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MIGRATION - judicial review - refusal of protection visa -denial of procedural fairness - decision-maker obliged to disclose adverse information that is credible, relevant and significant to the decision - evidence of adverse effect on applicant not a precondition to relief - jurisdictional error in failing to give particulars of information pursuant to s 424A of the Migration Act 1958 (Cth) - independent country information not "just about a class of persons"

NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2

NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 (24 November 2003)
Last Updated: 24 November 2003


FEDERAL COURT OF AUSTRALIA
NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262


MIGRATION - judicial review - refusal of protection visa -denial of procedural fairness - decision-maker obliged to disclose adverse information that is credible, relevant and significant to the decision - evidence of adverse effect on applicant not a precondition to relief - jurisdictional error in failing to give particulars of information pursuant to s 424A of the Migration Act 1958 (Cth) - independent country information not "just about a class of persons"

WORDS AND PHRASES: "just about a class of persons"

Migration Act 1958 (Cth) ss 57, 422B, 424, 474

Migration Legislation Amendment (Procedural Fairness) Act 2002

Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 discussed

De Verteuil v Knaggs [1918] AC 557 cited

Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 cited

Kanda v Government of the Federation of Malaya [1962] AC 322 cited

Kioa v West (1985) 159 CLR 550 applied

Mahon v Air New Zealand Ltd (P.C.) [1984] 1 AC 808 cited

Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited

NAAG of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 135 applied

NAAV v Minister for Immigration and Indigenous Affairs (2002) 193 ALR 449 referred to

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 52 distinguished

National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296 cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) ALR 24 applied

R v Industrial Injuries Commissioner; Ex parte Howarth (1968) 4 KIR 621 cited

Re Minister for Immigration & Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 discussed

Re Minister for Immigration and Multicultural Affairs ex parte Lam (2003) 195 ALR 502 referred to

Re Minister for Immigration and Multicultural Affairs; ex parte "A" (2001) 185 ALR 489 referred to

Re Refugee Review Tribunal; ex parte AALA (2000) 204 CLR 82 cited

SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 applied

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 referred to

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs, Minister for Immigration & Multicultural & Indigenous Affairs v SBBK [2003] FCAFC 129 applied

Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to

VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 referred to

VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 distinguished

WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 discussed

NARV and ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1155 of 2002

RYAN, FINKELSTEIN and DOWNES JJ

24 NOVEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 1155 of 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NARV and ORS

Appellants


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent


JUDGES:
RYAN, FINKELSTEIN and DOWNES JJ


DATE OF ORDER:
24 NOVEMBER 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the trial Judge be set aside and in lieu thereof it be ordered that the decision of the Refugee Review Tribunal be set aside and the matter be remitted to the Tribunal to be heard and determined according to law.

3. The Minister pay the appellants' costs of the appeal and of the hearing below.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 1155 of 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NARV and ORS

Appellants


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent




JUDGES:
RYAN, FINKELSTEIN and DOWNES JJ


DATE:
24 NOVEMBER 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
RYAN and FINKELSTEIN JJ:

1 The appellants are a husband and wife, both Bangladeshi nationals, and their son who was born in Australia. On 6 December 1999 the adult appellants applied to the respondent ("the Minister") for protection (class XA) visas under the Migration Act 1958 (Cth) ("the Act"). Their applications were refused by a delegate of the Minister and on 19 January 2000 they applied to the Refugee Review Tribunal ("the Tribunal") for a review of those decisions. On 18 May 2000 an application for a protection visa was made by the son. That application was also refused and on 12 March 2001 he applied for a review of that decision. It was common ground before the Tribunal that the outcome of the applications of the wife and son was dependent upon the outcome of the husband's application. When his application failed, so did the other two. An application to a single Judge to review the three decisions of the Tribunal was unsuccessful. Now we have appeals from the decision of the Judge. In the appeals it will not be necessary to refer to the wife and son, and the husband will simply be referred to as the appellant.

The case before the Tribunal

2 The claims of the appellant (as applicant) were summarised by the Tribunal in its reasons for decision as follows:

`Personal information
16. The applicant husband claimed to be a 33 year old Bangladeshi male born in Faridpur in Bangladesh. He claimed to have been a banker, and to have been married in 1997. He claimed to have lived in Dhaka university from 1989 until 1994, and in Dhaka from March 1994 until July 1999. He claimed to have had 16 years of education from 1974 until 1984 in Faridpur, from January 1980 until March 1986 in Tangail, and from March 1987 until March 1994 in Dhaka. He does not indicate that he had any educational qualifications. He claimed to have worked from April 1993 until November 1995 with Concern Bangladesh as an assistant administrator, and from November 1995 until November 1999 with IFIC Bank as an officer. He claimed that his father, mother, two sisters and brother continue to live in Bangladesh. The applicant wife claimed to be a 33 year old Bangladeshi women born in Dhaka.

Travel information

17. The applicant claimed to have left Bangladesh legally through Zia international airport on 17 November 1999 on a passport issued in his own name without any difficulties. The applicant provided a copy of his passport, issued in his name on 28 September 1999 in Dhaka and valid until 27 September 2004. The applicant travelled to Australia on a Visitor visa issued in Dhaka on 27 October 1999 and valid for one month single travel.

Statement of 6 December 1999

18. The applicant husband claimed to fear persecution at the hands of the Awami League (AL) activists in Bangladesh as a result of his political opinion, as he was a member of the Jatiya Party (JP). The applicant claimed that he joined the Jatiya Shatra Shamaj (JCS, student wing of the JP) immediately after entering Dhaka university in 1987. He claimed to be elected general secretary of the Bongobondhu hall JCS chapter in 1987. He claimed that he was brutally beaten by AL militants on 2 April 1987. He claimed that Ershad banned the JCS at that time. He claimed that he had to leave the university campus to save his life and a number of political cases were filed against him by the AL and BNP.

19. The applicant claimed that in 1990 when Ershad lost power the applicant went into hiding for 2 years, completing his Masters examination under special police protection. In 1993 the applicant claimed to have worked for the JP, and was arrested twice in March 1993 and November 1994. He claimed he had to leave Concern Bangladesh in 1994 because of his arrests.

20. The applicant claimed to have joined the IFIC Bank in 1996. He claimed to have become a `relatively renowned political figure and had a firm footing in the party'. He claimed that he built up the organisation in his area. A number of false cases were filed against him by the AL, and influenced his sacking from the bank. He claimed to be the joint secretary of the Mirpur Thana branch. The applicant claimed that a departmental inquiry, which was baseless, was instigated against him to harass him, that the AL had hired professional killers to murder him, and he was called several times by the Special Branch. He claimed he had to leave the country.'


