Applicant S209 of 2003 v Refugee Review Tribunal

Federal Court of Australia|2006-02-27|Before: Edmonds J

Introduction 1 This is an application for an order nisi on remittal from the High Court of Australia in relation to a decision of the first respondent, the Refugee Review Tribunal ('the Tribunal'), made on 5 June 2000 affirming the decision of a delegate of the second respondent on 9 November 1998 not to grant the applicant a protection visa. 2 The parties were agreed that there was no apparent reason why the Court should not proceed under O 51A r 5 of the Federal Court Rules to consider at the same time the issues whether an order nisi should be granted and whether, if such an order is granted, it should be made absolute. 3 At the commencement of the hearing, I gave the applicant leave to file an amended application removing the Commonwealth as a party and substituting the Minister for the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs as second respondent ('the Minister').

Background 4 The applicant is a citizen of Bangladesh who arrived in Australia on 25 August 1998 and applied for a protection visa on 22 September 1998. His application was refused by a delegate of the Minister on 9 November 1998 and he sought review of that decision by the Tribunal on 4 December 1998. 5 As indicated above, the Tribunal affirmed the decision of the delegate on 5 June 2000 and handed down its decision on 27 June 2000. 6 In his protection visa application the applicant included a written statement in which he claimed, in short, that he was an active member of the Bangladesh Nationalist Party ('the BNP') who had been attacked by supporters of the rival Awami league. A few days before coming to Australia he had been shot at in the street. His opponents had filed 'false cases' against him. 7 A copy of the same statement, signed and dated 25 April 2000 and incorporating some corrections, was lodged with the Tribunal together with some other documents. 8 Following a hearing on 27 April 2000, the Tribunal gave the applicant some further time to put his claims in writing. He lodged a further statement of his claims on 15 May 2000 and the hearing continued on 29 May 2000. 9 The Tribunal ultimately concluded that the applicant was, at most, a low level supporter of the BNP who was not of any adverse interest to the Awami league and there was no basis for concluding that he was likely to become of adverse interest to the Awami league in the foreseeable future. 10 The Tribunal rejected the applicant's claims that he had been prominent in the BNP, and suffered harm at the hands of the Awami league, for the following reasons: (1) There were inconsistencies in his claims about when he had been shot at, and in his descriptions of a protest rally he claimed to have led, which led the Tribunal to think those parts of his claims were fabricated; (2) the documents submitted in support of his claims appeared for various reasons to be either fraudulent or concocted to support his claims; (3) his evidence at the hearing, even if taken at face value, suggested that he had a fairly low political profile in any event; and (4) the fact that the applicant had renewed his passport a month before leaving Bangladesh, and then used it to leave the country, was inconsistent with him having been blacklisted or having warrants issued for his arrest.

The Grounds of the Amended Application 11 The first ground is that the Tribunal failed to accord procedural fairness in failing to warn the applicant that the Tribunal was considering finding that: (1) A letter purportedly from a member of Parliament was not genuine. (2) A further information report and charge sheet were fraudulent. (3) A lawyer's letter was 'constructed to support the Applicant's claims'. 12 The second ground is that the Tribunal did not comply with s 424A of the Migration Act 1958 (Cth) ('the Act') in failing to invite the applicant in writing to comment on 'independent information' that there 'is a very high level of document fraud in Bangladesh' and information that arrest warrants are not provided to applicants, which was information personal to the applicant, because the Tribunal used the information to support a finding that the arrest warrant and other documents were fraudulent.

