decision
The Tribunal accepted that the applicant was a citizen of Pakistan.[91] Further, the Tribunal found that the reason the applicant would experience persecution in Pakistan, if his claims were made out, is by reason of his religion, thereby satisfying the requirements of s.91R(1)(a) of the Migration Act.[92]
[91] Second Tribunal Decision, CB 236.
[92] Second Tribunal Decision, CB 237.
The Tribunal then turned to the question of whether or not the applicant was likely to experience a real chance of serious harm.
The Tribunal considered the Confidential Information. It noted that some of the Confidential Information was put to the applicant at the First Tribunal Hearing,[93] and this, as well as information which the Tribunal considered relevant, credible and significant, was also put to the applicant at the Second Tribunal Hearing.[94] The Tribunal dealt with the applicant’s explanation of whom he thought might have provided the Confidential Information, and why it ought not be relied upon given its source (as assumed by the applicant). The Tribunal relied upon the Confidential Information in relation to the applicant’s Protection Visa Application because:
a)it had not been provided anonymously to the Department; and
b)it was not demonstrably not credible information.[95]
[93] Second Tribunal Decision, CB 237.
[94] Second Tribunal Decision, CB 237.
[95] Second Tribunal Decision, CB 238.
The Tribunal noted that the same source had provided information to the Department concerning the applicant working illegally as early as June 2006, which information had proved to be correct as the applicant 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 applicant being caught working illegally.
The latter fact meant meaning that no vengeful motivation could be attributed to the provision of the Confidential Information, which the 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 applicant’s credibility, which is in issue in the present case.”[96]
[96] Second Tribunal Decision, CB 238.
The Tribunal found that the claim that there was an attempt to build a mosque on land owned by the applicant and his brother[97] defied common sense because of the history of hostility, discrimination and abuse the applicant claimed to have already suffered by reason of being Ahmadi. The Tribunal found that it was more likely than not that the Mosque Incident did not occur, and that it was apparent from the applicant’s evidence, and the country information generally, that for an Ahmadi to build a mosque “would, unfortunately, be asking for trouble.”[98] Therefore, the Tribunal thought that the explanation as to the Mosque Incident, including the fact that the applicant did not appreciate the consequences which might follow, was not a sensible one.[99] The Tribunal also found that a claim, belatedly made, by the applicant to have returned to Sahiwal in May 2003 was clearly at odds with his claimed fear of persecution. The Tribunal cited evidence given to the Department and the First Tribunal Hearing “as reflecting some basic knowledge and experience”[100] of a person who had practised and was an adherent of the Ahmadi faith. The Tribunal said that it was difficult to see and understand why a person would return to a threatening environment (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 applicant’s claim.[101]
[97] “Mosque Incident”.
[98] Second Tribunal Decision, CB 238.
[99] Second Tribunal Decision, CB 238.
[100] Second Tribunal Decision, CB 239.
[101] Second Tribunal Decision, CB 239.
The Tribunal also observed that it was puzzled by the applicant’s lack of contact with Ahmadi groups in Australia, to which the applicant 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 applicant 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 applicant, the applicant’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.”[102]
[102] Second Tribunal Decision, CB 239.
The Tribunal considered that the above matters were illogical and inconsistent elements of the applicant’s claims and tended to cast doubt on the truth of his claims.[103]
[103] Second Tribunal Decision, CB 239.
The Tribunal then turned to the question of falsity of statements and documents, and said that the applicant had “displayed a propensity to make misrepresentations and rely on fraudulent documents.”[104]
[104] Second Tribunal Decision, CB 240.
The Tribunal was concerned with the applicant’s actions in Australia, including:
a)using another person’s identification documents (a Medicare card) while working illegally in Australia and, at least initially, lying to officers of the Department by denying his true identity; and
b)statements made when applying to the Red Cross for ASAS which the applicant subsequently conceded were false (even though made out of financial necessity).
The Tribunal took the view that the giving of false evidence and the making of false statements were such that it cast doubt on the applicant’s credibility generally.[105]
[105] Second Tribunal Decision, CB 241.
The Tribunal also dealt with the delay of four years between the time that the applicant arrived in Australia and his making a protection claim. The Tribunal did not accept that the applicant had a good reason for the delay.[106]
[106] Second Tribunal Decision, CB 241.
The Tribunal concluded that the applicant’s claims had been invented, that he was not in fact an Ahmadi, and therefore could not have suffered the alleged discrimination, insult, assault and abuse which he had claimed.[107]
[107] Second Tribunal Decision, CB 241-242.
The Tribunal found that the documents submitted or relied upon by the applicant, including:
a)the Police Report;
b)the Land Transfer Document;
c)the Death Certificates;
d)the Birth Certificate;
e)the Verification of Belief Document and Ahmadi Religion Certificate signed by Mr Rehman suggesting that the applicant was Ahmadi; and
f)a letter from his brother read out at hearing,
had all been “fabricated or contrived to give his claims a veneer of authenticity”.[108]
[108] Second Tribunal Decision, CB 242.
In regard to the falsity of the documentation the Tribunal placed weight upon country information which suggested 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 “genuine” but false documents.[109]
[109] Second Tribunal Decision, CB 242.
In all the circumstances, the Tribunal was not satisfied that there was a real chance that the applicant would experience serious harm capable of amounting to persecution for the purposes of s.91R(2) of the Migration Act, and the Tribunal affirmed the decision of the Delegate’s Decision not to grant the applicant a protection visa.[110]
WZANC (No. 1) and WZANC Appeal
[110] Second Tribunal Decision, CB 242.
The Tribunal Decision was subsequently the subject of the judgment of this Court in WZANC (No. 1), in which the applicant succeeded in establishing jurisdictional error on ground 1.1. The judgment of this Court in WZANC (No. 1) was overturned on appeal in WZANC Appeal, and remitted to this Court to determine the three remaining grounds of the amended application.[111]
[111] WZANC Appeal at para.49 per Siopis J.
Jurisdictional error and the nature of judicial review
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[112] Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks a wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[113]
[112] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[113] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ (“Yusuf”).
In determining this matter the Court must have regard to the proper nature of judicial review. That encompasses a number of matters which bear upon the Court’s considerations of the Second Tribunal Decision, including the following:
a)there is no error of law, and hence no jurisdictional error, in the Tribunal making a wrong finding of fact;[114]
b)a court conducting a judicial review must be astute not to turn judicial review into merits review, and it is not appropriate to analyse the Tribunal Decision minutely with a focus upon perceiving error;[115]
c)findings of fact, including the making of credibility findings, are a matter for the Tribunal par excellence;[116]
d)the Tribunal was not obliged to have rebutting evidence available before rejecting a factual assertion made by the applicant;[117] and
e)disagreement with the Tribunal’s findings of fact does not support a contention that the Tribunal failed to consider the evidence properly or fairly.[118]
[114] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16-17 per Black CJ, French and Selway JJ; [2004] FCAFC 263 at paras.52-54 per Black CJ, French and Selway JJ (“NABE”); SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at para.17 per Jacobson J (“SZJEH”); MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at para.28 per Black CJ, Sundberg and Bennett JJ (“MZBWB”).