3 The Tribunal then noted that the appellant's migration agent had submitted a letter dated 10 February 2002 which rehearsed the claims which the Tribunal had recounted and made an additional claim which the Tribunal summarised in these terms:

`21. It was submitted that the applicant became involved with the Committee for Resisting Killers and Collaborators of Bangladesh Liberation War. It was submitted that such involvement had only been informed a few days ago. A certificate from that organisation regarding the applicant's involvement was provided. Two photographs of the applicants with the putative leader of the organisation purportedly taken in 2001 were also provided.
22. It was submitted that because of the fracture of the JP and BNP parties prior to the last election, the situation in Bangladesh is now more serious. It was submitted that false case against the applicant are still afoot.'


4 The Tribunal noted discrepancies between the appellant's visa application and his oral testimony at the hearing. It summarised the appellant's case as presented at that hearing:

`24. The applicant claimed that he was born in January 1968, in 1980 went to Cadet college, in 1986 completed his HSC, and then went to Dhaka university. He claimed to have studied political science, completing his degree and masters in 1989 and 1990. He claimed that his masters study lapsed in 1993. It was put to him that his protection visa indicated differently, that he studied at Dhaka university from March 1987 until March 1994. He then claimed to have finished studying in 1990, but obtained results in 1993.
25. The applicant claimed that he lived in Kallampour from 1979 until 1999, which was in Mirpur in Dhaka. He claimed to have been married in 1997 and he then lived in Thanmondi district in Dhaka. It was put to the applicant that this did not agree with the information in his protection visa application. He had nothing to say.

26. The applicant was asked what he feared if he returned to Bangladesh. He claimed that there were political cases against him from 1994 and 1995 which had not been finalised. He claimed that he also feared involvement with the moderate Islamic secular people who were allies of the fundamentalist Jamaati e-Islami, who were allies of the BNP. It was put to him that his claims seem to have changed, previously he feared AL activists, and with the change of the government it now appeared he claimed to fear another party and fundamentalists. He did not answer the question. He claimed that he feared false cases of fraud, that he had been the asset manager of the bank, and because the account had been run by a Jatiya party member, he was blamed by the AL. He claimed that because of his membership and involvement with that party, the AL, who privately and publicly owned 40% of the bank, implicated him in the fraud. He claimed that he had approved a loan, which had been approved by management, and that they blamed him.

27. It was put to the applicant that it sounded like a criminal matter, not a Convention based matter, and that he was attempting to impute political overtones into the case. He was asked if he had been charged and brought before a court. He then claimed that he joined the bank in 1996, that the loan was made in March 1999, and that the charges were brought in middle or late 1999. He was asked if he knew the charges. He said yes, he was told by higher management. He then claimed that the previous claims against him had been political but this one was criminal. He claimed that the lower courts were corrupt. It was put to the applicant that the court system in Bangladesh was independent, with the higher courts making decisions against the government. He agreed, but said that it takes time, there was delay, and it took time to go to the higher courts. He was asked if the substance of his claims was that he had been charged with criminal fraud. He said yes.

28. The applicant then claimed that he had joined a moderate Islamic association in 1992, a non-political organisation that brought war criminals to justice, that there were many in parliament and that those who were investigated were against the organisation. He was asked why there was no mention at all of any of this organisation prior to the hearing. It was put to him that his matter had been afoot since December 1999 and nothing had been heard of such claim until submissions were received on 11 February 2002, the day of the hearing. He claimed that it was not the relevant time.

29. The applicant claimed to have been a member of the JP since joining the student wing in 1987. He claimed that he continued as a member of the student wing until it was abolished in 1989. He claimed that in 1993 after his degree he joined the JP committee as a main activist. It was put to the applicant that Ershad had abolished the JCS, the student wing, in 1986 before he had claimed to have even gone to university. He claimed it was in 1989. He claimed that he was still a member of the Ershad faction.

30. The applicant claimed that he had a good job and life, and that there was no other reason to leave, that his wife was pregnant, but he had to come to Australia to save his life. He claimed that his son was a Bangladeshi citizen and that his son and wife were dependent on him.

31. The migration agent submitted that the JCS might have been banned but its support would have continued under other organisations. It was put to the migration agent that the applicant had claimed otherwise, that it was the JCS and it was banned in 1989. He submitted that the applicant continued to support the JP, and did not stay out of politics after the organisation was banned.

32. It was submitted by the migration agent that the applicant's claim of supporting the committee against war criminals, that it was a non-political organisation. He submitted that the political situation in Bangladesh was now different, that the AL is not in power, that the committee supported the JP and freedom fighters, that the applicant was involved in the committee's work against politicians now in power in the present government. It was submitted that the applicant might be subject to persecution because of his involvement. He was asked what involvement, but he was unable to say. He submitted that JP (Ershad) was involved and that Ershad was a problem.

33. The applicant was asked why anyone would have any interest in him. He claimed that he was as higher level leader in his locality, that he was a general secretary of his local area and that they wanted him. He was unable or unwilling to give any details of what he did, how he was a leader or what his claim was. He was asked why not live elsewhere, it was a big country. He then claimed that he had to live with his family and that there was no social system in Bangladesh. He claimed he could go nowhere else because he could not get a job in hiding. He then claimed that he was a political appointment of Ershad and worked in his interests and that his political opponents would seek him out to take revenge. He was asked what political appointment. He was unable or unwilling to say.

34. The applicant wife claimed that she did not want to go back and that she intended to stay in Australia for long as possible.'


5 Under the heading "Independent Information", the Tribunal noted that independent evidence indicated "a very high level of document fraud in Bangladesh" with police assisting in the provision of fraudulent documents, officials accepting bribes and lawyers, for a fee, furnishing letters advising clients that it is unsafe to return to Bangladesh. In the same context, the Tribunal quoted the following extract from a 1998 report by the US Bureau of Democracy, Human Rights and Labor:

`Asylum applicants from all [political] parties submit voluminous documentation to support their claims, including in particular outstanding warrants for their arrest if they return to Bangladesh and other alleged court and police documents. Arrest warrants are not generally available to the public, and all such documents should be scrutinised carefully. Many "documented" claims of outstanding arrest warrants have proved to be fraudulent. As of December 1997, the Embassy had examined several hundred documents submitted by asylum applicants; none proved to be genuine... Altered or counterfeit newspaper articles are another less frequent but notable example of document fraud.'

6 After some general discussion about the approach which the Tribunal is required to take in assessing whether an applicant has a well-founded fear of persecution for a Convention reason, the Tribunal found that the appellant was not a credible witness. It observed:

`The applicant's evidence in relation to most aspects of his claims was vague, general, unconvincing and lacked specific detail. I do not consider that the applicant was a reliable or credible witness. The lack of credibility of the applicant's evidence, as well as my consideration of the independent evidence set out above, leads me to conclude that I am unable to be satisfied that the applicant has a well-founded fear of persecution in Bangladesh or that he faces a real chance of persecution in the foreseeable future if he returns to Bangladesh.'

