SZATG v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|1997-05-06|Before: Lindgren J, Hely J

THE COURT ORDERS THAT:

The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NEW SOUTH WALES DISTRICT REGISTRY NSD 1132 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Barnes FM in which her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the RRT') affirming a decision of a delegate of the respondent to refuse to grant the appellant a protection visa. By direction of the Acting Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the appeal is to be heard and determined by a single judge. 2 The appellant is a citizen of Bangladesh who first arrived in Australia on 16 October 1998. He applied for a protection visa shortly after his arrival. That application was unsuccessful and the appellant returned to Bangladesh in September 1999. The appellant most recently arrived in Australia on 25 June 2001. He again applied for a protection visa. In very general terms, the appellant claimed to be a member of the Bangladesh Nationalist Party ('the BNP') who feared persecution at the hands of the Awami League. The application was supported by a statutory declaration sworn by the appellant on 27 June 2001 which set out in some detail the appellant's claims. 3 On 5 September 2001 a delegate of the respondent refused the second application, having first notified the appellant by letter dated 16 July 2001 of information that was adverse to the appellant's claim. The appellant applied to the RRT for review of that decision. The appellant was represented by a migration agent (referred to by the RRT as the 'adviser') in connection with the second application. The adviser submitted a considerable volume of material to the RRT in addition to the declaration of 27 June 2001. 4 The appellant attended a hearing before the RRT on 1 May 2003, which was adjourned because the appellant was not well enough to proceed. The hearing was resumed on 2 June 2003. The transcript of these hearings was not in evidence before the Federal Magistrate.

The RRT's decision 5 The RRT considered, in some detail, the evolution of the appellant's claims both in the June 2001 application and thereafter. From that history the RRT concluded that the appellant's claims had grown at a rapid rate, and that neither the appellant nor his adviser had felt the need to let credibility or commonsense get in their way. The RRT said (at 25): 'It is clear to me that the reason for the expansion of claims in and after June 2001 is the involvement of the new adviser and his template and a desire to provide false claims (including documents with false information) to fill in the deficiencies in the case as identified by DIMIA in its July 2001 letter and September 2001 decision record.' 6 In its decision, the RRT records that at the hearing on 2 June 2003, the member raised with the appellant for his comment (inter alia): - the member's concern that the credibility of the claims and documents were undercut by the failure to refer to relevant incidents in the June 2001 application; - the member's concern that the adviser had given the appellant a story and that the appellant had simply added to it when his DIMIA application had been rejected; and - how unimpressive the supporting documents were, referring 'to the reputation of Bangladeshi documentation and my experience of the adviser'. 7 At the conclusion of the hearing on 2 June 2003, the RRT gave an oral decision which was later reduced into writing and forwarded to the appellant on 6 June 2003. The RRT expressed a general disbelief in the appellant's claims, particularly because almost identical claims had been made in a similar case handled by the same adviser, and found: - that it did not know if the appellant had ever been involved in BNP politics; and - the appellant did not fear persecution in Bangladesh, and was not wanted there. 8 Other findings were made by the RRT on the assumption that the appellant was associated with the BNP. They include: - the appellant has not held office in recent years, and his political prominence is less than the appellant would wish the RRT to believe; - if the appellant was associated with the BNP after 1995, it was only as a simple supporter or member; - all the harm the appellant claimed to have experienced took place in Dhaka. His repeated failures to take himself away from Dhaka and Tongi (an area just north of Dhaka) in which he was supposedly in danger was because he did not in fact fear persecution and he was not wanted; - if any of the cases against the appellant were to come to court, the appellant would be able to secure justice through the higher levels of the judiciary; and - it would be reasonable to expect the appellant and his family to relocate to an area outside Dhaka or Tongi, and if he did so, there would be no real chance that he would be persecuted for any Convention reason. 9 On the basis of those findings, the RRT concluded that the appellant was not a refugee, and accordingly was not a person to whom Australia had protection obligations under the Convention.

