MZXKH v Minister for Immigration - [2006] FMCA 1696

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXKH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1696

MIGRATION – Protection Visa – Refugee Review Tribunal – whether jurisdictional error – whether breach of s.424A of Migration Act 1958 – whether failure to consider integer of claim – extent of duty of Tribunal to make further inquiries.

Migration Act 1958, s.424A

Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SZCJR v Minister for Immigration and Multicultural Affairs [2006] FCA 1083
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Wickramasinghe v Minister for Immigration & Anor [2005] FMCA 1558
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Applicant:

MZXKH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 747 of 2006

Judgment of:

McInnis FM

Hearing date:

25 October 2006

Delivered at:

Melbourne

Delivered on:

17 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr J. Gibson

Solicitors for the Applicant:

Clothier Anderson & Associates

Counsel for the First Respondent:

Mr R. Knowles

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 747 of 2006

MZXKH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application judicial review is sought of a decision of the Refugee Review Tribunal ("the Tribunal") dated 4 May 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent refusing to grant to the Applicant a protection visa.
The Applicant has relied upon an Amended Application filed 18 September 2006 and counsel for the Applicant relied upon Contentions of Fact and Law filed the same day.
The Applicant is a citizen of Burma who entered Australia on 31 March 2004. He applied for a protection visa on 6 April 2004 based upon a claim of his political opinion together with ethnic and religious background. He asserted he faced a real chance of persecution in Burma as a result of those factors. Specifically he claimed that he had been an active supporter of the democracy movement in Burma and, in particular, the National League for Democracy.
In a Statutory Declaration relied upon in support of the application for a protection visa (Court Book p.56) the Applicant specifically stated the following:
“4.In the evening of 5 August 1987 the Military Government announced the demonetarization of our currency (75 kyats, 35 kyats and 25 kyats). On the day after the announcement, I went back to my office to surrender the company money that I was holding for the purchase of rail tickets. On the way I came across an angry mob of students and citizens who were protesting against the government for the unfair demonetarization of their money. As I stood by and watched, a contingent of police attacked the students, citizens and bystanders like myself indiscriminately with batons. I was badly beaten during this incident. This prompted me to become involved in the demonstration.”
In his detailed Statutory Declaration the Applicant provided examples of demonstrations where he had become involved. It was noted that he had been employed as a security guard at the United States Consulate for a period of 15 years and then employed at the United States Embassy for a further period of approximately six years. He travelled to Australia on a legally issued passport in his own name.
The Applicant gave further details of what occurred after the demonstration, set out in the extract above, where he was apparently taken to a gaol and again beaten. He claimed to have been slapped in the face and struck with a baton "all over the body". He asserted that he had also been hit on the forehead which "caused a huge gash which bled a lot". The Tribunal otherwise accurately set out in summary form the claims which appeared in the Applicant's Statutory Declaration.
In addition to the claim of fearing persecution as a result of political activities, the Applicant also claimed that due to his Indo‑Karen ethnicity he was often mistaken for a Muslim. He claimed to fear harm during anti‑Muslim riots. He also claimed that as a Christian he routinely faced discrimination in Burma. It is relevant to set out the following extract from the Statutory Declaration (Court Book pp.61‑62) where the Applicant states, relevantly:
“35.In addition to my fears of political persecution in Burma, I believe that my Indo‑Karen mixed ethnicity and Christian faith puts me at greater risk of persecution.
36.In 2003 there were riots by the Buddhist monks against the Muslims and I had to be careful not to be mistaken for an Indian Muslim. In fact I was chased through the streets by Buddhist monks on one occasion but managed to escape. These type of ethnic riots happen quite often when the government want to divert the attention of the people from other matters and they organise persons to dress up as monks and cause problems for the Muslims.
37.There have also been some big anti‑Muslim riots in a place called (AB). On the first occasion there was a riot with the Muslims and on the second occasion the big mosque was burnt down. After this, I became very careful in my movements to and from work ... On some occasions I have not been able to attend work because of these riots. I lived in the Muslim area ...
38.In addition to problems on account of my ethnic background, Christians are routinely discriminated against in Burma. For example, despite the growing number of Christians in Burma, the Government does not allow any new churches to be built. Christians are now forced to buy houses and convert them into places of worship whilst trying to be careful to make sure that the authorities do not find out. But if they sing loudly, they can be reported by their neighbours to the police or the ... authorities who come and harass them. I am a very active Christian in Burma and suffer very much under the discrimination we face on a daily basis ...”.
