Applicant S298/2003 v Minister for Immigration and Citizenship

The advice is that these letters and copies of original arrest warrants should be treated with some caution as procedures may appear virtually impossible to obtain documents such as original arrest warrants from police. THE APPLICANT: It is very difficult in our country to get the original documents. It is not like Australia where you can go to any office and get copy of any document. In our country of course if you pay money then you can get this second grade thing. If you want to get the original you really need a lot of money and sometimes they want to keep everything secret so they do not give the … Therefore it is very difficult to get documents. 17 Shortly after, the following further exchange took place: THE APPLICANT: I have given a photocopy of this of this (sic) and do you want to see this original? MEMBER: It's not the matter of whether it's a photocopy of the original it's just um, what I was trying to tell you earlier was that there is advice that original documents are easy to obtain in a fraudulent manner. But that doesn't necessarily mean that I am saying that that is a fraudulent document, what I'm saying is that um, I may or may not use that document as supporting that you were a member of the Freedom Party. Ok. … 18 The Tribunal was satisfied that the appellant was, as he claimed, a citizen of Bangladesh even though he had travelled to Australia on a South African passport. However, it said that it had serious concerns about the appellant's credibility which led it to doubt the truth of his claims. 19 The Tribunal found that, whilst the appellant may have been a supporter of the Freedom Party, the appellant was not a member or an officer holder in that Party. It found that he did not face serious harm of any kind for reasons of his political beliefs. It rejected his claim that he went to South Africa in order to flee the Awami League in 1995. It found that his evidence conflicted with independent evidence. It lacked detail and specificity. The Tribunal said that some of his answers were rehearsed. The Tribunal refused to place any weight on the document which he produced because it accepted independent evidence that fraudulent and bogus official documents were commonly and easily attainable in Bangladesh and because the appellant was not a witness of truth. 20 The Tribunal went on to say: Furthermore, the document was a photocopy, which could not be the basis of an investigation into authenticity by the Document Examination Unit of the Department of Immigration and Multicultural Affairs, even if the Tribunal saw it fit to conduct such an investigation. 21 It rejected as implausible the appellant's claims that the Awami League harassed him in order to make him join the Party. It rejected his evidence that after the incident in 1995 he went into hiding. It accepted the country information that the Freedom Party attracted little attention from the Government. 22 The Tribunal found that he did not have a well-founded fear of persecution for a Convention reason. Thus it affirmed the delegate's decision. 23 In his application to the Federal Magistrates Court the appellant claimed that the Tribunal failed to accord him procedural fairness by placing no weight on the document produced from the Freedom Party. The appellant claimed that the Tribunal committed jurisdictional error by denying the appellant natural justice and procedural fairness in failing to investigate the veracity of that document. The appellant claimed that the Tribunal committed jurisdictional error by failing to set out its findings on material questions of fact and, in the process, identified a wrong issue and/or took into account irrelevant considerations. The appellant claimed that the Tribunal denied him procedural fairness by misrepresenting the significance or otherwise of tendering an original document as opposed to a copy. Lastly, he complained that the Tribunal committed jurisdictional error by making a critical finding of fact that was not open on the evidence before the Tribunal. 24 The Federal Magistrate addressed the grounds in detail and rejected each ground in turn. 25 The Federal Magistrate observed that the Tribunal did not find that the document which the appellant submitted was a forgery. The Tribunal merely found that it was not prepared to put any weight upon the document because it was not satisfied that the appellant was a witness of truth and documents of the kind were easily obtained in Bangladesh. The Tribunal rejected the submission that the appellant had been denied procedural fairness in relation to the document because the appellant was given a clear opportunity to respond to the country information of which the member advised the appellant to the effect that such documents were easily obtainable in Bangladesh. The Federal Magistrate rejected the submission that the Tribunal's finding implied that the author of the document and the appellant were engaged in some conspiracy to commit a fraud. There was no finding made that the document was fraudulent. The Tribunal had merely concluded that it was not prepared to put any weight upon the document. The Tribunal did not use the document as a reason for rejecting the appellant's evidence or assessing the appellant's credibility. Rather, it was not prepared to rely on the document as supporting his claim that he was a member of the Freedom Party. 