The Federal Magistrate's Decision
6 On 17 March 2004 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. That application was dismissed by Barnes FM pursuant to r 13.03A(c) of the Federal Magistrate Court Rules 2001 due to the appellant's non-appearance at the hearing on 4 April 2006. Those orders of 4 April 2006 were set aside by Barnes FM on 26 April 2006 pursuant to application made on 5 April 2006 and the matter was adjourned for further hearing on 22 May 2006.
7 By amended application filed on 29 September 2004, the appellant effectively raised two grounds of review, namely that the Tribunal failed to consider the appellant's claim by reference to his association with the Khalistan revolution or movement in Punjab, and that the Tribunal's decision overall was not based upon reasoning which was rational or logical.
8 In relation to the first ground, her Honour held at [14] of her reasons for judgment that the Tribunal did consider the appellant's claim that he was associated with the Khalistan revolution or movement in Punjab and rejected those claims due to its findings in relation to the appellant's credibility.
9 In relation to the second ground, her Honour held at [15] of her reasons for judgment that the Tribunal's reasons were comprehensive, addressed all of the aspects of the appellant's claims and set out detailed reasons for its findings. Her Honour found that no lack of logic or rationality was apparent, let alone a lack of logic or rationality such as to evidence a jurisdictional error.
10 Her Honour went on to consider further grounds of contention raised by counsel for the first respondent as warranting consideration but in relation to which it was submitted no jurisdictional error was apparent. Her Honour first considered in detail whether there was any lack of procedural fairness in relation to the Tribunal's failure to put to the appellant its views about the appellant's documents. Her Honour, in my view correctly, proceeded on the basis that the common law principles applied: see WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 at [36] to [40]. Her Honour considered the precise circumstances in this case and held at [31] of her reasons:
In the present case the Tribunal gave no weight to particular aspects of each of the documents put before it by the applicant after the hearing because of inconsistencies between what was contended for in the documents and the applicant's oral evidence, The documents did not simply substantiate claims of the applicant that had already been made. On the contrary they were in some respect inconsistent with his claims. As the Tribunal observed, in the applicant's oral evidence he stated that his father was dead and that he had been killed in 1994 which was two years before the applicant claimed to have been detained (in 1996 for a few hours). Yet the documents included and referred to an affidavit sworn in 2001, purportedly by the applicant's father and one claimed the applicant and his father were arrested and detained together. In one respect the documents made fresh claims. The applicant had told the Tribunal that he knew nothing about a warrant of arrest being issued. The copy of the document described as a warrant of arrest was dated 19 April 2001, which was after the second Tribunal hearing, made a fresh claim that a warrant of arrest had been issued (in addition to the earlier oral claims of the applicant that the police were looking for him and if they found him he would be in trouble).
11 Her Honour concluded that, in the circumstances, the Tribunal was not under any obligation by reason of procedural fairness to put to the appellant its views on the appellant's documents. Her Honour held at [32] of her reasons:
In circumstances where the claims made in documents provided to the Tribunal by the applicant were inconsistent with the other evidence of the applicant in major respects and where such serious inconsistencies were the basis for the Tribunal giving no weight to the documentary evidence, these matters did not have to be put to the applicant as part of the Tribunal's obligations of procedural fairness. The weight to be given to particular items of evidence is a matter for the Tribunal and the Tribunal was not obliged to put its thought processes or reasoning to the applicant in relation to such inconsistencies. It cannot be said that the Tribunal's conclusions in relation to the weight to be given to documents making such inconsistent claims would not "obviously be open on the known material" (See Commissioner for Australian Capital Territory v Alphaone (1994) FCR 573 at 591 - 592). These findings were, in fact, sufficient to address the documents provided by the applicant. In this sense, the Tribunal's view that the documents were fabricated to assist the applicant's claims was not the basis for its decision.
12 Her Honour acknowledged that the Tribunal made adverse credibility findings against the appellant, however noted that these findings were made independently of the documents he later provided. Therefore, her Honour reasoned, this was not a case in which the authenticity (or lack thereof) of the documents was a critical step in the reasoning of the Tribunal in relation to the claims of the appellant.
13 Insofar as the documents made fresh claims, the Tribunal had rejected this material as fabricated to assist the appellant's case. In this regard, her Honour noted that the basis of this finding of fabrication was the Tribunal's adverse credibility finding about the appellant and the inconsistencies between the material and the appellant's oral claims as well as country information. Her Honour found that such finding was open to it on the evidence before it. Her Honour held at [34] - [35] that:
…The Tribunal finding was not based simply on the appearance of the documents. Nor was it based on independent information about document fraud which it may have been necessary to put to the applicant…[T]here was evidence to support the Tribunal's finding in this respect. It was not a "bare assertion" of fabrication…[A]s the Tribunal had made an assessment that the evidence was not to be relied on, it was a "logical conclusion" that the documents were fabricated. {citations omitted}
In all the circumstances I am not satisfied that the Tribunal denied the applicant procedural fairness by failing to put to him for comment its views on the documents he submitted.
14 Accordingly, her Honour was not satisfied that the Tribunal had denied the appellant procedural fairness.
15 Her Honour then considered whether there had been a breach of s 424A of the Migration Act 1958 (Cth) ('the Act') because the Tribunal used the inconsistencies between the appellant's oral claims and claims in the appellant's statutory declaration attached to his protection visa application to find that the appellant was not an impressive witness. Her Honour found that these inconsistencies were information for the purposes of s 424A(1) and that these inconsistencies had formed part of the reason for the Tribunal rejecting the appellant's credibility. Nevertheless, her Honour found that since the appellant had given the information in his statutory declaration to the Tribunal, it fell within the exception provided in s 424A(3)(b).
16 Her Honour noted that the appellant provided the following reasons in his review application to the Tribunal:
I am disagree with the department's decision because I have really danger from Indian authorities and Police so I can't go back to my home country if I go to my country I will be prosecuted there as I have stated in my declaration to the department but immigration rejected my case but I want the review of my case.
17 Adopting the reasoning of Rares J in SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 ('SZGGT') which concerned republication to the Tribunal of information given to the Department, her Honour found that a reasonable person observing what was in the review application would have understood the appellant to have been referring not simply to the fact of his fear but also the reasons for such fear as stated in his statutory declaration. Accordingly, she found that the appellant had adopted or republished his statutory declaration for the purpose of his review application.
18 As no jurisdictional error was established, the Federal Magistrate dismissed the application.