GROUND 3 OF the APPEAL
57 Ground 3 of the appeal is:
3. The court below erred in failing to find that:
a. it is only the Minister (not the [Authority]) that has authority to determine whether a document is a 'bogus document' (as defined in s 5(1) of the [Migration Act];
b. having regard to the definition of 'bogus document', the delegate must be taken to have found the two 'First Information Reports' to be genuine;
c. the [Authority] had no jurisdiction to make a decision that proceeded on the [Authority's] own and different findings about the nature of the two 'First Information Reports'.
58 This ground of appeal involves two findings of the delegate, relevantly recorded in the delegate's reasons. The delegate referred a number of documents to the DEU. One of those documents was an FIR, which had been supplied by the appellant. The delegate recorded that the DEU made inconclusive findings about all documents, aside from two medical reports, which were found to "lack credibility" (emphasis in original). The delegate continued:
I acknowledge that it is common for official Bangladesh documents to be presented in English and that country information supports that errors may be contained within genuine documents.
Despite my concerns regarding the documents I am satisfied the documents are genuine for the following reasons:
• Country information supports that a high rate of irregularities can be found in genuinely issued Bangladeshi documents.
• The DEU's inconclusive finding.
• The [appellant] has been consistent in his claim regarding his identity and his claim to have submitted genuine documents.
In consideration of the inconclusive findings of the DEU about these documents, and the country information which reflects irregularities within genuinely state issued documents, there is insufficient evidence before me to reasonably form the view that the documents are bogus. I therefore find that the evidence produced is satisfactory and 91W(2) of the Act does not apply.
(Citations omitted)
59 As noted above at [14], the delegate also recorded the following matters about FIRs, although it is not precisely clear to which FIR the delegate was referring:
FIRs and Charge sheets
At [the protection visa] interview the [appellant] was asked further questions relating to the claimed false charges made against him. The [appellant] was asked if he had assaulted or murdered anyone in Bangladesh and he replied no. The [appellant] was asked how he obtained an original FIR lodged by the wife of the person he was accused of murdering and that it was difficult to accept he would have access to this level of detail relating to a crime that he was accused of committing. The [appellant] stated that he did not know how these FIRs were obtained as his wife had sent them to him from Bangladesh. Country information could not be located to confirm these incidents took place in 2011 or 2013. In response to concerns raised regarding the genuineness of the submitted documents the [appellant] reiterated that he was unsure of the contents of the FIRs given that he did not speak English and his wife had obtained these documents. I note Bangladeshi media outlets reflect in 2005 former finance minister Shah AMS Kibria was fatally wounded in a grenade attack while he was returning from a rally in Habiganj Sadar, Bangladesh. Additionally amongst the dead was an AL leader named Abdur Rahim and over 100 party activists were also injured in the attack. However, given the discrepancy in years, location and the [appellant's] inability to satisfy me as to his political involvement, I am not satisfied these events are linked. I also note the FIRs submitted at the [protection visa] interview conflict with the [appellant's] migration history. The [appellant] claims to have departed Bangladesh in October 2012, several months before the date of the claimed FIRs and charge sheets submitted at [protection visa] interview (March and April 2013). I am satisfied the [appellant] submitted these additional claimed FIRs and charge sheets in an attempt to falsely demonstrate that he is of continuing interest to the Bangladeshi authorities. Although the submitted FIRs appear to contradict the [appellant's] claimed migration history and adverse attention by the Bangladeshi authorities. However in consideration of the inconclusive findings of the DEU about these documents, and the country information which reflects irregularities within genuinely state issued documents, there is insufficient evidence before me to reasonably form the view that the documents are bogus.