[115] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at 66 per Gleeson CJ and Hayne J; [2001] HCA 22 at para.23 per Gleeson CJ and Hayne J.
[116] NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at para.9 per Heerey, RD Nicholson and Selway JJ.
[117] Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J (“Selvadurai”); Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801 at para.13 per French J.
[118] SZJEH at para.14 per Jacobson J.
Remaining grounds of amended application
The remaining grounds of the amended application are set out below, together with the submissions on, and the Court’s consideration, of each ground.
Ground 1.2
The ground
Ground 1.2 and particulars are as follows:
Ground 1.2 of the Amended Application alleges 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 ground 1.2 are 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.
Legislation
Relevant to ground 1.2 are ss.424A and 438 of the Migration Act which provide as follows:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
438 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.
The “non-disclosable information” in s.424A(3)(c) is defined in s.5(1) of the Migration Act to mean:
"non-disclosable information" means information or matter:
(a) whose disclosure would, in the Minister's opinion, be contrary to the national interest because it would:
(i) prejudice the security, defence or international relations of Australia; or
(ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b) whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
Applicant’s submissions
The applicant submits that:
a)division 4 of Part 7 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.[119] However, it is further required that in applying the Division “the Tribunal must act in a way that is fair and just”;[120]
[119] Migration Act, s.422B(1).
[120] Migration Act, s.422B(3).
b)subject to certain limitations, the Tribunal must give to the applicant, in a way that the Tribunal considers appropriate in the circumstances, clear 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.[121] Further, the Tribunal ought to ensure, as far as is reasonably practicable, that the applicant understands why it is that the information is relevant to the review, the consequences of it being relied on in affirming the decision that is under review,[122] and the applicant ought to be invited to comment on or respond to the information.[123] This is, however, limited by the fact that it does not apply to information that is “non-disclosable information”;
[121] Migration Act, s.424A(1)(a).
[122] Migration Act, s.424A(1)(b).
[123] Migration Act, s.424A(1)(c).
c)the Confidential Information, as disclosed to the applicant, demonstrates that it was specifically about the applicant, and the Tribunal Decision demonstrates that it was not only “part of the reason for affirming the decision under review”, but also a very important, if not actually determinative, part of the reasons. The Confidential Information did not fall within the exceptions under s.424A(3)(a) and (b) of the Migration Act. The third, and final exception consists of information “that is non-disclosable information” under s.424A(3)(c) of the Migration Act;
d)the Tribunal referred the applicant to the allegations made by the Departmental informant. The source of the Confidential Information was not disclosed. Bearing as it did on its credibility, the identity of the source was a significant part of the Confidential Information, which would be part of the reason for the Tribunal affirming the Delegate’s Decision. Unless the identity of the source was “non-disclosable information” under s5(1) of the Migration Act, failure to identify the source would constitute a failure to comply with the provisions of s.424A(1) of the Migration Act, and therefore be a breach of the natural justice rule under s.422B of the Migration Act;
e)section 438(1)(b) of the Migration Act applies to a document if “the document, the matter contained in the document, or the information is given to the Minister, or to an officer of the Department in confidence”;
f)sections 437-439 of the Migration Act constitute a Code governing the non-disclosure of information by the Tribunal, and the specific reference to ss.438 and 422B of the Migration Act underlines its importance as part of the natural justice hearing rule, to which hearings of the Tribunal are subject;
g)the Tribunal, by its Registrar, is required as soon as practicable to give the Secretary of the Department written notice of the making of the application.[124] Within ten working days after being notified of the application the Secretary must give the Registrar the prescribed number of copies of a statement about the decision under review (that is, in this case, the Delegate’s Decision).[125] The statement must set out the findings of fact made by the person who made the decision, refer to the evidence on which those findings were based, and give the reasons for the decision.[126] As soon as practicable after being notified of the application the Secretary must give the Registrar each other document, or part of a document that is in the Secretary’s possession or control considered by the Secretary to be relevant to the review of the decision.[127]
[124] Migration Act, s.418(1).
[125] Migration Act, s.418(2).
[126] Migration Act, s.418(2)(a)-(c).
[127] Migration Act, s.418(3).
h)because the definition of “non-disclosable information” includes information “whose disclosure would found an action by a person, other than the Commonwealth, in breach of confidence”,[128] this could include information provided by an informer.[129] It is significant that there was no reference to s.438 of the Migration Act in Kumar, either in the judgment or in the hearing before the High Court;[130]
i)sections 437 and 438 of the Migration Act provide for restrictions on the disclosure of certain information by the Secretary such that certain information may not be provided by the Secretary if the Minister certifies in writing that disclosure would be contrary to the public interest.[131] The Tribunal has a discretion in relation to the disclosure of certain information which has been provided by the Secretary.[132] However, so far as the Tribunal is concerned, the section only applies to a document or information where the Minister certifies in writing that disclosure would be contrary to the public interest, on the basis that it could give rise to a claim of privilege by the Commonwealth in a judicial proceeding,[133] or where the document, the matter contained in the document, or the information that was given to the Minister, or to an officer of the Department, was given in confidence;[134]
j)if, as required by the Migration Act under provisions such as s.424A, the Secretary gives to the Tribunal a document or information to which the section applies, such as information which is non-disclosable on the basis that it was provided in confidence, the Secretary must notify the Tribunal in writing that the section applies,[135] and may give the Tribunal any written advice that the Secretary thinks relevant about its significance.[136] The first requirement is accordingly mandatory, the second discretionary. These form part of the natural justice requirements of the Division, subject always to the further requirement that the Tribunal apply these in a manner which is fair and just;
k)if the Tribunal is given a document or information, and is notified that the section applies, the Tribunal may, for the purpose of the exercise of its powers, have regard to any matter contained in the document or information,[137] and may, if it considers it appropriate to do so, having regard to any advice given by the Secretary under s.438(3)(b) of the Migration Act, disclose any matter contained in the document, or the information, to the applicant. In short, the provision in s.424A(3)(c) in relation to non-disclosable information is subject to the provisions of s.438 of the Migration Act. In the present case there was no evidence that such a notice had been provided by the Secretary, which would have conferred a discretion under s.438(3) of the Migration Act as to whether the identity of the informant should or should not be disclosed. In these circumstances, absent compliance with s.438 of the Migration Act there has been a failure to comply with the natural justice provisions of the Division and the Act, and any decision consequent upon the failure is affected by jurisdictional error. Where the Tribunal does make disclosure to the applicant, it is required to give a direction under s.440 of the Migration Act in relation to the information.[138] Section 440 of the Migration Act provides for the restriction of further disclosure;[139]
l)in context, the identity of the Departmental informant was of considerable importance, and the case in that respect is distinguishable from Kumar, where the identity of the informant was of little significance to the content of the information provided, namely that Mr Kumar’s marriage was a sham. Without knowledge of the name of the informant it was still open to Mr Kumar to prove that the marriage was genuine, for example by calling his wife, and providing documentary evidence of cohabitation. The applicant, absent knowledge of the identity of the Departmental informant, was unable to deny with any specificity that he had made to the Departmental informant the statements attributed to him, or, if he had done so, explain the context in which they had been made;
m)it was for the Minister, in support of any notice given to the Tribunal, to establish that disclosure of the identity of the Departmental informant would, and not could, found an action, presumably against it or one of its servants, for breach of confidence. Any claim to public interest immunity was to have been made and supported by the Minister through the Secretary by the issue to the Tribunal of a notice under s.438(2)(a) of the Migration Act. Under the statutory Code, it is not for the Tribunal as an independent reviewing authority to raise and determine the issue itself;
n)notice from the Secretary is a condition precedent to the withholding of information otherwise to be disclosed under s.424A(1)(a) of the Migration Act, such as the identity of the Departmental informant;
o)the giving of advice is not mandatory, however, notice must be given by the Secretary to the Tribunal before the document or information can be considered “non-disclosable”. While it appears that the Confidential Information was treated by the Tribunal as “non-disclosable”, there is no evidence disclosed that any notice required to be given was given by the Secretary to the Tribunal;
p)if, as appears likely in the circumstances, the Confidential Information or matter was provided in circumstances, which of themselves amounted to a breach of confidence, no action would lie, and the Confidential Information would not be “non-disclosable”;[140] and
q)the failure by the Tribunal to disclose the identity of the resulted in further failure to provide the procedural fairness required by the Migration Act, and the Tribunal fell into jurisdictional error, which entitles the applicant to relief.