The decision of the Federal Magistrate 10 There were five grounds raised by the appellant in his amended application which was before the Federal Magistrate: (a) the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth); (b) the Tribunal made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future; (c) the decision was not based on a rational foundation; (d) the Tribunal did not provide the applicant with particulars of the information which formed part of the reasons of the Tribunal's decision namely, that violence against BNP supporters/leaders had subsided and that information was not 'just information about a class of persons'; and (e) the Tribunal did not put to the applicant its doubts about documents containing information personal to the appellant from the different sources of Bangladesh and those doubts formed part of the reason for the Tribunal's decision. 11 As to the first ground, (a), her Honour found that: - the appellant had particularised his claim under s 424A(1) as relating to documents relied upon by him in respect of his claimed imprisonment and false charges, and also to the RRT's reliance on material relating to documentary fraud in Bangladesh; - the information provided by the appellant for the purpose of the application is not subject to the s 424A disclosure obligations (see s 424A(3)(b)); - NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 establishes that the information in relation to documentary fraud should have been given to the appellant for his comment in accordance with s 424A(1). However, the substance or gravamen of the information in relation to documentary fraud was put to the appellant at the hearing, hence any failure to comply with s 424A(2) of the Act did not amount to jurisdictional error: NAHV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214, NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292; - there was no obligation on the RRT to take any steps to verify the authenticity of the appellant's documentation; - there was no denial of natural justice in relation to this information as the appellant has not established that the information was not put to him at the hearing, and the RRT's reasons for decision indicate that the substance of the information in relation to documentary fraud was given to the appellant at the hearing; and - the information about the independence of the higher levels of the judiciary was information known to the appellant having been provided to him by DIMIA. 12 As to the second ground, (b), her Honour found that: - there was nothing in the material to suggest that the appellant had claimed that there would be relevant socio-political change in Bangladesh in the reasonably foreseeable future; - the appellant's claims as to past events and the likely future prospects were addressed by the RRT in its consideration of the prospects of cases coming to court and the consequences; and - the RRT is not required to speculate on possible future events, but rather to deal with the case actually raised by the material or evidence before it (her Honour cited the following cases in support of this proposition: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630). 13 As to the third ground, (c), her Honour found that: - there was a rational foundation for the RRT's findings. The RRT was not satisfied of the appellant's credibility, but went on to consider his claims on a 'what if I am wrong' basis; and - The submissions put in support of the ground impermissibly attempted to seek merits review of the RRT's decision. 14 Her Honour found that there were a number of difficulties with the fourth ground, (d), namely: - it is unclear precisely what information is referred to other than 'that violence against BNP supporters/leaders had subsided'; - taken narrowly, the information was not a reason or part of the reasons for which the RRT rejected the appellant's claims. On a broader view of the information it fell within the s 424A(3) exception; and - there was no denial of natural justice in relation to this information as the RRT put to the appellant, and that he was aware of the change of government in October 2001. 15 As to the fifth ground, (e), her Honour found that the appellant had not provided a factual basis for this ground, which in any event was contrary to the RRT's record of what occurred in the Tribunal hearing. 16 The appellant also complained that the RRT gave its decision orally, immediately after a lengthy hearing. In the appellant's submission, this indicated that the RRT was biased, or gave rise to a reasonable apprehension of bias. The only material put before her Honour in support of this complaint was the RRT's reasons for decision. Her Honour found that there was nothing in those reasons to suggest that there was anything in the conduct of the hearing to indicate that the RRT had a closed mind or had reached prejudgment in the sense of being unable or unwilling to change its mind. Rather, the RRT gave the appellant the opportunity to answer the member's concerns and to address the critical issues. Her Honour concluded that the fact that the RRT then delivered an oral decision does not establish actual or apprehended bias.

