NAOA v Minister For Immigration & Multicultural & Indigenous Affairs

the tribunal's decision 7 The Tribunal accepted that the appellant is a Bangladeshi national, but found that his evidence was 'vague, internally inconsistent and inconsistent with the independent evidence'. The Tribunal did not consider the appellant to have been 'a truthful witness'. 8 With respect to the appellant's claim that he was a Jatiya Party activist from 1992 onwards, and a leader who was targeted by his political opponents in Bangladesh for this reason, the Tribunal found that the appellant had demonstrated at the hearing that he was unaware of many events in Bangladeshi politics with which even an ordinary member of the Jatiya Party would have been familiar. 9 Noting that the appellant had provided documents in support of his claims, the Tribunal said: 'The independent evidence … indicates that there is a high level of document fraud in Bangladesh, with documents such as those provided by the [appellant] easily obtained with the assistance of the police. In view of the independent evidence, I do not place any weight on the documents provided by the [appellant]. In any event, there are other problems with the documents. For example, the [appellant] claimed that he was an executive member of the Barisal district committee and was wanted for murder. However, one of the documents supposedly from the Jatiya Party states that the [appellant] was a member of the Barisal metropolitan committee and was wanted because of his "agitating speeches" against the police.' 10 The Tribunal concluded that the appellant was not a member of the Jatiya Party, and hence that it was unable to be satisfied that he had ever been harmed for this reason in the past. In addition, the Tribunal was not satisfied that there were outstanding charges against him. The Tribunal's view was that the appellant had 'fabricated his claims in this regard in an attempt to create for himself the profile of a refugee'.

the decision of the federal magistrates court 11 The appellant appeared without representation before the Federal Magistrates Court. Driver FM considered whether the Tribunal had breached its procedural fairness obligations by failing to disclose to the applicant the independent country information and its doubts as to the authenticity of the appellant's documents. 12 In relation to the country information, Driver FM was of the opinion that in some circumstances, there may be an obligation on the Tribunal to give an applicant an opportunity to explain inconsistencies between his or her answers and country information. However, in this case, Driver FM found that s 424A(3) of the Act operated to prevent the appellant from making such a claim. In any event, his Honour found (at [15]) that 'no such obligation arose under the general law because the information used by the [Tribunal] was simple and uncontroversial factual information'. 13 Driver FM then considered the Tribunal's treatment of the documents that had been provided by the appellant. In doing so, his Honour regarded three decisions of this Court as establishing the proposition that (at [18]) 'if a decision of the [Tribunal] is based in whole or part upon an adverse finding on credibility based upon allegedly fraudulent documents, procedural fairness requires that the issue of authenticity of those documents be put to the applicant.' (see WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 1, NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 and WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597). 14 His Honour made the following comments as to the applicability of this proposition in the present case (at [19]): 'It appears from the record of the [Tribunal] decision that the documents in issue in this case were not raised with the [appellant] as apparent forgeries. However, a distinguishing feature in this case is that the [Tribunal] did not make a positive finding that the documents were forgeries. The [Tribunal] simply noted the high incidence of document fraud in Bangladesh and placed no weight upon the documents.' 15 In any event, Driver FM found that the Tribunal had rejected the appellant's credibility prior to any consideration of the documents. Thus, although it was (at [20]) 'theoretically possible that the documents might have assisted the [appellant] …, the [appellant's] credibility was so gravely damaged that that would have been unlikely.' 16 Driver FM then referred to comments made by the Full Court in WAEJ, where the Court had said, in finding that the Tribunal's conduct in that case amounted to a denial of procedural fairness, that (at [44]) '[t]his was not a case where dishonesty on the part of the appellant had been demonstrated' and that there 'was no finding by the [Tribunal] that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis'. As, in Driver FM's opinion, the Tribunal in the present case had made exactly these findings, the principle identified in the trilogy of cases referred to above was inapplicable. No breach of procedural fairness being evident, his Honour concluded that the appellant had failed to demonstrate the presence of any jurisdictional error, and ordered that the application be dismissed.

