NAJK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 163 (2 March 2004)

NAJK v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 163

MIGRATION – onus of proof – applicant must put material relied upon to support claim – procedural fairness – need to put critical issue to the applicant

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 referred to
Applicant WAEE v Minister for Immigration Multicultural and Indigenous Affairs (2003) 75 ALD 630 referred to
Commissioner for Australian Capital Territory Revenue v Alphaone (1993) 49 FCR 576 referred to
Htun v Minister (2001) ALR 244 referred to
Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594; (2001) 114 FCR 212 referred to
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 referred to
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 referred to
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 applied
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 referred to
Paul v Minister (2001) FCR 396 referred to
Pilbara Aboriginal Land Council v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1113; (2000) 103 FCR 539 referred to
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S 154/2002 (2003) 77 ALJR 1909 applied
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 referred to
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 applied
WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 referred to

NAJK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1691 of 2003
JACOBSON J
2 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	No N1691 of 2003

BETWEEN:	NAJK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	2 MARCH 2004
WHERE MADE:	SYDNEY

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	No N1691 of 2003

BETWEEN:	NAJK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	2 MARCH 2004
PLACE:	SYDNEY

1 This is an appeal from a judgment of a Federal Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 22 January 2003. The RRT’s decision affirmed an earlier decision of a delegate of the Minister made on 8 November 1999 refusing to grant the appellant a protection visa.

2 The appellant is a citizen of Bangladesh. He claimed to have a well-founded fear of persecution on the ground that he had been an active member of the student wing of Jamaat-e-Islami ("JI") Party and that he had suffered at the hands of his political opponents in the Awami League ("AL") after the AL came to power in 1996.

3 The appellant claimed that he had received death threats from the AL and from the Communist Party which he said was linked to the AL. He also said that the AL brought false charges against him and that he had been imprisoned in Dhaka on false charges from December 1998 to June 1999.

4 The RRT dismissed the application on six main grounds. First, it was not satisfied that the appellant was in fact the person he claimed to be. Second, it was of the view that the evidence indicated that the appellant had used false identities for the purposes of international travel in a manner which was inconsistent with his claimed refugee status.

5 Third, the RRT concluded that the appellant’s request for asylum was an afterthought because he had arrived in Australia on 30 July 1999 and then travelled to New Zealand before returning here and making his application for a protection visa.

6 Fourth, the RRT was not satisfied that the appellant had been an active member of the JI or that he had been targeted by the JI.

7 The fifth ground was that, in any event, the circumstances in Bangladesh had changed in 2001 when the AL lost power in the elections to the Bangladesh National Party.

8 The sixth ground was that the RRT found the appellant to be an unreliable witness and his claims were found to lack credibility.

9 The learned Federal Magistrate expressed the view, at [25] that the fifth ground, that is, the changed circumstances in Bangladesh, was the determinative factor in the RRT’s decision. In his opinion, the RRT’s finding on this ground was not affected by jurisdictional error. He was of the view that none of the other bases upon which the appellant sought to attack the RRT’s decision affected the ultimate finding.

10 Notwithstanding this, the appellant attacked the Federal Magistrate’s decision on seven separate grounds which I will deal with later in my reasons for judgment.

11 The Magistrate made one finding in the appellant’s favour. He was of the view that the RRT had denied the appellant natural justice in relation to the question of whether a birth certificate put forward by the appellant was a genuine document. The RRT found that it was not. However, the Federal Magistrate held that even if the RRT had been satisfied that the birth certificate was genuine, it could not have affected its views about the changed circumstances in Bangladesh (see [20]-[21]).

12 The Minister has filed a Notice of Contention putting in issue the learned Magistrate’s finding that there was a denial of natural justice on the genuineness of the birth certificate.

13 In order to determine the issues which arise on this appeal, it is necessary to consider in some detail the appellant’s claims in support of his application for a protection visa, the evidence before the RRT on the identity issue, the reasons given by the RRT and the reasons of the Federal Magistrate.

14 The application was made on 15 September 1999. It gave the name of the person who applied for the visa as a person who I will describe by the initials "MSA". It said that he had been known by another name which I will again refer to by initials, namely "IH".

15 The application stated that the applicant’s date of birth was 5 March 1979. If this was correct, he would have been 23 years old at the time when the RRT held an oral hearing in May 2002.

16 The applicant gave the addresses where he had lived in Bangladesh from 1989 to 1999. It stated that from January 1999 to June 1999 he had been in jail in Dhaka.

