SZDUA v Minister for Immigration & Multicultural & Indigenous Affairs

Madgwick J: 1 This is an appeal from a decision of the Federal Magistrates Court declining to grant judicial review of a decision of the Refugee Review Tribunal (the 'Tribunal') adverse to the appellant given on 19 April 2004. The appellant, a citizen of Bangladesh, came to Australia as long ago as 9 September 1999. On 14 October 1999 he applied for a protection visa. The application was refused and, for reasons that are not clear, it was not until 28 March 2003 that the Tribunal affirmed the delegate's decision. However, that first decision of the Tribunal was, by consent, set aside in this Court on 10 September 2003 and the matter was remitted to the Tribunal to be determined according to law. 2 The attacks on the Tribunal's decision allege, in one respect, a denial of natural justice and in the other, a failure to comply with s 424A of the Migration Act 1958 (Cth) ('the Act'). The appellant's claims were that he had joined the Freedom Party in 1986 and become president of a local branch of it. He had been active in the party and had attracted the adverse attention of the Awami League which won Government in the 1996 elections. After assaults and attacks upon him and a number of false cases being filed against him, he decided to flee his native land. The appellant also alleged that in 1997 the Awami League had ransacked his pharmacy and other shops belonging to other people. It appears that the appellant feared the false cases if returned to Bangladesh and also that the Awami League were apt to 'kill and come back again'. 3 He was questioned at some length by the Tribunal Member in relation to the alleged false cases. He said one dated from 1998 and related to arms. The other, from 1999, was a murder case. According to the Tribunal: 'He was asked where the court documents were and said that he had submitted a letter from his lawyer but had not been able to get anything else. He was asked why not as he has a lawyer in Bangladesh and said "the lawyer has changed address and I am unable to communicate with him".' 4 The Tribunal then went on to ask him about the letter which the lawyer had provided and, for reasons which will appear, the Tribunal considered that document to be completely fake. The Tribunal Member tested his knowledge of the Freedom Party. Among other things he 'was asked if the party was Islamic or secular and he said secular'. According to the country information on the Freedom Party that the Tribunal Member consulted, the Freedom Party was formed in August 1987 by two of the participants in the 1975 coup which had resulted in the death of Sheikh Mujibur Rahman, and the 'party stresse[d] Islam as the main basis of [its] political ideology'. By 1996, however, the Freedom Party had failed to achieve electoral success. The Tribunal Member gave the following 'findings and reasons': 'I have carefully considered the claims and evidence of the [appellant] and the independent evidence relating top [sic] the Freedom Party in Bangladesh. I accept that he is a citizen of Bangladesh. Whilst I note that the [appellant] had some knowledge of the Freedom Party - such as knowing the names of the founders of the Party, the rough number of candidates in the 1996 elections and the five main principles of the Party there were several matters which cause concern and which lead me to a conclusion that he has fabricated his claims of association with and membership of the Freedom Party. In particular: The letter from the lawyer has been presented by the [appellant] as the evidence of his having cases against him. As discussed with the [appellant] I have serious doubts that the letter is genuine as I do not accept that a letter from a Bangladeshi lawyer would in his letterhead spell Bangladesh incorrectly (twice) and more of concern that the lawyer's name would be spelled two different ways. The [appellant] could give no explanation and said he had no comment to make on this. I do not accept that the document is genuine. I consider that the [appellant] must be aware that it is not genuine and that he has produced it to seek to enhance his claims. Because of this finding I also consider that the other documents submitted by the [appellant] are also false. As discussed with the [appellant] he has no evidence concerning the claimed false cases apart from what I have found to be a fabricated letter. I do not accept as reasonable that he has been unable to obtain any court documents as his lawyer had changed address and he has been unable to contact him. I consider that if there were real documents to be had that the [appellant] could have obtained them. The fact that he does not indicates that there are no such cases against him and he had fabricated this claim. As mentioned above the [appellant] does have some knowledge of the Freedom Party, however significantly it is only what might be considered general or easily accessible knowledge such as the names of the founders, the Party headquarters address and the five principles. When asked about other matters and his knowledge of the Party and its leaders he did not know fairly basic matters. For example I would have expected someone of his claimed profile and association with the Party leaders to know where they had been whilst in exile; where they are now; and how large the Party was. I consider that someone of his claimed profile and association would know of these matters. The fact that he did not know of these matters indicates to me that he does