The Tribunal's decision

7 The Tribunal specifically rejected the appellant's claims to have been a member of either the JCS or the JP in Bangladesh. As to those claims, the Tribunal said:

`44. The applicant claimed to have suffered persecution in Bangladesh because of his political activities with the JCS and JP. I am unable to accept that the applicant is, or ever was, a member of the JCS or JP in Bangladesh. The applicant made many claims about the consequences of his purported activities with the JP, but was incapable, unable or unwilling to explain any detail of his duties, responsibilities or activities, except in a vague and generalised way.
45. His statement of claims was long on general Bangladeshi politics and the consequences of his involvement in those politics, but short on the details of his specific political activities, responsibilities or duties. I am of the view that the applicant had merely interposed his personal details onto publicly available accounts of Bangladeshi politics. Notwithstanding the generality of his claims, he claimed to have joined the JCS at university in 1987, and to have been an office bearer of that organisation until it was disbanded by Ershad in 1989. It is clear from the independent information above that the JCS was disbanded in 1986, notwithstanding the assertions of the applicant at the hearing and the submissions of his adviser that it might have continued in some other form. That was not the contention of the applicant.

46. In light of this evidence, I am unable to accept that the applicant joined or participated in any activities of the JCS at all. As a consequence, I am unable to accept that that applicant was elected general secretary of the JCS, that he was beaten by AL militants in April 1987 because of his involvement, that there were politically motivated false cases brought against him or that he had to leave the university campus to save his life. In any case, it was his evidence in his protection visa application that the applicant lived at Dhaka university from March 1987 until March 1994.

47. The applicant also claimed to have gone into hiding for two years when Ershad was ousted from power in 1990, and to have completed his masters examination under special police protection. As I have found that the applicant had not been involved in JCS politics while at university, it follows that he would not have needed to go in hiding. In any case, if he went into hiding as he claimed, that claim is inconsistent with the evidence contained in his protection visa application and with evidence given at the hearing. His protection visa application indicated that he was resident at Dhaka university from March 1987 until March 1994, there is nothing of being in hiding. Further, at the hearing it was the applicant's evidence, that contrary to the evidence in his protection visa application, he had finished studying for his masters in 1990, but to have obtained the results in 1993. In light of this evidence, I am unable to accept the credibility of this claim.

48. The applicant also claimed to have joined the JP in 1993 and worked as the main activist, that he was a high level leader and general secretary for his area. Yet in his statement and at the hearing, the applicant was unable or unwilling to say just how he carried out his activities, what he was responsible for, or how he was performed them, other than making bare assertions. In light of this evidence, its generality, vagueness and lack of specific detail of his personal involvement, I am unable to accept that the applicant is, or ever was, a member of the JP in Bangladesh. Accordingly, I am unable to accept that he was arrested in March 1993 or November 1994, that he had to leave a job in 1994 because of his arrests, that there were false cases filed against him or the AL member organised for his murder. In any case, the evidence in his protection visa application indicated that he left the Concern Bangladesh job in November 1995, not in 1994.'


8 The Tribunal then analysed the claim by the appellant that he had false charges preferred against him by AL members or other political opponents which led to his dismissal from the bank. According to the Tribunal, as the hearing progressed the appellant's claim that a criminal fraud case had been mounted against him was given "a political gloss." The Tribunal concluded that even if the appellant was facing a criminal fraud charge it was not politically motivated. It noted the appellant's acceptance that the Bangladeshi court system "is essentially independent, free and fair, but that it took time."

9 The appellant also raised an additional claim at the hearing, concerning membership of an organisation known as the Committee for Resisting Killers and Collaborators of Bangladesh Liberation War of 1971 ("the Committee"). The Tribunal dealt with this claim in the following way:

`51. The applicant also made a claim that because of his activities with a moderate Islamic organisation called the Committee for Resisting Killers and Collaborators of Bangladesh Liberation War, the fundamentalist party in government, the Jamaati e-Islami would persecute him if he returned to Bangladesh. This claim was raised for the first time in submissions by the applicant's adviser on 11 February 2002, the day of the hearing. It was contended by the adviser that he had only heard of the applicant's involvement in the organisation a few days prior to the submissions being made. The applicant was asked about the claim at the hearing; why nothing of such a claim had been heard before. He claimed that it had not been the relevant time. He submitted a document in support of the claim. The document, while describing in detail the history, aims and objectives of the organisation, says nothing of the applicant's involvement, except that he was an active member and a leading activist.
52. I note the independent information above that indicates that there is a very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police, that it is also common to pay bribes to officials, and that, in addition, lawyers will provide, for a fee, a letter advising that it is unsafe to return to Bangladesh. Other independent evidence refers to the prevalence of Bangladeshi asylum seekers providing fraudulent documents. I accept this evidence. The document provided by the applicant has the flavour and character of the documents described in the independent information. It makes extravagant claims of action and organisation but provides no detail at all of the applicant's activities, responsibilities or duties associated with the organisation. I am unable to accept that the document produced by the applicant in support of his claim has any credibility or veracity. Therefore, I am unable to accept that the document is genuine, and consequently, I am unable to give the document any weight.

53. In light of the nature and timing of the claim, that the applicant was incapable of explaining why it had not been made before, and the nature of the supporting document, I am unable to accept the claim is credible or has any veracity. I am of the view that the applicant has fabricated the claim to provide himself with the profile of a refugee.'


10 The document to which reference was made was a typewritten and signed letter which, omitting a line of Sanskrit script, was in these terms:

`COMMITTEE FOR RESISTING KILLERS & COLLABORATORS OF BANGLADESH LIBERATION WAR OF 1971
[Sanskrit script]

Ga-16, Mohakhall, Dhaka-1212, Bangladesh. Phone: 8822985, Fax: 0088-02-882688, E-mail: danaprnt@bdcom.com

TO WHOM IT MAY CONCERN


This is to certify that [the applicant] son of [the applicant's father] is an active member of our organization `Committee for Resisting Killers & Collaborators of Bangladesh Liberation War of 1971' (in Bangla- `Ekatturer Ghatak Dalal Nirmul Committee'). He actively took part in the long lasting campaign of the organization.

We also certify that our organization was emerged in the year 1992. The main objective of the organization was to bring to justice the war criminals of Bangladesh's Liberation war and to create people awareness against the religious fundamentalist political party like Jamaat-E-Islami of Bangladesh who actively played role against Liberation War of Bangladesh in 1971. During the Liberation War of Bangladesh Jamaat-E-Islami collaborated with occupation Pakistani army and actively helped them to committed Genocide. Three million innocent people of Bangladesh were killed, more than 250 thousand women were raped by the occupation Pakistani army during the liberation War of Bangladesh. Jamaat-E-Islami and the leaders of the party took part in this mass killing and atrocities. After the liberation war anti-liberation forces including Jamaat-E-Islami had been banned, but after few years in late 1970s the then military ruler of the country has brought the Jamaat-E-Islami and war criminals in the country politics for their own interest.