26 The Federal Magistrate referred to the exchange between the appellant and the Tribunal where the Tribunal advised the appellant that it was not a matter of whether the document was a photocopy or an original and said: Although the transcript quoted above suggests the original letter may have been available, Counsel for the Applicant before me did not suggest to me that it was. 27 Later, the Federal Magistrate said: 35. If he was so misled, and I am by no means satisfied anything the member said could be capable of amounting to such a misrepresentation, then it is clear the fact that only a photocopy was annexed to the statement delivered 10 March 1998 did not form part of the Tribunals' (sic) reasons for deciding to give the document (and, by implication its contents) no weight. It is not clear whether the original was available in any event. If it was, the Applicant did not attach the original to his letter dated 9 March 1998 or otherwise tender it to the member at the hearing. 28 The Federal Magistrate found that the Tribunal was entitled to make a finding adverse to the appellant regarding his credibility which he said was a function of the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2001) 168 ALR 407 at 423 per McHugh J. 29 The Federal Magistrate rejected the appellant's complaints insofar as the appellant sought a rehearing on the merits. 30 Similar matters are raised in the notice of appeal. The thrust of the appellant's complaints on appeal is that the Tribunal erred in (a) finding that the document was a forgery; (b) failing to accord the appellant procedural fairness that it might find the document to be a forgery; (c) failing to allow the appellant to present arguments relating to the issues as required under s 425 of the Act; and (d) failing to investigate the authenticity of the document pursuant to s 427(1)(d) of the Act. Insofar as the Federal Magistrate rejected those arguments, it is said that the Federal Magistrate fell into error. 31 The appellant sought to tender further evidence on the appeal in the form of an affidavit of the appellant in which he deposed that at the time of the hearing he had the original of the letter dated 6 January 1998 and had he known that the Tribunal would not attach any weight to a copy of that letter and/or investigate the authenticity of the letter he would have submitted the original to the Tribunal. 32 The procedure for the tender of further evidence on appeal is governed by O 52 r 36 of the Federal Court of Australia Rules 1979 (Cth) (the Rules) which requires the party seeking to adduce further evidence to file an affidavit deposing to the grounds of the application and to the evidence necessary to establish those grounds. The application is to be made on motion. The affidavit must be filed more than 21 days before the hearing of the appeal: O 52 r 36(6). 33 The appellant did not comply with the procedure in O 52 r 36 of the Rules. Nor did the appellant adduce any evidence of any kind to explain why the evidence was not adduced before the Federal Magistrate. 34 The first respondent objected to the Court receiving the further evidence for the reason that no grounds had been advanced in support of the application. Moreover, it was submitted that if the further evidence were received it would be necessary to cross-examine the appellant in relation to the contents of the appellant's affidavit. 35 Whilst the question of the reception of further evidence on an appeal involves the exercise of a statutory discretion rather than the application of common law principles, the common law principles relating to the reception of fresh evidence are nevertheless relevant. 36 I rejected the appellant's application. No explanation was given for the appellant's failure to comply with the Rules. There was no explanation as to why the evidence had not been adduced before the Federal Magistrate. More importantly, the evidence, if received, could have prejudiced the Minister in that there was no evidence that the document which was referred to in the affidavit was still available for inspection by the Minister. Even more importantly, I rejected the application because I thought the evidence did not advance the appellant's case. 37 The notice of appeal does not expressly raise concerns with the Federal Magistrate's reasons in relation to the claim before the Federal Magistrate that the appellant had been denied procedural fairness in that he had been misadvised in relation to the use of a photocopy before the Tribunal. However, it was accepted that that was a matter before the Federal Magistrate and that the appellant was entitled to raise the matter on appeal. 38 The appellant's case failed before the Tribunal because the appellant was not accepted as a credible witness. The appellant tried to bolster his credibility by bringing to the Tribunal's attention the document which he claimed established his association with the Freedom Party. Contrary to the submission made by the appellant, both to the Federal Magistrate and to this Court, the Tribunal did not find that document was a forgery. It found that, because it did not accept the appellant to be a witness of truth and because documents of that kind were easily attainable in Bangladesh, little weight could be put upon the document. 