not have the association that he claims. Aspects of the original protection visa application were not correct. This being despite the fact that the [appellant] can read and write English and informs me that he had read the application prior to signing it. These issues were discussed with the [appellant] at hearing. Whilst I may be prepared to accept that there was a misunderstanding of his adviser in relation to the employment question, this does not explain the evidence relating to his prior passport and the statement that he "did not apply for a passport" - clearly this is incorrect. I consider that this indicates that the [appellant] was fabricating parts of his history in an attempt to give him a profile of adverse interest with the authorities. I consider that the [appellant] knowingly provided this false information. Overall I find that the [appellant] was not a credible witness and that he was not a member of, or associated with, the Freedom Party. I find that he does not have a well-founded fear of persecution for reasons of a Convention ground.' 5 The first point taken depends upon the following passage and the discussion of the lawyer's letter: 'I consider that the [appellant] must be aware that it is not genuine and that he has produced it to seek to enhance his claims. Because of this finding I also consider that the other documents submitted by the applicant are also false.' 6 The submission on behalf of the appellant is that the Tribunal Member unfairly used the appellant's knowing proffering of the false lawyer's letter to infer that the other documents submitted by the appellant were also false. The crucial other document is a letter from officials of the Freedom Party which indicated that he had joined the Freedom Party, was an active person in it and had become president of a local committee of the party. The submission is that it is by no means obvious that the serious adverse finding as to the appellant's credit and conduct in relation to the lawyer's letter would be used to found such a positive rejection of the letter purportedly from the Freedom Party officials. That is, fairness required that the proposed use of the adverse findings about the lawyer's letter in that way should have been communicated to the appellant so that, if there was any further material that he could produce to show the genuineness of the letter from the Freedom Party, he might have the reasonable opportunity to do it. 7 The respondent submits that the case is another instance of an applicant whose credit has been the subject of wholesale rejection so that all his claims have been rejected and as part of that, so have corroborative documents. Both parties referred to WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 and NAJO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 356. The key passage seems to be from [36] of WAGU (and quoted at [29] in NAJO) where French J said: 'Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.' 8 There is no doubt that the Tribunal Member rejected the appellant's credibility root and branch. In the first place, the Tribunal Member made the finding about the lawyer's letter and the appellant's knowing involvement in producing it 'to seek to enhance his claims'. Secondly, the Tribunal Member took the view (the subject of the second challenge to which I shall shortly come) that, as the appellant had produced no documentary proof that there were false charges against him, there were no such false charges and the appellant had fabricated that claim. Thirdly, the Tribunal Member took the view that the fact that the appellant did not know certain 'fairly basic matters' about the Freedom Party and its leaders indicated that he did not have 'the association that he claims' with that Party. Fourthly, the appellant had given misinformation about whether he had ever applied for a passport in Bangladesh. The Tribunal Member thought that 'indicates that the [appellant] was fabricating parts of his history in an attempt to give him a profile of adverse interest [by] the authorities. I consider that the [appellant] knowingly provided this false information'. 9 It must have been apparent to the appellant and his adviser that the Tribunal Member was likely to see many reasons to disbelieve him on the crucial issues of whether he was a member of the Freedom Party and, if he were, his level of activity within the Party. If he was disbelieved, then the letter from the Freedom Party would carry no weight. There would perhaps be no reason to consider positively whether it was 'false', or not, in the sense of a wholesale concoction willingly participated in by the appellant, but that would really be the logical result of the rejection of the appellant's claims. 10 The case comes close to the position discussed by Moore J at [30] of his judgment in NAJO, which is in the following terms: 'While the Tribunal plainly entertained considerable doubts about many aspects of the appellant's claims and rejected most of them, its reasons do not reveal that it reached such a state of incredulity that it simply believed nothing the appellant said. In those circumstances, in my opinion, the Tribunal was obliged to raise with the appellant its doubts about the documents before rejecting them in the terms it did. I do not accept, as counsel for the Minister submitted, that by referring to "fabrication" the Tribunal was limiting its observations to the contents and not suggesting the documents were either fraudulent or forged, which are the terms used by French J in the passage quoted above. In any event, as French J observed, the obligation to raise doubts the Tribunal may have with an applicant arises if the Tribunal is disposed to rejecting the evidence on some positive basis. That the documents were "fabricated" is such a basis whatever, more precisely, the Tribunal may have had in mind. No submission was made that the denial of procedural fairness otherwise made no difference or, as a matter of discretion, should not issue'. 