SZBJW v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT Introduction: 1 This is an appeal from a decision of Raphael FM given on 16 May 2005 dismissing an application under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) ("Act") for review of a decision of the Refugee Review Tribunal ("the RRT"). The RRT's decision was handed down on 14 August 2003. It affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 2 The issues which the appellant wishes to raise on appeal are denial of procedural fairness, breach of ss 424A and 425 of the Actand illogicality. Background 3 The appellant is a citizen of Bangladesh. In his application for a protection visa he claimed to have been an active member of the Bangladesh National Party ("the BNP") and to have a well-founded fear of persecution at the hands of the Awami League which was then in power in Bangladesh. 4 His application was refused by a delegate of the Minister on 29 June 2000 and he lodged an application for review by the RRT on 5 July 2000. 5 It appears from the reasons of the RRT that in October 2001 there was an election in Bangladesh and that the BNP was elected to government. 6 On 26 June 2002 the RRT invited the appellant to attend a hearing on 30 July 2002. 7 On 24 July 2002, the appellant, who had changed migration agents some time after the delegate's decision, made a submission to the RRT through his new migration agent. The submission contained a claim that the appellant held fears, not only from the Awami League, but also from some of his opponents within his own party, the BNP. 8 The hearing before the RRT was held on 11 February 2003 and the appellant attended the hearing. 9 After the hearing the appellant's migration agent provided documents to the RRT under cover of a letter dated 5 March 2003. The documents included what appear on their face to be charge sheets and arrest warrants as well as documents stating that the police were searching for the appellant all over Bangladesh ("the police documents"). The appellant's evidence was that the charges were false. The RRT's decision 10 The RRT rejected the appellant's claim because, having seen him give his oral evidence, it was not satisfied that he was a credible witness. It did so in the following passage:- "I do not accept the applicant's claims. I had the benefit of observing him giving oral evidence for some time and I am not satisfied he is a reliable witness. He blamed his original adviser for the complete absence of any mention of his claimed fear of harm from a BNP faction in his original application. I questioned him about this and found his explanations lacking in credibility. I draw support for this conclusion from the timing of the subsequent change of government in Bangladesh and its obvious detrimental effect on the applicant's original set of claims. I draw further support from the various inconsistencies and contradictions in his evidence. I find his claims that he had false charges laid against him implausible. On the one hand he claims to have been wanted by the police for very serious crimes, but at the same time he was able to continue in full-time employment and maintain a very high-profile as a political activist. Moreover, his cousin whom he called as a witness said the police had never come to the home where they had lived together since childhood. The applicant's explanation of this was that his cousin 'was involved with work and not fully aware of the situation'." 11 The RRT went on to say that it found "inconceivable" the appellant's explanation that his cousin was not aware of the alleged interest by the police in him. It also said that the appellant's claims about being pursued by the police at his various places of employment were "not believable". In addition, the RRT said it had doubts about the claims that he was wanted for serious crimes because he was able to obtain a passport without difficulty. 12 The RRT then turned to the police documents. It said:- "I am not satisfied the police and other documents produced by the applicant are genuine. I consider it more likely than not that the totality of the applicant's original set of claims was as stated in the first protection visa application and that the subsequent additional claims about the BNP faction was a fabrication as a consequence of the change in government. I conclude that all of the claims are fabricated." The grounds of review 13 The appellant's application for review stated three grounds. They were broad and unparticularised. I will set them out in full as follows:- "1. Tribunal made error of law, procedural and natural justice problems. 2. Tribunal member did not inquiry (sic) my case properly and failed to take into account relevant issues in my case. 3. Tribunal has acted in bad faith, and failed to consider my protection visa application positively." The Federal Magistrate's decision 14 The Federal Magistrate observed that the RRT did not find the appellant a credible witness and that the RRT gave its reasons for not accepting him. His Honour observed that the reasons are capable of supporting the conclusions. He could not see any jurisdictional error; see [13] - [15]. The Grounds of Appeal 15 The only grounds of appeal in the Notice of appeal filed on 2 June 2005 were general and unparticularised. They did not disclose any appealable error. 