Hlaing v Minister for Immigration and Multicultural Affairs

[2000] FCA 1116

FEDERAL COURT OF AUSTRALIA

Hlaing v Minister for Immigration & Multicultural Affairs [2000] FCA 1116

ADMINISTRATIVE LAW – Migration – Application to review decision of Refugee Review Tribunal – Alleged error of law and actual bias – Whether Tribunal limited, in questioning witness, to propositions of fact emerging from evidence directly adduced, or to be adduced, to Tribunal – Whether questioning showed actual bias – Application dismissed.

MYO HLAING V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N408 of 2000

WILCOX J
SYDNEY

1 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N408 of 2000

BETWEEN:	MYO HLAING Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	1 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant, Myo Hlaing, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs.

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	N408 of 2000

BETWEEN:	MYO HLAING Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	1 AUGUST 2000
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J:  This is an application for a review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse a protection visa to Myo Hlaing. 

2. Mr Hlaing is a native of Burma.  He claimed to be a refugee within the meaning of the 1951 Convention relating to Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees, because of fear of persecution on the ground of political opinion, if he returned to his native country.

3. The Tribunal rejected Mr Hlaing's claim for refugee status, basically because the Tribunal member was not satisfied as to the credibility of Mr Hlaing. There were a number of aspects to his doubt about credibility. They were canvassed, to a large extent, during the course of submissions this morning. But the Tribunal's view of the facts is not a matter for this court. The Tribunal has the task of finding the facts and, subject to any ground of review falling within s476 of the Migration Act 1958, that is the end of the matter.

4. Ms Winfield, who appears for the applicant, relies on s476(1)(e) of the Act (error of law) and s476(1)(f)(actual bias). She dealt with the provisions in an overlapping manner, because she relied, in respect of both grounds, upon the transcript of the hearing before the Tribunal. In my opinion, neither ground is made out.

5. In relation to the complaint of error of law, Ms Winfield draws attention to a statement made by the Tribunal member at the commencement of the hearing.  Mr Hlaing attended with the assistance of an adviser.  During the course of the introductory statement, the Tribunal member pointed out the Tribunal is an independent body and the decision it has to make is whether or not the relevant person is a “refugee” for the purposes of the Convention.  The Tribunal member then gave a synopsis of the definition of refugee in the Convention.  No complaint is made about the accuracy of that synopsis.  The member went on -

   “Now my task is to test your claims in relation to each and every part of that Convention definition.  Now I accept from the evidence in your file that you are a citizen of Burma.  It is self evident that you are outside of Burma and your application to this Tribunal is evidence that you don't want to go back to Burma.  Those things I don't have to test any further.  But I have to be satisfied specifically why you don't want to go back to Burma.  In particular whether or not you face a real chance as distinct from a remote chance of being persecuted for one or more of the Convention related reasons.  Any questions about the definition.”

   Mr Hlaing answered, through the interpreter, in the negative. 

6. Ms Winfield submits the member erred in law in stating that his task was to “test the claims in relation to each and every part” of the Convention definition.  She also says it was erroneous for him to refer to the question as being whether or not Mr Hlaing faced “a real chance as distinct from a remote chance of being persecuted for one or more of the Convention related reasons”.  She says the member’s task was to determine only whether Mr Hlaing had a well founded fear of being persecuted for reasons of political opinion and he should not have said anything more than that.

7. I disagree with these submissions.  The opening sentence of the quoted passage might have been expressed in different language.  It might have been better for the member to say his task was to review the decision of the delegate; this would have been a less intimidating approach.  But it was proper for the member to point out that he had to consider the claims made by the applicant in the light of the elements of the definition contained in the Convention. 