[128] Migration Act, s.5(1).
[129] Citing Minister for Immigration and Citizenship v Kumar and Anor (2009) 238 CLR 448; [2009] HCA 10 (“Kumar”).
[130] Minister for Immigration & Citizenship v Kumar & Anor [2009] HCATrans 013 (“Kumar High Court Transcript”).
[131] Migration Act, s.437.
[132] Migration Act, s.438.
[133] Migration Act, s.438(1)(a).
[134] Migration Act, s.438(1)(b).
[135] Migration Act, s.438(2)(a).
[136] Migration Act, s.438(2)(b).
[137] Migration Act, s.438(3)(a).
[138] Migration Act, s.438(4).
[139] Migration Act, s.438(4). Section 440 of the Migration Act provides for the restriction of further disclosure.
[140] Citing Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443 per Gummow J.
Respondents’ submissions
The respondents make the following submissions:
a)the first question to be addressed is whether the Tribunal complied with s.424A(1)(a) of the Migration Act without disclosing the name of the Departmental informant. It is only if that provision required the Tribunal to disclose the name of the Departmental informant that s.424A(3)(c) of the Migration Act operates. The scope of s.424A(3)(c) of the Migration Act is defined by the meaning of “non-disclosable information” as defined in s.5(1) of the Migration Act;
b)section 424A(1) of the Migration Act was complied with by disclosure of the substance of the Confidential Information. The identity of the Departmental informant was not necessary for such compliance;[141]
[141] Citing Kumar CLR at 458 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at para.34 per French CJ, Gummow, Hayne, Kiefel and Bell JJ. Kumar dealt with s.359A(1) of the Migration Act which relates to the Migration Review Tribunal, and is in the same terms as s.424A(1) of the Migration Act.
c)if Kumar is not determinative of the position, then the name of the Departmental informant fell within the definition of “non-disclosable information”, and hence s.424A(3)(c) applied;
d)an expressed wish by an informant to remain anonymous, and the provision of information on that basis, gives rise to an equitable obligation of confidence on the part of the Department and its officers, and thereby the Commonwealth;[142]
[142] Citing Meagher, Heydon and Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (Sydney: Butterworths LexisNexis, 2002) (4th Edn) at pages 1120-1121; Coulthard and Ors v State of South Australia (1995) 63 SASR 531 at 533-537, 545-547 and 548-550 per King, Perry, Debelle JJ; G v Day [1982] 1 NSWLR 24 at 35-36 per Yeldham J.
e)to be confidential for the purposes of paragraph (c) of the definition of “non-disclosable information” under s.5(1) of the Migration Act, there must be proof of a justiciable claim for breach of confidence;[143]
[143] Citing NAVK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 567 at 592-593 per Beaumont, Conti and Crennan JJ; [2004] FCAFC 160 at para.108 per Beaumont, Conti and Crennan JJ (“NAVK”).
f)the identity of an informer, as distinct from the content of the information itself, has been held to be confidential information for the purposes of part (c) of the definition of “non-disclosable information”;[144]
[144] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 741 at 754 per Merkel J; [2003] FCA 437 at para.52 per Merkel J (“VEAL – Federal Court”). This case went on appeal to the Full Court of the Federal Court and then the High Court: see VEAL – Federal Court Appeal and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 (“VEAL – High Court”).
g)if the Tribunal was obliged to disclose the name of the Departmental informant to the applicant in order to comply with s.424A(1) of the Migration Act, the applicant is not necessarily entitled to relief. If there has only been a technical non-compliance with s.424A of the Migration Act, but, as a matter of substance, there has been no disadvantage to the applicant, relief will be refused;[145]
[145] Citing NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at para.39 per Jacobson J.
h)section 438 of the Migration Act has no present relevance because:
i)section 424A(1) of the Migration Act contains an imperative command to the Tribunal, subject only to s.424A(3) of the Migration Act;
ii)if s.424A(3)(c) of the Migration Act applies, then s.424A(1) of the Migration Act does not apply, at least to the extent that s.424A(3)(c) of the Migration Act applies, and hence the command in s.424A(1) of the Migration Act can be put aside;
iii)section 438(3)(b) of the Migration Act provides that the Tribunal “may … disclose any matter contained in the document, or the information” falling within s.438(1) of the Migration Act; and
iv)section 438(4) of the Migration Act provides the Tribunal “must give” a publication restriction direction under s.440 of the Migration Act in relation to information if the Tribunal makes a disclosure under s.438(3) of the Migration Act;[146]
[146] Citing NAVK FCR at 575-578 and 592-593 per Beaumont, Conti and Crennan JJ; FCAFC at paras.35-51 and 101-103 per Beaumont, Conti and Crennan JJ.
i)the transcript of the Tribunal Hearing shows that short of disclosing the name of the Departmental informant the applicant was given every opportunity at the Tribunal Hearing to deal with the Tribunal’s concerns about the Confidential Information;[147]
[147] See Transcript of Tribunal Hearing at pages 23-28, 31 and 43-45.
j)the suggestion that the applicant is required to prove a negative is misconceived because it flies in the face of the High Court’s judgment in Kumar, and, in any event, as a matter of common sense it is not impossible for an applicant to convince a decision-maker that something was not said during a conversation between the applicant and another person without disclosing the identity of the other person;
k)the suggestion that the applicant needs to be told of the name of the informant in order to challenge the motive of the informant misconceives the purpose of s.424A of the Migration Act, and in particular:
i)the words “particulars of any information that the Tribunal considers would be … part of the reason, for affirming the decision” in s.424A(1) of the Migration Act; and
ii)the word “information” in s.424A(3) of the Migration Act.
