NACS of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 427 (17 December 2002)

Last Updated: 18 December 2002

FEDERAL COURT OF AUSTRALIA

NACS of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 427

APPLICANT NACS OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 860 of 2002

BLACK CJ, MADGWICK & ALLSOP JJ

17 DECEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N860 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT NACS OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	BLACK CJ, MADGWICK & ALLSOP JJ
DATE OF ORDER:	17 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed

2. The appellant pay the respondent's costs.

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	N860 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT NACS OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BLACK CJ, MADGWICK, ALLSOP JJ
DATE:	17 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from an order of a Judge of the Court dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of the delegate of the respondent Minister (then named the Minister for Immigration and Multicultural Affairs) to refuse the grant of a protection visa under the Migration Act 1958 (Cth) (the Act).

2 The appellant (the applicant before the primary judge) is a citizen of Bangladesh who arrived in Australia on 6 December 1997. On 2 January 1998, he lodged an application for a protection (Class AZ) visa with the (then named) Department for Immigration and Multicultural Affairs. The Minister's delegate refused this application on 4 February 1998.

3 On 24 February 1998, the appellant applied to the Tribunal for a review of the delegate's decision. A hearing took place on 14 August 2001, when the appellant gave oral evidence before the Tribunal. On 5 November 2001, the Tribunal affirmed the delegate's decision not to grant a protection visa and handed down its reasons in respect of this decision on 27 November 2001.

4 On 22 July 2002, the primary judge heard the appellant's application for review of the Tribunal's decision, and on 29 July 2002 delivered judgment, ordering that the application be dismissed and that the applicant pay the respondent's costs. Counsel appeared for the appellant before the primary judge.

5 The primary judge summarised the appellant's claim to be a refugee (within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as affected by the Protocol relating to the Status of Refugees done at New York on 31 January 1967) before the Tribunal as having (at [5]):

...turned upon his claim to have been politically aligned with the Bangladesh Nationalist Party and a prominent member of its youth wing the Jatiotatabadi Judo Dal. In support of that claim he submitted what his advisor referred to as, "a certified copy of a photograph showing the applicant with Begum Zia", the former Prime Minister of Bangladesh and chief of the Bangladesh Nationalist Party. He said that he feared persecution by reason of his political association and gave evidence that his house had been looted and fired, thugs had beaten up his father, and that he had been tortured and that his life was in danger.

6 The primary judge described the importance that this photograph assumed as follows:

[6] The photograph was submitted to the Tribunal on behalf of the applicant by an immigration practitioner in a letter dated 21 February 2000. The Tribunal thereafter referred the photograph to a document examiner who was an employee of the Department of Immigration and Multicultural Affairs. The document examiner responded by Minute dated 5 April 2000. The Minute noted that the picture had been examined and observed that there was a multicoloured halo surrounding the head of the male person, the applicant, which was not present around that person's arm or around the other person in the picture, Mr Begum. The writer of the Minute concluded that this was indicative of "superimposition before the current picture was printed".

[7] The Tribunal made no reference to the Minute until the scheduled hearing of the application on 14 August 2001. There is no explanation for the delay of some 16 months.

[8] At the hearing the Tribunal member pointed out to the applicant the significance of the Minute. This was reinforced by a letter also handed to the applicant which relevantly said, "A report from the Department's Document Examination Unit indicated that there had been a superimposition onto a photograph submitted by you. A copy of this report is attached, as is the photograph. As explained at the hearing this information is relevant because it raises profound questions as to the genuineness of all the other documents submitted by you as well as the credibility of the claims made by you." The applicant was asked to comment in writing by 6 September 2001, that is to say approximately three weeks from the date of the hearing.

[9] On 20 August 2001 the applicant's advisor wrote to the Deputy Registrar of the Tribunal indicating that the applicant wished to have the photograph re-examined by an independent expert. He sought 28 days time from the date of this letter to carry out the re-examination.

[10] On 27 October the applicant's advisor again wrote to the Tribunal indicating that the photo had been submitted to a forensic examiner who had returned the photograph to the applicant saying that he could not do anything. The letter noted that the applicant still intended to have the photograph examined by an independent expert and sought an additional 28 days from 27 October 2001 for this to be done.