First Ground 13 The supporting documents lodged with the Tribunal by the applicant's adviser on 27 April 2000 were listed as: (1) Certified copy of a letter issued by the applicant's lawyer in Bangladesh - A; (2) certified copy of a letter issued by Sadeq Hossain, the Convenor Dhaka City Bangladesh National Party - B; (3) certified copy of court documents -C. 14 The first letter was from a lawyer in Dhaka, addressed to the applicant and in English. It told him that there was a warrant for his arrest and advised him not to return to Bangladesh. 15 The second letter, also in English, was in the nature of a reference for the applicant, addressed 'to whom it may concern' and certifying that he was a BNP activist who had been attacked and had false cases filed against him. 16 The 'court documents' were also in English and comprise: (1) A memorandum entitled 'Sub: prayer for acceptance of Ezahar'; (2) a 'charge sheet' listing five accused persons, including the applicant; (3) a First Information Report; (4) a Warrant of Arrest; (5) an 'order sheet'. 17 During the course of argument, counsel for the applicant conceded, correctly in my view, that the Tribunal sufficiently raised with the applicant its concerns as to what is referred to as the 'court documents' (C); specifically, its concerns going to the provenance of these documents, that could leave the applicant in no doubt that, absent evidence to the contrary, the Tribunal was likely to make a finding that called into question their authenticity. In the face of this, counsel for the applicant indicated that this narrowed the issue raised by the first ground of the amended application to the two letters referred to as A and B in [13], supra. In other words, the issue raised by the first ground is whether the Tribunal did enough to warn the applicant of the findings it was considering making with respect to the two letters. This issue effectively requires answers to two sub-issues: What was the character of the finding the Tribunal made with respect to the two letters (A and B); and second, did such a finding carry with it an obligation on the part of the Tribunal to warn the applicant of the finding it was considering making? 18 Dealing with the first of these sub-issues, counsel for the applicant submitted that the Tribunal's finding with respect to the two letters was the same as its finding in relation to the court documents, namely, that they were fraudulent, in the sense of not being authentic. In order to properly assess the merit of this submission, I should first set out an extract from the Tribunal's reasons containing the Tribunal's findings with respect to the documents which were belatedly provided to the Tribunal. These findings appear in the Tribunal's reasons under the heading 'The Documents' and read as follows: 'The Documents Firstly, the fact that these documents were provided so late in the application when they purport to be prepared and collected in November 1998 leads me to believe that they were provided to strengthen a set of claims which, did not, of themselves have significant substance or credibility when probed in greater depth. Secondly, if the Applicant was targeted to the extent that he claims to have been I do not accept that the authorities would have failed to arrest him in the six months he remained in Bangladesh after the arrest warrant was purportedly issued. He could have been located readily since he was in the area and was variously at the BNP office or BNP party friends. Thirdly, the nature of the case which he claims was false is of a relatively low nature and does not serve to ensure that he would be found guilty of a significant matter. The First information report states that a fight broke out between the BNP followers and those of the Awami League. It serves to implicate the Awami league as much as the BNP. If the Awami league was going to trump up charges and fabricate a false case against the Applicant I am of the opinion that they would have done so in such a way as to directly implicate the Applicant in a matter more serious than this. I find that these documents have been fabricated for the purpose of providing material to support the Applicant's claims. The information in these documents is generally consistent with the Applicant's claims but, as discussed above, is not the manner in which false charges would be filed by someone wishing to falsely charge him. Fourthly, there would be little point in going to the effort of fabricating a case, having arrest warrants issued and then failing to pursue the Applicant or the others named in the charge sheet when they remained in the area. These factors together with the independent information are such that I find the documents have been provided for the sole purpose of creating a basis to support the Applicant's claims. I find the letters are constructed to support the Applicant's claims and that the FIR, charge sheet and arrest warrant are fraudulent. In regard to the letter purportedly written by a member of parliament and of the