the appeal to this court 17 In this Court the appellant, who is now represented, relies upon the following grounds of appeal: 1. That the learned Magistrate erred in failing to find that the Tribunal failed to afford the appellant procedural fairness, and further failed to comply with s 424A of the Migration Act 1958 (Cth) ('the Act'). 2. In light of the learned Magistrate's finding of fact, that the Tribunal did not raise with the appellant its concern that documents provided by the appellant were forgeries, his Honour erred by failing to find that, in failing so to do, the Tribunal made a jurisdictional error. 3. The learned Magistrate erred in failing to find that the Tribunal made a jurisdictional error by not putting before the appellant country information taken into account by the Tribunal that was adverse to his claims. 18 In advancing these grounds, the appellant's counsel contended that, although Driver FM concluded otherwise, the Tribunal did find that the documents provided by the appellant on his claim of being wanted on false charges of murder were 'fabricated'. The appellant's counsel acknowledged that the grounds of appeal and his written submissions were prepared without the benefit of the tape of the Tribunal hearing. However, the tape was later tendered.

(a) The procedural fairness grounds 19 On behalf of the appellant, it is submitted, by reference to the Tribunal's own account of the hearing, that the Tribunal neither raised with the appellant the country information concerning document fraud in Bangladesh, on which the Tribunal later relied, nor informed the appellant that it might give no weight to, or find to be 'fabricated', the documents the appellant relied on. The appellant relied in particular upon the reasoning of Ryan and Finkelstein JJ in NARV at [13] - [20], where the Tribunal had there relied upon independent information concerning the prevalence of document fraud in Bangladesh. Ryan and Finkelstein JJ referred (at [15]) to the observations of Brennan J in Kioa v West (1985) 159 CLR 550 ('Kioa') at 629 that '[i]n the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision …'. Noting (at [18]) that there can be cases where there is little, if anything, a complainant could have done with the information which had not been provided to him, for instance, where the information is of a type that is difficult to controvert, Ryan and Finkelstein JJ said (at [19]): 'In the present case, by contrast, it is not open to the Court to infer that there was nothing which the appellant could have put had he known that the [T]ribunal was minded, in concluding that the letter of 26 January 2002 was a fabrication, to rely on country information about the prevalence of document fraud in Bangladesh. The appellant swore an affidavit deposing that if the [T]ribunal had said to him at the hearing, or otherwise, "that the independent evidence indicates that there is a very high level of document fraud in Bangladesh and that that may be a reason for rejecting [his] claim, [he] would have gone to collect more genuine documents by writing to [KM] or calling him."' 20 It is submitted for the appellant that, since Driver FM was prepared to draw an inference that the Tribunal did not put its concerns about the appellant's documents and apply NARV in the light of that inference, his Honour should also have drawn an inference that the Tribunal did not raise the country information concerning document fraud with the appellant and apply NARV accordingly. On this basis alone, counsel for the appellant submits, the reasoning of Ryan and Finkelstein JJ in NARV is indistinguishable, and accordingly, the appeal should be allowed. 21 We cannot accept this submission, for several reasons. For one thing, as the respondent submitted, the appellant's case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this 'appeared' to be the case 'from the record of the [Tribunal] decision'. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. 22 Secondly, a reference to the tape (cited below) reveals that the Tribunal did raise with the appellant the question of the authenticity of the documents upon which he relied and offered the appellant an opportunity to address that question. It was, as the respondent submits, open to the Tribunal not to accept the appellant's reply. 23 The transcript indicates that at the hearing before the Tribunal on 18 March 2003, the following exchange took place: 'Member: And other information I have indicates that documents, I should say as you provide, such as one supposedly from the police and from political parties, are very easy, and letters from lawyers saying you shouldn't come back to Bangladesh - very easy to obtain for money. Interpreter: Well I am not aware if you could buy everything by money.' 24 Thus, contrary to the submission of the appellant, NARV is distinguishable from the present case, as in NARV it was common ground that there was no disclosure of the relevant country information by the Tribunal to the appellant. 