NAQZ of 2002 v Minister for Immigration & Multicultural &Indigenous Affairs; NAQY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

The History of NAQY's Claim 43 NAQY who claimed to be both a citizen of Bangladesh and India, was found to be a citizen of India by the Tribunal. She arrived in Australian on 18 November 1999 and lodged an application for a protection visa on 17 December 1999. On 23 December 1999 a delegate of the Minister refused to grant to her a protection visa. She applied to the Tribunal to review that decision on 27 January 2000. 44 NAQY claimed to fear persecution in Bangladesh from her family and her ex-fiancé due to her inter-caste marriage, and as a Hindu in a Muslim country. She also claimed to be at risk of persecution from her family, should she live in India because of her marriage. · NAQY's claims 45 NAQY in her application (which was prepared with the help of a migration agent) claimed to be a Bangladeshi Bengali Hindu of the Saha caste born on 9 July 1976. She claimed that she had attended a school and two colleges in Bangladesh, and that it was whilst she was a student at the second college (Jagannath University College in Dhaka) that she met NAQZ and commenced a relationship with him. She further completed a dress-making certificate in 1991, an embroidery certificate in 1993 as well as a bachelor and a masters of arts. She claimed to be a fashion designer. In 1994 her family found out about her relationship with NAQZ and sent her to live with an uncle in Calcutta. 46 NAQY claimed that NAQZ visited her twice in 1998 and that her uncle in 1999 arranged a marriage for her with a Bangladeshi (which was to take place on 12 January 2000) when he found out about the visits. Her uncle forced her to redo her secondary schooling and senior high school in India despite the fact that she already had a masters degree from Dhaka university. According to NAQY this allowed her uncle to obtain an Indian passport. She departed legally from India on 17 November 1999 on the Indian passport issued in April 1999. 47 She claimed to have married NAQZ on 12 December 1999 in Sydney. A friend of her uncle's in Sydney was named as the guardian of the appellant for the wedding, but objected, and informed the uncle. The friend supposedly told her that her uncle would take revenge on her and NAQZ, and that her Bangladeshi in-laws had received threats from the ex-fiancé. 48 The appellant provided several documents in support of her claims. Notably these documents included: (1) copy of a high school certificate of 1988, dated 25 May 1991 (2) copy of a secondary school certificate of 1989, dated 31 July 1986. (3) copy of a Bachelor of Arts certificate from the University of Dhaka for 1990, dated 18 September 1991 (4) copy of testimonial from Jagannath University college, certifying that the appellant was student in the master class of political science from 1990 to 1991, dated 9 December 1999, and certified by a migration agent in Sydney on 15 December 1999. (5) Copy of a certificate from the Narsingdi government college certifying that the applicant got 'second division' in her Arts degree in 1991, dated 10 November 1999 and certified by the migration agent on 15 December 1999. (6) Copy of a testimonial from Narsingdi government college certifying that the appellant 'got third division' in the higher secondary certificate in the humanities group in 1988, dated 21 December 1999. It was certified by the migration agent on 15 December 1999. · NAQY at the hearing before the Tribunal 49 At the hearing before the Tribunal on 1 February 2002, the appellant was assisted by an interpreter and represented by counsel. She confirmed that all the information in her application was true and correct. 50 The Tribunal inquired about the NAQY's passports. She claimed that her Indian passport had been obtained by smugglers, and that her Bangladeshi passport was lost. She claimed that her son's Indian passport has been obtained by a previous migration agent, Mr Kazi who did not know that the child was a Bangladeshi. She was asked if she had provided Mr Kazi with documentation which would have led him to believe the son was Indian. She claimed that she had not been asked, and was not aware of anything going on, and that she had merely asked for a passport which was needed for medication and one was provided. At a later point in the hearing, she stated that her Indian passport had been used to identify the boy as an Indian national. She said she knew that what she had done was illegal, but that she had taken the advice of professional people. Although she was aware of moral standards, she was in a new country and did not know the new culture. She claimed that whenever she sought to mislead, her moral principles kicked in and she told her husband or someone else, but that she had to find a way to stay in Australia. 51 NAQY produced a NSW driver's license which had the same date of birth as was shown in her Indian passport. It was consequently inconsistent with the date of birth provided in her application (9 July 1976), the veracity of which she maintained at the hearing. She was unwilling or unable to indicate what identification she had produced to gain the driver's licence. In response to a later and different question from the Tribunal, she claimed that she had presented her Indian passport to gain the driver's licence. 52 The Tribunal asked what she had studied for her Masters of Arts. She said she had studied political science, but was unable or unwilling to say if it had been by course work or thesis, or what specific subjects she had studied. 