S1194/2003 v Minister For Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 26 April 2006, in which that court dismissed an amended application for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to a decision by the Refugee Review Tribunal made on 25 February 1999. The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse to grant a protection visa to the appellant pursuant to the Migration Act 1958 (Cth) ("Act"). 2 According to the judgment of the Federal Magistrate, the appellant is a citizen of India who claimed to have a well-founded fear of persecution because of his political opinion, namely, that arising from his membership of, and involvement in, the Bharatiya Janata Party ("BJP"). The Tribunal accepted that the appellant was a member of the BJP, and had been involved to some extent in meetings, writing slogans on banners and speaking at meetings, and in the giving of encouragement to others to participate in the BJP. The appellant claimed that he was involved in a significant procession, or peaceful demonstration, on 1 February 1997, arising out of which the local authorities laid false charges against him. The Tribunal did not accept that the appellant had been involved in such a demonstration, or that he was the subject of any charges arising therefrom. 3 At the hearing before the Tribunal, the appellant supported his claims by the tender of four documents. They were in evidence before the Federal Magistrate. The documents were: a. An eleven page document entitled 'First Information Report'. The document further described itself as 'first information of a cognizable crime reported under section 154, Criminal Procedure code at Police station Habra'. The report names 65 persons as accuseds, the name of the appellant being the first on the list. The report is dated 6 December 1992, and relates to an incident alleged to have occurred at about 11:15am on that day. b. A 'Charge Sheet', apparently referring to the same matters as were the subject of the Information Report, and listing the persons charged under various categories. The category under which the appellant's name appeared first was 'Accd persons sent up showing absconder'. The date of the Charge Sheet was 8 January 1997. c. A document headed 'Petition number 1241'. This appears to have been a petition for bail on behalf of one of the accused in the matter to which the Information Report related. It did not concern the appellant. It is not wholly clear when this document was executed, but it would appear to be either January or March 1997. d. What was described as a 'pamphlet' showing a photograph of the appellant, and stating that he had been 'absconder since 25/03/97'. The pamphlet further stated that the appellant was accused under the Indian Penal Code, with reference to various sections only partially corresponding with those to which the Information Report related. The pamphlet itself is not dated. 4 Of these documents produced by the appellant. The Tribunal said: "I have considered the documents the applicant provided in support of his claims and discussed them with him at the hearing. Both the content of the documents and his account of when and how he came to have them have led me to concluded that they are not genuine." A little later, the Tribunal held that 'these particular documents have been concocted'. There were two major reasons for the Tribunal's rejection of the authenticity of these documents. First, the Tribunal pointed out that, on their face, the Information Report and the Charge Sheet related to an incident which apparently occurred in December 1992. The appellant's own evidence before the Tribunal was that he was not involved in any political activities until 1995. He had attempted to relate these police documents to the demonstration in which he claims to have been involved in February 1997. It was apparent to the Tribunal that the documents could not have related to any such demonstration, or to the appellant himself. The appellant's response was to propose to the Tribunal that the police might have fabricated a charge against him in relation to what happened in 1992, but this was rejected by the Tribunal. The Tribunal described the suggestion that the state or national government might direct the laying of charges in relation to the appellant as 'a highly improbable scenario'. 5 Secondly and, it seems to me from a reading of the Tribunal decision, by way of confirmation, the Tribunal pointed out that the documents were 'riddled with spelling errors and very curious phrases'. Having perused the documents as they appeared in the record before the Federal Magistrate, I can but agree with the Tribunal's assessment. 6 The applicant applied for judicial review of the decision of the Tribunal on 18 March 2004. He filed an amended application on 3 November 2004. When the matter came on before the Federal Magistrate on 5 April 2006, the applicant sought, and was granted, leave to file a further amended application. He was then represented by counsel (on a direct access brief which, according to counsel, had been delivered the previous day). The further amended application raised the following two grounds: a. The Tribunal committed a jurisdictional error of law by failing to afford the applicant procedural fairness in circumstances where he was not given an opportunity to be heard on the content of the documents that were central to his claim. b. The Tribunal committed a jurisdictional error of law by failing to correctly apply the test of what constitutes persecution. In addition, over the objection of the respondent, the Federal Magistrate permitted the appellant to advance a further argument, namely, that the Tribunal ought to have made its own enquiries about the authenticity of the documents upon which the appellant relied, and that its failure to do so constituted a breach of natural justice. 