Prompted by our commitment to the liberation war and aggrieved by the failure of the government to try the war criminals, concerned citizens rose to protest Jamaat move and on January 19, 1992, Bangladesh's 101 well known personalities including retired Supreme Court Judges, university teachers, veterans of the independence war, artist and journalists formed the "Committee for Resisting Killers & Collaborators of Bangladesh liberation war of 1971," which is popularly known as Nirmul Committee. Jahanara Imam, mother of a martyr and also a well-known writer was made the committee convener.

After the death of Jhanara Imam in 1994, who was also the convener of National Coordinating Committee there was a major set-back in the movement. Simultaneously Jamaat managed to earn certain acceptability by joining the opposition parties' movement for holding general election under a caretaker government. However Nirmul Committee held its 3rd national conference on January 19, 1995, and expressed its determination to continue the movement. Newly elected young leaders of the Nirmul Committee have taken a series of action programmes against fundamentalism and communalism. Since then [the applicant] was chief coordinator of the western part of capital city committee until left the country. Still [the applicant] is a leading member of Nirmul Committee.

Due to Nirmul Committee's rigorous effort, in the general election of 1996 Jamaat - E - Islami could only get three seats in 7th parliament where as in 1991 they could manage 18 seats. [The applicant] was among the leading activist of us who had been campaigning with wholehearted effort. We are a non-political organization. Nirmul committee is a non-partisan platform of civil society for social movement.

But unfortunately country's one of the largest political party BNP has made alliance with the religious fundamentalist parties including Jamaat-E-Islami. Just after winning in the past general election held in October 2001 the four party allied forces led by BNP-Jammat has started to attack on religious minorities Hindu & Christian people of the country. Some senior leaders of the Jammat-E-Islami are now member of the present parliament of Bangladesh and two of them are even Ministers of the present four party allied Government. But there is a specific allegation of war crime against them. Nirmul Committee has been collecting evidence of war crime that was being committed during the liberation war of Bangladesh in 1971 by the leaders of Jammat and other anti-liberation forces.

Present government took the power in October 2001. In the next month of power taking in November 2001 the Government had arrested Chief of Nirmul Committee country's noted writer, journalist & filmmaker Mr Shahriar Kabir. But fortunately due to the immense pressure of different international humanitarian organization and after getting bail order from the High Court the Government had to release Mr Kabir but other members of the party are still on the run. Now the Jamaat-E-Islami, who are part of the government trying to do harassment on all the leaders & activists of Nirmul Committee around the country in any how.

In these circumstances we earnestly urge on Australian Authority not to compel [the applicant] come to Bangladesh where his life will be in absolute danger.

We wish him a successful life.

[sgd] Date: 26 January 2002

Kazi Mukul

General Secretary

Central Executive Committee

Committee for Resisting Killers & Collaborators of Bangladesh Liberation War of 1971'

The review by the trial Judge

11 The principal ground of attack on the Tribunal's decision was that the appellant had been denied procedural fairness. It was said that the appellant had been denied the opportunity to deal with the country information concerning document fraud because the existence of that information was not drawn to his attention.

12 The learned trial Judge considered that he was precluded by the judgment of the Full Court in NAAV v Minister for Immigration and Indigenous Affairs (2002) 193 ALR 449 from upholding this attack on the Tribunal's decision. His Honour observed:

`4 I think there is room for debate as to whether the Tribunal did take the course suggested, or otherwise infringe the usual tenets of procedural fairness. But it seems pointless to reach a conclusion about that matter. It is now established, by a decision of a Full Court of this Court, that procedural fairness is not a ground of review currently available: see NAAV v Minister for Immigration and Indigenous Affairs (2002) FCAFC 228. The view adopted by the majority of the five member Court that determined that case was that the rules concerning procedural fairness, which had previously been upheld in the High Court of Australia, for example in cases such as in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 no longer applied.
5 I am bound by the majority decision of the Full Court. The consequence is that I have to rule that any lack of procedural fairness does not advance the applicants' case. In that situation, I see no point in going into the detail of the allegations in order to form a view as to whether there is any merit of the complaint of lack of procedural fairness. I am compelled by the terms of s 474, as applied by the majority of the Full Court, to reject the only ground of challenge advanced by the applicants.

6 It follows that the application must be dismissed. The order of the Court will be that the application is dismissed with costs.'


The case on appeal

13 Mr Smith who appeared for the appellant contended, first, that it has now been established by the judgment of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) ALR 24 that s 474 of the Act does not protect a purported decision of the Tribunal which is infected by jurisdictional error and, second, that a failure to accord procedural fairness is a jurisdictional error for this purpose. It was conceded on behalf of the Minister that in the light of Plaintiff S157/2002 the trial Judge should not have applied NAAV because it was wrongly decided. According to the Minister, however, that understandable error was of no consequence because there had not in any event been a denial of natural justice in the circumstances. Two arguments were put forward in support of this contention. The first is a submission which is commonly made in these types of proceedings. It is a submission which is erroneous and should be put to rest.

14 In Australia Kioa v West (1985) 159 CLR 550 is one of the leading cases on the application of the principles of natural justice or, as it is sometimes referred to, procedural fairness. In Kioa certain adverse information important to the decision of the delegate of the Minister for Immigration and Ethnic Affairs was not provided to the appellant. The High Court set aside the decision. Mason J (as he then was) said (at 587) that:

"The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires he be given an opportunity of responding to the matter:" [citation omitted]
15 The Minister has taken this statement to stand as authority for the proposition that the rules of procedural fairness do not require the Tribunal to provide to an applicant for a visa country information which is not personal to the applicant. This is not so. First, it has never been the law that the requirements of procedural fairness are only enlivened in the case of adverse information which is about (in the sense of being concerned solely with) the person who may be affected by the decision. The principal aspect of the rules of natural justice with which this case is concerned is covered by the following statement by Brennan J (as he then was) in Kioa (at 629): "n the ordinary case...an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made." This statement has been adopted in later cases: see, for example, Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57, 96-97, 116; Muin v Refugee Review Tribunal (2002) 190 ALR 601, 631, 653. Brennan J's statement of the applicable principle is in conformity with the statement of principle found in earlier cases: see, for example, De Verteuil v Knaggs [1918] AC 557, 562-563; Kanda v Government of the Federation of Malaya [1962] AC 322, 337; R v Industrial Injuries Commissioner; Ex parte Howarth (1968) 4 KIR 621, 626; Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, 1260; Mahon v Air New Zealand Ltd (P.C.) [1984] 1 AC 808, 820-821; National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296, 316. Secondly, Mason J did not in the quoted passage purport to state a principle of law. If one takes the trouble of reading his judgment in full one can see that his statement that a decision-maker is obliged to disclose adverse information which is personal to the applicant is but one instance of a wider duty to disclose adverse information significant to the making of the decision.