53 NAQY said that she could not return to Bangladesh because of fear of her family, her relatives and Jamaati e-Islami. She primarily claimed that she was afraid of her family due to her inter-caste marriage to NAQZ, and that she had been threatened because of it. When it was put to her that she could live in other places in India and Bangladesh, her answer, in summary was that she had tried but believed that she was in danger. She was asked why such a claim had never been mentioned before, but she was unable or unwilling to say. She further claimed that she and her husband had tried to live elsewhere in India but resiled from this when the Tribunal indicated that it had not previously understood that she and her husband had lived together in India. She claimed that her husband had problems in India due to the Muslims, and that she had a big family there. NAQY claimed that after her engagement to NAQZ her family had arranged Muslim people against her. The Tribunal asked if this had occurred in India, and she replied that she had been attacked on the streets quite a few times. She was unable or unwilling to say why this claim had not been mentioned before, but later noted that the attacks had taken place in September 1999 and that she had been tortured many times. 54 The Tribunal put it to her that her claim was incredible. She then claimed that her family had first kicked her out because of her affair with NAQZ, then arranged a marriage, and finally organised the Muslims against her. She was unable or unwilling to say why the family would have arranged the marriage after kicking her out of the family. NAQY then stated that she had left Bangladesh for India to seek shelter and safety from her family, after they organised Muslims against her some time after 1992. It was put to her that she had previously said that the family had sent her to India to stop the affair. She claimed that she fled to India after the marriage was arranged, as she did not like the fiancé. It was put to her that she had previously dated the year of the inception of the arrangement as 1999. She claimed that the family arranged a marriage in 1993 or 1994 to get her used to the idea. 55 NAQY claimed that she saw NAQZ in September and December 1997 and was under mental pressure from her uncle who did not want her to remain living with the uncle after he realised that the affair was continuing. She said that after the visit the uncle said that she could no longer stay with her uncle, and that she was kicked out of the family. She claimed that she stopped living with the uncle in October 1999, went to live with a friend, and then received the visa for Australia. However, she also claimed that the uncle obtained the passport in 1998 from a broker but then stated that he did not organise it for her. 56 She claimed to have attempted suicide for the second time in 1997. It was put to her by the Tribunal that there was no record of NAQZ entering India that year and that he had in fact denied it previously. She claimed that he had gone by road, and bribed officials but was unwilling or unable to say why that would be necessary. She resiled from her statement, in which she had written that he visited her in 1998. · The Tribunal's decision in relation to NAQY 57 The Tribunal first referred to country information which indicated the prevalence of document fraud in Bangladesh. It later accepted this information. 58 The Tribunal held that NAQY did not have a fear of persecution for a Convention reason. It said: 'The applicant's evidence in relation to most aspects of her claims was vague, generalised, unconvincing and lacked specific detail. I do not consider that the applicant was a reliable or credible witness. The lack of credibility of the applicant evidence, as well as my consideration the independent [country information on the prevalence of document fraud in Bangladesh] leads me to conclude that I am unable to be satisfied that the applicant faces a real chance of persecution in the foreseeable future if she returns to India or Bangladesh.' 59 The Tribunal did not accept that NAQY was a Bangladeshi, but held that she was Indian. The Tribunal member stated that her Indian passport appeared to have been legitimately issued, and that it had been used several times by her to enter and exit Bangladesh, and to enter Australia. The passport had been used as identification for the purpose of gaining a NSW drivers licence, and to establish her son's Indian nationality and Indian passport. 60 The Tribunal noted that NAQY had given many inconsistent accounts of how and when the passport was supposedly illegally (or legally) obtained. It rejected her claims that the passport was illegally obtained, and noted that the languages she spoke were consistent with those of an Indian West Bengali. 61 The Tribunal then considered the documents tendered by NAQY as proof of her identity, the majority of which were education certificates. It pointed to the fact that many of these documents were dated only a few days prior to being certified as correct, and that one, the document concerning the HSC in 1988 was dated on a date later than the date on which it was certified as being correct. The Tribunal said 'all the various educational certificates had been written in only two different hands.' It concluded: 'The documents provided by the applicant have the flavour and character of the documents described in the independent information. In light of the problems I note with the applicant's documents, just some of the many and varied inconsistencies and difficulties with the applicant's documents, and the independent information, I am unable to accept that the document produced by the applicant in support of her claims of identify and the situations she faced in Bangladesh have any credibility or veracity. Therefore, I am unable to accept that the documents are genuine, and consequently, I am unable to give the documents any weight.' 62 The Tribunal further rejected that NAQY had been sent to India and her evidence that she had escaped from Bangladesh to go to India. It rejected also the claims that NAQY had an affair in Bangladesh with NAQZ, or that a marriage was arranged by her family or an uncle at any time, that Muslims were sent against her, or that her travel to Australia was arranged by NAQZ or the uncle. The Tribunal also noted that even if NAQY feared persecution from her family on the ground of the marriage, this would not be for a Convention reason.