The identity of the Departmental informant is information that may be useful to attack the credibility of the Departmental informant, but neither the Departmental informant’s motive nor the Departmental informant’s identity is “information” in the sense in which that word is used in s.424A(1) and (3) of the Migration Act;
l)there is no provision of the Migration Act which supports the contention that if the Tribunal was not prepared to disclose the identity of the Departmental informant, assuming that it could be lawfully withheld as non-disclosable information, the evidence should have been disregarded by the Tribunal. That construction would not be consonant with ss.422B and 424A of the Migration Act. Further, it would involve the Tribunal not complying with the command in:
i)section 414(1) of the Migration Act, to conduct a review; and
ii)section 420(b) of the Migration Act, to make a decision according to the merits of the case.
Consideration
In VEAL – High Court an unsolicited letter received by the Department was sent by the Department to the Tribunal. The letter made certain allegations against the husband, where he and his were applicants for a protection visa. The Tribunal did not tell the husband that it had received the letter or ask him about the substance of the allegations made in it. The Tribunal, in giving reasons for decision, said that it had been unable to test the claims made in the letter and accordingly gave it no weight. It did so because the author of the letter made it clear that the material had been provided confidentially, and because of that the Tribunal had been unable to test the claims made in the letter.[148]
[148] VEAL – High Court CLR at 91-92 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; HCA at paras.1-5 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
In VEAL – High Court the High Court held that procedural fairness required the Tribunal to inform the husband of the substance of the allegations made in the letter before reaching its decision, but that the Tribunal was not required to provide a copy of the letter to the husband or to disclose any information that may have revealed the identity of its author.[149]
[149] VEAL – High Court CLR at 96-97 and 100 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; HCA at paras.18 and 29 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
Of particular relevance to this case is what the High Court said in VEAL – High Court as to the contents of the letter and the assertion that the identity of the informer had to be revealed to the applicant. What the High Court said in VEAL – High Court must, however, be understood against the background that it was a case decided before the amendments made by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), which, among other things, inserted s.422B into the Migration Act, providing that Division 4 of Part 7 of the Migration Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.[150]
[150] VEAL – High Court CLR at 93 at footnote 16 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; HCA at para.10 at footnote 16 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
It is also pertinent to note that in VEAL – High Court s.424A of the Migration Act was not actually engaged because the Tribunal did not act on the letter or the information it contained.[151] Further, s.438 of the Migration Act did not fall for consideration because the condition in s.438(2)(a) of the Migration Act, that the Secretary was bound to notify the Tribunal in relation to the document or information, was not met, and the High Court did not have to consider the meaning and effect of s.438 of the Migration Act.[152]
[151] VEAL – High Court CLR at 94 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; HCA at para.12 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
[152] VEAL – High Court CLR at 94 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; HCA at para.13 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
VEAL – High Court therefore fell to be determined on common law principles of procedural fairness, but as the High Court observed, the content of the obligation to accord procedural fairness had to be identified by reference to relevant provisions of the Migration Act:[153]
[153] VEAL – High Court CLR at 98 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; HCA at para.23 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
[22] The fact that the author of the letter asked the Department to keep it secret did not mean that equitable principles about confidential information were to be engaged in deciding what course the Tribunal took. Rather, the nature and extent of the Tribunal's obligation to disclose the information were regulated by the Act and the obligation to accord the appellant procedural fairness.
[23] In this case, the particular content of the obligation to accord procedural fairness was to be identified having regard not only to the particular provisions of the Act that regulated the Tribunal's work but also to the scope and objects of the Act as a whole. In that latter regard, it is necessary to keep two propositions at the forefront of consideration. First, the Act required that those entitled to a particular visa be granted the visa they sought, and that those not entitled be refused. Secondly, the Act committed the decision to grant or refuse a visa to the Executive government and the Tribunal was likewise exercising executive power, not judicial power.[154]
[154] VEAL – High Court CLR at 98 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; HCA at paras.22-23 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
[24] ….
[25] The existence of that public interest is not to be understood as requiring the conclusion that there is an absolute rule against an administrative decision-maker disclosing to a person, whose interests may be affected by the decision that is to be made, information that has been supplied by an informer. Nor does it necessarily mean that there is an absolute rule against disclosing the identity of an informer to such a person. … The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case.[155]
[155] VEAL – High Court CLR at 98-99 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; HCA at para.25 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ;
The High Court went on in VEAL – High Court to find that the Tribunal was not bound to give the applicant a copy of the letter that had been given to the Tribunal, or to tell him who had sent the letter, or to tell him that it had been sent in written form. The High Court said:
[29] … 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. How the allegations had been given to the Tribunal was not important. No doubt the appellant's response to the allegations would then have had to be considered by the Tribunal in light of the fact that the credibility of the person who made the allegations could not be tested. And that may well leave the Tribunal in a position where it could not decide whether the allegations made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the "problem of confidentiality".[156]
[156] VEAL – High Court CLR at 100 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; HCA at para.29 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
In Kumar the High Court dealt with the disclosure of information in relation to an application for a spousal visa before the Migration Review Tribunal. Whilst the statutory provisions are differently numbered, their content is equivalent, and so s.359A of the Migration Act equates to s.424A of the Migration Act, s.357A of the Migration Act equates to s.422B of the Migration Act and s.376 of the Migration Act equates to s.438 of the Migration Act.
