MZYCE & Anor v Minister for Immigration & Anor [2010] FMCA 11 (27 January 2010)

Last Updated: 21 September 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYCE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 11

MIGRATION – Assessment of credit critical to outcome – applicant found not to be credible because of inconsistencies and implausibility – supportive documentary evidence was dismissed as fraudulent – determination of document fraud was questionable – applicant invited Tribunal to make simple inquiry from readily available source to check authenticity of documents – Tribunal failed to do so – failure in the circumstances was unreasonable in a Wednesbury sense – Tribunal decision set aside and matter remitted to the Tribunal.

Migration Act 1958, ss.424A(1), 424B(4) and 424C

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 Minister for Immigration and Citizenship v Le [2007] FCA 1318 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 Re Patterson; ex parte Taylor [2001] HCA 51

First Applicant:

MZYCE

Second Applicant:

MZYCF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1224 of 2008

Judgment of:

O’Dwyer FM

Hearing date:

24 July 2009

Date of Last Submission:

16 September 2009

Delivered at:

Melbourne

Delivered on:

27 January 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Hamnett

Solicitors for the Respondent:

Clayton Utz

ORDERS

(1) The decision of the Refugee Review Tribunal dated 27 August 2008 is set aside.
(2) The matter be remitted to the Tribunal for determination according to law.
(3) The first respondent pay the applicants’ costs, if any.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1224 of 2008

MZYCE

First Applicant

MZYCF

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By this application the applicants seek a review of the decision of the Refugee Review Tribunal (the Tribunal) dated 27 August 2008; which decision affirmed an earlier decision of the first respondent’s delegate to refuse them a protection visa.
2. The applicants are husband and wife. They seek protection based upon the first applicant’s claims. Accordingly, hereafter a reference to the applicant is a reference to the first named applicant.
3. The application came before me on 24 July 2009. However, because of my concern about an issue raised by the applicant in respect of the rejection by the Tribunal of the authenticity of newspaper articles put before it, and because of the apparent exhaustion by the applicant of all that could reasonably be asked of him to authenticate such articles, and the apparent ease by which the Tribunal could have satisfied its own doubts, I sought further submissions by the parties centred around my concerns. Both parties have provided these further submissions.
4. This judgment addresses the grounds for review as set out by the applicant in his written application, together with my concerns raised during the hearing.

Background

5. The applicants are citizens of India who arrived in Australian on 8 February 2008.
6. The applicant claimed to be a businessman who is a devotee of the ideology and philosophy of Mahatma Ghandi and Dr Baba Saheb Ambedkar, both of whom worked for the downtrodden and untouchables.
7. The applicant claimed that there is conflict between high caste Hindus and the untouchables and that after high caste Hindus “insulted and dishonoured the statue of Dr Baba Saheb Ambedkar in 1997” there was resultant chaos and conflict which led to the imposition of a curfew against which supporters of Dr Baba Saheb Ambedkar organised a protest march.
8. The applicant claims that, as a social worker and supporter of their cause, he joined the protest march. The protest march became out of control, resulting in widespread violence and police action.
9. The police arrested the applicant, took him to the local police station and charged him with an offence that attracts a criminal penalty.
10. After being charged, the applicant was released on bail, but because of his profile in the community he became the focus of the untouchables and became very active in their movement. He published a newsletter critical of corruption, both in respect of political figures and government officials.
11. By these activities, his profile became such that he attracted the ire of fanatical Brahmans who made several attempts to kill him. Because of threats to kill him and his family, he closed his business and moved away. However, thereafter, he aligned himself with another political movement which saw him again publishing articles critical of government officials which had a wide area of readership. The spread of his articles led his enemies to discover where he then lived, resulting in him becoming the focus of new threats, which led, he believes, to such strain on his family that his daughter committed suicide.
12. In short, the applicant says that his political activities and the expression of his critical views about corruption of political figures and government officials has created a profile in India that makes it easy for those that wish him harm to find him and once found, he runs the risk of serious harm being done to him and his family. He further states he cannot be protected by the state authorities as much of his criticism has been levelled at them.

The Tribunal’s decision

13. The most significant finding by the Tribunal was that the applicant was not a witness of truth. The Tribunal gave various reasons for so concluding, not least of which was the implausibility of him being attacked by his enemies on a road not frequently travelled by him. The Tribunal found inconsistencies in his recounting of how and why he closed down his business and moved; and in his return to India from both Singapore and Australia at a time he says he was in fear of serious harm. Also of significance was the Tribunal’s finding that the newspaper reports, which were relied on by the applicant to support his case, could not be given credit because of widespread document fraud in India.

Grounds for review

14. The grounds for review set out in the application are very limited by way of particulars. It is noted that the applicant was ordered to file an amended application fully particularising the grounds relied on by him, together with contentions of fact and law, but he has failed to do so.
15. He was afforded the opportunity at the hearing to expand on and particularise these grounds, but he was unable to do so beyond making submissions, in effect, on the merits of his case as if the proceeding before me was a merits review, which I do not have jurisdiction to entertain.
16. There was one issue, however, raised by the applicant, which is discussed below, that amounted to a new ground and which necessitated an adjournment to afford the parties to make further submissions.