(Citations omitted)
60 The Authority subsequently expressly rejected the appellant's assertion that the FIRs accused him and other BNP members of criminal activities, expressly finding that the FIRs were not genuine. The reasoning process was as follows:
32. While I do not accept the [appellant's] reasoning regarding the fabricated charges, I have nonetheless considered whether these accusations have been made against the [appellant], separately to this claimed political motivation. In relation to the murder charge, the [appellant] claims he knew police were looking for him because other village people told him. The FIR is dated 3 August 2011 and according to the Arrival interview, the [appellant] did not leave his home until 1 October 2012, more than one year later. He stated in his submission to the [Authority] that after he was beaten by AL members he fled his home and slept in fields, only going home occasionally. He claims he could not go to another village because he would be recognised as a non-local and this would raise suspicion and attract attention. He states he slept in fields for five to six months until his wife gathered enough money for him to leave the country. However, the [appellant] claims he was beaten by AL members in June 2011 and his suggestion that he lived in hiding for five to six months and then left Bangladesh is inconsistent with his claim that he departed Bangladesh in October 2012. He did not mention that he lived in hiding in his Arrival interview, [protection visa] application or [protection visa] interview. I do not accept that the [appellant] lived in hiding for several months following the June 2011 attack or the lodgement of the August 2011 murder FIR. The [appellant] has not suggested that anyone from the AL or authorities came looking for him after August 2011. I find that if the authorities were interested in the [appellant] and intended for him to answer this charge, they would have arrested him between August 2011 and October 2012 when he departed the country.
33. In relation to the 2013 FIRs, the 2 March 2013 FIR alleges the incident occurred on the future date of 2 June 2013 and the accompanying letter to the magistrate also states "co-assailants miss killed victim of the case [NI] on 02-03-2013 after 23.45 hours and left his dead body in the field". This contrasts with the allegation that the shooting was a near miss and the fact that [NI] survived to lodge the second, similar FIR one month later. Even noting the high rate of irregularities in Bangladeshi documents and the fact that the document is said to relate to a false charge, I find the discrepancies in the March 2013 FIR are material. I note also that the March 2013 and April 2013 FIRs are almost identical in wording, accusations and situational context suggesting that one was copied from the other. The [appellant] claims he first found out about these FIRs one month prior to the [protection visa] interview when his wife told him. He does not claim that authorities sought him in relation to these 2013 incidents, or that anyone questioned his wife about his whereabouts at any stage, including when she obtained the FIRs.
34. At the [protection visa] interview, the delegate asked the [appellant] how he came to be in possession of original FIRs and the [appellant] responded that his wife had obtained them, maybe from the police station or court and had sent them to him. The delegate put to the [appellant] it was difficult to accept he has original versions of FIRs lodged by people accusing him of these crimes. The [appellant] responded that he was not sure because his wife had collected them. According to DFAT, defendants have the right to be informed promptly and in detail of the charges against them however, I find it implausible that the police or courts would have given the [appellant's] wife the original versions of these documents. Given this, the fact that the authorities did not arrest or even question the [appellant] following the murder charge, the internal inconsistencies in the 2013 FIRs and that authorities have not questioned the [appellant's] wife about his whereabouts since the 2013 FIRs were lodged, I give no weight to these FIRs provided in support. I do not accept these accusations were made against the [appellant].
(Citations omitted)
61 In the Federal Circuit Court, this matter was dealt with on the basis that the Authority did not conclude that the documents were "bogus documents" within the meaning of s 91W of the Migration Act. Rather, for the reasons there set out, there was no reliance upon those documents, nor were they found to be persuasive. The primary judge said (at [24]-[25]) as follows:
24 The [appellant] says that the [Authority] would have no power to conclude that the documents were bogus documents within the meaning of s.91W. Not surprisingly, this is disputed by counsel for the Minister. For the present purposes, it is not necessary to determine this question as the [Authority] did not conclude that the documents were "bogus" documents within the meaning of the section. Rather, the Tribunal, for the reasons that it set out, did not rely upon these documents, nor find them persuasive. It appears to me that it was open to the Tribunal to reach the conclusions that it did with respect to the documents. No issue of procedural fairness arises in this regard, as it clear from the delegate's decision that questions as to the authenticity and reliability of these documents were raised with the [appellant] in the hearing before the delegate.
25 In circumstances where the issues were raised before the delegate, the [Authority] considered the documents and provided proper reasons for the lack of reliance upon those documents by the [Authority]. I see no error in the approach of the [Authority] in reviewing the delegate's decision. I am not persuaded that the delegate made a decision that effectively rejected these documents as bogus, rather that the delegate's decision was limited to one not to conclude that the documents engaged s.91W.