In Kumar the Migration Review Tribunal had invited the applicant to comment on information received by it in confidence stating that his marriage was contrived for the sole purpose of migrating to Australia. That was in issue because the applicant had to demonstrate that he and his wife were in a genuine and continuing marriage relationship. The applicant denied the allegation but adduced no evidence in support of his denial. The Tribunal affirmed the decision of the delegate to refuse the visa application, relying in part upon the adverse information supplied in confidence. Before the High Court the applicant argued that the Tribunal had committed a jurisdictional error in failing to disclose the identity of the informant and the full nature of the information provided by the informant. The High Court held that the Tribunal was not required to disclose the full nature of the information and identity of the person who had supplied the information in confidence because it was non-disclosable information within s.359A(4) of the Migration Act (which finds its equivalent in Refugee Review Tribunal matters in s.424A(3) of the Migration Act).[157]
[157] Kumar CLR at 458 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at paras.32-34 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
The High Court in Kumar noted that s.359A of the Migration Act appeared in a Division of the Migration Act headed “Conduct of Review”, and which included s.357A(1) of the Migration Act which provides that that particular Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with.[158] The High Court then went on to deal with the definition of “non-disclosable information” in paragraph (c) of s.5(1)(c) of the Migration Act, observing that the term “non-disclosable information” appeared not only in s.359A of the Migration Act but a number of other sections, including s.424A of the Migration Act.[159] The obligation imposed upon the Migration Review Tribunal by s.359A(1) of the Migration Act (and hence the Tribunal by s.424A(1) of the Migration Act) was said not to arise “if disclosure by the Tribunal would found an action by the informant or another person (not being the Commonwealth) for breach of confidence.”[160]
[158] Kumar CLR at 453 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at para.14 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
[159] Kumar CLR at 454 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at para.16 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
[160] Kumar CLR at 454-455 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at para.18 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
In Kumar the High Court observed that it was significant that “the requirement of the [Migration] Act that those entitled to a particular visa be granted it and that those not entitled be refused, and the corollary that information supplied by an informant be not denied to the executive branch in its administration of the legislation.”[161] Section 359A of the Migration Act (and by extension s.424A of the Migration Act) was said to be designed to accommodate those concerns by affording an applicant a measure of procedural fairness, by protecting informants, so as not to deny the Migration Review Tribunal material which assists the performance of its functions.[162]
[161] Kumar CLR at 455 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at para.22 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
[162] Kumar CLR at 456 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at para.23 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
In allowing the Minister’s appeal against the orders made in VEAL – Federal Court Appeal the High Court said that the preservation of the confidence of the informant’s disclosures advanced, not obstructed, the operation of the relevant visa provisions in the Migration Act.[163] The High Court observed that the issue in Kumar was the existence and extent of any obligation imposed upon the Migration Review Tribunal by s.359A of the Migration Act to break the confidence of the informant.[164]
[163] Kumar CLR at 456 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at para.25 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
[164] Kumar CLR at 457 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at para.29 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
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.[165]
[165] Kumar CLR at 458 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at para.31 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
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.[166]
[166] Kumar CLR at 458 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at paras.32-34 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.
As to the Birth Certificate and the Death Certificates the respondents submit that:
a)the applicant complains that the Tribunal Decision does not refer to the Birth Certificate or the Death Certificates, but that is not so, because the Tribunal Decision concludes that the Birth Certificate and the Death Certificates “have been fabricated or contrived to give the … claims a veneer of authenticity.”[193] The Birth Certificate and the Death Certificates are also mentioned by the Tribunal when quoting from the Applicant’s 28 November 2008 Submission.[194] The Birth Certificate and Death Certificates are further referred to in a generic way;[195] and
b)the applicant complains that the applicant was not alerted to the Tribunal’s concerns about the authenticity of the Birth Certificate or Death Certificates or the possibility that the Tribunal might disregard them, but this is also not so. The Tribunal specifically queried “why … [it] should accept those documents which … [the applicant] seeks to rely on are genuine”, and, in context, “those documents” included “various documents suggesting that … [the applicant’s] parents were Ahmadi”.[196] Further, during the Tribunal Hearing the Tribunal specifically put concerns to the applicant about the authenticity of “your parents’ birth certificates … [and] personal identification documents”.[197]
[193] CB 242.
[194] Second Tribunal Decision, CB 218.
[195] Second Tribunal Decision, CB 225 and CB 239.
[196] Second Tribunal Decision, CB 225-226.
[197] Second Tribunal Hearing Transcript at page 36.
With respect to Verification of Belief Document the respondents note that the applicant complains that the Tribunal did not put to the applicant concerns about the authenticity of that document. The respondents say that that complaint cannot be made out given the Tribunal’s 31 December 2008 Letter to the applicant which refers to the Verification of Belief Document, and, in respect of which the Tribunal specifically says that it “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.”[198]
[198] CB 190-191.
With respect to the Tribunal’s treatment of these documents generally the respondents say that no jurisdictional error is disclosed. Specifically, the respondents say that:
a)the Tribunal’s treatment of the documents needs to be considered in the context that:
i)the country information was to the effect that in Pakistan “authentic” documents could be purchased fraudulently from government officials;[199]
[199] Second Tribunal Decision, CB 236 and CB 238.
ii)the applicant had admitted to “buying” a passport;[200]
[200] CB 52 and CB 125.
iii)the applicant had admitted to “using” another person’s Medicare card in Australia;[201] and
[201] CB 124 and Second Tribunal Decision, CB 241 at para.130.
iv)the Tribunal had concluded that the applicant lacked credibility, a conclusion reached having regard to a number of “non-documentary” matters;[202]
[202] See generally with respect to the documents Second Tribunal Decision, CB 239-241.
b)the treatment of the documents in this context involved no jurisdictional error;[203]
[203] Citing WZANZ v Minister for Immigration & Citizenship & Anor (No. 2) [2011] FMCA 208.
c)the Tribunal may legitimately reject the authenticity of a document on the basis of adverse findings concerning an applicant’s credibility;[204]
[204] Citing SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at paras.12 and 25 per Collier J (“SZGJY”); WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 at paras.65-70 per Marshall, Mansfield and Siopis JJ (“WAKK”).
d)section 424A of the Migration Act has no application to a document submitted by an applicant to the Tribunal;[205]
[205] Citing SZGJY at paras.12 and 23 per Collier J.
e)a finding that documents are not genuine might, in a particular case, depend upon factors external to the documents, and thus direct evidence that a document is a forgery will not always be necessary. Further, it is not an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an applicant’s credit;[206]
[206] Citing Minister for Immigration & Citizenship v SZMOK (2009) 257 ALR 427 at 440 per Emmett, Kenny and Jacobson JJ; [2009] FCAFC 83 at para.59 per Emmett, Kenny and Jacobson JJ (“SZMOK”).
f)the Tribunal was at pains to make it clear that in Pakistan a document can be obtained which is genuine in the sense that the document is “official”, that is, it contains real official signatures and stamps rather than forgeries, but non-genuine in the sense that the document contains information that is false or inaccurate;[207]
[207] Citing Second Tribunal Hearing Transcript at pages 35-38 generally.
g)the genuineness of the documents was raised on a number of occasions in the Second Tribunal Hearing as follows:
i)“Okay. Now, there is current information that suggests that fraudulent documents are not difficult to obtain in Pakistan. One example that can easily be … referred to is that UK Home Office Country Information Report on Pakistan … released on July 2008. And there’s a section on that concerning, in that concerning fraudulent documents. And … there are various references in there to forged identity documents and so forth. One of the references there said that the … quotes the UNHCR or the United Nations High Commission for Refugees Representative as stating the following and it says that, ‘It’s possible to obtain many types of fraudulent documents or documents that are fraudulently authenticated by a bona fide stamp of authority’.