Addressing the stated grounds in his application

17. The first ground is an alleged breach by the Tribunal of s.424A(1) of the Migration Act 1958 (the Act). The purported particulars under this ground were generic and merely assert that certain adverse information was used by the Tribunal to affirm the decision under review and that the information was not disclosed. No particulars were given that identified the information. But at the hearing, the applicant informed me that his concern in this regard was the use of information that alleges widespread use of fraudulent documents in India and the tying of that information to the newspaper clippings presented by the applicant.
18. Indeed, the second ground relating to procedural fairness and the third relating to a denial of natural justice, again without sufficient particulars, were centred upon his basic complaint that the Tribunal found that the newspaper clippings to be fraudulent in circumstances where the applicant alleged he had produced the originals and had invited the Tribunal to confirm such by searching the internet where these newspapers maintained sites.
19. In response to the broad, largely unparticularised grounds, the first respondent provided written contentions as follows:
    • In respect of the alleged breach of procedural fairness s.422B of the Act is an exhaustive statement of the requirements of the natural justice rule in relation to the matters it deals with and nothing in how the Tribunal conducted its hearing is in breach of these requirements.
    • The requirements of s.424A in respect of information that may be the reason, or part of the reason for affirming the delegate’s decision has been complied with. (See letter pursuant to s.424A sent to the applicant by the Tribunal dated 4 August 2008.) The exemptions to section 424A(1) are highlighted and the first respondent claims the majority of the evidence relied on by the Tribunal was from the applicant himself, or was country information that is not specifically about the applicant, particularly information about “the high prevalent [sic] of document fraud in India”. Annexed to that letter were various reports of instances of document fraud perpetrated by gangs or individuals and corrupt officials. (It is to be noted, however, that of the numerous documents listed as having been forged, none included clippings from newspapers – most were forged identity cards, licences, passports and educational certificates).
    • The Tribunal was permitted to proceed to hand down its decision despite a request for more time by the applicant to respond to the matters raised in the s.424A(1) letter. (See s.424B(4) and s.424C of the Act.)
20. I am in agreement with the contentions of the first respondent insofar as they go.

Issue raised in the hearing

21. Under s.424 of the Act, the Tribunal may obtain such information as it considers relevant to its task of review. It is accepted, however, that does not impose on it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act. (See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992.)
22. However, “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, it could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. (See authorities collected in Re Patterson; ex parte Taylor [2001] HCA 51). It may be that failure to make an inquiry results in a decision being affected in some other way that manifests itself as judicial error.” (See Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.)
23. It has been held that a failure to make inquiries in order to discover appropriate material if readily available, in limited instances, may constitute unreasonableness on the part of the Tribunal in a Wednesbury sense. (See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223; Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 and Minister for Immigration and Citizenship v Le [2007] FCA 1318). I am of the view that where the question of the applicant’s credibility was determinant of the outcome and where that credibility was so reliant upon the documentary evidence presented by the applicant, and further, where it was readily open to the Tribunal to determine the authenticity of such documentary evidence, not to make relatively simple inquiries as suggested by the applicant, who had otherwise provided all the authentication reasonably available to him, is so unreasonable that no Tribunal could have not made the inquiry.
24. The applicant’s principal contention as articulated at the hearing is that he should be believed as he had provided genuine documentary evidence supportive of his claims to the Tribunal, in my view, raises significant issues as to how the Tribunal approached the determination of the issue of the applicant’s credibility.
25. On the face of the Tribunal’s decision, it appears the Tribunal, on finding inconsistencies in the stories told by the applicant, determined that the reliance the applicant placed on his documentary supportive evidence must be ignored because they must be false. This in my view, for the reasons set out below, is unreasonable in a Wednesbury sense. The Tribunal, in my view, should have asked itself, what if the newspaper clippings are true. Had the answer to that question been yes, then it was open to the Tribunal to find the other claims plausible. In my view, on the face of them, they are not so implausible to lead to a conclusion the newspaper clippings should be disregarded if proved to be authentic. Should the clippings prove to be authentic then there is the possibility that the focus on “inconsistencies” would ameliorate and a new understanding of the applicant’s claim emerge.
26. In support of the Tribunal’s conclusion of “high prevalent [sic] of fraud in India” it relies on the annexures to the s.424A(1) letter.
    In themselves, they do not lead to such a conclusion, in my view.
27. The applicant asked what more he could do to persuade the Tribunal of their authenticity than what he had done. He had provided original clippings supported, he would say, by translations certified by a notary and stamped as such. It is unclear from the Tribunal’s decision whether the translations are said to be fraudulent, or the clippings are, or both; or whether they are authentic translations of forged documents.
28. For such a pivotal issue, that is, the authenticity of the translations and the clippings, it is incumbent, in my view, on the Tribunal to take all reasonable steps to determine the issue. In this instance, the first respondent and the Tribunal have available to them the services of a documents authentication unit located in Queensland. A referral to this unit would not have been to ask too much of the Tribunal. In addition, the applicant suggested to the Tribunal that the newspapers involved have websites readily accessible and invited the Tribunal to go to them. Again, although it may have necessitated the services of an interpreter, these sites could have been readily accessed without too much effort on the part of the Tribunal.
29. It seems to me the Tribunal formed a view about the credibility of the applicant and had then found it necessary to discredit the applicant’s major supportive documentation. The approach taken, in my view, was a reverse of that which should have been taken in this instance, and because of such, the conclusions reached about the credibility of the applicant are not reliable, and unreasonable in a Wednesbury sense.

Conclusion

30. The failure by the Tribunal to make reasonable inquiry in a manner readily open to it to ascertain the authenticity of the newspaper clippings is a constructive failure to exercise jurisdiction and is unreasonable in a Wednesbury sense.
31. Accordingly, the decision of the Tribunal dated 27 August 2008 should be set aside and the matter remitted to the Tribunal for determination according to law.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Date: 27 January 2010