Mohammed Rasel v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made on 30 August 2000 by the Refugee Review Tribunal ("the RRT"). By its decision, the RRT affirmed a decision which had been made on 21 January 2000 by a delegate of the Minister for Immigration & Multicultural Affairs ("the delegate") to refuse to grant a protection visa to Mr Mohammed Rasel, a national of Bangladesh. Mr Rasel had applied for that protection visa on 12 January 2000, having arrived in Australia from Bangladesh on 29 November 1999 with a student visa. 2 In connection both with his application for a protection visa and with his application for review by the RRT of the delegate's adverse decision on his protection visa application, the reason under the Refugees Convention on which Mr Rasel had relied for having a well-founded fear of being persecuted in Bangladesh had been "political opinion". For the purpose of those applications, Mr Rasel gave an account of his personal circumstances which included his having been associated in certain capacities with the Jatiya Party of Bangladesh, his having been involved in a particular political demonstration in Bangladesh at which the police had killed a person and his having afterwards been falsely charged by the police with the murder of that person. 3 When, in its statement of findings and reasons, the RRT was summarising the oral evidence which had been given before it by Mr Rasel, it stated, "He said that as a result [that is, of the person's death] there is a false case against him in relation to this demonstration. He does not have the documents [that is, relating to the case] with him now [that is, on 5 July 2000, the date of the RRT hearing]…. He has not had enough time to get the documents from Bangladesh (even though he arrived in November 1999). The Tribunal asked him how he could get the documents and he said he would speak to his parents and his parents would go to the police station." 4 Then, in that part of its statement of findings and reasons in which it was setting out its findings and reasons, the RRT both referred to the existence of "major inconsistencies" in Mr Rasel's claims before it and discussed those major inconsistencies. Those major inconsistencies related to the following six matters: Mr Rasel's status in the Jatiya Party; the year in which the demonstration occurred; whether the Awami League (another political party in Bangladesh) had been involved in the demonstration; the political affiliation of the person killed at the demonstration; where Mr Rasel had been hiding immediately before leaving Bangladesh; and whether Mr Rasel had had problems with the police in Bangladesh in 1999. Having discussed those major inconsistencies in Mr Rasel's claims, the RRT continued, "The Tribunal accepts that the applicant was a member of the Jatiya Party as he had some knowledge of the Party. The Tribunal does not accept that he was ever an executive member of the Party or that he led demonstrations or was subject to a false case in Bangladesh. The applicant does not have a well[-]founded fear of persecution by reason of his member[ship] of the Jatiya Party as the party is legal in Bangladesh and the party has had close ties with the Government and he was only an ordinary member of the party." 5 Then, immediately following the passage from its statement of findings and reasons which I have just quoted, the RRT made some further statements which have been the focus of Mr Rasel's application for review before me. The RRT stated the following: "The applicant offered [that is, at the RRT hearing] to obtain documents to support his claim that he faced a false charge. However false documents are easy to obtain in Bangladesh and their production would add little to the applicant's claims. Further if the documents did exist he has had since November 1999 (when he arrived in Australia) to obtain the documents. His evidence was of such poor quality that the Tribunal is of the view that it should proceed to make a decision on the basis of the information before it." 6 The RRT's reference in that passage from its statement of findings and reasons which I have just quoted to the ease with which false documents could be obtained in Bangladesh was plainly based on certain country information which the RRT had discussed earlier in its statement of findings and reasons. Included in that country information had been information from which the inference was open that a person could easily obtain in Bangladesh false documents for the purpose of supporting a claim by him or her to refugee status. That such an inference had been open on that information was conceded before me by Mr Rasel. 7 In an amended application for review, filed by leave at the outset of the hearing before me, Mr Rasel relied on only one ground of review of the RRT's decision, namely, the ground which is set out in par 476(1)(g) of the Migration Act 1958 (Cth) ("the Act"). That ground is "that there was no evidence or other material to justify the making of the decision". Of course, par 476(1)(g) of the Act must be read together with subs 476(4) of the Act, which provides that the ground specified in par (1)(g) is not to be taken to have been made out unless one of two matters is established. Although there was no very clear reference to it in Mr Rasel's amended application for review, he made plain during oral submissions before me that he sought to establish the second of those two matters, namely, that the RRT had "based the decision on the existence of a particular fact, and that fact did not exist". 