“Okay, now you’ve submitted a number of documents, such as your parents’ birth certificates, personal identification documents, documents about the Police raid or the complaint to the Police, and the sale of the property. But I’m concerned about the authenticity of those documents. … I’m concerned about the authenticity of the documents, partly because non-genuine documents would appear to be readily available and fairly easily obtained, and partly because you’ve used false documents to well, documents obtained without your knowledge of how they’re obtained in order to get to Australia. And I can only really conclude that the Australia Visa must have been issued further to fraudulent supporting documents being submitted in support of that application. And you’ve also been prepared to work here and pass yourself off as another person, [Safrez?] while working illegally in Australia.”;[208]
[208] Second Tribunal Hearing Transcript at pages 35-36.
ii)“Okay … that’s been your explanation from the beginning. And … the fact that you came on a passport which was obtained through irregular means, does not prove your claims, neither does it disprove your claims. It’s one piece of evidence I have to try and determine the significance of. Now, on the other hand, I acknowledge that many people have to obtain a false passport, sometimes in a different name, in order to escape from a situation of persecution. Now, it seems that what you’re saying is that, the passport together with the Visa was all organised and obtained by an agent upon the payment of a large sum of money.”;[209]
[209] Second Tribunal Hearing Transcript at page 38.
iii)“ … knowing that the passport was obtained on your account through irregular means, I was not intending to place any weight on the lack of any reference on it to your religion being Ahmadi.”;[210]
[210] Second Tribunal Hearing Transcript at page 38.
iv)“One of the questions that concerns me is whether those other documents submitted are also, in fact, not genuine or obtained through irregular means. On the country information I referred to before says that, in fact, the documents can be obtained which are fraudulently authenticated by a bona fide stamp or authority. In that situation, simply going back to the authority to check, is not necessarily going to disclose that there is any forgery or fraud.”;[211]
[211] Second Tribunal Hearing Transcript at page 38.
h)the applicant said that:
“If there was doubt about my passport and other documents, may I say that I am happy to give my fingerprints and dentures and you can compare them to what’s on the passport, and if they don’t match, you can report me. Whereas, if they match, then you can conclude that they are not false. No, I think you have misinterpreted it. I’ll just explain again. I think [inaudible] that what’s on the passport is not my [inaudible] and thumb impression, so if they don’t match, so … if they match, then I’m not the right person.”
i)because of the manner in which the documents are brought into existence, checking in the manner described by the applicant immediately above, will not necessarily disclose whether there is any forgery or fraud;
j)the applicant was afforded procedural fairness by the Tribunal by the Tribunal sufficiently raising concerns about the documents generally;[212]
k)the documents were put forward as corroboration of the applicant’s claims that:
i)he was an Ahmadi Muslim; and
ii)he had been persecuted on account of being an Ahmadi Muslim;
l)the Tribunal’s Decision shows that it plainly did not believe the applicant’s claim of persecution, and accordingly it was entirely proper for the Tribunal to disregard the proffered corroboration;
m)it is not necessarily irrational, or illogical, for a finder of fact to reject corroborative evidence if convinced that a principal witness is fabricating a story considered to be implausible, even though there was no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness;[213]
n)in some circumstances, it may be necessary for an unsuccessful applicant for review to file evidence about what steps would, or at least could, have been taken if the alleged breach of procedural fairness had not occurred. That would not apply where the procedural unfairness resulted from failure to give the applicant the opportunity of commenting on inconsistencies that caused concern to the Tribunal. In such a case the applicant would not be able to file an affidavit stating what answers would have been given to particular questions without knowing what the questions would have been;[214] and
o)the Tribunal did raise the authenticity of the documents relied upon by the applicant, and, even assuming contrary to that fact that the Tribunal did not do so, there is no evidence to suggest that the applicant would have done anything more than assert that his documents were genuine.[215] Accordingly, there cannot have been a denial of procedural fairness.
[212] Citing SZMRS v Minister for Immigration and Citizenship [2009] FCA 936 at paras.28-32 per Flick J.
[213] Citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 63 per Gleeson CJ; [2003] HCA 30 at para.12 per Gleeson CJ (“S20/2002”).
[214] Citing SZMOK ALR at 442 per Emmett, Kenny and Jacobson JJ; FCAFC at para.66 per Emmett, Kenny and Jacobson.
[215] Second Tribunal Hearing Transcript at page 36.
Consideration
The Tribunal found that the documents referred to in this ground had “been fabricated or contrived” to give the applicant’s claims “a veneer of authenticity”.[216] In so doing the Tribunal had regard to:
a)“logical flaws in some of those documents”;[217]
b)the applicant’s credibility generally;[218] and
c)country information which indicates that in Pakistan officials can be bribed “to issue authentic but false documents.”[219]
[216] Second Tribunal Decision, CB 242.
[217] Second Tribunal Decision, CB 242.
[218] Second Tribunal Decision, CB 242.
[219] Second Tribunal Decision, CB 242.
The Tribunal made findings on credibility adverse to the applicant. It was entitled to do so, credibility being a matter for the Tribunal alone.[220]
[220] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J; SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM; WZANZ (No. 2) at para.93 per Lucev FM.
In SZJEH the Federal Court said that:
a)“disagreement with findings of fact made by a Tribunal does not support a contention that the Tribunal failed to consider the evidence properly or fairly”;[221] and
b)“it is well established that findings of credit are a matter for the Tribunal and absent some error going to the jurisdiction of the Tribunal, the decision of the Tribunal is not open to judicial review”.[222]
[221] SZJEH at para.14 per Jacobson J.
[222] SZJEH at para.17 per Jacobson J.
The findings in the Second Tribunal Decision as to the applicant’s credibility were supported by significant evidence to which it referred, including:
a)the illogicality of a persecuted Ahmadi family building a mosque in their front yard;
b)the unlikelihood of the applicant returning to Sahiwal, the nearest centre of Ahmadi worship to his village, after the Mosque Incident to register his religious belief, which at that time served no particular material purpose;
c)the applicant’s failure to seek out Ahmadi religious groups in Australia, and his association with mainstream Muslim groups, which ran contrary to his assertion that he did not associate with Ahmadi religious groups for fear of revealing his migration status;
d)the appearance that the Verification of Belief Document and the Ahmedi Religion Certificate bore two difference signatures of what was purported to be the same person;
e)the applicant’s “propensity to make misrepresentations and rely on fraudulent documents”,[223] including:
i)the applicant’s visa application and travel documents for entry into Australia;
ii)whilst working illegally, his use of identification documents (a Medicare card) belonging to another person so as to try to conceal his identity from the Department during a raid by the Department on his employer; and
iii)the making of a false declaration to the Red Cross in respect of ASAS, to the effect that he was living apart from his wife, and the maintenance of the truth of that representation throughout the Tribunal Hearing whilst under oath, and not conceding that his evidence was false until post-hearing submissions.[224]
[223] Second Tribunal Decision, CB 240.