16 The second basis upon which it was said that there had not been a denial of procedural fairness is that the appellant had not given evidence as to what he would have put to the Tribunal if the information had been given to him. It is contended that in the absence of such evidence the complaint must fail. Reference was made in support of the need for such evidence to Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502, where Gleeson CJ observed, at 506 [19]:

"There is no suggestion that the applicant in any way relied to his disadvantage upon the representation that Ms Tran would be contacted after 7 November 2000. In argument, any such suggestion was disclaimed. The applicant does not seek, either by evidence or by argument, to make out a case that he was deprived of an opportunity to put any further information or submissions to the respondent, or that he did, or failed to do, anything, because of any belief or understanding that was engendered in his mind by the letter of 7 November.'

To similar effect the Chief Justice later said, at 511 [36];

`The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.'

See also per McHugh and Gummow JJ at 528 [106], per Hayne J at 529 [112] and 531 [122] and per Callinan J at 539 [149].

17 It is not clear whether the Minister meant by this submission that in every case where the complaint is that there has been a denial of procedural fairness it is incumbent upon the complainant to lead evidence to explain in precisely what way he has been adversely affected by a particular omission. If this is what the Minister means it should be rejected outright. There is no principle which is to this effect. Indeed, it is a submission which is contrary to well established principle. In Re Refugee Review Tribunal; ex parte AALA (2000) 204 CLR 82, 122 McHugh J said that: "once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because `t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'", citing Stead v State Government Insurance Commission (1986) 161 CLR 141, 145.

18 On the other hand, there no doubt will be cases where it is not clear what, if anything, a complainant could have done with the information which had not been provided to him. Many examples come to mind. One example is where the information is of a type which is difficult to controvert. If, in such a case, a court is unable to see how the complainant has suffered "practical injustice", then the complainant may be required to adduce evidence to explain why he has been unfairly treated. Another example may be found in the case of Re Minister for Immigration and Multicultural Affairs; ex parte "A" (2001) 185 ALR 489, 500-501.

19 In the present case, by contrast, it is not open to the Court to infer that there was nothing which the appellant could have put had he known that the Tribunal was minded, in concluding that the letter of 26 January 2002 was a fabrication, to rely on country information about the prevalence of document fraud in Bangladesh. The appellant swore an affidavit deposing that if the Tribunal had said to him at the hearing, or otherwise, "that the independent evidence indicates that there is a very high level of document fraud in Bangladesh and that that may be a reason for rejecting [his] claim, [he] would have gone to collect more genuine documents by writing to [KM] or calling him." Like Downes J, we are of the view that the affidavit should be received in evidence. What the appellant says in his affidavit is some evidence of what he could have done. Other things occur to us. For example, the appellant could have called the writer to give evidence (by telephone or video link) or invited the Tribunal to contact the writer by telephone or facsimile. Another course was to seek to have the existence of the writer and the truth of the contents of the letter verified by evidence. If this could not have been done he might have requested the Tribunal itself to investigate the matter by Australian diplomatic or consular representatives in Bangladesh. The availability of these courses of action (and others as well) is apparent without the need for any evidence.

20 Subject to one important qualification, we think that the Tribunal did not discharge its obligations when it failed to bring to the appellant's attention the adverse material contained in the US Bureau of Democracy, Human Rights and Labor report. The fact that the information did not relate to anything personal to the appellant is immaterial. The information was credible, relevant and significant to its decision.

21 The qualification to which we refer concerns s 424A and its relevance to the procedural fairness argument. Section 424A provides (emphasis added);

`(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c) invite the applicant to comment on it.

(2) ...

(3) This section does not apply to information:

(a) 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; or

(b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information.'


22 It is possible that s 424A, as it were, covers the field in the case of the Tribunal's obligation to provide information to an applicant. That is to say, the effect of s 424A may be to replace the common law rules about procedural fairness. During the course of submissions, reference was made to Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57, where the High Court considered s 57 of the Act, which contains language similar to s 424(3)(a), which relevantly provides (emphasis added);

`(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and

(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c) was not given by the applicant for the purpose of the application.

(2) Subject to subsection (3), the Minister must:

(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c) invite the applicant to comment on it.'


23 The similarity of language between the two sections leaves open the possibility that the duty imposed respectively on the Minister (under s 57) and on the Tribunal (pursuant to s 424A) is substantially the same. As to s 57, McHugh J said (at 96):

`Section 57 makes it mandatory for the Minister to give certain "relevant information" to the applicant. Relevant information means information that the Minister considers (a) would be the reason, or a part of the reason, for refusing to grant a visa; and (b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and (c) was not given by the applicant for the purpose of the application. In such circumstances the Minister must give particulars of the relevant information to the applicant, ensure the applicant understands why it is relevant and "invite the applicant to comment on it." However, information that the prosecutor says ought to have been provided to him for comment is not "relevant information" within the meaning of s 57.
The respondents argue that, because the statute establishes a mandatory duty to inform applicants about certain kinds of information, Parliament could not have intended that a similar duty should be imposed in relation to other types of information. But to so argue is to fall into the error of inferring from the presence of some matters concerned with natural justice that Parliament intended to exclude natural justice in all other respects [Annetts v McCann (1990) 170 CLR 596 at 598; Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 349: "Reliance on the maxim expressio unius personae vel rei, est exclusio alterius can seldom, if ever, be enough to exclude the common law rules of natural justice."].'


If this view be accepted and applied to s 424A, the section will only add to the Tribunal's common law duty. It is agreed by the parties that the statement in WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 at [36] that s 424A "must be treated as an exhaustive statement of the Tribunal's obligation to bring information to the attention of a visa applicant, overriding any wider common law obligation" is obiter. (We note parenthetically that the express provision regarding "codification", s 422B, was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 and commenced on 4 July 2002. As the decision of the Tribunal was made on 25 June 2002, s 422B has no application to the present case.) It turns out, however, that it is not necessary for us to determine the correctness of this obiter opinion or whether the view of McHugh J is to be preferred. This appeal can be disposed of on the basis that the Tribunal breached its obligations under s 424A.