The Decision of the Federal Magistrate in relation to both NAQZ and NAQY 63 The applications of NAQZ and NAQY were heard together before the learned Federal Magistrate, and his Honour handed down his decision in one set of reasons applicable to both appellants. 64 The reasons of the learned Federal Magistrate were handed down after the decision of five Judges of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. His Honour was therefore bound to hold that s 474 of the Migration Act 1958 (Cth) ('the Act') precluded judicial review except in a case which fell within one of the three provisos referred to in the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. However, his Honour held that none of the provisos applied in the present case. 65 NAAV is no longer good law: SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 per Gray, von Doussa and Selway JJ at [19]; SDAV v Minister for Immigration & Multicultural & Indigenous Affairs, Minister for Immigration & Multicultural & Indigenous Affairs v SBBK [2003] FCAFC 129 per Hill, Branson and Stone JJ at [34]); Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168. 66 At the hearing before the learned Federal Magistrate it was firstly submitted that the Tribunal breached s 424A(1) of the Act because notice had not been given to the appellants of country information on which the Tribunal had relied. The Federal Magistrate held that s 424A(3) of the Act applied. That subsection provides that s 424A(1) does not apply where information is a relevant part of the determination but where it is not specifically about the applicant, or is just about a class of persons of which the applicant is a member. The Federal Magistrate was satisfied that the issue of document fraud formed part of the reason for the Tribunal affirming the decision of the delegate. However, as the country information concerned document fraud in general, the learned Federal Magistrate considered that it met the criteria of s 424(3) of the Act, and that no error of law was consequently demonstrated. 67 Secondly, counsel for the appellants argued that a reasonable apprehension of bias was evident in the Tribunal's decision. The learned Federal Magistrate rejected this argument on the basis of the authority of NAAV. 68 Thirdly, the Federal Magistrate rejected the contention that the proceedings were generally unfair, and noted that if they were this unfairness would be protected from review by NAAV. However, his Honour also noted that: 'It may be arguable that for other reasons the proceedings before the RRT in this matter were unfair. It may be arguable that the presiding member failed o put properly to these applicants or at all that Bangladeshi documents that they were relying on were fraudulent. It seems that from the reasons for decision of the RRT that the presiding member concentrated on the Indian passports in putting questions to the applicants and gave scant, if any attention to the Bangladeshi document…He did, however, in his reasons for decision, place considerable emphasis on the fact that he regarded the Bangladeshi documents relied upon by the applicants as fraudulent. …I do note that the Bangladeshi documents were before the RRT at the hearing and that they had been advanced by the applicants, but I am surprised at the dearth of discussion about those documents in the section of the reasons for decision dealing with matters that were put to the applicants.'

The Appellants' Grounds of Appeal before this Court 69 The appeal to this Court was first listed for hearing on 24 April 2003. However, the appellants appeared in person and asked for an adjournment as they had found a counsel who was willing to represent them, but who was unable to do it at short notice. The hearing was consequently adjourned until 8 May 2003. 70 On that day, counsel for the appellants provided written submissions in support of the appeal. These raised the following arguments:

1. That there was a denial of natural justice as the Tribunal did not put to the appellant that it suspected that the Bangladeshi documents were fraudulent and thus allow them an opportunity to comment on it. The appellants relied on Muin v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 190 ALR 601 for the proposition that adverse general information had to be disclosed to an applicant.