17 The application stated that the applicant left Bangladesh illegally on 30 June 1999 using a false passport with a visa for Malaysia. I will refer below to the evidence before the RRT about this passport.

18 The application form asked whether the applicant had his travel document with him. The answer to this question was that the applicant had lost it.

19 The application stated that the travel document which the applicant used to enter Australia did not belong to him. I will refer below to the evidence about the passport which contained a different identity from the identity referred to in the passport on which he left Bangladesh.

20 There was a statement lodged with the application. It described threats from AL thugs and from members of the CP. It said that those persons "had a great link" to the AL.

21 The statement said that the applicant’s opponents in the AL filed a false case against him and that he was imprisoned on the false charge. It said that he was released from jail on 9 June 1999 and that at that time he understood that he could not save his life in Bangladesh.

22 The statement said that family members and others suggested to the applicant that he leave Bangladesh, that he obtained a false passport with a Malaysian visa and that the agent who provided him with the document substituted the applicant’s photo for the photo of the original passport holder. He said this was the passport on which he left Bangladesh for Malaysia.

23 The statement then said that when the applicant was in Malaysia he stole his brother’s passport and used it to come to Australia.

24 The statement said that when the applicant arrived in Australia (i.e. on 30 July 1999) he was invited by a friend to go to New Zealand and that he travelled there, returning to Australia about a week later on 5 August 1999.

25 The application was lodged with supporting material which included a document described as a birth certificate. The document was in English and purported to be on the letterhead of the Government of the People’s Republic of Bangladesh, Office of the Sanitary Inspector and purported to be signed in December 1997 by a person holding that office.

26 The document stated that a person named MSA was born on 5 March 1979 and that he was personally known to the Inspector. It also said:-

27 The application was accompanied by a report from the New South Wales Police Service that MSA had reported the loss of his passport to the Maroubra Police.

28 Three passports were in evidence before the RRT. The first was in the name of a person who I will describe by the initials "SMR". This was the passport on which the applicant claimed to have departed from Bangladesh on 30 June 1999. It was issued in Kuala Lumpur on 30 May 1997 at a time when the applicant claimed to have been living in Bangladesh. It showed the passport holder’s date of birth as 8 October 1969. That is to say, MSR’s date of birth was ten years earlier than the date of birth which appeared on the protection visa application made in the name of MSA.

29 SMR’s passport indicated that the holder had travelled from Malaysia on 12 May 1999 arriving in Bangladesh on 13 May 1999. This was at a time when the appellant claimed to have been in jail in Dhaka. It also contained a visa for travel to Thailand issued in Kuala Lumpur in April 1999.

30 The passport in the name of SMR contained a departure stamp showing that the holder had left Bangladesh on 30 June 1999 and an arrival stamp in Kuala Lumpur dated 1 July 1999.

31 The second passport was in the name of a person who I will describe by the initials "SJA". This was the passport on which the appellant claimed to have entered Australia. It is the passport which, according to the statement filed with his protection visa application, the appellant stole from his brother in Malaysia.

32 The passport was issued in New York on 1 February 1999. As with the passport in the name of MSR, this passport was issued at a time when the appellant claimed to have been in jail in Dhaka.

33 The date of birth on the passport in the name of SJA was 2 September 1967. That is to say the date of birth of SJA was 12 years earlier than the date of birth given on the protection visa application.

34 SJA’s passport contained visas for travel in Asia and for travel to Australia and New Zealand all of which were issued in early 1999 when the appellant claimed to have been in jail in Dhaka.

35 The passport has an entry stamp showing the arrival at Sydney Airport on 30 July 1999, departure for New Zealand on 1 August 1999 and re-entry to Australia on 5 August 1999.

36 The third passport was in the name of MSA. The RRT stated that it did not have a full copy of this passport. It was issued in Dhaka on 28 July 1997, that is to say, nearly three weeks after the appellant claimed to have been released from prison.

37 The date of birth on the passports in the name of MSA is 5 March 1979 which corresponds with the date on the protection visa application. Although the copy of the passport is not complete, it bears no stamp recording entry to Australia.

38 MSA’s passport bears a photo of a person with longer hair than the photos in the passports of SMR and SJA. Moreover, the photo shows a person with a moustache and a beard.