The proceedings in the Federal Court 17 The Notice of Appeal does not disclose any intelligible grounds of appeal. Despite directions made by the Court, the appellant has not filed or served an amended Notice of Appeal setting out with particularity the grounds of appeal on which he relies. 18 However, on 22 November 2004 the appellant filed a document styled 'Applicant's Submissions' (which I have placed with the papers) that specifies grounds of appeal, and submissions by the appellant in support of those grounds. That document is not one which it is easy to summarise, but I have extracted the following complaints from it, although this involves some recasting of the appellant's document. The appellant did not enlarge upon these complaints in his oral submissions.

The RRT failed to verify the authenticity of documents submitted by the appellant's adviser 19 The appellant's adviser submitted various documents to the RRT. They included documents of an apparently official nature relating to the appellant's arrest, the laying of charges against him, and, in one case, a judgment which was delivered against him in his absence. They also included documents in relation to positions which he held in the BNP. 20 As to the latter, the RRT found that in view of the significant variation in claims about recent positions in the BNP, it could place no reliance on documents which purport to show which position he held in recent years. As to the former, the RRT did not believe the appellant's claims and documents in relation to the case which allegedly resulted in a sentence against him, because the case was supposedly initiated in October 2000, alleging a theft of money from a person who was his employer (but who never was his employer), and purportedly led to a period of detention before he left Bangladesh, but neither the case, nor the alleged detention was mentioned in the appellant's June 2001 application for a protection visa. Nor did the RRT believe the claims and documents about other matters which, in the RRT's opinion, commonsense and other factors dictate would have been included at a much earlier stage of the appellant's case if they were true or important. 21 The appellant's submissions describe the documents in question as official documents executed under seal of the respective authorities of the Peoples Republic of Bangladesh. Only the documents relating to the appellant's arrest, the laying of charges and the delivery of judgment in his absence could conceivably satisfy that description. In the appellant's submission, the RRT is obliged to verify the authenticity or otherwise of such documents through official channels before calling their authenticity into question. Alternatively, it is submitted that the failure on the part of the RRT to verify the authenticity of the documents in that way results in a failure on the part of the RRT to discharge its obligation to act according to the substantial justice and merits of the case (s 420(2)(b)). Reliance is placed upon the decision of Branson J in Jagjit Singh v Minister for Immigration & Ethnic Affairs (1996) 42 ALD 271; (on appeal) Minister for Immigration & Multicultural & Ethnic Affairs v Surjit Singh (1997) 74 FCR 553 (the first instance citation is presumably incorrect, and should instead be Surjit Singh v Minister for Immigration & Multicultural & Ethnic Affairs (1996) 42 ALD 504). 22 Section 427(1)(d) of the Act empowers the RRT to require the Secretary to arrange for any investigation that the RRT thinks necessary with respect to the review, and to give the RRT a report of that investigation. However, s 427 confers a power on the RRT, but does not impose any duty or obligation on the RRT to exercise that power: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43] (Gummow and Hayne JJ). 23 In Minister for Immigration & Multicultural & Ethnic Affairs v Surjit Singh (1997) 74 FCR 553, the Full Court (Black CJ, von Doussa, Sundberg and Mansfield JJ, Lee J dissenting) overruled the decision given by Branson J at first instance. In the course of so doing, the majority said (at 561): 'Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the Tribunal was under a duty to verify in such cases. In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect.' 24 Earlier in their reasons (at 558) their Honours endorsed the well-known observations of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170 to the effect that it is no part of the duty of a decision-maker to make the applicant's case for him, but in a case where it is obvious that 'material is readily available which is centrally relevant to the decision to be made', to proceed to a decision without making any attempt to obtain that information may be so unreasonable as to vitiate the exercise of the decision-making power. 25 In Surjit Singh the respondent relied upon s 420 of the Act as the source of the obligation to make an enquiry. In view of the conclusion to which the Full Court came, it was not necessary for the Court to determine whether a failure to act according to substantial justice for the purposes of s 420(2)(b) amounts to failing to observe procedures required by the Act to be observed for the purposes of the former s 476(1)(a). 26 Subsequently, in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 the High Court agreed with the reasoning of Lindgren J in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 327 (unreported, Lindgren J, 6 May 1997) that s 420 contained 'general exhortatory provisions' which did not amount to a requirement that the RRT observe a procedure in connection with the making of a particular decision for the purposes of the former s 476(1)(a). 27 In the present case, the appellant submitted that the RRT could and should have investigated the authenticity of the documents in question through the Australian Embassy in Bangladesh. However, there was no material before the RRT or the Federal Magistrate which would bring the present case within the observations of Wilcox J in Prasad, assuming that some duty to enquire can arise notwithstanding the characterisation of s 420 as merely 'exhortatory'. Further, the authorities establish that an applicant cannot succeed purely on the basis of an asserted breach of a freestanding legal obligation to enquire pursuant to s 427(1)(d) (see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [25], where the Full Court put it bluntly: 'No such obligation exists'). Nevertheless, while there is no general duty to enquire, the failure to make enquiries may sometimes be a breach of the rules of natural justice or render a decision unreasonable (Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at 212-213 [12] - [14] (McHugh J). However, consideration of the scope of such a principle, and whether there are circumstances in which constitutional writs may issue in relation to a failure to enquire, are issues best left for a more suitable case. In the present case, it is sufficient to note that, in the absence of any evidentiary foundation for a duty of enquiry, the appellant's submission cannot succeed. No such foundation has been established.

