Ahmed v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2001-05-04|Before: Hely J

REASONS FOR JUDGMENT 1 The applicant is a citizen of Bangladesh who arrived in Australia on 5 July 1996. His application for a protection visa was refused by the Minister's delegate, and he sought a review of that decision by the Refugee Review Tribunal ("RRT"). On 9 September 1998 the applicant attended a hearing of RRT. At that time RRT was constituted by Saku Akmeemana. The hearing was recorded. The transcript which appears in the Relevant Documents is imperfectly translated or transcribed, as the answers to certain questions are obviously incomplete. 2 On 20 June 2000 the case was re-allocated to Chris Keher due to the retirement of Saku Akmeemana from RRT. The applicant was advised of this by letter dated 12 October 2000. By that letter, the applicant was given a period of 12 weeks within which to provide any further information. The letter stated: "The Member does not propose to have another hearing unless you can provide reasons as to why a further hearing is necessary. If you consider that a further hearing is necessary you may make submissions to the Member who will then decide whether to grant that request." 3 An Immigration Consultant acting for the applicant responded to that letter on 4 December 2000. The response was that in the applicant's belief, he had provided sufficient documentation to enable RRT to consider his application, and he requested RRT to consider the application on the basis of the documents on the file. There was no specific mention of the matter of a further hearing, but the Minister did not contend that this letter amounted to a consent in terms of s 425 (2)(b). 4 The application for a Protection Visa was originally made on 2 August 1996. The forms of application include the following questions and answers: - I am seeking protection in Australia so that I do not have to go back to: Bangladesh

Why did you leave that Country? Please see my statutory declaration which will be provided to you shortly through my agent.
- What do you fear may happen to you if you go back to that country? Please see my statutory declaration.

The applicant was engaged in a peaceful demonstration in the streets of Bangladesh handing out leaflets, putting up posters and shouting slogans. The demonstration was against the discrimination, torture and rape of the Bihari people and the confiscation of their property. The police opened fire and a pedestrian was killed. On 22 January 1996 the applicant and others were arrested and falsely accused of killing the pedestrian.

A charge sheet and warrant of arrest was issued in relation to the applicant on 15 June 1996. 7 A further statutory declaration was made by the applicant on 27 August 1998. From that the following claims emerged: - After his arrest on 22 January 1996, the applicant was released on bail on 15 February 1996.

The applicant left Bangladesh to visit Hong Kong on 28 May 1996 but could not obtain shelter there. On 7 June 1996 he obtained an Australian visitors visa in Hong Kong after which he returned to Bangladesh.

On his return to Bangladesh on 17 June 1996, the applicant learnt of the charges which had been laid on 15 June 1996 arising out of the death of the pedestrian killed by police gun fire and the peaceful demonstration held on 22 January 1996.

On 4 July 1996 the applicant left Bangladesh. In the further statutory declaration he explains why he was able to do so without any trouble with the authorities. 8 On 7 December 2000, RRT affirmed the decision not to grant a protection visa. RRT stated that it had read the transcript of the hearing held on 9 September 1998, and the material submitted by the applicant at, and after, the hearing. 9 RRT identified three serious problems which it had with the applicant's claims and evidence: First: In his original application, the applicant made no mention of his being Bihari, or that he speaks Urdu (the language spoken by Biharis). Nor did he mention the problems which he had with the police arising out of the peaceful demonstration in which he participated in January of 1996, including the laying of a false charge of murder, or the issue of a warrant for his arrest. RRT's conclusion was that the claims were fabricated.

Second: The applicant "claims he had no difficulty in obtaining" his Bangladesh passport. But when he lost it, the Bangladesh authorities refused to issue a duplicate as they said that the photograph on the photocopy provided by him was not the same as on their records. This is a problem in relation to the identity of the applicant. A matter which raised a "like concern" is that in his original application, the applicant stated that from June 1992 until July 1996 he lived in Kotwali at 29/1 Kumar Taly. This is also the address given on his passport issued in 1992. Other documentation issued in that period of time stated that he was living in the Geneva Refugee Camp in the Mohammadpur area of Dhaka. These are inconsistent claims. RRT concluded that the applicant fabricated his history of being in Geneva Camp.