39 The RRT questioned the appellant about the three passports. He was asked about the passport in the name of SMR. He said that the passport was not his but that his relatives provided it for him after he was released from jail ie on 9 June 1999 and at that time his photograph was substituted for that of the original passport holder.

40 The appellant was asked how the photo on SMR’s passport was changed and it was put to him that there was no evidence that the photo had been changed.

41 The appellant said in answer to the RRT’s questions that the person who, according to the passport, had entered Bangladesh from Malaysia in May 1999 was not him. However, he said that he used the passport to leave Bangladesh after his photo had been substituted in June 1999.

42 The RRT member put it to the appellant that he was inclined to believe the visas were genuine and the photo on SMR’s passport had not been changed.

43 The appellant told the RRT member that his true name was MSA and that he was known by the alias IH. He said that MSA was the name on his birth certificate. He said he used the name SMR to depart Bangladesh for Malaysia. He said he entered Australia on his brother’s passport in the name SJA.

44 The RRT also asked him about some charge sheets which were said to be issued by the local police showing charges on various offences. At least one of the documents described the accused as a person who I will describe by the initials "MI" whose alias was shown as IH. He was asked why the documents used the name MI.

"Interpreter: If you do not accept my ... then of course you can send it for examination ... find out more about it.

[RRT Member]: Question. Do you have any authentic documents that can convince me that you are someone other than this person in the passport?

[RRT Member]: I see that you parted your hair on a different side. .. Hold your head straight for a moment. Your hair’s parted on a different side.

Interpreter: I had long hair at that time so I used to part it on the other side. ....

[RRT Member]: I’m just wondering if ..., lower your head a bit – straight on top to us. It’s close at least.

[RRT Member]: Now, even if I accept that this is your real identity I have great difficulty with all these documents that say you’re Imral, son of somebody else.

46 In his statement filed in support of the visa application, the appellant said that false charges had been brought against him. There was evidence apparently before the delegate, and hence before the RRT which had access to the file, of documents which purported to state the charges. The name of the person charged was MSA.

47 There was further evidence put before the RRT, which was not put to the delegate, which purported to establish the conviction. This was the document which described the accused as MI, alias IH. It was dated 3 April 2001.

48 The RRT referred to independent country information which described the Bangladesh National Party’s accession to power in October 2001. The country information also stated that the JI had secured 17 seats in the new government.

49 The RRT observed that up to the time of the delegate’s decision, the appellant’s claims were predicated on the expectation that the AL would remain in power. However, the RRT observed that the independent country information showed that the JI was an active partner in the new Bangladesh National Party government and that it was actively exploiting its newfound position of influence.

50 The RRT referred to the passport in the name of SJA on which the appellant entered Australia. The RRT referred to the fact that the passport contained entries recording travel in Asia at a time when the appellant claimed to have been in jail. The RRT stated that the passport showed no signs of tampering and that it contained the appellant’s own photo.

51 The RRT then referred to the passport in the name of SMR on which the appellant claimed to have departed from Bangladesh. The RRT observed that it could find no sign of tampering and that the passport had been seen by various officials during the holder’s travels who had not detected any fraud.

52 The RRT stated that it had observed the appellant over a number of hours and that he looked much closer to 35 years of age than to the age of 23 recorded on the passport in the name of MSA.

53 The RRT then said that four significant factors called into question the genuineness of the birth certificate. These were that it was issued in 1997, it was in English, it went far outside the matters ordinarily included in such a document and, finally, it was issued by an officer of the Sanitary Inspector.

54 Before making a finding about the birth certificate the RRT dealt with the passport in the name of MSA. The RRT stated that the appellant had difficulty supporting the genuineness of the passport, which was unused, because he had obtained two other passports fraudulently. The RRT stated that the appellant has used those passports for purposes other than fleeing persecution.

55 The RRT then said that none of the documents submitted by the appellant to support his claim to be MSA was reliable. It said the birth certificate was "inherently absurd".

56 In stating its findings the RRT said it had difficulty in coming to a conclusion as to the appellant’s identity. It said the stronger evidence was that he was SJA but that his case depended on the RRT accepting he was MSA. The RRT said it found all the documents purporting to establish his identity as MSA to be unreliable.

58 The RRT went on to find that the appellant had not worked with the JI "from the inside" and that he was not a target of AL rivalry. It found that the documents stating the charges were fabricated.

60 The RRT found that the bulk of the appellant’s claims were found to lack credibility and he was an unreliable witness.