25 We are prepared to assume for present purposes that the authenticity of the documents provided by the appellant was a 'critical' issue or factor on which the decision was likely to turn, so that, in accordance with the rules of natural justice, the issue or factor was required to be drawn to the appellant's attention so that he may have an opportunity of dealing with it (see Kioa, above, per Mason J at 587). However, for the requirements of natural justice to be satisfied it is sufficient if the gravamen or substance of the issue or factor is brought to the appellant's attention; or that the appellant is on notice of its 'essential features' (see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 ('Pilbara') at 557 and the cases there cited). 26 In our opinion, the exchange extracted from the transcript reveals that the substance or gravamen of the information concerning the authenticity of the documents was brought to the appellant's attention and that he had an opportunity to deal with it. Hence, the Tribunal met its obligations. 27 As an additional aspect of the application of the rules of natural justice, the appellant further submits that the Tribunal was also obliged to make known its concerns about the documents produced by the appellant, and failed to do so. We do not accept that submission. In general, the Tribunal is not obliged to inform an applicant of its preliminary or evaluation conclusions about the material before it: see Pilbara at 555 - 557 and the cases there cited. In any event, the exchange extracted from the transcript reveals that the Tribunal did raise with the appellant the concerns it had about document fraud in Bangladesh and it was a matter for the Tribunal to evaluate the appellant's response to those concerns. 28 Accordingly, the appeal on the procedural fairness grounds cannot, in our view, succeed. (b) Section 424A of the Act 29 Section 424A 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.' 30 The appellant relies upon the reasoning of Ryan and Finkelstein JJ in NARV, submitting that the Tribunal's failure to disclose to the appellant the country information concerning document fraud in Bangladesh contravened s 424A as the Tribunal did not provide to the appellant particulars of any information that the Tribunal considered would be the reason, or a part of the reason for affirming the decision. 31 For present purposes, we are prepared to assume, without deciding, that country information of this kind can fall within s 424A(1)(a) notwithstanding the limitation upon its operation imposed by s 424A(3)(a) (cf. VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [14]). We are also prepared to assume, without deciding, that the information about document fraud was part of the reason for the Tribunal's decision. The real issue in these circumstances is whether the Tribunal complied with the obligations in s 424A(1) to give the appellant 'particulars' of the information the Tribunal considered would be part of the reason for affirming the decision of the delegate. Based on the assumptions we have made, the sub-section required the Tribunal to give the appellant particulars of - 'the high level of document fraud in Bangladesh, with documents such as those provided by the applicant easily obtained with the assistance of the police.' 32 In each case, the requirement flowing from s 424A(1) is a question of fact. In the present case, it is our view that when the Tribunal informed the appellant that the information in its possession - 'indicates that documents … as you provide such as supposedly from the police and from political parties, are very easy, and letters from lawyers saying you shouldn't come back to Bangladesh - very easy to obtain for money' it gave the appellant particulars of the information required to be given under s 424A(1). Also, it is clear from the manner in which the information was given, and the appellant's response to it, that the Tribunal was ensuring, as far as is reasonably practical, that the appellant understood why the information was relevant to the review and that he was being invited to comment on the information. Thus, as with the procedural fairness grounds, the present case is distinguishable from NARV where there was no disclosure of the country information in question. 33 Further, although the information was not given by one of the methods specified in s 441A (i.e. by hand, pre-paid post or electronic means), the Full Court in NAHV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214 at 219 - 221 ([23] - [25]) held that a failure to comply with s 424A(2) was not one of substance, but went to the purely procedural question of the method or vehicle of conveying the substantive information referred to in s 424A(1). Accordingly, the failure to comply with s 424A(2) does not constitute a jurisdictional error that invalidates the Tribunal's decision, and so this ground of appeal also fails.

Orders 34 It must follow that the appeal is to be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 1 September 2004 Counsel for the Appellant: Mr T Reilly