16 On 19 September an amended notice of appeal was received in the Registry. It is not clear whether the document was accepted for filing. I gave leave to file it. 17 I do not propose to set out the grounds of appeal in full. Each is based upon a failure of the RRT to invite the appellant to appear before it and present arguments in relation to the authenticity of the police documents or to inform him of the proposed finding that the police documents would be found not to be genuine. Grounds of Appeal not run below 18 Counsel for the appellant submitted that leave was not required to raise the amended grounds. He conceded that they were not run in those terms before the Federal Magistrate but he said that they were within the scope of the broadly worded grounds of the application for review. 19 A similar submission was "emphatically rejected" in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 (Heerey, Moore & Goldberg JJ) at [14]. As their Honours observed, the "grounds" in the application were not grounds at all. The same observations apply here. The stated grounds contain bald assertions of error of law and denial of procedural fairness. They do not provide any basis for understanding the reasons for the challenge to the RRT's decision. 20 Leave is therefore required to raise the new grounds for the first time on appeal. 21 Leave to argue a new ground should only be granted if it is expedient in the interests of justice to do so; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 ("VUAX") at [46] per Kiefel, Weinberg & Stone JJ. 22 The practice which has been adopted in migration cases is that leave may be granted if a point has "clear merit" and there is no prejudice to a respondent in permitting the point to be agitated; an adequate explanation for the failure to take a point below is required; see VUAX at [48]. 23 The approach taken in migration cases is to be contrasted with the stricter rules stated by Allsop J in Branir v Owston Nominees (No 2) Pty Limited (2001) 117 FCR 424 at [34] - [39]. 24 The only explanation which has been offered for the failure to run the new grounds at first instance is the fact that the appellant was unrepresented. I accept this as an adequate explanation but it is still necessary to demonstrate "clear merit" and absence of prejudice. Section 424A 25 The first question which arises is whether the RRT's view that it was not satisfied that the police documents were genuine was "information" within s 424A(1). 26 The propositions which emerge from the authorities which have considered what is encompassed within the term "information" were summarised by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. 27 As their Honours said at [24], "information" refers to knowledge of relevant facts or circumstances communicated or received by the RRT. It does not encompass the RRT's subjective appraisals, thought processes or determinations. 28 The RRT's failure to be satisfied that the police documents were genuine was not knowledge of facts communicated to or received by it. It was a subjective approach or thought process which followed from its rejection of the appellant as a witness of truth. This turned upon the change of his claimed fear after the change of government in Bangladesh and the various facets of the appellant's evidence which the RRT found to be implausible. 29 It follows that the alleged information was not "information" within the meaning of s 424A(1). This ground therefore has no merit and leave to run it on appeal is rejected. 30 There is a further reason why the s 424A ground could not succeed. The question of compliance with s 424A(1)(a) is to be judged retrospectively in light of the RRT's actual decision; whether information falls within the description of that which the RRT considers would be "the reason, or the part of the reason" for its decision is an interpretative process; it is a matter of judgment to isolate what were the integral parts of the reasons for the decision; VAF at [29], [30] and [33]. 31 These views have been followed by other Full Courts; VUAX at [51] - [52]; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [114] - [116] per Merkel & Hely JJ. 32 In the present case, the RRT's rejection of the claim was based on its observations of the appellant's evidence at the oral hearing. This was integral to the RRT's reasons. The RRT's rejection of the police documents as not "genuine", followed from its assessment of the truth of the claims he made at the hearing. It was not an integral part of the RRT's reasons. Section 425 33 The appellant's counsel submitted that s 425 required the RRT to invite the appellant to give evidence and present arguments on the issues arising on the review. He relied upon the remarks of French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [58]. He submitted that the genuineness of the documents was an issue which arose on the review. 34 Even if s 425 imports an obligation in those terms, a difficulty immediately arises because the police documents were not submitted until after the hearing. 