8 Mr Rasel's amended application for review contained particulars of his sole ground of review as follows: "1. The Tribunal inferred that the documents the applicant offered to produce would be false and because they would be false would add little to the applicant's case. There was no evidence that the particular documents the applicant would have produced - if given the chance - would have been forgeries. 2. The decision of the Tribunal to proceed to make a decision on the information before it was based on the 'fact' that the applicant's documents if produced would be forgeries and add little to his claim. 3. There was no evidence before the Tribunal that the documents the applicant would produce would be forged. 4. The applicant did not have the opportunity to have his offer tested of producing documents in support of his claim there was a false charge against him, thus there was no forensic evidence available to the Tribunal that the particular documents were forgeries and would add little to his claim. The 'fact' that the documents were forgeries or would have been forgeries does not exist. There is no proof of the 'fact'." 9 In support of his submission that the ground of review set out in par 476(1)(g) of the Act had been enlivened, Mr Rasel relied on the decision of a Full Court of this Court in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 (Sundberg, Emmett and Conti JJ, 5 March 2001, unreported). 10 In my view, Mr Rasel's submissions before me, which approached the matter along the lines foreshadowed in the particulars set out in his amended application for review, were based on an incorrect construction of what the RRT had stated in that paragraph of its statement of findings and reasons from which I have quoted at [5] above. 11 As I read the RRT's statement of findings and reasons, it was because of the "major inconsistencies" regarding the six matters which the RRT had discussed that the RRT was prepared to reject Mr Rasel's claim to have a well-founded fear of being persecuted in Bangladesh for reasons of political opinion. The question arose in the RRT's mind on 30 August 2000, however, whether it should make its decision on that day or should instead await further the arrival of those documents regarding the so-called false charge which, at the hearing eight weeks earlier, Mr Rasel had offered to produce in support of his case. 12 In the result, the RRT decided to await those documents no further, but to make its decision on that day. It did so for a number of reasons. 13 One of those reasons was that Mr Rasel had had since November 1999 to obtain the documents, but had still not done so. 14 Another of those reasons, and the one which is crucial for present purposes, was that "false documents are easy to obtain in Bangladesh and their production would add little to the applicant's claims". 15 Mr Rasel would have me read the words which I have just quoted as having been intended by the RRT to convey the meaning that any documents which Mr Rasel might ultimately produce to the RRT would be false and would therefore not assist his case. 16 I do not so read them. I read them instead, in accordance with the well known approach which I am to take to the reading of the RRT's statement of findings and reasons (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ and Toohey, McHugh and Gummow JJ)), as having been intended by the RRT to convey the meaning that any documents which Mr Rasel might ultimately produce to the RRT could be false and that the production of false documents would not assist his case. In substance, what the RRT was intending to convey, as it appears to me, was that, given the fact that Mr Rasel had still not produced the offered documents, in spite of having had a long period of time within which to do so, and given the risk that, if ever produced, those documents would be false in any event, the RRT had decided not to await them, but instead to act on the view which it had already formed as a result of the major inconsistencies in Mr Rasel's claims. 17 (I add that Mr Rasel conceded before me that, if the RRT had been intending by the crucial words merely to convey that there existed a risk that any documents ultimately produced to it by Mr Rasel would be false, then the conclusion that there existed such a risk was one which had been open to the RRT on the material before it.) 18 It appears to me that what I have said above is enough to show that Mr Rasel's amended application for review must fail at the threshold, since I conclude that the RRT did not intend to convey that which Mr Rasel attributed to it and that which was the basis of his amended application. 19 There are, however, three matters about Mr Rasel's reliance on par 476(4)(b) of the Act about which I wish to say something before concluding these reasons. In doing so, I will proceed on the assumption, contrary to the view which I have already expressed, that, by the relevant statement, the RRT was intending to convey that any documents ultimately produced to it by Mr Rasel would be false. 