Third: Whilst the applicant claimed to be a member of SPGRC he did not even know what SPGRC stands for. He said at the hearing that it stood for Stranded Pakistanis Geneva Camp, whereas in fact it stands for Stranded Pakistanis General Repatriation Committee. This was significant when viewed in conjunction with RRT's other concerns. It indicated that the applicant was not in fact a member of the SPGRC. 10 RRT concluded that the applicant was not a credible witness. Based on the independent evidence relating to documentation fraud in Bangladesh, it found that the documents which he produced in support of his claims were not genuine. It found that the applicant was not a member of SPGRC; is not a Bihari as claimed and is not stateless; did not live in Geneva Camp; is a citizen of Bangladesh, and therefore is not a refugee.

Grounds of Review: Failure to comply with the Procedures contained in Division 4, including the right to hearing 11 The first ground identified in the amended application is based on s 476 (1)(a) of the Act. Although particularised in various ways, the essence of the complaint is that contrary to s 425(1), the Tribunal (as constituted by Mr Chris Keher) purported to determine the application without first inviting the applicant to appear before him. 12 Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 49 ("Liu") is a case similar to the present. Wilcox J described that case as raising only one issue: the validity of a decision made by a different member of RRT than the member who presided at the oral hearing provided to the applicant under s 425 of the Act. His Honour concluded that the Act does not require the oral hearing to be conducted by the person who makes the ultimate decision. An alternative submission that a member who has not personally heard the applicant is precluded from making a decision that is founded on an adverse view of the applicant's credit was also rejected: "Nowhere does the Migration Act distinguish between cases where credibility is critical and cases where it is not". 13 Where the Tribunal is reconstituted under s 422 or s 422A of the Act, the duty of the member is "to continue to finish the review" (s 422(2)) or "to continue and finish the review" (s 422A(3)). The Tribunal as reconstituted may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted (s 422(2)) or by the member who previously constituted the Tribunal (s 422A(3)). The slight differences in the wording of s 422(2) and s 422A(3) to which I have referred are not indicative of any difference of substance. 14 Both parties accepted that the tape recording of the hearing held on 9 September 1998 formed part of the record of the proceedings to which the Tribunal may have regard under s 422(2). Both parties also accepted that s 422(2) and s 422A(3) confer a discretionary power on the Tribunal to have regard to the record of the Tribunal made prior to its reconstitution, without imposing any duty on the Tribunal to have regard to that matter. Thus, for example, a reconstituted Tribunal might decide to conduct its own hearing, and take no account of any record of a hearing conducted by the previous member. 15 In Liu it was accepted that the reconstituted RRT listened to the tape recording of the hearing which took place prior the reconstitution of the Tribunal. There is an issue in the present case as to whether Mr Chris Keher listened to the tape of the hearing conducted on 9 September 1998, and if he did not, whether that is of legal significance. 16 As to the first issue, ie whether Mr Keher listened to the tape of the hearing, I have no direct evidence on that question, except the terms of the decision itself. The decision states: "The applicant also gave oral evidence to the previously constituted Tribunal on 9 September 1998, I have read the transcript of that hearing... The tape was transcribed on 1 August 2000, after the reconstitution of the Tribunal. The transcript includes the following: "M Do you know what SPGRC stands for? I/A A Standard Pakistan Geneva Camp." In its decision RRT recorded that at the hearing, the applicant had said that SPGRC stood for Stranded Pakistanis Geneva Camp (my emphasis). 17 Counsel for the Minister submitted that this departure from the transcript of the hearing indicates that RRT had listened to the tapes, otherwise it would have simply adopted the formulation of the applicant's response as set forth in the transcript. "Standard" does not make sense as the first word in the description of the body known as SPGRC. There were newspaper articles before RRT provided by the applicant which described SPGRC as "Stranded" Pakistanis General Repatriation Committee. I would not be prepared to infer that RRT listened to the tapes of the hearing merely by the reason of the fact that in its decision RRT changed the reference in the transcript to "Standard" (which was obviously incorrect), to "Stranded". The change is explicable on the basis of a perception on the part of RRT, derived otherwise than by listening to the tapes, that "Standard" was a typographical or transcription error for which the applicant was not responsible. 18 I accept the submission of counsel for the applicant that I can and should infer from RRT's account of the claims and evidence which were before it that, whilst RRT read the transcript of the hearing conducted before the previous member, it did not listen to the tapes of that hearing. I draw that inference because RRT was careful to specify the material to which it had regard, and it specifically referred to the transcript of the hearing without any reference to the sound recording from which the transcript was derived. Given the number of question marks and ellipses which appear in the transcript, in some cases in areas of significance, one would have expected that if those gaps were overcome by listening to the tapes, or even if the member could not improve on the transcript after listening to the tapes, then there would have been some specific reference to that fact in the reasons for decision. 19 The following propositions were not in contest: - RRT is under mandatory obligation to review the delegate's decision: s 414(1);