[224] Second Tribunal Decision, CB 241.
The Tribunal did, and was able to, reject the authenticity of documents on the basis of adverse findings as to the applicant’s credibility. The Tribunal was able to do so because this is one of those cases where the Tribunal having made adverse credibility findings, can use those adverse credibility findings as a basis for rejecting allegedly corroborative documentary evidence relied upon by the applicant.[225] That is all the more so when those credibility findings are based in part, and perhaps in large part, on the willingness of the applicant to rely upon:
a)false documents to enter Australia;
b)false identity documents to conceal his identity from the Department; and
c)a false declaration to a charitable organisation (the Red Cross) to obtain a financial advantage in his capacity as an asylum seeker.
[225] WAGU at para.34 per French J: “adverse … credibility … findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant” and para.36 per French J: “corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility … a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness.”, followed in WAKK at paras.68-70 per Marshall, Mansfield and Siopis JJ; SZGJY at paras.25-26 per Collier J.
The Tribunal did not however only rely upon its adverse credibility findings with respect to the applicant, but also on:
a)the “logical flaws in some of the documents”,[226] and in particular the Verification of Belief Document and the Ahmedi Religion Certificate of which is said:
[226] Second Tribunal Decision, CB 242.
· the signatures [of Mr Rehman] on the two documents appear to be very different from one another, raising some doubt about their authenticity because if the documents were each signed by the same person the Tribunal would expect the signatures to be quite similar;
· the second document contradicts the applicant’s claims in two ways because it suggests that he was first registered as an Ahmadi at Sahiwal in May 2003. This contradicts the applicant’s claims to have been an Ahmadi all of his life, and also to have fled from Sahiwal to Lahore some four months earlier (approximately two months after the claimed attack on the family home in about November 2002); and
· in an attempt to explain this inconsistency the applicant has indicated, for the first time, that although he was an Ahmadi all his life he only became registered in may 2003, and the he did so when he returned to Sahiwal in secret.[227]
and then went on to find that:
i)it did not accept the applicant’s belated claim that he went back to Sahiwal;[228] and
ii)even without there being different signatures raising some doubt as to the authenticity of the two documents, the documents would not be considered by the Tribunal to be reliable because of the illogicality and inconsistency in the assertion that the applicant returned to Sahiwal;
b)country information, which was undisputed, to the effect that officials in Pakistan could be bribed “to issue authentic but false documents.”[229]
[227] Second Tribunal Decision, CB 240.
[228] Second Tribunal Decision, CB 240.
[229] Second Tribunal Decision, CB 242.
The applicant complains that:
a)he was not given an opportunity to comment on the evidence; and
b)there was no evidential basis for the Tribunal dismissing the evidence.
The evidence in the above context refers to the documents particularised in ground 1.3. They were:
a)the Death Certificates and Birth Certificate;
b)the Police Report; and
c)the Land Transfer Document.
With respect to each of those documents the extracts from the transcript set out above[230] demonstrate that each of the abovementioned documents was put to the applicant during the hearing. Moreover:
a)the authenticity of the Verification of Belief Document and the Ahmedi Religion Certificate was questioned by the Tribunal;[231]
b)the Tribunal expressed its concern about the falsity of other documents, and in particular the travel documents upon which the applicant entered Australia; and
c)the Tribunal subsequently concluded that the Red Cross ASAS declaration was false in relation to the applicant’s marital position.
[230] See para.103 above.
[231] Tribunal’s 31 December 2008 Letter, CB 190-191.
The authenticity of the particular documents referred to by the applicant in ground 1.3, and other of the applicant’s documents generally, loomed large as an issue in the Second Tribunal Hearing. The issues concerning the authenticity of the documents were put to the applicant for comment either at the Tribunal Hearing or in correspondence from the Tribunal.
The assertion that there was “no evidential basis” for dismissing the documents relied upon by the applicant, is subtly altered in the particulars to “without there being any or any sufficient evidence”.
The evidential basis for the conclusions with respect to the particularised documents is, however, apparent from the Second Tribunal Decision. That basis included:
a)the Tribunal’s conclusions with respect to some of the documents, notably the Verification of Belief Document and the Ahmedi Religion Certificate; and
b)the country information,
when considered with the other documents referred to generally by the Tribunal, and which, in combination with the particularised documents, were also used to make credibility findings concerning the applicant.
The Tribunal correctly identified the issues in these proceedings, and upon the evidential basis set out above it proceeded to:
a)examine and weigh the evidence; and
b)arrive at conclusions which founded the Second Tribunal Decision to affirm the Delegate’s Decision not to grant the Protection Visa Application, on the basis that the applicant had failed to satisfy the Tribunal that he had a well-founded fear of persecution in Pakistan.
The above approach discloses no jurisdictional error. Ground 1.3 is therefore not made out.
Ground 1.4
The ground
Ground 1.4 of the Amended Application pleads that 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 ground 1.4 are as follows:
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.
Applicant’s submissions
The applicant submits that:
a)the Second Tribunal Decision confuses Sahiwal, which is a substantial city, with the applicant’s small village, Chach.[232] It was in Chach where the incidents upon which the applicant’s claim is based took place, and based on its error, the Tribunal made an adverse finding as to the applicant’s credibility. There was no evidence that the applicant had been warned not to return to Sahiwal rather than his village, and there was no evidence that he did in fact return to his village. It was safe for him to return to Sahiwal, where there was an Ahmadi community and mosque, with which he had had contact in attending the mosque, and unremarkable that he should have gone to seek the assistance of that community after he had effectively been expelled from his own community; and
b)the website of the Ahmadiyya Muslim Association of Australia does not “indicate that there are association offices across Australia including in both South Australia and Western Australia”.[233] There was no other evidence before the Tribunal showing the existence of Ahmadi organisations in South Australia and Western Australia which the applicant could have contacted, and no compelling reason for him to have done so.
[232] Second Tribunal Decision, CB 238-239 and CB 240; CB 29.
[233] Second Tribunal Decision, CB 236, see also CB 239.