8. The member, usefully in my opinion, indicated what elements he already accepted.  The first element was that Mr Hlaing was a citizen of Burma.  Perhaps this might be thought to be self evident, but there have been cases in the Tribunal, some of which have come on review before me, where there has been a question as to the identity of the applicant and the country of which the applicant is a citizen.  So it was useful for the member to “clear the decks”, by indicating he accepted Mr Hlaing's citizenship and, it seems, also his identity.  He also cleared the decks of any problem about the existence of a subjective fear of persecution by indicating he accepted that claim.  It was useful to indicate that the critical issue was why Mr Hlaing did not wish to return to Burma; and, in particular, whether or not he faced a real chance, as distinct from a remote chance, of being persecuted for one or more of the Convention related reasons.

9. That last concatenation of words does not appear in the Convention, but this formula has been approved by the High Court of Australia on more than one occasion.  I cannot accept the submission that it was wrong for the Tribunal member to spell out to the applicant the nature of the test which he was bound to apply  under Australian law.  This was a more meaningful course than simply repeating to him the formula “well founded fear of being persecuted”, a formula that requires explanation to be understandable.  I do not think there was any error of law in the explanation the member gave Mr Hlaing; and I do not think his action in giving that explanation indicated any predetermined attitude to the claim. 

10. It is then said the Tribunal member took up an adversarial position.  The complaint is that the Tribunal member put matters to the applicant for which he had no evidence.  On a number of occasions during the course of Mr Hlaing's evidence, the member put to him - using the words, "I put it to you" - propositions of fact inconsistent with what the applicant was saying in his evidence.

11. Many of these propositions related to an alleged demonstration in Rangoon in late December 1996.  The applicant claimed to have observed this demonstration and to have been arrested at it.  The member referred to a report about demonstrations in Rangoon, early in December 1996, which was published by “Time” magazine.  The member stated the date of the relevant issue of “Time” magazine and pointed out the story would have been prepared at least a week before that date.  So he laid his cards on the table, as it were, in questioning the applicant about his evidence of the incident. 

12. Ms Winfield does not challenge the action of the member in putting propositions of fact to her client commencing with words like "I put it to you".  However, she submits such questions could properly be put only if based on evidence.  When I asked Ms Winfield what she meant by “evidence”, she at first referred to evidence already given, or that, to the knowledge of the Tribunal member, would be given; being evidence directly concerning the involvement of her client in the alleged demonstration.  In other words, the Tribunal member would be entitled to put a proposition of fact to an applicant only where the Tribunal member had already heard direct evidence about the matter under consideration, or reasonably believed direct evidence would be given later in the inquiry.

13. I sought to test this proposition by putting to Ms Winfield the hypothetical case of a Tribunal member who had several different video recordings of an incident, and found an applicant was giving an account of the incident that was at odds with the video pictures.  She agreed that, under those circumstances, the member would be entitled to put questions that suggested the person giving evidence was incorrect.  She had difficulty in explaining to me why a different principle applied to a magazine article.  Of course, there may be a considerable difference in the weight that ought to be accorded to a version of events contained in a magazine article, compared with a version apparent in a number of video recordings.  However, there is no difference in principle.

14. Similarly, there may be relevant material in a report by a government entity, such as the Department of Foreign Affairs and Trade or the United States Department of State , or a reputable international agency.  The Tribunal is entitled to test the evidence given by an applicant for refugee status by drawing attention to what appear to be inconsistencies between that evidence and material available from another source which, it is satisfied, is likely to have been carefully compiled.  The task of the Tribunal would become almost impossible if members were precluded from putting to applicants a different understanding of material facts, except in a case where they had available to them sworn or affirmed evidence supporting the other version.

15. It would be highly undesirable, from an applicant’s point of view, if members were unable to take applicants to another version of relevant events.  It would be unfair for a Tribunal member to sit silently through an account of an incident that was at odds with apparently credible independent evidence and, when the evidence was complete, to reject the claim because of the inconsistency.  The applicant would have had no opportunity of dealing with the supposed inconsistency.  It is much fairer for members to point out the apparent inconsistency, in a non aggressive way, and allow the applicant to deal with it.  Sometimes, when that happens, it turns out there is no inconsistency at all; alternatively, the applicant may persuade the Tribunal member that the alternative version is suspect. 