"review" involves a careful re-examination of the primary decision with a view to amending or improving it: Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 ("Sellamuthu");

subject to presently immaterial exceptions, s 425(1) confers upon an applicant a right to appear before RRT to give evidence and present arguments. The importance of the right has been emphasised in a number of cases;

the obligation on the Tribunal as reconstituted is "to finish the review";

as earlier indicated, where the Tribunal is reconstituted, there is a discretionary power to have regard to any record of the proceedings made by the previous member. 20 In the applicant's submission the important right given to an applicant by s 425 cannot be stultified by the reconstitution of the Tribunal. The Tribunal may choose not to have regard to the record of the previous hearing, but if it chooses to proceed in that way, then it must issue its own s 425 invitation to attend a hearing before the reconstituted Tribunal. Unless that is done the right given by s 425 would be stultified. In such a case the Tribunal would not be finishing the review for which the Act makes provision, but undertaking an inferior type of review, in which the s 425 hearing or its results had no role to play. That is not, of course, the present case, as RRT had regard to the transcript of the hearing before the previous member, although there were imperfections in the transcript. 21 One of the reasons that RRT concluded the applicant had fabricated his claims is that no mention was made in his original application of his arrest and the laying of false charges of murder. The applicant's explanation of how this came to pass was of obvious and critical significance to his credit. The transcript of the hearing insofar as it concerns this topic, is as follows: "M The claims you made about the false charges made against you, you didn't raise this matter in you original application you only mentioned the general discrimination suffered by Bihari's in Bangladesh. Is there a reason why you didn't mention this original application. I/A I I had ?? in Bangoli. M Who did… I/A I I was given in 8-9 column about… I said that… even the papers my solicitor. M Yeh but that wasn't submitted until the 24th of January 1997. In the original application that you lodged in August 1996, there was no mention? I/A I Yes I… (A) I given ask for some time, I told my solicitor that I could get some papers regarding that and I had some… I don't know they missed it out but I had given everything… M If false charges have been laid against you, why do you think it was laid because of one of the convention reasons, because of your race religion nationality, membership of a social group or political opinion? I/A I Because we are ?? Pakistan Military, we are not Pakistan they don't regard us very nice… that is one thing. One Bangoli guy, police won't let me.. (A) and we couldn't say anything, when the police said we killed him because as it is we are regarded, because are to help the Pakistani army, we are not regarded very nicely there. People don't look on us very nicely. And police saying that we killed that Bangoli person, was all against us we couldn't say anything, they had to protect us. It might be thought that the applicant's answer to the first question put to him by the previous member is opaque but, at least to my mind, it is by no means clear whether that is because he had difficulty in answering the question, or because of difficulties which were experienced in recording or transcribing the answers which he gave through his interpreter. The "???" and "..." found in the transcript suggest that the latter is at least a possibility. 22 The applicant's contention, as I understood it, is that notwithstanding Liu there are cases in which the reconstituted Tribunal must itself conduct a hearing. Those cases occur when the Tribunal proposes not to have regard to the hearing conducted by the previous member, or when it proposes to have regard to less than the whole record of that proceeding, such that the reconstituted Tribunal is not finishing the review commenced by the previous member, but undertaking a review less than the review for which the Act makes provision. 