20 First, par 476(4)(b) of the Act only operates with respect to findings of "particular fact[s]". It is difficult to see how an expression of view by the RRT that Mr Rasel would produce false documents to it in the future amounts to a finding by it of a "particular fact" within the meaning of par 476(4)(b). Instead, it appears to me to be proper to characterise that expression of view by the RRT as a prediction by it as to the future. 21 There are pointers in the terms of subs 476(4), apart merely from the use of the word "fact" in par 476(4)(b), to an intention on the part of the Parliament not to encompass within par 476(4)(b)predictions as to the future. First, one may contrast the use in par 476(4)(b) of the word "fact" with the use in par 476(4)(a) of the more general word "matter". Secondly, it is necessary for a person relying on par 476(4)(b) to establish that the particular fact concerned "did not exist", a form of words which sits uneasily with any suggestion that a prediction as to the future is encompassed within the paragraph. 22 As well as those linguistic pointers, there exist judicial authorities supporting the conclusion that the Parliament did not intend to encompass predictions as to the future within par 476(4)(b). In Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193 (FCA), Sackville J (at 204) stated that "a conclusion as to future possibilities" was not a "particular fact" within the meaning of par 476(4)(b). In Thalary v Minister for Immigration & Ethnic Affairs (1997) 73 FCR 437 at 444, Mansfield J followed Sackville J in that respect and, in Alijagic v Minister for Immigration & Multicultural Affairs [1999] FCA 280 (24 March 1999, unreported), Hely J (at [21]) did likewise. 23 Secondly, par 476(4)(b) of the Act only operates when the particular fact concerned is one on which "the decision" was "based". Whilst "the decision" being referred to in that paragraph obviously includes the decision-maker's ultimate decision in the matter, it does not include some anterior decision by the decision-maker which is merely "procedural in nature": compare Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301 at 308 (Goldberg J); Pasini v Boland (1999) 92 FCR 438 at 445, [22] (Merkel J). In the present case, that on which Mr Rasel relied before me as a particular fact was not something on which was based the RRT's ultimate decision in the matter, namely, its decision to refuse to grant Mr Rasel a protection visa. That ultimate decision was instead based on the six major inconsistencies in Mr Rasel's claims identified by the RRT. At most, that on which Mr Rasel relied before me as a particular fact could be argued to have been something on which had been "based" the RRT's decision, merely procedural in nature, to wait no longer before making its ultimate decision. Furthermore, even the latter argument appears to me to be unsound in the circumstances: compare Chopra v Minister for Immigration & Multicultural Affairs [1999] FCA 480 (Lee, Whitlam and Weinberg JJ, 23 April 1999, unreported) at [64], where the Court said that if something was "but one of a number of considerations, any one of which would have been sufficient to lead the Tribunal" to reach its decision in the matter, then that thing was not a particular fact on which that decision had been "based" within the meaning of par 476(4)(b) of the Act. 24 Thirdly, in order to succeed on the ground set out in par 476(1)(g) of the Act when read together with par 476(4)(b) of the Act, an applicant must, as I have already mentioned, prove that a particular fact, being one on which the decision was based and of the existence of which there had been no evidence or other material before the decision-maker, "did not exist". Proof of the non-existence of that particular fact must occur only by evidence which is admissible for that purpose according to the rules of judicial evidence: see my reasons for judgment in N258/00A v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 478 at 486, [29]. 25 In the present context, it was therefore necessary for Mr Rasel to prove before me (among other things) that such documents as he would have produced to the RRT would not have been false and to do so by judicially admissible evidence. He made no attempt to do so. 26 It follows from what I have said about the operation of par 476(4)(b) of the Act that, even if, contrary to my view, the RRT did intend to convey in its statement of findings and reasons the view that any documents produced to it by Mr Rasel in the future would be false, still Mr Rasel's application for review based on the ground which is set out in par 476(1)(g) of the Act read together with par 476(4)(b) of the Act would have been bound to fail. 27 I add that there is nothing in the reasons for judgment of the Full Court in Indatissa, on which case, as I have already mentioned, Mr Rasel relied before me, which would cast doubt on the correctness of anything which I have said above about the true operation of subs 476(4)(b) of the Act. 28 For the reasons given above, Mr Rasel's application for review must be dismissed