On 14 July 2005 the Applicant applied to the Tribunal for review of the delegate's decision. The Applicant then lodged with the Tribunal Statutory Declarations dated 14 and 23 December 2005 together with written submissions dated 19 December 2005 (Court Book pp.212‑234 and 237-240).
It is also relevant to note that under cover of letter dated 14 December 2005 the Applicant forwarded a response to hearing invitation (Court Book p.211). In that response the Applicant has ticked the box "No" next to the question, "Do you want the Tribunal to take oral evidence from any witnesses?" The Statutory Declarations which were dated 14 and 23 December combined with the written submissions dated 19 December 2005 contained significant further details for the consideration of the Tribunal. The first of the Statutory Declarations, dated 14 December 2005, states in part:
“I make this Statutory Declaration in order to provide additional and updated information in relation to my application for review, including some responses to the DIMIA delegate's refusal of my application”.
In the same Statutory Declaration the Applicant relevantly declares:
“7.For the reasons I have provided in this and my earlier statement and other evidence provided to the DIMIA, it will be very dangerous for me to return to Burma. The Burmese authorities are very suspicious of Burmese who have been overseas in western countries such as Australia, particularly if they have a past and significant political profile in Burma like myself. I wish to add by way of clarification that my involvement in the protest of 6 August 1987 was very important. I was a leader of this protest was in the front line. I was known by the authorities as "the Indian leader" because of my appearance and ethnicity. So at the time, the authorities considered me a leader. The same is the case later in the 8/8/1988 protests, when I again took a leading role in the demonstrations. Protesters at my house ("the Indian's house") before going to the demonstrations. This is why I continued to be monitored and pursued by the authorities. Further, there are many Burmese political groups in Australia who actively criticize Burma and the authorities will presume I have been politically active in such groups. My ethnic background and Christian religion will increase the chances of my persecution”
It is relevant to note that the submissions dated 19 December 2005 (Court Book p.219) set out the following introduction:
“We wish to make the following submissions in support of the application. By way of preliminary comment, we advise that we do not propose to set out in detail the applicant's claims in this submission. In this regard, in addition to the claims made by the applicant to the Department, we note that a further Statutory Declaration made by the applicant on 15 December and sent to Tribunal, provides an update in relation to his circumstances and claims. We refer to and rely on the applicant's evidence in this regard.”
That extract from a letter written on behalf of the Applicant by his then advisers incorrectly refers to the Statutory Declaration dated “15 December” when it should have referred to "14 December".
In the Statutory Declaration dated 23 December 2005 the Applicant declared that he took one month's leave from 1 to 29 March 2005 just before he fled for Australia. He referred to his earlier declaration made on 5 May 2004 and confirmed that he did not resign from his job until the day after he fled. He referred to returning to work on 30 March 2004. He claimed that he did not resign while he was on leave because if he did he would have lost the protection which he had from the US Embassy job. He then goes on to declare:
“... So I still had the protection of this job while on holidays, because I was still considered to be employed by the US Embassy. I decided to return to work on 30 March 2004 even though I was still officially on leave, because that is the day I decided to flee from Burma. I am happy for the Tribunal to make inquiries with US Embassy in Burma about this or any other claims which I have made, including about other people who had been employed by them and later left and were persecuted. This may help the Tribunal to fully understand my claims. I would also be prepared to obtain further information myself concerning any of my claims and provide it to the Tribunal if this would be of assistance.” (emphasis added)
(Court Book p.238)
In the Statutory Declaration dated 23 December 2005 the Applicant makes further reference to his role in 1987 when he was involved in protests. He claimed that it was a rare thing for someone to challenge the authorities in the way that he did and in the way he encouraged others to do so. He then, relevantly, declares:
“That's why I gained a reputation and notoriety - because people didn't usually take it up the authorities in the way I did. I also wish to clarify that I was not, and have never claimed to be a very ideological or political person. I was not a leader of the pro‑democracy movement, but I was quite well known for being involved in numerous protest activities which were about challenging the regime, and which had a strong political element to them.
The authorities wouldn't make the distinction about why, exactly, I was involved in these activities. They have just assumed, rightly, that I am opposed to the regime's anti‑democratic ways and abuse of peoples’ human rights, and probably think that I am involved with political groups such as NLD, when, in fact, I have no formal involvement in and am not a member of any political group.”
(Court Book p.239)
On 23 January 2006 the Tribunal wrote to the Applicant pursuant to s.424A of the Migration Act 1958 ("the Act") (Court Book p.241).