62 As the appellant correctly notes, s 65 of the Migration Act requires the Minister, or his or her delegate, to be satisfied that the grant of a visa is not prevented, amongst other things, by s 91W, which deals with "bogus documents". Section 91W applies only in the case of protection visas. Section 91W of the Migration Act provides as follows:
91W Evidence of identity and bogus documents
(1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant's identity, nationality or citizenship.
(2) The Minister must refuse to grant the protection visa to the applicant if:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and
(c) the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and
(d) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:
(i) refuses or fails to comply with the request; or
(ii) produces a bogus document in response to the request.
(3) Subsection (2) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and
(b) either:
(i) produces documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to produce such evidence.
(4) For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.
63 When s 91W is engaged by a request having been made and a document produced in response, the Minister or the Minister's delegate is required to determine whether the document is a "bogus document". In this instance, despite some reservations about the documentation, no finding was made by the delegate that any of the FIRs were bogus documents.
64 It is necessarily the case that the delegate concluded the documents were not "bogus documents" because had she not done so, then s 91W would have obliged her to:
(a) consider whether the appellant had a reasonable explanation for producing a document which she had determined was a "bogus document"; and
(b) in the absence of a reasonable explanation being provided, refused the grant of a visa.
65 A "bogus document" is defined in s 5(1) of the Migration Act in the following terms:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
…
(Emphasis added)
66 It follows that whether or not the description "bogus document" is satisfied will depend upon the mental state of the Minister.
67 The appellant argues that, by reason of the limited jurisdiction of the Authority, in particular, that it never "stands in the shoes" of the Minister, the reference to "Minister" in the definition of "bogus document" is incapable of applying to the Authority. Indeed, the appellant asserts that the Authority, by reason of its limited jurisdiction, is never called upon to consider s 91W of the Migration Act. The issue of whether a document provided by an applicant for a protection visa in response to a request under s 91W is genuine or not will be solely for the determination of the Minister. Indeed, by the definition of "excluded fast track review applicant" in s 5(1), any "fast track applicant" is excluded from review by the Authority unless the Minister otherwise makes a determination under s 473BC of the Migration Act.
68 The appellant argues that the Authority had no power to find to the contrary of that found by the delegate. The appellant argues that the decision of the Authority that the appellant did not meet either s 36(2)(a) or s 36(2)(aa) of the Migration Act depended on factual findings that the Authority had no jurisdiction to make. That being so, the decision to "affirm" the delegate's decision was said to be made in excess of jurisdiction.
69 The appellant's contention cannot be accepted. It is not the case that the Authority is incapable of reaching a decision that is inconsistent with the delegate as to a document's authenticity. Clearly, for example, the Authority is entitled to obtain and consider new information (s 473DC and s 473DD of the Migration Act) and that new information may well bear on the question of whether or not a document is genuine or false. The Authority can have regard to the new information and form its own view (consistently or inconsistently with that of the delegate) as to whether or not new information affects the authenticity of a document. This is not the same exercise as that carried out under s 91W of the Migration Act. There would not be a review in the first place if a "bogus document" finding were made by the Minister or his or her delegate.
70 As the primary judge concluded, findings about a document may be made without necessarily engaging the specific provisions of s 91W of the Migration Act. It may be accepted that the specified findings for the purpose of s 91W are findings by the Minister or the delegate, rather than by the Authority.
71 We would emphasise that the power of the Authority to reach its own conclusions concerning the documents and other material before it is not dependent on new information coming to light. The Authority is entitled to reach its own conclusion on the same information and arrive at a different result. It is clear from the separate reasons for judgment in BMB16, discussed above at [52], that the findings of the delegate do not control the reasons or findings of the Authority: see BMB16 [15] (Dowsett J), [38] (Besanko J) and [88] (Charlesworth J).
72 There is no reason to conclude that the Authority is bound by the views reached by the delegate, whether this be in relation to the non-formation of an opinion about a bogus document or otherwise. It is clear that the Authority is entitled to conduct a different analysis.
73 Ground 3 of the appeal cannot succeed.