FEDERAL COURT OF AUSTRALIA SZHJS v Minister for Immigration and Multicultural Affairs [2006] FCA 1429 Migration Act 1958 (Cth) s 424A NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 SZHJS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 1316 OF 2006 JESSUP J 30 OCTOBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1316 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHJS Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE OF ORDER: 30 OCTOBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed with 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 NSD 1316 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHJS Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE: 3 November 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 19 June 2006 dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for writs of certiorari and mandamus in relation to a decision of the Refugee Review Tribunal made on 30 August 2005, and handed down on 22 September 2005. In that decision, the Tribunal affirmed a decision by a delegate of the respondent Minister on 22 April 2002 refusing the appellant's application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 30 October 2006 I dismissed the appeal with costs, and indicated that I would provide reasons later. These are my reasons. 2 The appellant is a citizen of Bangladesh. He arrived in Australia as a crew member on an Iranian ship in 2001, and on 19 July 2001 applied for a protection visa. His application was based upon a claimed fear of being persecuted by reason of his religion. He claimed to be a member of a minority religious sect referred to as the Ahmadi. It was said that this sect was oppressed by the mainstream Muslim community. A number of instances of actual oppression, including torture, were referred to by the appellant. He said that he had, in effect, been bullied out of college by Sunni Muslims, and that, after he had passed his examinations elsewhere subsequently, he had been unable to obtain employment due to his Ahmadi background. He said that he had become one of the vice presidents of the Ahmadi Muslim community in Jamalpur, and that he was a leading activist of that organisation who had led many religious processions on the street. This had made him a target of a group to which he referred as the "orthodox Muslim people". 3 There were produced to the Tribunal, on the appellant's behalf, two documents in support of his case that he was involved in, and a leader of, the Ahmadi Community: · What purported to be a membership certificate issued by the "Ahmedia Muslim Jamat, Bangladesh", stating that the appellant was a member of the "Ahmedia Muslim Jamat" and that his membership number was 112; · A letter in English purporting to be from Mohammad Zahidur Rahman, General Secretary, on the letterhead of the "Ahmodia Muslim Jama't, Bangladesh", stating that the appellant was a member of the "Kadeani" (i.e. Ahmadi) community, that he was a leader and a leading activist of the community, that he played a strong role against fundamentalist Sunnis and that, as a result, he was targeted by the mainstream Sunni Muslims, that he experienced opression and his life was threatened by Sunni Muslims, and that his life was not safe in Bangladesh. Having received these documents, on 23 May 2005 the Tribunal set in train inquiries of an organisation called the Ahmadiyya Muslim Association Australia Inc "as to whether they can confirm that the [appellant] is known to them as an Ahmadi from Bangladesh". By letter dated 29 May 2005, the vice president of that association replied to the effect that the association did not have any knowledge of the appellant. He invited the Tribunal to send the appellant's documents through to the association "then we can check the authenticity of letters presented to the Tribunal". By letter dated 2 June 2005 (which was not itself in evidence, but which is referred to otherwise), the Tribunal apparently sent the documents to the association, with a view to having their authenticity verified, or otherwise. 4 It was in that state of things that the hearing occurred before the Tribunal on 1 July 2005. In its decision handed down on 22 September 2005, the Tribunal said: I noted that the Ahmadiyya Association was still checking the documents he had produced from Bangladesh and that the Tribunal would write to the [appellant] when the results of these inquiries were known. I put to the [appellant], however, that on the basis of his answers at the hearing, it would be difficult for me to accept that he had ever been involved with the Ahmadi sect at all. By letter dated 17 July 2005, the vice president of the association confirmed that the appellant was not an Ahmadi, and continued, …the documents presented to commission, letterhead and signatures on the documents have been forged. 