35 In any event, the weight of authority is that s 425 is a procedural requirement. The invitation must be real and meaningful, not an empty gesture. It does not bear on the procedures followed at the hearing which may be affected by any want of procedural fairness; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 121 at [30] and [32]; see also M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 86 at [61] - [62]. 36 There was no suggestion that the invitation to attend the hearing failed to comply with the principle that it be real and meaningful. Rather, the appellant's counsel submitted that once the RRT had doubts about the genuineness of the police documents, it was under an obligation to offer the appellant a second hearing. That submission is contrary to the approach to construction of ss 425 and 424A taken by a Full Court in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [25] - [26]. 37 This ground, as with the first, has "no merit". Procedural Fairness 38 The application for review by the RRT was filed some two years before the date on which s 422B of the Act came into force. That section was therefore not relevant to the question of whether the ordinary rules of procedural fairness applied; see SZBCP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 743 at [4]. 39 What then follows is that the appellant was entitled to have his attention directed to the critical issue or factor on which the decision was likely to turn so as to have an opportunity to deal with it; Kioa v West (1985) 159 CLR 550 at 587 per Mason J. 40 The appellant's counsel relied upon a line of authorities in which it has been held that the question of whether a document was genuine was a critical issue which the RRT was bound to raise with the party affected; see eg WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [42]. 41 The relevant authorities were considered by Carr and Tamberlin JJ in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 at [60] - [64]. As their Honours observed at [62], the precise factual circumstances are of course important to any consideration of procedural fairness. 42 In the present case the genuineness of the police documents was not an issue, let alone a critical issue, at the hearing because the documents were not provided until nearly a month after the date of the hearing. 43 Assuming that an obligation of procedural fairness is capable of arising in relation to documents submitted after the hearing, the approach taken by Carr and Tamberlin JJ is against a finding that there was such an obligation in the present case. 44 This is because the relevant principle is that there is an obligation of procedural fairness where the genuineness of the documents is critical to a finding of credibility. That was not the case here. Indeed it was to the opposite effect. The critical factors in the finding of adverse credibility were, as I have already said, the observations made by the RRT of the appellant's oral evidence at the hearing. Its view that the documents, submitted after the hearing, were not genuine, followed from its assessment of the credibility of the case presented at the hearing. 45 Accordingly, the ground of denial of procedural fairness has no merit. 46 The Minister's solicitor submitted that the Minister would be prejudiced if this ground of appeal were permitted to be raised. The prejudice was said to be that, if it had been agitated before the Federal Magistrate, the Minister may have wished to tender a transcript of the hearing. 47 This submission has some difficulty because the transcript could have no bearing on the case, the police documents not having been produced until later. 48 Nevertheless, for reasons stated above, I would not permit this ground of appeal to be raised. Illogicality 49 The effect of the appellant's submission was that it was illogical to reject the documents as not genuine purely upon the basis that the appellant's evidence of his claimed fear of persecution was fabricated. 50 However, as Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at [12] it is not illogical for a finder of fact who is convinced that a witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence even though there is no independent ground for rejection other than the reasons given for disbelieving the witness. 51 See also the observations of McHugh and Gummow JJ at [49], with whom Callinan J agreed at [173]. 52 The illogicality ground therefore has no merit. RRT Findings of Fact: Duty to Speculate 53 The final submission of counsel for the appellant was that the RRT ought to have considered the consequences if it were wrong in the conclusions it reached about the genuineness of the police documents. This ground was not contained in the notice of appeal. In any event, a fair reading of the RRT's reasons show that the RRT had no "real doubt" that claimed events had not occurred. Therefore, the RRT was under no obligation to consider the possibility that its findings were wrong:Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [67] per Sackville J, with whom North and Kenny JJ agreed at [129] and [140]. Orders 54 It follows that the orders I will make are that the appeal be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.