24 The meaning of s 424A was recently considered by a Full Court in VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186, reasons in which were published after the present appeal had been heard. In that case there was a sharp difference of opinion on the meaning of s 424A(3)(a) between, on the one hand, Moore J and, on the other, Kenny and Downes JJ. In their separate reasons both Kenny and Downes JJ referred with approval to the observations of Gray J in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380. In Baig, Gray J considered whether the information in news items from Agence France Presse was information "just about" a class of persons of which the applicant was a member. His Honour concluded that it was not and pointed out, at [33];

`Section 424A(1)(a) is expressed in terms of the Tribunal's subjective view: if the Tribunal `considers' that information would be the reason, or a part of the reason, for affirming the decision under review, it is obliged to give the applicant particulars of that information, ensure that the applicant understands why [it is] relevant to the review and invite the applicant to comment on it. Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant's claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1). The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member. It bore specifically upon the question of the applicant's involvement in campaigning in a by-election.'

25 VHAJ was itself a rather different case, concerning the effect of an Italian law governing resident workers, by virtue of which the Tribunal found that the applicants were entitled to re-enter Italy. Accordingly, being able to avail themselves of the effective protection of a "third party" state, they were not persons to whom Australia owed protection obligations. In that context Kenny J at [52]-[56] expressed this understanding of the effect of the reasoning in Baig;

`This passage [cited earlier] illuminates the operation of par 424A(3)(a) by focussing on the relevance of the information in question to the Tribunal's decision-making. His Honour's analysis is premised on the assumption that whether or not information is "just about" a class of persons of which the applicant or any other person is a member depends on whether or not the information is relevant to the decision-making simply because it concerns this class. See also VEAJ of 2002, at [43]-[44]. If the information is relevant only because it concerns a class of individuals who have an attribute in common with the applicant or any other person, then the information will be "just about" a class of persons of which the applicant or other person is a member. If, however, the information is relevant to the Tribunal's review upon some other basis, then it will not fall within s 424A(3)(a), even though it does not specifically concern the applicant and it is about (but not just about) a class of persons of which the applicant or another person is a member. The information in Baig did not fall within s 424A(3) because, although it was not specifically about the applicant, it was relevant to his participation in a campaign for a by-election and was not just about a class of persons that included him.
Baig should be contrasted with VAAC v Minister for Immigration & Multicultural Affairs [2002] FCA 573 (the facts of which are closer to the present case than Baig). In VAAC, Marshall J considered a number of issues, including an alleged contravention of s 424A. Although his Honour's decision was ultimately reversed on appeal (on a ground that had not been argued at first instance) the Full Court endorsed his approach to par 424A(3)(a): see VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74, at [20]. A comparison of the decisions in VAAC and Baig illustrates the difference between information that falls within subs 424A(3) and information that does not.

...

The information in VAAC was relevant merely because it tended to show that there was a class of persons, which included the applicant, who could obtain an Afghan passport from the Afghan consulate in Canberra. This information was significant because there was other material before the Tribunal showing that, if he had a passport, the applicant could enter and reside in India, where he would not have a well-founded fear of persecution on Convention grounds. There is no relevant difference, it seems to me, between the information at issue in VAAC and the Information in this case. In a sense, the Information in this case is about Italian law, but it is relevant only because it is also about holders of current Italian permits. As already noted, information does not cease to be information "just about" a class of persons merely because it can be characterised in more than one way. For the purpose of par 424A(3)(a), information is just about a class of persons (even though for another purpose it could bear some other characterisation) if it is relevant to the Tribunal's decision only because it is about this class of persons. The Information in this case was relevant only because it provided the basis for the Tribunal's conclusion that the appellants could enter Italy and reside there. (The Tribunal's decision assumed that if the appellant husband could reside in Italy, then so too could the appellant wife and appellant children.) Since there was evidence before the Tribunal that the appellant husband had a current permit, then it was open to the Tribunal to conclude that he was a member of the class of current permit holders who, by virtue of Italian law, could enter and reside in Italy. The Information was not relevant to the Tribunal's decision-making on any other basis. The Information was, therefore, "just about a class of persons of which the applicant ... is a member".

It follows that the Information satisfies both elements of par 424A(3)(a) and falls within the exception in that paragraph. Accordingly, the Tribunal had no obligation under par 424A(1) to invite comment upon it. The appellant did not contend or suggest that, in the circumstances of the case, there might otherwise have been any breach on the Tribunal's part of the general rules of procedural fairness.'


26 Downes J adopted a similar approach. He referred to the reasoning and results in Baig and VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 in terms similar to those of Kenny J, saying at [69] - [72]:

`...although the law itself is not information about a class of persons to which it applies, it is not the law itself that is relevant. What is relevant is the fact that members of the class to which the law applies have rights and obligations flowing from the law. So understood, the information is information about the class.
...

... Information that legislation confers rights of residence on a class of persons is information "just about" that class in the sense that it is not about individuals or persons who are not part of the class. It does not matter how broad the information is, so long as it relates only to the class. The decisions of Gray J in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 and of Marshall J (at first instance) and North, Merkel and Weinberg JJ (on appeal) in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 seem to me to illustrate this proposition. In the former, the information, properly understood, concerned the applicant because "t bore specifically upon the question of the applicant's involvement in campaigning in a by-election" (par [33]). In the latter, the information was not about the applicant but about a class of persons, namely Afghan nationals, that they could apply to a consulate in Australia for the issue of a passport.' (emphasis added)

27 Moore J took a different approach. He said (at [33]) that:

`While I accept that the information concerning the Italian law was not specifically about the appellant, it was not information just about a class of persons of which the appellant was a member. It was not information about a class of persons at all. It was information about a law. Armed with the information, the Tribunal reached a conclusion about how the law would operate on the appellant (as a permit holder) and, at least by logical extension, on a class of people of which the appellant was a member (people holding the same permit). Even though the information was put to this use, the character of the information should not be coloured, for present purposes, by the use made of it. In my opinion, the learned primary judge erred in reaching the contrary conclusion that the information was not comprehended by par (a) of subs 424A(3).'
28 We think there is much to be said in support of the view which Moore J favoured, namely that the character of information should be determined objectively and without regard to the use to which it is put by the Tribunal. Put another way, the character of the information should not change depending upon its use. On the other hand, the doctrine of precedent requires us to follow the majority in VHAJ, which is a reasoned decision in respect of which it is not possible to say it is plainly wrong.

29 The touchstone, according to the majority in VHAJ, is the manner in which the information is relevant to the Tribunal's decision. In VHAJ the questions to which the information was relevant were, first, whether a general class of persons (certain permit or visa holders) had a right to re-enter Italy, and, second, whether the applicant was a member of that class. However, in Baig the information "bore specifically upon the question" of the applicant's claims (at [33]). According to Kenny J, if information "is relevant to the Tribunal's decision only because it is about this [the relevant] class of persons" then it is information which is "just about" that class of persons, and, as a consequence of s 424A(3)(a), the Tribunal need not put it to an applicant for comment.