61 The Federal Magistrate dealt with seven grounds of attack on the RRT’s decision put to him by the appellant.

62 The first ground was that the RRT had ignored the appellant’s claim to have been attacked by members of the Communist Party. The learned Magistrate dismissed this ground at [11] upon the basis that the RRT had considered all of the integers of the claim. He referred to Paul v Minister (2001) FCR 396 and Htun v Minister (2001) ALR 244. See more recently, Applicant WAEE v Minister for Immigration Multicultural and Indigenous Affairs (2003) 75 ALD 630 (French, Sackville and Hely JJ). The Federal Magistrate described the claim as a fear of persecution for political opinion and association. He observed that it was the appellant who contended that the AL and the Communist Party were linked.

63 The second ground was described as the faked documents issue. The Magistrate dismissed this claim at [13] upon the ground that it was a finding of fact which was open to the RRT.

64 The third ground was that the RRT’s finding that the appellant had not worked for the JI from the inside was unsubstantiated. The Magistrate dismissed this at [15] on the basis that the finding was one of fact and that the Court was asked to read the decision in a way which was contrary to the principles stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.

65 The fourth ground was an attack upon a number of findings of credibility which the appellant said led, unjustifiably, to the ultimate finding that he was an unreliable witness. The Magistrate dismissed this ground at [17] because he held that the RRT’s findings were made on the basis of all the evidence before it.

66 The fifth ground was that the RRT misunderstood the evidence of the appellant’s true identity. However, the Magistrate noted at [19] that the RRT used the evidence about the passports not to dispute the appellant’s credibility but to support its finding that he did not have a subjective well-found fear of persecution.

67 Moreover, as the Magistrate stated at [19] if the RRT did make a mistake about the appellant’s identity, it was not a mistake which led to jurisdictional error because the RRT considered all the integers of the claim.

68 The sixth ground was the birth certificate error. The Magistrate found at [21] that the RRT failed to accord the appellant natural justice. He said at [21]:-

69 The seventh ground was the changed circumstances finding. This was said in some way to be affected by errors of law made by the RRT. However, the Magistrate was of the view that this finding was not affected by jurisdictional error. He said at [25] that the denial of natural justice in relation to the birth certificate could not have affected the RRT’s views on the changed circumstances in Bangladesh. He also said at [25]:-

70 Some of these were a re-run of the arguments on which the appellant failed before the learned Federal Magistrate. I will deal with each of the arguments under the sub-headings set out below.

71 Mr Zipser put three submissions to me as to why this finding was affected by jurisdictional error. First, he said that the RRT failed to take into account that there was an existing conviction of life imprisonment and the RRT failed to consider what might happen to the appellant if he returns to Bangladesh.

72 Second, he submitted that even though the AL is no longer in power, this does not answer the appellant’s claim that he fears persecution from the Communist Party.

73 Third, he submitted that the RRT had improperly placed an onus of proof on the appellant, that it adopted a balance of probabilities test and that it gave no consideration to whether there was a real chance the appellant would be persecuted.

74 Mr Zipser’s first proposition, namely that the RRT failed to consider the impact of the existing conviction seems to me to run headlong into the finding that the appellant had fabricated the documents which purported to record his charges and convictions.

75 In any event, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [68] – [69] (per McHugh, Gummow and Hayne JJ) is authority for the proposition that the RRT is not obliged to set out its findings on every piece of evidence. It is true that failure to make a finding on a material question of fact may reveal jurisdictional error. But here, the RRT plainly considered and rejected the appellant’s claimed fear of persecution on the ground, inter alia, of the new political situation in Bangladesh. There was no jurisdictional error in this approach.

76 Mr Zipser’s second proposition that the RRT failed to consider the appellant’s claimed fear from the Communist Party cannot be sustained. As the learned Magistrate observed, the appellant’s own evidence was that the Communist Party was linked with the AL.

77 The finding that the AL is no longer in a position to persecute its opponents leaves no room for an argument that the RRT should have dealt separately with the question of whether its former ally, the Communist Party, might persecute the appellant.

78 In my opinion, Mr Zipser’s third proposition that the RRT placed an onus of proof on the appellant is not correct. It is true that an applicant does not carry an onus but he or she must put before the RRT material relied upon to support the claim; see Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.

79 The RRT’s finding that the appellant "failed to satisfy" it that the changed circumstances in Bangladesh would enable the AL to continue to persecute its opponents was consistent with this principle. To read the RRT’s reasons in any other way would be to take an over-zealous approach.