39 The appellant has relied upon WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 where the Court found the Tribunal to be in breach of procedural fairness by failing to allow an applicant an opportunity to respond to its conclusion that documents which were submitted to the Tribunal at the Tribunal's request after the hearing were a forgery. 40 In this case, however, the Tribunal did not find the document to be a forgery. Rather, it refused to accept it as evidence in support of the appellant's credibility. Moreover, in this case, contrary to the facts in WACO131 FCR 511, the Tribunal raised its concerns with the appellant about the status of the document during the hearing. 41 It was put that the second and third grounds of appeal were not raised before the Federal Magistrate. The respondent objected to the appellant raising these grounds for the first time, especially in circumstances where the appellant has not explained why the matters were not raised on the application before the Federal Magistrate: VAAC v Minister for Immigration (2003) 129 FCR 168. 42 The third ground of appeal was abandoned. Section 425 was in different form when the Tribunal undertook its review. It then provided: 425. (1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. 43 There was not then a statutory obligation to invite an applicant to present arguments relating to the issues. For that reason, that ground was rightly abandoned. Ground 2 was, I think, raised before the Federal Magistrates Court and could be the subject of an appeal. 44 The appellant argued before the Federal Magistrate and on appeal that the Tribunal had misadvised him in relation to the use of a photocopy and, as a result, he lost the opportunity of tendering the original. 45 The respondent contended that there was no evidence that the original was in existence at the time of the hearing before the Tribunal. In my opinion, the proper inference to be drawn from the exchange which took place between the appellant and the member was that the original either was available or could be made available if the Tribunal required the document. The question asked by the appellant certainly suggests that such a document was available. 46 When the appellant asked the question that he did of the Tribunal he was advised, I think unambiguously, that the tendering of an original would not assist because "original documents are easy to obtain in a fraudulent manner." 47 It may be inferred from that exchange that the Tribunal's response to the appellant's question would have led the appellant to believe that there was no point in tendering the original because it would not advance his case. 48 The advice given by the Tribunal to the appellant was, on the Tribunal's own reasoning, wrong. An original document could have been investigated as to its authenticity by the Document Examination Unit of the Department of Immigration. It may also be inferred that had the original been before the Tribunal, the Tribunal would have exercised its powers under s 427(1)(d) and required the Secretary to investigate the authenticity of that original document. If the original document had been authenticated, that would have supported in a material way the appellant's claim that he was a member of the Freedom Party. It would also have supported his claim that he had been the Joint Secretary of the Party for a district for the period which he claimed. 49 As I have already mentioned, the appellant's claim failed because he was not believed as to his membership of the Freedom Party and as to his claim that he was the Joint Secretary for a district of the Freedom Party. 50 In my opinion, the appellant was, by the answer given by the Tribunal, denied the chance of establishing those two facts before the Tribunal. If it had been established that the document was authentic, the Tribunal might not have made the adverse credit findings. That being the case, in my opinion, the appellant has been denied a fair hearing and the Tribunal has fallen into jurisdictional error. Not every statement made by the Tribunal to an applicant which is factually incorrect or may mislead will give rise to a finding that the Tribunal has fallen into jurisdictional error. The statement or representation must give rise to unfairness in the sense that the applicant was denied a fair hearing: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53 at [30]. Insofar as the Federal Magistrate said otherwise I think, with respect, he has fallen into error. 51 I would allow the appeal, set aside the order made by the Federal Magistrate dismissing the appellant's application, quash the Tribunal's decision and I would remit the matter to the Tribunal for hearing according to law. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 22 November 2007 Counsel for the Appellant: Dr J Azzi

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 12 November 2007

Date of Judgment: 22 November 2007