7 At the hearing before the Federal Magistrate on 5 April 2006, counsel for the appellant sought leave to file and to serve a transcript of the hearing before the Tribunal. At that stage, apparently, the taped transcript of that hearing had not been transcribed, and counsel sought an opportunity to have this done, and to place this evidence before the Federal Magistrate. The Federal Magistrate refused leave for the filing of that additional evidence, because the Registrar of the Federal Magistrates Court had, on 28 January 2005, made an order which required the appellant to file and serve, by 25 February 2005, any affidavit containing additional evidence upon which he wished to rely, including the transcript of the Tribunal hearing. The appellant did not file any additional evidence by 25 February 2005 or, as the Federal Magistrate pointed out, in the 14 months which followed. In the circumstances, the proceeding before the Federal Magistrate was conducted on the basis of the Court Book filed on 18 August 2004, which contained the reasons for the Tribunal but no other evidence as to what transpired at the hearing before the Tribunal. 8 In relation to the first ground of review agitated before the Federal Magistrate, the Magistrate's judgment was as follows: "In the present case there were problems with several of the documents on their face. There was a serious issue concerning the purported date of an incident referred to in the second document. The temporal issue arising on the second document also affected the first, third and fourth documents. This issue was specifically raised with the applicant at the hearing. This was not a case of documents being rejected simply on the basis of country information or on the basis of a generalised view about an applicant's credibility. It is a case of documents being rejected because of credibility concerns apparent on the face of the documents themselves. Further, a key concern was discussed with the applicant at the hearing conducted by the RRT. In addition, the RRT decision does not purport to be exhaustive in its discussion of what occurred at the hearing. It is possible that other issues concerning the documents were discussed and it is also possible that other general credibility issues were discussed. I find that the applicant has failed to discharge his onus of proving that the manner in which the RRT dealt with his documents was procedurally unfair." 9 It would appear that, in the way the point was argued before the Federal Magistrate, the appellant's second ground of review in effect conflated into the issue whether the Tribunal was, in the circumstances, under an obligation to make its own enquiries about the authenticity of the documents upon which the appellant relied. It was submitted on behalf of the appellant that it was, support being derived from the judgment of the Full Court in Applicant M164 of 2002 v Minister for Immigration [2006] FCAFC 16. The Federal Magistrate considered that judgment, and held that, in a case such as the present where the Tribunal was satisfied, on the basis of its own examination of the documents and by questioning the appellant at the hearing, that the documents were not genuine, no obligation to make further enquiries arose. 10 Dr Azzi, who appeared for the appellant before me, advanced the same grounds of review as had been unsuccessful before the Federal Magistrate. He submitted that the Tribunal had breached the rules of natural justice by not sufficiently alerting the appellant to aspects of the documents on which he relied which later formed the basis for its conclusion that the documents were not genuine. Dr Azzi challenged the Federal Magistrate's conclusion that the lack of congruency between the dates on the documents and the date when the appellant himself claims to have been involved in a demonstration confirmed the Tribunal's assessment that the documents were not genuine. He pointed out that 'it is not clear from the face of the document at AB56 and the document at AB57 to which incident the charges adumbrated therein refer to'. The document at AB56 was the so-called pamphlet, and the document at AB57 was the bail petition. The Federal Magistrate, as I have noted, said that 'the temporal issue arising on the second document also affected the first, third and fourth documents'. Mr Smith, who appeared for the respondent, submitted that all four documents were linked by subject matter and, where there was an obvious temporal incongruity in relation to the Information Report (what the Federal Magistrate referred to as the 'second document'), neither could the other three documents be regarded as genuine. 