5 On 21 July 2005, the Tribunal wrote to the solicitor who then represented the appellant. Referring to the appellant's application for review, the Tribunal said: The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows. As discussed at the hearing on 1 July 2005 the Tribunal has contacted the Ahmadiyya Muslim Association Australia Inc in an attempt to confirm whether you are an Ahmadi as you claim. The Association has informed the Tribunal that they do not know you, that you are not an Ahmadi and that the document, letterhead and signatures on the documents you have produced in support of your claims to be an Ahmadi have all been forged (Letters from Nasir Kahlon, Vice President, Ahmadiyya Muslim Association Australia Inc. dated 29 May 2005 and 17 July 2005, copies attached). This information is relevant because it casts doubt on your claim to be an Ahmadi which forms the basis of your claims to fear persecution if you return to Bangladesh. You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received by the Tribunal by 15 August 2005. By letter dated 15 August 2005, the appellant's solicitor referred to the Tribunal's letter of 21 July 2005, and said: The applicant instructs us that he filed the document from the relevant authority in Bangladesh with the Department of Immigration and Multicultural and Indigenous Affairs, which is not a forged document. With respect, there is no basis for the vice president Nasir Khlon to say that the letter is forged, nor does he have any authority to do so. Furthermore, the question of forgery should be left to experts qualified to comment. Therefore, we request you to please consider the above and consider the applicant as a member of the Ahmadiyya Muslim, which is subject to oppression in Bangladesh. 6 In its reasons for decision handed down on 22 September 2005, the Tribunal referred to the course of the hearing before the Tribunal, and to the exchange of correspondence to which I have referred. It continued: I give weight to the advice of the Ahmadiyya Muslim Association Australia Inc that the Association does not know the Applicant, that he is not an Ahmadi and that the documents, letterhead and signatures on the documents which the Applicant produced to the Department are forged. I also give weight to the impression I formed on the basis of the Applicant's answers at the hearing before me. Having regard to the advice of the Ahmadiyya Muslim Association Australia Inc and the impression I formed on the basis of the Applicant's answers at the hearing before me, I do not accept that the documents which the Applicant produced to the Department in purported corroboration of his claims are genuine and I give them no weight. Having regard to the advice of the Ahmadiyya Muslim Association Australia Inc and the impression I formed on the basis of the Applicant's answers at the hearing before me, I do not accept that the Applicant has ever been involved with the Ahmadi sect. Since I do not accept that the Applicant has ever been involved with the Ahmadi sect it follows that I do not accept that he was ever attacked in Bangladesh for reasons of his real or perceived adherence to the Ahmadi faith, nor that he was prevented from continuing his education or discriminated against in relation to employment because he was, or was perceived to be, an Ahmadi. I do not accept that there is a real chance that the Applicant will be persecuted for reasons of his real or perceived religious beliefs if he returns to Bangladesh now or in the reasonably foreseeable future. That passage substantially reflects the Tribunal's reasons for affirming the decision under review. 7 I need not refer to the grounds upon which the appellant relied in his application for judicial review before the Federal Magistrate, since none of those grounds were taken by him in the appeal in this court. Rather, he sought leave to file an Amended Notice of Appeal which relied only upon the following grounds: 1. His Honour erred by not finding that the Refugee Review Tribunal made jurisdictional error by denying the appellant procedural fairness as particularised in ground 1 of the Further Amended Application. 2. His Honour erred by not finding that the Refugee Review Tribunal made jurisdictional error by failing to comply with s 424A(1)(b) of the Migration Act in relation to the letter sent by the Tribunal to the appellant's solicitor on 21 July 2005. At the same time, the appellant sought to introduce what was described as a Further Amended Application in the Federal Magistrates Court in which each of the procedural fairness ground and the s 424A ground was referred to. I shall refer to those grounds in more detail below. 8 It was common ground that, when an appellant seeks to rely on new arguments on appeal which were not relied in the court below, the appeal court should approach the question of leave to rely on those new arguments by reference to the following questions (NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 ('NAJT'), [166]): 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie? In the present appeal, counsel devoted considerable attention to the first question, namely, whether the new points had a reasonable prospect of success. 9 The first new point sought to be argued by Mr Young, who appeared for the appellant, was that the Tribunal had denied the appellant procedural fairness by failing, at the hearing, to alert him to the prospect that it might be held that the documents, letterheads and signatures on which he relied were all forgeries. Although there is no transcript of the hearing before the Tribunal, if one goes by what the Tribunal said about the matter, the appellant was warned only that the Ahmadiyya Association "was still checking the documents". Mr Young submitted that the information from that association, and the use to which the Tribunal put it, was considerably more adverse to the appellant than anything of which he was fairly put on notice during the hearing. 