23 The applicant also submitted that I should not follow Liu because it is obviously wrong. That submission was put, but not developed. In my view the discussion in Liu is not obviously wrong, and I should follow it, although that decision does not govern the outcome of the present case because of the different circumstances. 24 In my view, the applicant's contention fails. RRT, as originally constituted, complied with s 425. As Wilcox J observed in Liu, if Parliament had intended to require the substituted member to hold a fresh oral hearing, the appropriate course would have been to insert a requirement to that effect in s 422 and s 422A. But Parliament did not do this. Instead, it commanded the substituted member merely to "finish the review" with an express provision that, for that purpose, the substituted member was entitled to have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. 25 The decision whether to have regard to a record of the proceedings of the review made by the previous Tribunal involves the exercise of a discretion. A discretion may be appropriately or inappropriately exercised. But an inappropriate exercise of the discretion under s 422 cannot revive obligations under s 425(1), which have already been discharged. There is no interdependence between s 422 and s 425, such that s 425 springs up again if the exercise of the s 422(2) discretion in some way miscarries. 26 Let it be assumed that the substituted member decides not to conduct a further hearing himself and decides not to have regard to the tapes or transcript of the hearing conducted by the previous member. The Minister submitted, and I accept, that in such case there may be an issue as to whether the decision is vitiated by Wednesbury unreasonableness, but that is not an issue justiciable in this Court: s 476(2). Even in the extreme case postulated, there has not been a failure to observe procedures that were required by the Act in connection with the making of RRT's decision, because the Act does not require the substituted Tribunal to conduct a second s 425 hearing. An obligation to "finish the review" is not aptly described as a procedure required by the Act to be observed in connection with the making of a decision. 27 The present case falls short of the extreme case postulated. The substituted member read the transcript. Strictly, the circumstances in which the transcript was prepared are such that it is not a record made by the Tribunal as previously constituted, but it was not submitted that this of itself was a vitiating factor. Whilst the member concluded that the applicant was not a credible witness, that conclusion was not based on any supposed advantage enjoyed by a trier of fact who observes a person giving evidence. There were other, and it might be thought, more satisfactory ways of "finishing the review" than reading an obviously incomplete transcript of the hearing before the previous member. However, that does not mean that there has been a failure to comply with s 476(1)(a).

Failure to make findings as to whether the applicant had a well founded fear of persecution in the event that he was returned to Bangladesh 28 The applicant submits that notwithstanding RRT's rejection of the applicant's specific claims, RRT was required to consider whether a person in the position of the applicant, on its own findings, had a well-founded fear of persecution for a convention reason: Sellamuthu. In that case, even though RRT disbelieved the applicant's claims as to his association with Tamil Tigers, he was a young male Tamil, and there was evidence that young male Tamils suffered a real risk of harm that qualified as persecution on a convention ground if they returned to Sri Lanka. RRT was required to consider what would happen to him if he were to return to Sri Lanka. 29 It is true that there was independent evidence before RRT as to the position of Biharis in Bangladesh. But RRT found that the applicant was not a Bihari. It was therefore not obliged to consider what would happen to a Bihari if returned to Bangladesh. 30 The applicant arrived in Australia apparently on a false passport, which he claims he obtained from a broker. He did not claim to fear persecution because he left the country on a false passport, nor was it ever part of his claim that Urdu speakers per se face persecution. 31 Unlike Sellamuthu, in this case there was no underlying claim that survived the rejection of specific claims that RRT was required to assess.