2. That the appellants were denied natural justice as they were not given an opportunity to comment on the adverse country information. The argument was put in a number of ways: a) It was submitted that s 424(3) of the Act did not apply in the present case as the Tribunal used the information as if it was specifically about the appellants. b) Counsel for the appellants submitted that that the term 'class' must have an ordinal scale otherwise the word 'group' would be used. As nationality could not be measured on an ordinal scale, country information about people from Bangladesh would not fall within the phrase 'a class of people'. c) It was submitted that if the Tribunal undertook independent research (by finding and using country information) and that this resulted in the Tribunal appearing to 'have preconceived ideas towards the appellant and [express] strong views against a whole class of persons' the appellants were entitled to be informed of the adverse information.
3. That the Tribunal fell into jurisdictional error when it ignored relevant information, namely the previous Tribunal's decision and the decision of the delegate, which both held that the male appellant was a Bangladeshi rather than an Indian. 71 At the hearing, the appellants' counsel sought and was granted leave to argue the first ground as a general proposition divorced from reliance on Muin. Leave was also granted for both the appellants and the respondent to file further submissions concerning the relevance of practical injustice to the Court's ability to provide or deny discretionary relief for a denial of natural justice. The respondent provided further submissions on 14 May 2003. No further submissions were received from the appellants. 72 Muin cannot be relied upon by the appellants. It stands for the proposition that procedural fairness will have been denied in a case where an applicant before the Tribunal is misled into thinking that the Tribunal has considered relevant information so that the applicant does not place information before the Tribunal which he or she otherwise might be able to put: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293, per Kiefel J (with whom Spender and Moore JJ agreed) at [24], NADD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 275, per North, Mansfield and Downes JJ at [26]. That was not the situation here. 73 The argument of the appellants is essentially that there was a denial of procedural fairness in the present case, either because the Tribunal had not made it known to the appellants that the Tribunal might rely upon country information about the prevalence of forged documents among Bangladeshi applicants or because the Tribunal had not alerted the appellants to the fact that the Tribunal might find the documents tendered to be forgeries and thus denied the appellants the opportunity to put such matters as they might wish to, to the Tribunal to persuade the Tribunal that the documents were, in fact, not forgeries. 74 The submissions that the country information document falls within s 424A(1), so that the appellants were required to be notified of it are of no substance. 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. … (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.' 75 With respect to the three ways in which the appellants framed their submission on this point, it can hardly be doubted that the country information was other than information about a class of people and not information specifically related to the appellants. The attempts to submit otherwise must clearly fail. Hence the only way the appellants' case can be put, so far as that case raises denial of procedural fairness by the Tribunal in failing to alert the appellants to the proposed use of the country information is that s 424A was not an exclusive code concerning the application of the rules of procedural fairness so far as they related to documentary material of general application. 76 That question has been decided by WAEJ v Minister for Immigration & Indigenous Affairs [2003] FCAFC 161 where a Full Court comprising Lee, Marshall JJ and myself said at [37]: 'It is clear that the RRT relied on country information in the course of dismissing the appellant's claims. In doing so, without advising the appellant of its intention to rely on that material and without offering him an opportunity to comment upon it, the RRT denied the appellant procedural fairness.' 77 We rejected an argument to the contrary based upon what had been said in WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 for the reasons set out in WAEJ. I am bound by the Full Court's decision and in any event it represent my views on the question. 78 The present, like WAEJ, is not a case where the provisions of s 422B (which now makes the Division in which s 424A appears an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters the Division deals with) can apply. That section commenced on 4 July 2002 and is applicable only to reviews of decisions by the Tribunal which commence after that date: Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). 79 There is therefore a question whether the Tribunal said anything to either appellant concerning either the existence of the country information or the possibility that the documents were forged. It was held in WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 that there is a denial of natural justice, at least generally, where the Tribunal rejects documents as not being genuine without affording the party tendering them the opportunity to put to the Tribunal such matters as it may be able to so as to answer the charge that the documents are forgeries. The Full Court said in that case at [53]-[54]: 'In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the applicant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the applicant in so far as the finding is that the letters have been concocted by the applicant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence. Where the finding of fact made does not turn upon the credibility of the applicant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.' 