10 Mr Potts, who represented the respondent Minister, responded to this argument at two levels. First, he said that, as a matter of evidence, the appellant had not established that, at the hearing, he was not fairly warned of the prospect that the documents he provided might be found to be forgeries. He submitted that, in the absence of a comprehensive transcript, a failure to follow fair procedure could not, in this respect, be held against the Tribunal: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241, [21]. Secondly, he referred to the Tribunal's letter to the appellant's solicitor on 21 July 2005 (set out at par 5 above) and submitted that this correspondence drew the appellant's attention to the specific matters which were ultimately held against him, and attached the correspondence from the Ahmadiyya Association in which the view was expressed that the documents, letterheads and signatures were forgeries. He pointed out that the appellant had replied to this letter by way of a letter from his own solicitors. 11 I am prepared to accept that, for the Tribunal to have decided the appellant's application against him without warning him that the documents upon which he sought to rely might be regarded as forgeries and without giving him an opportunity to respond to that, would have amounted to a denial of procedural fairness. However, I consider that the Tribunal's letter of 21 July 2005 did precisely what the rules of procedural fairness required in the circumstances, namely, it notified the appellant of the very matter which formed the basis of the Tribunal's later adverse finding against him. Mr Young submitted that the sending of that letter was not good enough, in the circumstances. Faced with the bland proposition that his documents, letterheads and signatures were forgeries, Mr Young asked rhetorically, what could the appellant realistically do? It was not, however, I consider, for the Tribunal to answer that question. The appellant was not being charged with forgery. Rather, he himself had sought to rely upon documents in support of his case, and the Tribunal was entitled – probably obliged – to take whatever reasonable steps were available to satisfy itself of the authenticity, or otherwise, of those documents. In my view, its obligations on the matter of procedural fairness were completely discharged when it drew its concerns to the appellant's attention by its letter dated 21 July 2005, and gave the appellant a little over three weeks to respond. 12 The appellant's second new proposed ground of appeal related to par (b) of s 424A(1) of the Act. Mr Young accepted that par (a) of the sub-section had been complied with when the Tribunal sent its letter of 21 July 2005. He submitted, however, that, in that letter, the Tribunal had not sufficiently made it clear to the appellant why the matters referred to in the letter were relevant to the review. He submitted that the Tribunal's ultimate decision went well beyond anything that was foreshadowed in the letter: not only did the Tribunal hold that the documents, letterheads and signatures were forgeries, but the Tribunal used that holding to ground its conclusion that the appellant had never been involved with the Ahmadi sect and, therefore, had never been attacked in Bangladesh for reasons of his Ahmadi faith; nor prevented from continuing his education; nor discriminated against in relation to his employment. Mr Young submitted that, for the Tribunal to have complied with its obligation under s 424A(1)(b) to ensure, as far as was reasonably practicable, that the appellant understood why the information was relevant to the review, it ought to have made it clear not only that the documents upon which the appellant relied would be rejected, but also that the whole edifice of his case would collapse as a result. 13 In response to his argument, Mr Potts submitted that the appellant's single ground before the Tribunal was that he feared persecution by reason of his religion, that his claim to be a leader of the Ahmadi sect was fundamental, that that claim was fatally damaged by the rejection of his documents as forgeries, and that each of these consequences was fairly foreshadowed in the Tribunal's letter of 21 July 2005. 14 I do not believe that it would be a fair reading of the Tribunal's decision to say that the applicant's entire case failed merely because the documents upon which he relied were shown to be forgeries. It is quite clear from the significant deliberative passage in the Tribunal's reasons to which I have referred in paragraph 6 above that the fact that the documents were forgeries was but one of a number of circumstances which the Tribunal took into account. It also took into account the answers which the appellant had provided at the hearing, and the impression which it had formed of the appellant on the basis of those answers. 