11 Having perused the four documents concerned, and having read what the Tribunal had to say about them, I consider that the Federal Magistrate was correct in the way he dealt with the appellant's objections, and that his judgment in that respect was free from error. It is manifest that the Information Report and the Charge Sheet related to the same incident, and that that was an event which occurred on 6 December 1992. It seems inescapable that either the date, or the inclusion of the appellant's name, or both, on these documents was a forgery. There is nothing to link the bail petition with the appellant at all, but, for what it is worth, it appears to relate to the same incident of 6 December 1992. The pamphlet is not dated as such, but, from context, appears to have been created on or after 25 March 1997. On its face, there is nothing to suggest any connection between the pamphlet and any political or similar activity in which the appellant may have been involved. Indeed, Dr Azzi's submission before me was that the pamphlet ought to be seen as quite separate from the other documents. If this approach is taken (and, as Dr Azzi appeared to imply, ought to have been taken by the Tribunal) it would produce the result that the appellant had no basis upon which to connect this document with political activity in which he claimed to have engaged. 12 The Federal Magistrate pointed to passages in the decision of the Tribunal in which it noted that it had discussed these documents with the appellant. He noted, justifiably in my opinion, that the decision of the Tribunal did not purport to be exhaustive as to what occurred at the hearing. He disposed of the matter before him on the basis that the appellant had failed to discharge his onus of proving that the manner in which the Tribunal dealt with these documents was procedurally unfair. On the evidence before him, I consider this to have been the correct result. 13 Turning to the appellant's reliance on M164, the Federal Magistrate clearly took the view that this was not a case in which 'the need for further enquiry is obvious'. I agree. Here was a situation in which documents had been provided by the appellant himself, in which the prospect of those documents having been forged was quite apparent on their face, and in which the Tribunal discussed the matter with the appellant. The Tribunal had a power to make further enquiries under s 427 of the Act, but, under the legislation which existed at the time, there was no statutory obligation to make those enquiries. An obligation to do so would arise only where not doing so would amount to a denial of a fair hearing. Given the nature of the documents, and the fact that they were produced and relied upon by the appellant himself, I agree with the Federal Magistrate that there was no want of procedural fairness displayed by the Tribunal in this respect. 14 In the Federal Magistrates Court, it appeared that the appellant advanced other arguments, and one other ground, in addition to those referred to above. The two matters referred to above, however, were the extent of the appellant's appeal in this Court. In his Notice of Appeal, amended by consent on the day of the hearing, the appellant relied upon the following grounds, and particulars: "1. His Honour erred in finding the decision of the Second Respondent "free from jurisdictional error" in circumstances where the Tribunal failed to afford the Appellant common law natural justice by reason of its failure to give the Appellant an opportunity to comment on the genuineness of an important document corroborating the Appellant's claim. Particulars: a. The Second Respondent did not put its concerns to the Applicant about the genuineness of a document (headed Petition no.1241 - reproduced at CB 57-69 - tendered by the Applicant ("Document 1"). b. It was incumbent on the Second Respondent to give the Appellant an opportunity to address its concerns about the genuineness of Document 1, which was critical to his claim to fear persecution by reason of false charges laid against him. c. In the preceding circumstances, his Honour erred in finding that the Second Respondent was not required to put its concerns about Document 1 to the Appellant because it had done so in relation to another central documents tendered by the Appellant (at [25]) of Reasons for Judgment). d. His Honour erred in affirming the Tribunal's rejection of the documents provided by the Appellant "because of credibility concerns apparent on the face of the documents themselves". 3. His Honour also erred in finding the Second Respondent had not fallen into jurisdictional error in circumstance where, having regard to the importance of Document 1 and other documents tendered in support of the Appellant's claim and the ease with which enquiries as to authenticity of documents could have been made, a significant public interest lay in determining whether fraudulent documents had been used in the Appellant's protection visa application. Particulars a. The Tribunal constructively failed to exercise its powers under section 427(1)(d) of the Migration Act 1958 to ascertain the genuineness of Document 1 and other documents tendered in support of the Appellant's claim. b. On its face, Document 1 and other documents tendered in support of the Appellant's claim provided appropriate and readily verifiable lines of enquiry that the Second Respondent could have used to test the genuineness of Document 1. c. The Tribunal further failed to exercise jurisdiction by not making a positive finding about whether the BJP "would have sufficient concern with individuals … to try to use the police to act against them" (CB 99)."