30 Section 424A(3)(a) has two limbs, both of which must be satisfied in order for the information to fall within the exemption. Those limbs are: (i) information "that is not specifically about the applicant or another person and" (ii) information that "is just about a class of persons of which the applicant or other person is a member" (emphasis added). According to the views of the majority in VHAJ it is mistaken to regard all information before the Tribunal as falling into one or other of two mutually exclusive categories of information "specifically about the applicant or another person" or, information "just about a class of persons of which the applicant or other person is a member". The words "just about" have been included as words of limitation. Information which is "just about a class of persons" is information possessing only one characteristic, in the sense of being information solely about that "class of persons" and not going to another issue before the Tribunal. The Tribunal, for example, frequently has regard to reports produced by the Commonwealth Department of Foreign Affairs and Trade or the United States State Department on the level of protection of civil liberties afforded to various ethnic groups in a particular country. Such information usually has the single character of information solely about a class of persons.

31 However, information may come before the Tribunal which, while perhaps relating to a class of persons, may also go to another issue which is relevant to the reasoning process of the Tribunal. It is conceivable that information will not necessarily fit into either of the two categories contemplated by s 424A(3)(a). If the information is not specifically about the applicant or another person and is also not "just about" a class of persons of which the applicant is a member, then if the information would be the reason, or part of the reason, for affirming the decision that is under review, it ought to be disclosed.

32 In the instant case, the information was clearly not specifically about the appellant or another person. Nor was it "just about" a class of persons, if such a class was capable of being identified. Instead, the information was about a "very high level of document fraud in Bangladesh". The information went directly to the reliability or authenticity of documents placed before the Tribunal by the applicant. It is true that it was open in the present case to characterise the information as being about "documents in the possession of Bangladeshi asylum seekers". But, applying VHAJ, that does not mean that information regarding the documents is "just about" Bangladeshi asylum seekers in the sense of merely, or only, being about that class of persons. The information also goes to a separate issue in the proceedings: the weight to be attached by the Tribunal to particular documents relied on by the appellant. That is clearly a matter on which the appellant should be heard. As the country information upon which the Tribunal relied did not fall within the exception contained in s 424A(3)(a), particulars of it should have been provided to the appellant.

33 Applying Applicant S157, and the authorities which have followed it (including SDAV v Minister for Immigration & Multicultural & Indigenous Affairs, Minister for Immigration & Multicultural & Indigenous Affairs v SBBK [2003] FCAFC 129, NAAG of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 135 and SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121), the jurisdictional error which has been made out is not protected by s 474. It follows that in our view the appeal should be allowed, the decision of the trial Judge set aside, the decision under review set aside and the matter be remitted to the Tribunal to be reheard. We would also order the Minister to pay the appellants' costs below and of the appeal.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan and Finkelstein.




Associate:

Dated: 24 November 2003

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 1155 of 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NARV and ORS

Appellants


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent




JUDGES:
RYAN, FINKELSTEIN and DOWNES JJ


DATE:
24 NOVEMBER 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
DOWNES J

34 There are three appellants. They are a Bangladeshi husband and wife and their son. The father's claim to a protection visa will determine the fate of the claims of the other appellants.

35 The claim of the father was rejected by the Refugee Review Tribunal because it did not "consider that the applicant was a reliable or credible witness." It was "unable to accept" the father's relevant claims. This conclusion was based on contradictions in the father's claims and upon a finding that "[t]he applicant's evidence in relation to most aspects of his claims was vague, general, unconvincing and lacked specific detail." The relevant passages are set out in the reasons of Ryan and Finklestein JJ.

36 In the course of its reasons the Tribunal referred to "independent evidence" of "a very high level of document fraud in Bangladesh". I will call this the independent evidence. The Tribunal's "consideration of the independent evidence" formed part of its reasoning adverse to the appellants. The independent evidence was not made available to the appellants. This formed the basis of the applications in this matter, the appellants claiming that the failure of the Tribunal to apprise the appellants of the independent evidence, and the consequent denial to them of the opportunity to respond to it, amounted to a denial of natural justice.

37 The application was heard and determined by Wilcox J after the decision of the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298; [2002] FCAFC 228 but before the decision of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia (2002) 195 ALR 24; [2003] HCA 2. The application was necessarily dismissed.

38 On appeal, the appellants again rely upon the alleged denial of natural justice. However, the High Court's decision in S157 has made it clear that s 474 of the Migration Act 1958 does not preclude judicial review where there has been a denial of natural justice. Accordingly, the substance of the appellants' claims must be addressed.

39 The respondent concedes that the independent evidence was not disclosed to the appellants. The respondent's answer to the claim is twofold. First, the appellants gave no evidence as to what would have been put to the Tribunal had the evidence been disclosed. In the absence of such evidence the respondent argues that any breach of procedural fairness was not material and did not give rise to a denial of natural justice (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 755; [2002] FCAFC 361 at [36]-[38]; see also Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 195 ALR 502; [2003] HCA 6 at 506, par [19], 507, par [22], and 511, par [36] per Gleeson CJ; at 515, par [57], and 528, par [106] per McHugh and Gummow JJ; at 529, par [112], and 531, par [122] per Hayne J; and at 539, par [149] per Callinan J). Secondly, the respondent submitted that procedural fairness did not require the disclosure of general country information such as the independent evidence (Kioa v West (1985) 159 CLR 550 at 587) unless the situation was exceptional (Re Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22) such as when the country information disclosed a fundamental change in circumstances.

40 During the course of the hearing of the appeal counsel for the appellants sought leave to file and read an affidavit of the father affirmed on 22 May 2003 in answer to the first matter raised by the respondent. The Court received the affidavit provisionally. In my opinion we should now receive the affidavit unconditionally. The operative part of the affidavit is as follows:

"If the Tribunal had said to me at the hearing, or otherwise, that the independent evidence indicates that there is a very high level of document fraud in Bangladesh and that that may be reason for rejecting my claim, I would have gone to collect more genuine documents by writing to [KM] or calling him."
41 The basis for a claim such as the one made here is to be found in Kioa at 587 where Mason J said:

"The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: In re HK (An Infant) [1967] 2 QB 617."
42 The material relied upon in the present case was not material touching upon the truthfulness or honesty of the father. It did not relate to anything personal to the appellants. It would be likely to be excluded from evidence in a proceeding in which the rules of evidence applied. The material was, at most, background material of the kind which administrative decision-makers frequently bring to their task. A question may sometimes arise as to whether such general material is probative; whether evidence of the prevalence of particular conduct has anything to say about whether the appellant engaged in it. However, that is not a matter raised here. I do not think that the common law imposed any obligation on the Tribunal to disclose the material to the appellants.

43 It accordingly seems to me that there was no denial of procedural fairness.

44 The alternative answer raised by the respondent is that the appellants did not give evidence as to what would have been put before the Tribunal in answer to the independent evidence. That in turn is now sought to be answered by the claim in the affidavit by the father that he "would have gone to collect more genuine documents by writing to [KM] or calling him." The person whose name has been omitted was the author of a letter relied upon before the Tribunal which supported the appellants' claims.