In the s.424A letter the Tribunal invited the Applicant to comment on information which it considered "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".
In particular, the Tribunal referred to inconsistencies between comments made by the Applicant at the hearing compared with statements set out in his Statutory Declaration material. Reference was also made to country information. The specific question was addressed as to why the Applicant had not sought asylum from the United States, given that he claimed to have worked for the Embassy and had been warned by his supervisor at the Embassy about his alleged political activities.
In response to the s.424A letter the Applicant then provided a further Statutory Declaration, under cover of letter dated 5 April 2006, declared on the same day. In his further declaration the Applicant, in response to questions raised by the Tribunal, specifically addressed a concern of the Tribunal expressed in question 8 in the s.424 letter where the Tribunal stated:
“Your profile as a leader and activist in Burma seemed to have increased in the time you first arrived in Australia and claimed protection and your more recent statements at the hearing.”
The Applicant responded in his declaration as follows:
“9As to question 8, my profile has not increased in the way suggested, and I wish to reject any suggestion that this is the case. I refer to my previous comments in writing and orally, and to the legal submissions of my legal adviser. I reiterate the inadequacies and problems which I experienced with the initial evidence prepared by my previous legal adviser, Mr Clutterbuck, and note that this was one of the main reasons why I changed legal advisers.
The additional comments about my activities and profile have nearly sought to better explain the details and subtleties of my situation in a more comprehensive way. I have also sought to rectify any possible misunderstanding which could have arisen due to the incomplete nature of my initial claims (sic).”
(Court Book pp.252-253).

The Tribunal's decision

The decision of the Tribunal dated 4 May 2006 referred in some detail to the claims and evidence of the Applicant. It also referred to country information.
The Tribunal did not accept that the Applicant had suffered any persecution in Burma as a result of his Christianity. It reached that finding after examining the Applicant's claims and noted that he did not allege that he personally suffered any limitations on his religious freedom and had studied at a Christian college and worked as a literature evangelist. The Tribunal concluded, based on the Applicant's own evidence, that dismissal from a company after a short‑time employment was for political involvement in the 1987 protests and not for religious reasons.
The Tribunal further rejected the claim of the Applicant that he faced discrimination or persecution on account of his Indo‑Karen ethnicity. Relevantly, the Tribunal states:
“The Tribunal finds that his race (Indo‑Karen) did not prevent him from securing employment or from having a good education in Burma and therefore does not find that he was discriminated against or faced persecution because of his race. Further he has not suffered serious harm on account of imputed religion (Muslim).”
(Court Book p.297).
The Tribunal accepted that the Applicant had been involved in demonstrations in 1987 and as a result of that had been beaten and interrogated by the authorities. It further accepted that he had been detained for a period four months, though released from custody due to a lack of evidence. The Tribunal then, relevantly, makes significant findings as follows:
"The Tribunal does not accept that the applicant was known as an Indian leader of the demonstrations and that other demonstrators gathered at his house, as this would have drawn a lot more reaction from the Burmese authorities who would have been aware of the applicant and his whereabouts because of his employment with the US Embassy (as suggested by the independent country information …) and also the fact that this claim was only first made at the review stage of the application.”
(Court Book p.298)
The Tribunal accepted that as a result of his employment as a security guard at the Embassy of the United States the Applicant had been monitored by the authorities and asked to report to them about his employment. It concludes that, if the Applicant was well known to the authorities, this resulted from his employment and did not result from his pro‑democracy activities. The Tribunal accepted the Applicant attended and fled from a student protest in 1988 but did not accept the incident led to any further difficulties with the authorities (Court Book p.299).
The Tribunal found the Applicant had attended speeches given by a political leader and had later spoken to police about the speeches but did not accept as a consequence that he was wanted by the authorities. It did not accept that his resignation from the Embassy or the period of time he spent in Australia would result in any real chance of serious harm if he returned to Burma. It rejected the claim by the Applicant that he would be accused of "spying for the west" if he returned to Burma (Court Book p.300).
The Tribunal dealt with the question of whether the Applicant was a member of a particular social group comprised of his family. Whilst accepting the family could constitute a particular social group, it then considered the activities of the Applicant's sisters and concluded that they would have no impact on the Applicant and, as a result, found the Applicant's membership of the family would not lead to a real chance of any serious harm if he returned to Burma.
The Tribunal dealt with the Applicant's pro‑democracy activities in Australia and found those activities were relatively insignificant (Court Book p.302). Relying on country information, it concluded that the activities of the Applicant in Australia might lead to the Applicant being questioned on return to Burma but did not accept that this would amount to persecution within the meaning of s.91R of the Act.
Relevantly, the Tribunal stated:
“The Tribunal finds that it is nearly 20 years since he participated in the 1987/88 demonstrations and that he was only involved in one demonstration in 1998, which he accidentally came across, and in which he was not seriously harmed. The applicant has only participated in little low level activity in Australia, and taking all his activity combined into account the Tribunal does not accept that the applicant will participate in activities upon his return that would put him at risk of facing a real chance of persecution now or in the reasonably foreseeable future.”
(Court Book p.302).