The RRT failed to particularise its potential findings on the issue of the authenticity of documents as required by s 424A of the Act and give the appellant an opportunity to comment on these findings 28 The Federal Magistrate found, on the authority of NARV that the RRT was bound to give the appellant particulars of that information in accordance with s 424A(2), and that the RRT failed to do so. The Federal Magistrate also found that the substance of the information was given to the appellant at the hearing on 2 June 2002, a finding which the appellant did not dispute. Hence, any failure to comply with s 424A(1) in this respect did not give rise to a jurisdictional error. The authorities cited by her Honour have been more recently applied in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264. 29 Even if there was a failure to comply with s 424A(1), the authorities establish that, in these circumstances, any such failure is not a jurisdictional error. Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (supra) was decided after the Federal Magistrate's decision. In that case the Full Court took a different approach to the construction of the s 424A(3) exemption to that taken by the earlier Full Court in NARV, with the probable consequence that general country information as to the prevalence of false documentation in Bangladesh was within the s 424A(3) exemption, and thus not required to be given to the appellant under s 424A(1). 30 Neither the principles of natural justice, nor the provisions of s 424A, require the disclosure of the RRT's subjective thought processes or evaluative conclusions so as to give an applicant the opportunity of persuading the RRT to change its mind: Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100 at 101 (Keely J), 108 (Gummow J); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 117-118 (Kirby J); Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at 1918 [54]; VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24].

Section 422B is not effective to exclude the administrative law requirements of natural justice 31 The Minister accepts that s 422B has no relevant application in the circumstances of the present case as the application to the RRT was made prior to 4 July 2002. It is therefore unnecessary to pursue this submission further.

The failure of the RRT to give the applicant an opportunity to respond to its concerns in relation to the documents constituted a denial of procedural fairness and/or natural justice 32 The information available to the RRT about documentary fraud in Bangladesh was credible, relevant and significant to the decision to be made. The RRT was thus obliged by ordinary principles of natural justice to disclose the substance of its concerns in this respect to the appellant so as to afford him an opportunity of dealing with the matter: WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511. 33 But the appellant has adduced no evidence of any failure on the part of the RRT to provide the appellant with an opportunity to respond to its concerns in relation to the documents, and the RRT's reasons indicate that the substance of the information in relation to documentary fraud was given to the appellant at the hearing.

Before making a finding of dishonesty that would be destructive of a party's case, notions of basic fairness require that the party be given the opportunity to address that issue in evidence and submissions 34 In general terms, this submission may be accepted. However, the RRT made it plain to the appellant that it regarded his claims and the documents proffered in support of them as lacking credibility and unconvincing, and, in effect, that he was putting forward a case which had been manufactured for him by his adviser. 35 There is no evidence that an opportunity to respond was denied to the appellant, and the RRT's reasons for decision indicate that the RRT alerted the appellant at the hearing to the difficulties which the RRT had with the case which was being presented to it. There was no denial of natural justice in this respect.