11 However, I think that when regard is had to all the facts of this case, it cannot be said that the appellant was treated unfairly. On a proper reading of the whole of the Tribunal Member's findings and reasons, I do not think that the sentence 'Because of this finding I also consider that the other documents submitted by the [appellant] are also false' was an independent and operative reason for the wholesale rejection of his credit that resulted in the conclusion that he was not even a member of, or in anyway associated with, the Freedom Party. That far reaching conclusion had more to do with the clear falsity of the lawyer's letter about which the appellant was questioned in some detail, and reliance on the other matters to which I have referred. 12 The question is whether, in an overall sense, the appellant received procedural fairness, and I think that the suggestion that he did not has not been made out. 13 The second challenge concerns the conclusion that the lack of supporting evidence entailed that there were no false cases. The argument put forward is that the non-production of court documents and their existence (if there were indeed false cases against the appellant), were information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review. Furthermore, it was argued that that information was not given by the appellant for the purpose of the application before the Tribunal, and was otherwise not within subs (3) of s 424A of the Act. Therefore, the Tribunal had been obliged to give the appellant written particulars of that information. 14 A short answer to this might be that the hypothetical existence of documents is not, in my view, 'information' within the contemplation of ss 424 and 424A of the Act. However, it seems to me that the matter is a little more complicated than that. 15 In the passage in question there are certainly two factual assumptions that have been relied on by the Tribunal Member. The first is that there would exist court documents if charges had been laid against the appellant and, secondly, that even without a lawyer, these would be readily enough obtained to verify the existence of those charges. 'Information', it seems to me, has a meaning wide enough to encompass factual material relied upon, however acquired, including by assumption from common experience, and the two assumptions, it seems to me, could possibly be information: see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [26]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 429 - 430. 16 However, the basis for the Tribunal Member having those assumptions was the implicit acceptance by the appellant when he was questioned on the subject that his assumptions were correct. The Tribunal Member's account of the questioning is as follows: 'He asked where the court documents were and said that he had submitted a letter from his lawyer but had not been able to get anything else. He was asked why not as he has a lawyer in Bangladesh and said, "the lawyer has changed address and I am unable to communicate with him". The Tribunal asked about the document [that is, the lawyer's letter] and was told that the [appellant's] brother had obtained it for him from the lawyer.' 17 The purported lawyer's letter said that there were two criminal cases in existence against him and a warrant for his arrest had been issued. When the matter was thus raised with the appellant and he dealt with it in the way indicated, even assuming the material concerned would be 'information', it seems to me that it can fairly be said that the appellant, by acquiescing in what was put to him, on that subject, 'gave' the information for the purposes of his application to the Tribunal. To acknowledge, even implicitly, the existence of a suggested state of affairs, about which we might be presumed to have some knowledge, can be regarded as the communication of knowledge, that is the giving of information on that subject: see Win Win Tin v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1109 at [53]. Alternatively, it would appear to be information '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', in the way in which that description - the exemption in s 424A(3)(a) of the Act - has been authoritatively interpreted in this Court: VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 168 at [20]. In relation to this case, the class of persons in question would be persons alleging that there are cases extant against them and seeking proof of that fact. If it is correct so to regard the information, then because it falls within subs (3), s 424A does not apply. 18 In my view, the submission cannot be sustained. 19 The second of the jurisdictional attacks upon the Tribunal's decision depended, of course, on the decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; 215 ALR 162, which post-dated the learned Magistrate's decision. 20 Nevertheless, in my view, the end result is that the decision of the Magistrate has not been shown to be wrong and the appeal should be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.