Respondents’ submissions
The respondents submit that:
a)this ground asserts that the Second Tribunal Decision was affected by findings on errors of fact unsupported by any or any sufficient evidence, in that it was found that:
i)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
ii)confused the city of Sahiwal with the applicant’s village which was some 25 kilometres from Sahiwal, which is essentially a factual challenge concerning the applicant’s fears about returning to his village;
b)the reference in the applicant’s statement is not the only reference to “Chach”.[234] The respondents observe that there are also references to “Chak” on the Birth Certificate and the Death Certificates. Additionally, there are numerous references to the applicant’s “village” in the applicant’s statutory declaration of 19 December 2007,[235] in the Land Transfer Document,[236] the Police Report,[237] the Verification of Belief Document[238] and the First Tribunal Decision.[239] The First Tribunal Decision noted that “the nearest Ahmadi Mosque is 22 kilometres away in the District centre (Sahiwal). This was also the location of the nearest Ahmadis. The applicant said he and his family would go there every few months.”;[240]
c)the various references to the applicant’s village specifically, and generically, need to be read in the light of the applicant’s statement that:
My father has best friend in Lahore. I went there. I was very upset. All day sitting at home. After two month he said you cant go bach. If They find you here They will come here. Why not your foreign country. I said okay.[241]
d)the phrase “you cant go bach” in the above quoted passage does not draw a distinction between going back to Sahiwal or going back to the applicant’s village. The Second Tribunal Decision reasoning is not illogical. If the applicant was fearful in Lahore, it must follow that the applicant would have been fearful to be in Sahiwal which was, according to the applicant, only 22 kilometres away from his home village; and
e)this was only one aspect of the Second Tribunal Decision reasoning. The Tribunal found the applicant lacked credibility on a number of bases. Therefore, if, which is denied, the Tribunal misconceived the applicant’s evidence, there was no jurisdictional error in doing so.[242] The Court is being invited to overturn findings of fact made by the Tribunal and to engage in merits review in so doing. This ground ignores the Tribunal’s conclusion that the applicant lacked credibility, a conclusion reached having regard to a number of matters, no one of which matters was determinative.
Consideration
[234] CB 29.
[235] CB 51-53.
[236] CB 75.
[237] CB 76.
[238] CB 119.
[239] CB 136.
[240] CB 138.
[241] CB 30, typed from the original without amendment.
[242] WAKK at paras.46-47 and 58-63 per Marshall, Mansfield and Siopis JJ.
Contact with Ahmadi organisations
The applicant asserts that there is no evidence to support the finding that the applicant could have made contact with other Ahmadis by accessing the website of the Australian Ahmadi Association.
The above sub-ground of ground 1.4 actually miscasts what was said by the Tribunal. The Tribunal did not say that contact with other Ahmadi adherents could have been made by accessing the website. What the Tribunal actually said was as follows:
The Tribunal was also puzzled by the apparent gap between the level of the applicant’s devotion to the Ahmadi faith in Pakistan, which he says has been to his own detriment, and his evident failure to seek out any Ahmadi organisation once he arrived in Australia, despite the fact that according to their website, Ahmadi groups have a presence in both States of Australia where the applicant has resided, and information about them would appear to be readily available.[243]
[243] Tribunal Decision, CB 239.
That finding was made on the basis of an earlier observation by the Tribunal as follows:
The website of the Ahmadiyya Muslim Association of Australia Ltd accessed by the Tribunal from on 1 December 2008, indicates that there are association officers across Australia including in both South Australia and Western Australia.[244]
[244] Tribunal Decision, CB 236.
At the Tribunal Hearing on 4 December 2008 the Tribunal had said to the applicant as follows:
Okay. I’ve got a document here which I downloaded from the internet. It’s from the Ahmadiyya Muslim Association of Australia. ahmadiyya.org.au and it lists the head office in New South Wales and offices in all of the States and Territories, except Tasmania and the Northern Territory. There’s addresses and contact numbers here in Western Australia and also in South Australia in Passadena.[245]
[245] Tribunal Hearing Transcript, page 34.
What was put to the applicant in the hearing, and what was reflected in the Second Tribunal Decision, was that there were Ahmadi offices in Western Australia and South Australia, where the applicant had lived since arriving in Australia, and that the contact details for them were available on the internet, and that it was therefore surprising that the applicant had not been able to make any contacts within the Ahmadi community in Australia. That is certainly the context in which the above quoted passage appears in the Tribunal Hearing Transcript as it is preceded by the following:
[Tribunal Member] Okay. Now, are you having any contact or have you had any contact at all with the Ahmadi community in Australia?
[Applicant/Interpreter] No, I don’t have, actually there is no Ahmadis where I am at the moment. I’ve tried, in fact I made a lot of effort to find if I … if there is any other Ahmadis here, but I couldn’t find one.[246]
[246] Tribunal Hearing Transcript, page 34.
That the applicant understood that the reference to the State offices was about whether or not he had contacted them is evident from his comment that:
I’m not very literate and I didn’t know what … getting off the internet. So I made all efforts from my side but I didn’t know about it. Now that I know, may be I’ll try contact them.[247]
[247] Tribunal Hearing Transcript, page 34.
The Tribunal’s processes are inquisitorial. It can access information on its own account, and bring it to the attention of the applicant, as it has done with the information concerning Ahmadi Association addresses in Western Australia and South Australia. Having regard to the material put by the Tribunal to the applicant at the Tribunal Hearing there was ample justification for the Tribunal’s comment concerning the possible means of the applicant accessing information concerning Ahmadi groups in South Australia and Western Australia. To access such information, and to put it in this manner to an applicant, does not disclose jurisdictional error. Nor in this case does it disclose error at all because it was not put in the manner suggested by the applicant in ground 1.4. Moreover, even if the assertion by the applicant was correct, it would be an error with respect to a matter of fact within jurisdiction, and therefore not a matter for this Court to deal with on a judicial review application.[248] In any event it is not a jurisdictional error to make a wrong finding of fact.[249]
[248] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.10 per Gray, Tamberlin and Lander JJ; SZESZ v Minister for Immigration [2005] FMCA 883 at para.34 per Lloyd-Jones FM.
[249] MZWBW at para.28 per Black CJ, Sundberg and Bennett JJ.
This aspect of ground 1.4 is therefore not made out.
Sahiwal
The Court does not accept that the Tribunal confused the city of Sahiwal with the applicant’s village which was either 22 or 25 kilometres distant from Sahiwal. The references to going back might refer to either the applicant’s village or the Ahmadi Mosque at Sahiwal, given that it was the applicant’s evidence that this was the closest centre of Ahmadi faith worship to his village. The Court therefore does not accept that there was the confusion as asserted by the applicant in ground 1.4. Even if there was such confusion, it was as to a matter of fact, and any error was an error of fact, within jurisdiction, and therefore not a matter for this Court on judicial review, and not capable of giving rise to jurisdictional error.[250]
[250] MZWBW at para.28 per Black CJ, Sundberg and Bennett JJ.
This aspect of ground 1.4 is therefore not made out. As the other aspect of ground 1.4 was also not made out, ground 1.4 in its totality is not made out.
Enquiries
Although Tribunals may, in the past, have made enquiries concerning an applicant’s religious affiliations, or issues or documents associated therewith, there was no obligation on this Tribunal to do so, and no jurisdictional error as a consequence of it not making further enquiries in relation to any issue in this case.[251]
[251] Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.
Conclusion and orders
The Court has concluded that none of the three remaining grounds of the application have been made out. The application must therefore be dismissed.
There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 29 June 2012
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