15 The Tribunal's compliance with paragraph (b) of s 424A(1) of the Act is contained in the following passage in its letter of 21 July 2005: This information is relevant because it casts doubt on your claim to be an Ahmadi which forms the basis of your claims to fear persecution if you return to Bangladesh. In this passage, the Tribunal informed the appellant not only that the information cast doubt on his claim to be an Ahmadi, but also that that claim formed the basis of his claim to fear persecution, were he to return to Bangladesh. As the Tribunal said, that was why the information was relevant. Although compendious, I consider that the Tribunal's statement was sufficient in the circumstances. I have no doubt but that, from the terms of the appellant's solicitor's letter of 15 August 2005, the appellant well understood why the information was relevant, and the potential significance of the information in the context of his case as a whole. 16 For reasons which I have attempted to explain above, I consider that the appellant would not have a reasonable prospect of success on either of the proposed new grounds of appeal. 17 Turning to the question whether there was an acceptable explanation as to why the new grounds were not raised before the Federal Magistrate, Mr Young admitted that there was no such explanation. Neither was there any application for leave to lead evidence on the appeal explaining why the grounds were not advanced below. Mr Potts submitted that, in these circumstances, there is no reason why I should not infer that the appellant – who was then represented by experienced counsel familiar with this jurisdiction – did not make a conscious decision to conduct his case before the Federal Magistrate without the benefit of these grounds. I am not disposed to adopt such a course. It is sufficient for me to hold, as I do, that there is no acceptable explanation for the appellant's failure to advance these grounds before the Federal Magistrate. 18 Mr Young submitted that there was a great deal at stake for the appellant in the present circumstances. As a person who, I infer, will not otherwise be permitted to remain in Australia, I accept that the attempt by the appellant to overturn the Tribunal's decision on jurisdictional grounds is a very serious matter, and something in which he has a very significant stake. I understand Mr Potts to have accepted as much, but he submitted that, at the end of the day, this was but one of eight factors identified in NAJT to which the court should have reference. 19 Mr Young submitted that, if the proposed new grounds of appeal are permitted to be run, the resolution of the issues raised thereby may have an importance beyond the present case. He submitted that his second point – the one involving s 424A(1)(b) – might well lead to a judgment on the construction of that paragraph which would add to the jurisprudence in this area. Although there have been many decision of this court, and some decisions of the High Court, dealing with s 424A, none, so far as the researches of counsel have revealed, has dealt with the construction of par (b) of subs (1) specifically. For my part, I do not believe that, if leave were granted, the case would provide an appropriate vehicle for the investigation of the outer limits of the operation of par (b). For reasons set out above, I consider that, on any view, the Tribunal's letter of 21 July 2005 sufficiently met the requirements of that paragraph. I do not consider, therefore, that the disposition of the present appeal, if the new grounds were permitted to be raised, would have any noteworthy importance beyond the case at hand. 20 As to the prejudice to the respondent, Mr Young made it clear that, whatever happened on the appeal, his client would not seek to reverse the costs order made by the Federal Magistrate in favour of the respondent Minister. In those circumstances, Mr Potts did not argue that his client would be prejudiced if I were to permit the appellant to advance the new grounds. Neither, in the way the argument evolved, did it appear likely that there would be any dislocation to the court, or to the efficient use of judicial sitting time. 21 Of the various considerations which I have canvassed in accordance with the criteria referred to in NAJT, I consider the two most important ones are the appellant's prospects of success and the absence of an acceptable explanation for his failure to advance these arguments before the Federal Magistrate. For reasons set out above, I consider that the appellant's prospects on each of the grounds he now proposes are weak, and that, if an appeal did run on those grounds, it would be unlikely to succeed against the facts of the case. Although the matter is serious for the appellant, and I am prepared to assume that he has much at stake, that consideration is not, in my assessment, sufficient to outweigh the other two matters to which I have referred and which provide solid grounds for a refusal of the application for leave. 22 For the above reasons, on 30 October 2006, I refused the appellant's application for leave to rely upon grounds different from those advanced before the Federal Magistrate. Since the appellant had no other grounds in support of his appeal, I dismissed the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 3 November 2006 Counsel for the Appellant: J R Young Counsel for the Respondent: J A C Potts Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 October 2006 Date of Judgment: 30 October 2006