45 The credibility of applicants is frequently an issue in applications before the Refugee Review Tribunal. That is a notorious fact. It must have been very clear to the father that his credibility was in issue before the Tribunal even though it was not put to him that the letter written by KM was fraudulent. The reasons of the Tribunal contain many notes of occasions when the Tribunal put to the father inconsistencies in his claims, matters not raised until very late and other matters going to credit (see, eg. paras [24], [25], [26], [28] and [29] of the Tribunal's reasons). Parties seeking to make out a claim before a court or tribunal must always make their own decisions as to how persuasive the evidence they adduce should be. This is particularly so in a tribunal where the rules of evidence do not apply. Where there is an issue as to the credibility of an applicant making a claim a corroborative statement contained in an unsworn document will never be as persuasive as oral evidence. Two corroborative statements will usually be more persuasive than one. If the natural response to the independent evidence is the seeking of more persuasive material then that response was also prompted by the existence of the issue of credit. Indeed, the independent evidence is probative of nothing itself. All it does is raise an issue of credibility. That issue had already been raised. Some of this reasoning must lie behind the limit upon the need to disclose material which Mason J emphasised in Kioa.

46 Claims of denials of natural justice have failed in a number of recent migration cases because claimants failed to bring forward evidence responding to the alleged denial which might have affected the outcome. In Re Minister for Immigration and Multicultural Affairs Ex Parte "A" (2001) 185 ALR 489; [2001] HCA 77 Kirby J in the High Court of Australia found that the failure of the Refugee Review Tribunal to provide an applicant with country information had not resulted in a denial of natural justice. One of the reasons he gave was as follows (at 501, par [54]):

"Thirdly, the applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case."
47 In similar circumstances, in SBBS, Tamberlin, Mansfield and Jacobson JJ in the Full Federal Court said this (at 755, par [37]):

"The effect of the submissions made by counsel for the appellant was, therefore, that the appellant was deprived of the opportunity to try to obtain that information. However, as Kirby J said [in Ex Parte "A"] at [54], what was required was an indication of the nature of the opportunity and the presentation of evidence or material which would disclose an arguable case that the result in the RRT would have been different. No such evidence or material was put before us. Accordingly, the omission to supply the four items of country information to the appellant has not been shown to have had any material effect on the outcome of the application before the RRT."
48 This case does not seem to me to be different to Ex Parte "A" or SBBS. The statement that the father "would have gone to collect more genuine documents by writing to [KM] or calling him" made in an affidavit filed days before the hearing of this appeal which was nearly one year after the Tribunal gave its decision and more than six months after the original hearing in this Court does not provide a sufficient basis for finding that the omission of the Tribunal to disclose independent evidence was material to the result.

49 In reasons published in dissent in NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 52, I concluded that I would hold that there had been a denial of natural justice although the appellant had not stated precisely what response he would have made. However, NAFF was a case in which the Tribunal had said it would communicate with the appellant about "inconsistencies with regards to the dates of the detention and the number of detentions". The Tribunal gave its decision without making any further communication. The appellant there could be excused for not putting more than general statements before the Court as to what he would have said about the alleged inconsistencies raised by the Tribunal because the appellant did not know what they were. NAFF is quite a different case to the present.

50 There was discussion during the hearing as to whether the statutory provision relating to the disclosure of material to parties before the migration tribunals contained in s 424A of the Act displaced the common law requirements of natural justice. However, the respondent informed the Court that it made no such submission. No separate case based on s 424A of the Act was put by the appellants at the hearing. However, since the hearing, leave has been sought by the appellants to rely on the failure to give particulars under s 424A as a ground of appeal.

51 The following written submission was furnished in support of the new ground:

"In this case, the Tribunal relied on information that there was a "very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police, that it is also common to pay bribes to officials, and that, in addition, lawyers will provide, for a fee, a letter advising that it is unsafe to return to Bangladesh". [AB 121 paragraph 52] That information, unlike the information about document fraud amongst asylum seekers, is not "just about" any class of people of which the applicant is a member. It may apply equally to anybody in Bangladesh who, for whatever reason, needs fraudulent documentation. Just because is [sic] can also be relevant to asylum seekers (a class of which the applicant is certainly a member) does not bring it within s 424A(3)(a); nor does the fact that it is only relevant to the Tribunal's decision because it can relate to asylum seekers."
52 In VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186 I had occasion to consider s 424A. I there noted that in a number of decisions in this Court country information had been held not to fall within s 424A. The independent evidence in the present case falls under the heading of country information. In VHAJ I said this (at par [72]):

"I do not read the phrase "just about" as defining the breadth or content of the information but as refining the object of the information or whom the information must be about ("a class of persons") in the same way as "specifically about" refines its object ("the applicant or another person"). Information that legislation confers rights of residence on a class of persons is information "just about" that class in the sense that it is not about individuals or persons who are not part of the class. It does not matter how broad the information is, so long as it relates only to the class. The decisions of Gray J in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 and of Marshall J (at first instance) and North, Merkel and Weinberg JJ (on appeal) in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 seem to me to illustrate this proposition. In the former, the information, properly understood, concerned the applicant because "t bore specifically upon the question of the applicant's involvement in campaigning in a by-election" (par [33]). In the latter, the information was not about the applicant but about a class of persons, namely Afghan nationals, that they could apply to a consulate in Australia for the issue of a passport [(par [17])]."
53 The independent evidence is certainly not about any of the appellants. It is not about individual third parties. Properly understood it is "just about" the class of persons, Bangladeshi residents, namely that among them were a substantial group who engaged in document fraud. Unlike Baig v Minister for Immigration and Multicultural Affairs [2003] FCA 380 the information relied on here did not bear specifically upon the father's claim. In Baig the information was articles published by Agence France Presse touching upon whether local elections had taken place at a time asserted by the applicant. Here, at most, the material touched upon document fraud in general. It said nothing about the documents relied upon by the father or the circumstances surrounding them.

54 Information about a class can only attract the attention of s 424A if it "would be the reason, or a part of the reason, for affirming the decision that is under review" (par 424A(1)(a)). Such information must always touch upon some issue relevant to the applicant. However, where this is merely because the information relates to the class of which the applicant is a member it will not be required to be disclosed. This is the ordinary situation to which the exclusion in s 424A is directed. This case is just such a case.

55 I would refuse to grant leave to further amend the notice of appeal.

56 The appeal should be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.




Associate:

Dated: 24 November 2003

Counsel for the Appellants:
Mr J Smith (Pro Bono)






Counsel for the Respondent:
Mr T Reilly






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
28 May 2003






Date of Judgment:
24 November 2003


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