80 Nor can it be said that the RRT ignored the rule that a well-founded fear is established if there is a real chance of persecution for a Convention ground; see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 572-573; Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594; (2001) 114 FCR 212 at [4] – [7]. Here, the RRT was of the view that there was no real chance.

81 Moreover, contrary to the appellant’s submissions, there is no room for the application of the "what if I am wrong" test; see Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [60] – [64] (per Sackville J); see also Kalala at [16] – [17]. Here, the RRT was in no doubt about its finding.

82 It follows in my view that the Federal Magistrate was correct in holding that the changed circumstances finding was not affected by jurisdictional error. He was also correct in his view that the changed circumstances finding was the determinative factor in the RRT’s decision. This is sufficient to dispose of the appeal.

83 Mr Zipser submitted that the RRT had misunderstood the evidence in relation to the appellant’s identity. He pointed in particular to the finding that the "strongest evidence" supported the view that the appellant was SJA.

84 That finding may well be an error. But even if it is, the error is not to the point because the RRT said the appellant’s case depended on acceptance of the fact that the appellant was MSA. As to this, the RRT found that the documentation which consisted of two other passports obtained by the appellant, on his own case, by fraudulent means, and a third passport which contained details that have no resemblance to the person who appeared before the RRT, was "highly unreliable".

85 In any event, as the Federal Magistrate observed, the RRT relied upon the evidence about the passports not to dispute the appellant’s identity but to support a finding that he had used the passports in a way which was inconsistent with his claim to have a well-founded fear of persecution.

86 Mr J D Smith, counsel for the Minister, relied on the relevant passage in the RRT’s decision to make good that point. I accept his submission and will deal with it further below.

87 I do not accept Mr Zipser’s submission that the RRT made unwarranted assumptions about the passports which caused it to disregard the evidence thereby constituting a failure to consider the material before it; cf WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54] (per Lee ad R D Nicholson JJ). Here it is plain that the RRT considered all of the evidence as to the different identities used by the appellant. In short, no jurisdictional error is disclosed.

88 Mr Zipser submitted that the RRT’s finding that the documents relating to the appellant’s criminal charges were fabricated was tainted by want of procedural fairness. He submitted that the RRT was bound to put its concerns about the documents to the witness. He relied on the decision of a Full Court (Lee, Hill and Carr JJ) in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171.

89 In that case their Honours referred at [42] to the remarks of Callinan J in Abebe at [295] that an administrative tribunal undertakes an investigative function and is not obliged to put, as in an adversarial proceeding, each and every assertion of unreliability. However, their Honours said at [42] that a tribunal will have a duty to raise with an applicant the critical issues on which his or her application will depend.

91 Here the appellant’s own evidence was that he used false passports in false names to travel to Malaysia and to Australia and New Zealand. The references which I have given to the RRT’s questions about the applicant’s identity (see at [39] to [45]) could have left him in no doubt that this critical issue was raised with him.

92 In my opinion, the RRT having put the issue of identity fairly to the appellant, it was not bound to put to him the falsity of each and every document purporting to contain the charges and convictions. Those documents were purportedly addressed to MSA. There can be no doubt that the appellant was aware that his claim to be MSA was in issue. He can hardly be taken by surprise that the RRT found that he used false identities or that he fabricated documents relating to the criminal charges "as easily as he accumulated passports".

93 Mr Zipser submitted that the RRT failed to deal with the appellant’s claim that he had been the target of attacks by the Communist Party.

95 Mr Zipser submitted that the RRT fell into jurisdictional error in coming to the view that the appellant was not a JI insider. This is an invitation to revisit the merits which must be rejected.

96 Mr Zipser submitted that this finding was tainted by jurisdictional error because it depended on a number of intermediate factual findings all of which were themselves tenuous. Six intermediate findings were put forward. They included the finding that the appellant was not who he claimed to be and the finding about the fake birth certificate. He relied on the remarks of a Full Court in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [19] (per Lee J) and at [68] per Tamberlin and R D Nicholson JJ.

97 Whether or not these submissions are an invitation to revisit the merits, it seems to me to be plain that the finding that the appellant was not MSA was not tenuous. He had travelled extensively using passports in other names. The RRT considered upon the basis of its personal observations of him that he was not the person whose photo and details appeared in MSA’s passport. The suggestion that it was not open to the RRT to find that he was not MSA cannot be sustained.

