Applicant S1507/2003 v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of Scarlett FM given on 29 September 2006. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') made as long ago as 22 January 1998. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant to the appellant a Protection Visa. The notice of appeal by the appellant alleges three grounds: '1. His Honour erred by failing to find that the Refugee Review Tribunal ("RRT") made jurisdictional error by failing to consider that the applicant was not given notice of Tribunal's concerns about authenticity of documents and was not afforded an opportunity to comment. 2. His Honour erred by failing to find that the Refugee Review Tribunal ("RRT") made jurisdictional error by failing to make any findings as to whether serious charges against the Appellant amount to persecution for a Convention reason. 3. His Honour erred by failing to find that the RRT made jurisdictional error by failing to have regard to section 430 and in particular s430(1)(c) and (d). The RRT constructively failed to exercise jurisdiction and thus the Tribunal made a jurisdictional error.' 2 In written submissions by the appellant to this Court today the appellant says: 'My current submission is based on the submission made by counsel in the Court below.' 3 Before Scarlett FM, the appellant had been represented by counsel who had made extensive submissions. The issue on this appeal is whether the Court below erred in concluding that the appellant had not been denied procedural fairness by the Tribunal. That alleged denial is predicated on the factual contention that the Tribunal did not accept the authenticity of documents produced by the appellant in circumstances where it had not raised concerns about the authenticity of those documents with him. 4 The second ground in the notice of appeal raises the question of whether the Tribunal erred by failing to find whether serious charges against the appellant amounted to persecution, a ground not raised before the Federal Magistrate, and the third ground asserts that the Tribunal fell into jurisdictional error in breaching s 430 of the Migration Act 1958 (Cth) ('the Act'). I take that to be a reference to the fact that the Tribunal made no specific findings about the authenticity of the documents which the appellant had produced to the Tribunal. 5 In respect of the first ground and, it must be said, the primary ground, the short answer is that there was no finding by the Tribunal concerning the authenticity of documents produced by the appellant. True it is that the Tribunal expressed reservations about those documents, or at least some of them. 6 The three documents are, first, a letter addressed 'To whom it may concern' from a person who describes himself as the Secretary General of the Jatiyo Party. It is dated 10 May 1995 and in part says: 'He is an active member of Jatiya [Jatiyo] Party. He is a political Victim of present Government. He bears a good moral character.' 7 The second document is a letter from a person who is described as an advocate of the Supreme Court of Bangladesh, dated 15 July 1995, which refers to 'Information Regarding case' and says: 'With due respect that I hereby inform you that the said cases is pending for trial. …' And later: 'The necessary papers are enclosed herewith for your information. In this moment, if you come back in Bangladesh during present situated [sic] you will be in trouble. So, you will try for political shelter in abroad and you will not come back in Bangladesh without my consent. 8 Then there are a number of documents which purport to be court documents. The first page of those is headed 'First Information Report' dated 29 February 1995. There is later a charge sheet, also dated that date. 9 In relation to these matters the delegate said in his reasons for rejecting the application for a Protection Visa, after pointing to some errors in the arrest warrant: 'This is a strong indication that the arrest warrant is bogus.' 10 Later the delegate said, quoting a Department of Foreign Affairs and Trade cable: 'These letters and copies of original warrants should be treated with circumspection as procedures make it virtually impossible to obtain such documents from police …' 11 And later: 'If I were to accept that the arrest warrant provided by the applicant was real, I would consider it reasonable that he would be able to acquire a solicitor and be able to defend himself against any false charges with the support of his party.' 12 The reasons for the Tribunal, when read fairly and as a whole, indicate that the Tribunal based its decision on its assessment of the appellant's credibility. In its reasons, which appear particularly at page 79 of the appeal book, the Tribunal said: The Tribunal considers that the applicant largely exaggerated and fabricated his story in the belief that such would assist him with his claims. It was apparent from the answers and detail given by the applicant in the hearing about his political history, knowledge of the Jatio [Jatiyo] Party and the alleged incidents where he claims he was harassed and injured, that the story was contrived, and on the whole not reasonable to believe. …' 13 The Tribunal then made particular note of various matters including inconsistencies and variations as to dates when various matters happened. His knowledge of the party of which he claimed to be a high profile member was said to be minimal. He was unable to name the leaders of the party, or state the political manifesto, or explain in a believable way how he would recruit people. In particular, the Tribunal noted: 'The applicant claims at different parts of his application that he was continually harassed and threatened by his political opponents and had many false claims against him. At hearing when questioned for detail it became apparent that these general claims were not true. The applicant admitted at hearing to no problems prior to 1995, and in that year to one only. There was only one charge sheet, and the applicant when questioned did not know of its content. … The Tribunal finds, for the above reasons, the applicant not to be a credible witness and does not accept as truthful his claims of membership and involvement in the Jatio [Jatiyo] Party, his being attacked and injured, nor there being any charges against him.' 14 The decision of the Tribunal was based on its assessment of the credibility of the appellant in relation to persecution for reason of political opinion. This is not a case where the authenticity of documents was not accepted. Two letters did not require a specific finding, because of the Tribunal's findings of claims about the 1995 incident and appellant's involvement in the political party. 15 In relation to the charge sheets, the then applicant said he didn't know what that was about. The Federal Magistrate decided it was unnecessary to make any finding on it, and there was no obligation to embark on inquiry about the authenticity of the documents produced by the appellant. Nor did the Federal Magistrate find there was any ground for a legitimate expectation that the Tribunal would consider the authenticity of the applicant's documents. 16 The fact of the matter is that the general findings by the Tribunal indicated that it did not regard the contents of the documents produced by the appellant as probative of his claims. The Tribunal was not obliged to advise the appellant of any view it might have had about the authenticity of the documents. The appellant certainly was aware that his credibility was very much in issue. 17 In those circumstances there is no jurisdictional error demonstrated in the Tribunal's dealing with the significance of the documents produced by the appellant to it. The Tribunal did not make any findings about their authenticity. 18 In relation to the second ground, the Tribunal rejected as fabricated the claim that the appellant had been charged. Accordingly, it was not required to consider whether those charges could amount to persecution. That is sufficient to dispose of the second ground and it is unnecessary to consider whether the appellant ought to be able to rely on that ground, it not having been raised below. 19 In relation to the claim in the third ground of the notice of appeal as to a breach of s 430 of the Act, the obligation to provide a statement of reasons imposed by s 430 is one which follows the making of the decision. Any failure to provide reasons in a relevant way, while constituting a breach of the obligation imposed by s 430, does not amount to jurisdictional error in the making of the decision. 20 In any event, in this particular case the Tribunal exposed its reasons for rejecting the claims of the appellant and there was no obligation to prepare a statement of reasons that dealt with the question of the authenticity of the documents, because that was not a reason for the Tribunal's decision. It follows that there has been no breach of s 430 of the Act, and even if there were, it would not constitute a jurisdictional error. 21 For all of these reasons the appeal by the appellant must be dismissed. There is no reason why the usual order as to costs should not be made in this case. 22 The respondent asks that the Court fix the costs in the sum of $3,500. Having regard to the fact that the appeal was argued on behalf of the Minister by counsel, I am satisfied that that sum is an appropriate figure to award, and it is in everybody's interests that the costs of taxation be avoided if that is possible. 23 The orders of the Court are that the appeal be dismissed and the appellant pay the respondent's costs of and incidental to the appeal fixed in the sum of $3,500. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.