The failure to consider whether to obtain further evidence 32 RRT made sweeping findings as to the credibility of the applicant without ever hearing from him, or seeing him, or listening to him. In the view which I take, that did not involve any legal error on the part of RRT, although it must be only in extreme cases that claims can be dismissed as incredible in those circumstances. Whether this is such a case was a matter for RRT to decide. 33 The applicant contends that it was open to RRT to take a variety of additional steps to assess the applicant's claims. It could have, but did not, seek independent authentication of his documents and identity card. It could have made enquiries of the lawyer, Mr Sahiguddin who was put forward by the applicant as having acted for him in relation to his arrest in 1996. Enquiries could have been made of the migration agent, Mr Dent, who lodged the original application form for a protection visa to find out why there was no specific reference to the applicant's Bihari status on the original application, and why it was completed in the way that it was. The applicant did not put his case on the basis that RRT was duty bound to make any particular enquiry. The duty on which he relied was a duty to consider whether to make enquiries. 34 The applicant submits that the only inference that can be drawn from RRT's reasons is that it failed to consider whether or not to obtain further evidence. That is submitted to be a reviewable error: Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 289; Al Shamry v Minister for Immigration and Multicultural Affairs [2000] FCA 1679 at [38]-[42] ("Al Shamry"). 35 RRT does refer to independent evidence relating to documentation fraud in Bangladesh, but it does not make any specific statement in its reasons as to whether it considered whether it should try to obtain further evidence against which to assess the applicant's claims. I do not think that I am in a position to make a positive finding, one way or the other, on whether RRT gave consideration to that matter. I simply do not know whether it did or not. 36 In Yusuf v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 470 ("Yusuf") Finn J specifically rejected the proposition that the Act imposes an implied obligation on RRT to consider the exercise of the power to obtain further evidence. The decision of Finn J in Yusuf was cited with approval by Ryan J in Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470. His Honour pointed out that Finn J's reasoning in Yusuf was not revisited by the Full Court on the subsequent appeal in that case. 37 In Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277, French J reviewed earlier decisions of this Court which recognised that in some circumstances a duty to make further enquiries might exist. His Honour pointed out that those decisions arose in settings where there was, or was assumed to be, a wider range of grounds of review available than is now accepted to be the case under the Act. 38 In Al Shamry Madgwick J held that in appropriate circumstances RRT was obliged to consider whether it is necessary to obtain further evidence for the conduct of the review. That decision was based upon the decision of Foster J in Yao-Jing v Minister for Immigration and Multicultural Affairs (supra), which Finn J declined to follow in Yusuf. However, Madgwick J made no reference to Yusuf. In Kabir & Ors v Minister for Immigration and Multicultural Affairs [2001] FCA 248 Katz J reviewed the authorities on the fact that s 427(1)(d) of the Act does not impose an obligation on RRT to make enquiries. His Honour said that he regarded Al Shamry as having been decided per incuriam as there was no reference in Al Shamry to those authorities. In Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 a Full Court proceeded on the basis that s 427(1)(d) of the Act does not impose any duty on RRT to make further enquiries. 39 In my view, the cases on which the applicant relies to support the existence of a reviewable error arising from breach of a duty to consider making further enquiries are outside the mainstream of decisions of this Court on that question. If RRT failed to consider whether to undertake further enquiries into the applicant's claims, that would not amount to reviewable error.