[11] The Tribunal notes in its reasons that the 27 October letter followed contact between the Tribunal and the applicant in which the Tribunal had inquired of progress. The Tribunal also notes that it refused the additional time requested because it was of the view that a sufficient time had already elapsed to enable the photograph to be examined.

7 His Honour noted that the decision of the Tribunal to affirm the delegate's decision was based not only on the proposition that documents were frequently obtained fraudulently from Bangladesh, but also on the basis of the report of the document examiner, leading to non-satisfaction on the part of the Tribunal that the appellant was being truthful in his claims.

8 Counsel for the appellant before the primary judge accepted that the Tribunal's reasons depended substantially upon its finding concerning the photograph, and submitted that the Tribunal had denied him procedural fairness, or natural justice, by raising the question of the superimposition only at the date of the hearing.

9 The primary judge dealt with the matter leaving to one side s 474 of the Act. That is he dealt with the matter as an application under s 39B of the Judiciary Act 1903 (Cth) unaffected by any widening of authority that can be said to be brought about by s 474 of the Act. His Honour dealt with the matter before the five member Full Court dealt with the appeals in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.

10 The primary judge dismissed the application because he found that there had been no denial of procedural fairness and no jurisdictional error capable of founding relief under s 39B. The primary judge expressed his views in this regard as follows:

[25] In my view, there was no denial of natural justice to the applicant in the circumstances of the present case.

[26] No doubt the delay by the Tribunal in notifying the applicant of the contents of the document examiner's Minute by some 16 months may be the subject of criticism. The delay may in part be explained because at some stage the file was reallocated to a different Tribunal member for hearing. But whether this provides an explanation for the delay, the case was not one where the applicant was not given an opportunity to meet the material in the document examiner's report. In fact the applicant had between the date of the hearing on 14 August 2001 until the end of October in that year to have the photo examined independently and to arrange for a report to be given to the Tribunal. Nothing happened in this time. There is no explanation why, if a different independent view of the photograph was possible, a report could not have been obtained and filed. The explanation given in the letter of 27 October is, to say the least, somewhat difficult to follow. It might well suggest that the reason the independent expert could not help was because he or she agreed with the Departmental Document Examiner.

11 The notice of appeal dated 14 August 2002 and filed by the appellant on 15 August 2002 complains about the decision of the primary judge as follows (typographical errors appear in the original):

The Single judge of the Federal Court in his Honors Judgement delivered on the 29 July 2002 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act 1903. The grounds and relief are very much similar with a recent High Court Judgement - Muin v Refugee Review Tribunal Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002)...

12 We take the notice of appeal to be complaining, first, about the conclusions reached by his Honour. It is, however, clear from his Honour's reasons that the appellant was given a fair opportunity to deal with the examiner's report. We agree with the approach taken by his Honour and we see no reason to doubt the correctness of his conclusions.

13 The notice of appeal may also be seen as seeking to raise the particular matters raised in Muin v Refugee Review Tribunal [2002] HCA 30. However, no basis was put forward before us as to any factual matter upon which to found a conclusion that the appellant here was denied an opportunity to put something before the Tribunal because of a belief in the appellant that something was or was not before the Tribunal. In submissions filed by the appellant a reference was made to a letter that he said was important. However from what was said by the appellant before us it appears that the letter was provided to his previous migration agent, and that the letter was given to the Tribunal.

14 In the above circumstances, we see no basis upon which to deal with the matter other than the basis upon which the primary judge approached it.

15 Further, even if there had been a failure to accord the appellant procedural fairness, the effect of s 474 is such as to widen the authority of the Tribunal so as to authorise such conduct: NAAV, supra.

16 The appellant also made submissions before us as to the merits of his case and the genuineness of his claims. We could discover no question of law from these submissions.

17 In the circumstances, the appeal should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and the Honourable Justices Madgwick and Allsop.

Associate:

Dated: 17 December 2002

The Appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	17 December 2002
Date of Judgment:	17 December 2002