16. I do not see any error of law in the course taken by the member in this regard.  I certainly do not see it as indicative of actual bias. 

17. Ms Winfield referred, during the course of argument, to the decision of the High Court in Clyne v New South Wales Bar Association (1961) 104 CLR 186; in particular to a passage at 201 in which reference is made to the unfairness of counsel making statements containing serious allegations without having a belief that proof of those statements is possible.

18. With respect to Ms Winfield, I see no analogy between that situation and the present situation.  A Tribunal is not a court; it is an administrative body.  A Tribunal is not hearing adversarial litigation, it is carrying out an investigation.  It is important this be done in a fair and moderate way, without any aggression or intimidation of the applicant.  But the Tribunal is entitled to test the claims made by applicants.  The critical evidence almost invariably concerns events said to have taken place in a foreign country, often many years ago.  If the evidence is accepted, it may well be the correct view that the person suffers a real chance of persecution if returned to the foreign country.  On the other hand, if the evidence is false, the person may have no legitimate claim for refugee status.  It is therefore important the Tribunal consider carefully the claims that are made.  Tribunal members should be prepared to put questions which test the accuracy of what is said to them, and to put questions which seek explanations of apparent inconsistencies.  In doing that, the Tribunal is not offending the principles laid down for the conduct of adversarial litigation by a representative of a party.  Those principles do not apply.

19. In relation to actual bias, the submission was put that the Tribunal member formed a fixed opinion in favour of the account of demonstrations in Rangoon given in the “Time” article and was not prepared to consider the contrary account given by Mr Hlaing.

20. I reject that submission.  The Tribunal member used the “Time” article to test Mr Hlaing's account.  However, the member appreciated the article would have been composed, at the latest, by the middle of December and that Mr Hlaing was claiming the incident in which he was involved took place at the end of December.  At one stage, he said “26 December”, but he then indicated he could not be sure about the exact date.  However, Mr Hlaing reaffirmed, more than once, that the event occurred at the end of December.  He did this, even after the Tribunal member pointed out that demonstrations in Rangoon seem to have ceased by the middle of December.  The Tribunal member did not assume the “Time” article referred to the last Rangoon demonstration in December 1996.  In his reasons for decision, he indicated the steps he had taken to obtain information about any other demonstration that might have occurred after the middle of December.  The member said he had been unable to find any reference to a demonstration having occurred.  He gave reasons why it is unlikely that it did, having regard to actions taken by the military by mid-December.

21. The attitude of the Tribunal is the opposite of having a fixed opinion.  The member was endeavouring to find out the facts.  He paid regard to Mr Hlaing's insistence that the relevant demonstration was at the end of December by trying to ascertain whether there had been a demonstration at that time. 

22. When one reads the reasons of the Tribunal member, it is obvious the date of this demonstration was a very minor part of the mosaic of circumstances that caused the Tribunal member to have serious doubts about Mr Hlaing's credibility.  The member’s reasons refer to things done and, perhaps more relevantly, not done by Mr Hlaing after arrival in Australia and to Mr Hlaing's accounts of the obtaining of his passport.  He gave several different accounts; each of which had problems, so far as his case was concerned.  There were other matters as well.  The evidence about the demonstration, and the Tribunal member's unwillingness to accept Mr Hlaing’s account of it, was certainly part of the reason for the Tribunal disbelieving him; but by no means the whole reason.

23. I have been unable to find any error of law in the Tribunal’s decision and I see no basis for imputing actual bias to the member. 

24. The application must be dismissed.  The applicant should pay the respondent's costs.  I so order.

I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             1 August 2000

Counsel for the Applicant:	R Winfield
Solicitor for the Applicant:	Ong & Co
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 August 2000
Date of Judgment:	1 August 2000