BNP party I find it implausible that such a member of parliament of the same political persuasion would assist the departure of a person who is of such claimed importance to the party without using the resources of the party to provide protection in Bangladesh such that he could continue to operate on their behalf.' (Emphasis) 19 It is not clear whether the expressions 'these documents'/'the documents' when used in the first, sixth and eighth paragraphs of this extract are references to all the documents denoted A, B and C in [13], supra, or whether they refer to only some of them. Counsel for the applicant submitted that the expressions are referring to all the documents denoted A, B and C. Counsel for the Minister made no submission as to what the expression meant in the first paragraph, that it refers only to the 'court documents' in the sixth paragraph but that in the eighth paragraph the expression refers to all the documents. 20 Because of what I have to say below, I do not think a conclusion on this particular matter is critical to a resolution of the first sub-issue, however, I am inclined to the view that in the first paragraph the expression refers to all the documents but that in the sixth and eighth paragraphs, the expressions refer only to the 'court documents'. I am less confident about this conclusion in relation to the eighth paragraph than I am in relation to the sixth paragraph, but the introductory words of the eighth paragraph: 'These factors together with the independent information …' would point in the direction of 'the documents' referring only to the 'court documents'. 21 The crucial paragraph in relation to the resolution of the first sub-issue is the ninth paragraph where the Tribunal distinguishes between the letters on the one hand and the 'court documents' on the other. The finding in relation to the letters is that they are 'constructed to support the Applicant's claims'. The finding in relation to the 'court documents' is that they are 'fraudulent'. In my view, it is impossible to ignore the difference in those findings. If the Tribunal had concluded that the letters were also fraudulent, in the sense that they were not authentic, then it would have been easy enough for it to say so, but it did not. Used in juxtaposition in the one sentence as they are, the most probable conclusion to draw, from the different findings in the ambiguous context which surrounds the sentence, is that the finding of the Tribunal in relation to the letters is not that they are fraudulent, in the sense that they are not authentic, but that they were constructed by those who wrote them solely for the purpose of supporting the applicant's claims. It is a finding, as counsel for the respondent put it, that they were drawn to order. Against this conclusion, counsel for the applicant submits that the use of the word 'purportedly' in the ultimate paragraph in the extract, points in the opposite direction. There is no doubt that the Tribunal had reservations as to whether the second letter was written and signed by whom it purported to be. This is borne out by what the Tribunal had earlier said in relation to the second letter: 'There is also a document which purports to be a letter from the BNP in Dhaka. … That letter purports to be signed by Mr Sadek Hossain, a BNP member of parliament. … (Following the Tribunal hearing I checked the list of current list of Members of Parliament and found that such a person does exist)'. (Emphasis) 22 While the Tribunal entertained reservations as to whether the second letter was written and/or signed by Mr Hossain, it refrained from making a finding that it was fraudulent, in the sense that it was not authentic. Again, it would have been easy enough for the Tribunal to do so, however, it framed the ninth paragraph in the extract above in the way it did without making that finding. 23 I am therefore of the view that the characterisation of the finding in relation to the letters is that their contents were constructed in the way they were to support the applicant's claims, but that they were not fraudulent in the sense that they were not authentic; in juxtaposition to the finding which the Tribunal made in relation to the 'court documents'. 24 The second sub-issue, having regard to this finding, is does it carry an obligation on the part of the Tribunal to warn the applicant of the finding it was considering making? Counsel for the applicant submitted that the finding of the Tribunal was that the letters, or at least the letter from Mr Hossain, was not authentic. For the reasons which I have sought to articulate, I do not agree. Counsel went on to concede that if he was not right about that submission, he did not think he could succeed. Based on the authorities, such as WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511, in particular at [53] - [55], that concession must be correct. 25 For the foregoing reasons, the first ground of appeal cannot be sustained. There was no denial of procedural fairness in respect of the documents.