80 It was also held in that case, contrary to the submissions advanced by the Minister in the present case, that it is not necessary for an applicant denied natural justice to demonstrate as part of his or her case that he or she could have adduced evidence which demonstrated that the proceedings would have been decided differently if he or she had been alerted to the matter which was not made known to him or her by the Tribunal. In a case such as the present, once it has been shown that there has been a denial of procedural fairness the decision which is challenged will be set aside unless the facts are such that a properly conducted proceeding could not possible have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141. 81 There is no doubt that in both the case of NAQY and the case of NAQZ the documents found by the Tribunal to be forgeries were potentially corroborative of a crucial aspect of their case. It was relevant to the rejection of their case that the appellants were found to be nationals of India and not nationals of Bangladesh. 82 However, the Full Court in WACO did qualify their statement of the principle. Their Honours left open the situation where there was something on the face of the documents themselves which would alert the parties to the proceedings that there is a real issue to be decided as to whether the documents in question were forgeries. 83 There is an analogy to be found in the not unrelated rule in Browne v Dunn (1894) 6 R 57 (House of Lords). While it will ordinarily be unfair for a tribunal acting as a trier of fact to decide a matter adverse to a party without putting to the party the adverse matter and permitting the party to comment upon it, this will not be so where expressly or impliedly the party has been alerted in advance that the matter is one which is in issue in the case: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 83 ATC 4015 at 4027. That was a case where the matter not put to the witness was such that the dispute was one which should have been apparent without express notice. The learned authors of Phipson (12th ed. 1976) cited in Allied Pastoral qualify the rule, noting that the necessity to put a matter to a witness would not arise where either the witness has notice beforehand or where the story is itself of an incredible or romancing character. 84 As appears from the decision of the Tribunal there were matters of concern about the documents tendered in each case. Documents from diverse sources may have been written by the same hand or prepared on the same printer or signed by the same person. There was a problem with the dates of certain documents. Although it is not mentioned by the Tribunal some documents appear to have the same spelling errors. While these matters might likely, in the absence of any evidence to the contrary, result in a finding that the documents were forged it has not been suggested that the case was one where no evidence to the contrary of forgery could be adduced. For example, handwriting which to a non-expert may appear the same may to an expert not appear that way. Nor has it been suggested that the documents on their face were of such a quality that either appellant could be said to have been alerted in advance that there was an issue he or she would have to meet as to the genuineness of the documents. Since the documents were of great significance in the case fairness required the Tribunal member to at least alert the appellants that there was, to his mind, an issue of the genuineness of them. 85 Ultimately, as Gleeson CJ observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 the question whether a person has been denied natural justice is one of fairness. Ordinarily denial of procedural fairness will mean that there has been unfairness. 86 For the appellants to succeed, however, they must prove that the Tribunal did not alert them to the country information and did not make it clear that there was an issue for the appellant to deal with as to the genuineness of the documents. The appellants did not seek to tender a transcript of the proceedings before the learned magistrate, nor did they tender it before me. In any case on appeal, it would be far from self-evident that leave to tender the transcript should be given. 87 The present is not a case where counsel for the Minister has conceded that the Tribunal made no reference to the country information covering the prevalence of forged documents in Bangladesh. There is no concession either as to whether the Tribunal made any comments such as would alert the appellants to the fact that the Tribunal was likely to conclude in the absence of further evidence that the various documents tendered were forgeries. 88 Accordingly a foundation for a case that the appellant were each denied procedural fairness has not been made out. 89 The appellants' last submission was that the Tribunal committed a jurisdictional error when it failed to take into account relevant information, namely the decision of a previous Tribunal and of a Minister's delegate that the male appellant was a citizen of Bangladesh (rather than India). With respect to the appellants' submission, the Tribunal function is to provide applicants for protection visas with de novo review of an unfavourable decision of the Minister's delegate. The Tribunal is therefore not required to take into account factual findings by a previous Tribunal or by the Minister's delegate. In fact overt reliance on such previous findings of fact by the deciding Tribunal may very well amount to taking it taking irrelevant considerations into account: NANX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 734, per Gyles J; Collins v Minister for Immigration (1981) 58 FLR 407, Full Court at 411-412, Aung v Minister for Immigration & Multicultural Affairs [2000] FCA 1562, Katz J at [4]-[7]. The appellants have therefore failed to make out this ground of appeal. 90 The appeal will accordingly be dismissed with costs. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate: Dated: 17 August 2003 Counsel for the Applicant: J Eyeson-Annan

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 24 April 2003 and 8 May 2003