The adverse credibility finding was based upon matters which did not exist and for which there was no evidence 40 In the applicant's submission the RRT's decision was "based", in the sense of s 476(4)(b), on the supposed facts that: - his Bihari Status was mentioned only in his statutory declaration and not in his original application; and - that he had claimed he had no difficulty in obtaining a passport. 41 Each of those findings is said to be a finding on which RRT's assessment of credibility was "based" within the meaning of s 476(4)(b), in that they were findings which contributed significantly to the way in which RRT rejected the applicant's credibility: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 ("Rajamanikkam"). 42 In the applicant's contention there was no evidence for either of those facts because: - his Bihari status was in fact contained in his original application. It was expressly incorporated by reference; - he never claimed that he had no difficulty in obtaining a passport. 43 In my view there is no substance in the first point. The document to which RRT refers as "his original application" is the application for a protection visa completed on 2 August 1996. That application discloses that the applicant speaks Bengali and English, but makes no reference to his speaking Urdu. It describes the ethnic group to which the applicant belongs as "Bangladeshi" rather than Bihari. RRT is correct in finding that the applicant did not state, on that form, that he was Bihari. Nor was there any reference on the form to what RRT correctly referred to as the "main incident" of a claimed history, namely that he was arrested because he was a participant in a Bihari demonstration and falsely accused of murder with a warrant later issued for his arrest. 44 The point which RRT makes is that it was not until the statutory declaration was submitted that the applicant's claims emerged. The fact that the application foreshadowed that such a declaration would be submitted might be thought to blunt what might otherwise be the force of the criticism that the claims were not included in the original application. But that was a matter for RRT to assess. RRT's conclusion on the first point was not based upon any factual misconception. 45 As to the second point, the Minister has been unable to direct my attention to any material which would support RRT's statement that the applicant claims he had no difficulty in obtaining his Bangladesh passport. I conclude that no such claim was made by the applicant. 46 Rajamanikkam was a case in which RRT found that the applicant for a protection visa was not a credible witness, and identified eight factors leading it to conclude that he had concocted his primary claims. The Full Court held that two of the factors upon which RRT had concluded that the refugee claimant's claims were concocted were based on facts which did not exist. The Full Court stated (at [49]): "Thus it was the combination of factors which caused the Tribunal to doubt the respondent's claims. It was the accumulation of difficulties with this evidence which led to its conclusion. Each of those two facts which have been shown not to exist was integral to a factor which comprised part of that accumulation. Neither of those two matters is therefore of peripheral importance to the decision." 47 In Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 the Full Court said that it was necessary, but not sufficient, to make out the "no evidence" ground of s 476(1)(g) to satisfy the requirements of s 476(4). The Full Court said that the application of s 476(1)(g) cannot be allowed to involve a qualitative assessment of the evidence and other material before RRT, and in particular, does not entail reconsideration of the "weight" which should be given to that evidence and other material. 48 In the present case RRT declared itself not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention. I do not see how it can be said that there was no evidence before RRT justifying its not being satisfied of that matter. I have already referred to the three factors which led it to find the applicant was not creditworthy. The erroneous observation that the applicant claims that he had no difficulty in obtaining his passport was in no sense critical to the credibility finding: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212. In any event there was other material which could justify that finding. The present case is similar to Rajanayake v Minister for Immigration and Multicultural Affairs [2001] FCA 352, a decision of Lindgren J, with which I respectfully agree. 49 I note the Minister's submission made in order to preserve his position in case of an appeal that s 476(4)(b) does not apply to findings as to credibility or factual findings on which credibility findings are influenced. In view of my conclusion that the operation of s 476(1)(g) is not enlivened in the present case, it is not necessary for the Minister's further submission to be pursued.

Conclusion 50 The application is dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate: Dated: 4 May 2001 Counsel for the Applicant: Mr M Leeming

Solicitor for the Respondent: Blake Dawson Waldron

Migration Act 1958(Cth)s 414(1), 425(1), 425(2)(b), 422(2), 422A(3), 427(1)(d), 476(2), 476(1)(a), 476(1)(g), 476(4)(b)

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