98 The Federal Magistrate found that the RRT had denied the appellant natural justice because its rejection of the birth certificate revealed beliefs which a reasonable person would not expect the RRT to hold.

99 However, it is well established that a decision maker is not obliged to expose his or her reasoning process for comment by the person affected; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S 154/2002 (2003) 77 ALJR 1909 at [54] per Gummow and Heydon JJ) and at [85] – [86] per Kirby J; see also Pilbara Aboriginal Land Council v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1113; (2000) 103 FCR 539 at [61] – [70] (per Merkel J); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1993) 49 FCR 576 at 591 ("Alphaone") (per Northrop, Miles and French JJ).

100 The overriding consideration is that the decision maker must bring to an applicant’s attention the critical factor on which the decision is likely to turn; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587 ("Kioa v West"); see also Pilbara Land Council at 557 and Alphaone at 591.

101 Also, the person affected is entitled to respond to an adverse conclusion drawn by a decision maker on material supplied by the person affected where the conclusion is not an obvious and natural evaluation of the material; Applicant S154 at [86]; Alphaone at 591; cf WACO at [54]. He or she should also be given an opportunity to respond where information personal to the applicant is obtained from another source and is likely to have an effect on the outcome; see Kioa v West at 587.

102 Subject to these considerations it is for the decision maker to decide whether to accept the material and the person affected cannot complain if it is not; Abebe at [187], Alphaone at 591.

103 Here, the appellant put forward the birth certificate. His attention was well and truly directed to the critical factor in the application that his identity was in issue. The RRT did this in its questions about the appellant’s passports to which I have referred at [39] to [45] above. It is true that the RRT did not specifically advert to the birth certificate but it was unnecessary to do so because this was just another document which went to the appellant’s identity.

104 The four factors on which the RRT relied to make its finding that the birth certificate was fabricated constituted the reasons for rejecting the document. I respectfully disagree with the learned Federal Magistrate’s view that the RRT was required to put these factors to the appellant. To do so, it seems to me, would be to require it to put its own evaluation and reasoning to the appellant contrary to the authorities which I have stated.

105 The conclusion that the birth certificate is in the name of MSA was fabricated was an obvious and natural evaluation of the document in light of the content of the document and the other evidence about the appellant’s identity. The observations of the Full Court in WACO do not lead to a contrary view.

106 It follows in my opinion that the Minister’s notice of contention directed to this issue must be upheld.

107 Accordingly, it is not necessary to consider the appellant’s submission that the Magistrate erred in finding that the denial of natural justice could not have produced a different result.

The Minister’s submission as to the proper approach to the RRT’s decision

108 Mr Smith submitted that it was unnecessary to consider the appellant’s detailed criticisms of the decision because three findings of fact were made which disposed entirely of the claim.

109 The first was the finding that the appellant had used identities, which on his own case were false, to travel internationally for purposes other than to seek protection in Australia. I have set out the relevant passage from the RRT’s decision at [57] above.

110 Mr Smith submitted that this was a finding that the appellant did not have a genuine fear of persecution. In my view, this submission is correct. Accordingly, this finding was sufficient to dispose of the application; Minister for Immigration and Ethnic Affairs v Guo.

111 The second finding on which Mr Smith relied was that the appellant sought asylum as "a mere afterthought" given that he travelled from Australia to New Zealand before making application for a protection visa. I have set out the passage at [57].

112 It is true that the delay between arrival in Australia on 30 July 1999 and the lodgement of the protection visa application on 15 September 1999 was only about six weeks. Nevertheless, in my opinion, the finding that asylum seeking was an afterthought was a further finding that the appellant did not have a subjective fear of persecution. It seems to me that this finding was open to the RRT.

113 The third finding on which Mr Smith relied was that the RRT was not satisfied that the appellant was a JI insider. This too was open as a finding of fact. Moreover, it overcame the necessity of the RRT to deal with the claimed fear of persecution at the hands of the Communist Party. It was a finding that he did not have a political profile. This made it unnecessary to deal with the specific claim that the appellant feared persecution on political grounds at the hands of the Communist Party; see Yusuf at [68] – [69].

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson

Counsel for the Applicant:	B Zipser

Counsel for the Respondent:	J Smith

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	18 February 2004

Date of Judgment:	2 March 2004

Federal Court of Australia

NAJK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 163 (2 March 2004)