The RRT's adverse findings in relation to the political activities and false persecution were not supported by any positive evidence 36 It was for the appellant to put forward the information and materials on which he relied in support of his claims. The RRT is not in the position of a contradictor, rather, the RRT is to consider the appellant's claims and determine if they have been made out: Abebe v Commonwealth (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ). The RRT is not required to engage in 'an uncritical acceptance of any and all allegations' made by an applicant (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J)) and it is not required to accept a claim merely because positive evidence to the contrary is absent.

The RRT erred in law in failing to consider the appellant's subjective state of mind 37 In fact the RRT considered this matter, and stated on three occasions in its reasons that the appellant did not fear persecution, or that he did not and does not have a genuine fear of persecution.

The RRT failed to understand that the appellant was a member of a political party who was persecuted by reason of his political opinion 38 The RRT's reasons make it plain that the RRT understood that this was the appellant's claim. The reasons also make it plain that the RRT did not accept the appellant's claim, which is a different thing.

The Secretary of the Department did not comply with s 418(3) of the Migration Act, because he failed to give to the Registrar the documents referred to in Part B of the delegate's decision 39 This is not a matter which was raised before the Federal Magistrate. There is no evidence as to whether or not s 418(3) was or was not complied with, and, in any event, if there was non-compliance that does not of itself invalidate or undermine the RRT's decision. Nor is there any evidence that any unfairness accrued to the appellant by reason of any such non-compliance. 40 To the extent that this complaint seeks to invoke the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 the appellant has failed to establish any of the matters which were the subject of agreed facts in that case, and which were critical to the Court's decision.

Shortly after my return to Bangladesh in 1999, I faced serious persecution again and I came to Australia to leave my life 41 This ground impermissibly invites the Court to embark upon a merits review of the RRT's decision.

The RRT made a decision prior to the hearing and the hearing was only a formality 42 The only material relied upon by the appellant in support of this contention is that the RRT announced its decision orally at the end of a five hour hearing and, in the appellant's unsupported assertion, within thirty seconds of its conclusion. 43 However, it is a reasonable inference that the RRT's reasons which were forwarded to the appellant on 6 June 2003 had not been prepared at the time of announcement of the decision on 2 June 2003, because those reasons draw heavily on matters which occurred at the hearing on 2 June 2003. 44 I therefore agree with the Federal Magistrate that this claim has not been made out. The RRT put to the appellant at the hearing on 2 June 2003 the respects in which it considered that the appellant's claim lacked credibility, and was not satisfied with such explanations as the appellant was able to offer in response. This is indicative of 'due process', rather than of an unwillingness on the part of the RRT to change a previously formed opinion.

The RRT made no findings as to what socio-political changes might occur in Bangladesh in the future

45 The appellant did not assert that such change might occur, or that they had any bearing on his application for a protection visa. 46 The RRT did not commit any error in failing to deal with a purely theoretical construct.

The RRT did not provide the appellant with particulars of information, which formed part of the reasons of the RRT's decision, that violence against BNP supporters had subsided

47 In its reasons for decision, the RRT referred to the fact that the then most recent elections in October 2001 were won by the BNP over the Awami League. There is no specific reference in the RRT's decision to the proposition that 'violence against the BNP supporters/leaders had subsided'. 48 However, if the ground is intended to be a reference to the fact that the Awami League lost, and the BNP gained power in the October 2001 elections, the appellant was aware of that fact. There is no denial of natural justice in failing to inform the appellant of what he already knew. 49 The appellant has not established any error on the part of the Federal Magistrate. The appeal should be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Migration Act 1958(Cth)s 418(3), 420, 424A(1), 424A(2), 424A(3), 424(3)(b), 427(1)(d)

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