Second Ground 26 Section 424A of the Act provides: '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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 (c) invite the applicant to comment on 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. (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; or (c) that is non‑disclosable information.' 27 In the course of making its findings, the Tribunal said: 'In determining this matter I have considered the nature of the Applicant's written statements, his evidence at the Tribunal hearing held on two separate days and material regarding the false charges and arrest warrant to make findings of fact.' (Emphasis) 28 The applicant's counsel submitted, I think correctly, that the reference to 'material' included the Department of Foreign Affairs and Trade ('DFAT') and country information, referred to earlier in the Tribunal's reasons, to the effect that arrest warrants in Bangladesh are not generally available to the public because without them police cannot legally effect arrests; and that there is a very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police or by the payment of bribes to officials. 29 The applicant's counsel further submitted that, as this material had been taken into account by the Tribunal as part of the reason for affirming the decision under review, the material or information should have been put to the applicant in writing and he should have been invited to comment on it in accordance with the provisions of s 424A(1) of the Act. 30 It is common ground that the only issue here is whether the relevant DFAT and country information is information which comes within the exception that is s 424A(3)(a), and is therefore not subject to the obligation of s 424A(1), or whether it falls outside that exception. That, in turn, depends on whether the information is specifically about the applicant, in which case it would be subject to the obligation of subs (1), or whether it is just about a class of persons of which the applicant is a member, in which case it would fall within the par (3)(a) exception. 31 Counsel for the applicant further submitted that, in determining whether the information is specific to the applicant or just about a class of persons of which the applicant is a member, one has to look to the use to which the information is being put. His point here was that if the ultimate finding is that the court documents are fraudulent, then the use to which the DFAT and country information is put is personal to the applicant, in the sense that it is a finding that the applicant has provided fraudulent documents to the Tribunal. 32 I am not persuaded this further submission is correct. The character of this information in terms of the dichotomy drawn by par (3)(a) has to be determined, it seems to me, by reference to the subject matter of the information, its inherent terms of application, that is to say, its applicability to either a specific person or a class of persons of which a specific person is a member and the context in which the information is sought. 33 In VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82, Gyles and Conti JJ, with whom Allsop J agreed, said: '12. The information which would fall within s 424A(1) in this case does not expressly refer to, and is not expressly about, the appellant (or any other relevant person). In other words it is not specifically about the appellant unless it is regarded as being about every person who may fall into a class which is the subject of the information. Section 424A(3) provides, so far as is relevant: "(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 …" 13. It is argued for the appellant that this prescribes two criteria that must be met, namely, that the information: (1) is not specifically about the applicant; and (2) is just about a class of persons It is submitted that the information in question was general in nature, covering more than one class of persons, and so did not satisfy the second criterion. 14. In our opinion that argument must be rejected. The reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. This construction of the subsection is consistent with the decisions in NANMand NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17] and VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 186 75 ALD 609 at [50] per Kenny J and [71] per Downes J with which we agree. The opinion of Ryan and Finkelstein JJ on this point in NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 at [30]-[31] seems to be contrary to those authorities (whilst seeking to distinguish them) but, in any event, would not affect the conclusion of Finkelstein J in this case even if correct.' 34 Subsequently, in VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178, the Full Court said: '13. The appellant contends that the information does not fall within the exception for two reasons. First, the information, whilst not being specifically about the applicant is specifically about other persons, though unnamed. Second, this information is not "just about" a class of persons of whom the applicant is a member, as it also concerns "how the Cambodian authorities deal with SRP members." 14. Both contentions fail … 15. The major premise of the second contention, as the appellant accepted, is that s 424A(3)(a) contains two criteria that must be satisfied in order for the Tribunal to be relieved of its statutory obligation. Such a construction of the paragraph has been rejected by previous Full Courts. The true construction of the paragraph is one whereby reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. That was the view of the unanimous Full Court in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 82 (at [12]-[14] per Gyles and Conti JJ; at [21] per Allsop J) (VHAP of 2002) and it has been followed ever since. 16. It must again be emphasised that the requirement for a Full Court to be satisfied that an earlier decision of another Full Court is plainly wrong before departing from it, is most unlikely to be satisfied by a mere repetition or development of arguments already authoritatively rejected. It is to be regretted that at least three Full Courts have recently been invited to depart from the settled construction of s 424A(3)(a) on what appears to have been no more than a rehearsal of previously rejected arguments: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW[2004] FCAFC 264; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal[2005] FCAFC 92. Much more is required: see Telstra Corp v Treloar(2000) 102 FCR 595 at 602-603 (Branson and Finkelstein JJ) and see QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [28]-[30] (Lander J; Dowsett J and Hely J agreeing).' 35 For the foregoing reasons, this second ground must also fail. 36 It follows that the application must be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 27 February 2006 Counsel for the Applicant: Mr C Jackson

Solicitor for the Respondent: Australian Government Solicitor

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