Jurisdictional error grounds

Before the court, counsel for the Applicant submitted that there are three grounds relied upon by the Applicant in support of the argument that the Tribunal's decision is affected by jurisdictional error. The three grounds are as follows:
a)the Tribunal failed to comply with s.424A of the Act;
b)the Tribunal failed to take into account an integer of a claim made by the Applicant;
c)the Tribunal had a duty to make inquiries and failed to do so.

a) Breach of section 424A

It was submitted by the Applicant that the Tribunal failed to comply with s.424A of the Act as it did not provide him with particulars of the information in his initial application for a protection visa that did not include the claim that he had the profile of and was known as the "Indian leader". Question 8 of the Tribunal's s.424A letter referred to earlier in this judgment was claimed to be a general question about the Applicant's increased profile.
The Applicant's response addresses that issue and it was argued this could not be claimed to be a request for information concerning the allegation that the Applicant was known as the "Indian leader". It was argued that an explicit degree of identification of the information in question is required to comply with s.424A and that there is a need to explicitly communicate the relevance of the information to the review proceedings to the Applicant (see Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [38]-[44]).
Reliance was also placed upon the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 per Allsop J at [22] and [23] with whom Weinberg J agreed at [177]. It was submitted that in the present case for the purpose of s.424A the relevant information is "that the applicant said so much and no more on the earlier occasion".

It was submitted that:
“The knowledge of the Tribunal of the content of his earlier statements including his statutory declaration accompanying his protection visa application ... including the limits of its content, can be seen to be a part of the reason for the decision because its content was instrumental to the Tribunal reaching a conclusion that his claims in this respect should be rejected.”
It was argued the reasoning of the Tribunal showed it regarded the failure to mention the claim before the review process as a significant matter sufficiently important to warrant specific mention for present purposes. The conclusions set out in the extract in paragraph 22 above includes the statement by the Tribunal when rejecting the Applicant was known as the "Indian leader" that it reached that conclusion also from "the fact that this claim was only first made at the review stage of the application".
The First Respondent submitted that the Tribunal did not fail to comply with s.424A of the Act. Reference was made to the extract from the Tribunal's decision referred to above and in particular the suggestion that a claim was only first made at the review stage of the application. The First Respondent accepted that this information formed part of the reason for the Tribunal's rejection of the Applicant's claim that he was known as the "Indian leader" of the demonstrations in 1987 and 1988. It was further accepted that that information formed part of the reason of the Tribunal's decision.
Reference was made to an exchange which occurred at the hearing where, in response to the claim of being a leader, the Tribunal notes the following:
“The Indian leader - this has only been raised more recently. In your first lot of documents, you said you took part. You were a bystander. You were hit and you took part because you got angry. But there's no talk about you being an Indian leader or outer (sic) head. It's something that’s come up more recently I think. I could be wrong. I was wondering why it’s only been raised more recently rather than in your initial statement”
(Supplementary Court Book p.35, lines 10-36).
It was submitted that in response the Applicant stated that his former representative had only had a short period of time in which to prepare his initial statement lodged with the Department. Towards the end of the hearing it was submitted that the Applicant's representative gave detailed submissions about the fact that the Applicant's initial statement appeared to be different.
It was submitted that the question concerning the Applicant's profile set out in the s.424A letter (question 8), taken in the context of what occurred at the Tribunal hearing and having regard to the Applicant's written statements to the Tribunal, made it clear that the Tribunal was concerned about the Applicant's augmented claim that during the pro‑democracy demonstrations he had attained a significant profile as an Indian leader. Accordingly, it was submitted the Tribunal complied with the requirements of s.424A in relation to that information.

Reasoning

In my view, the First Respondent's submissions in relation to this ground are correct. The s.424A letter, whilst couched in general terms in relation to the Applicant's profile, should be read in the context of material then before the Tribunal provided by the Applicant in additional declarations. The issue was further agitated at the hearing and clearly the description of the Applicant as an "Indian leader" is relevant to the profile and is part of the process of augmenting that profile which occurred after the initial statements prepared by others on behalf of the Applicant.
I further note that in his Statutory Declaration dated 14 December 2005 the Applicant specifically refers to earlier material provided to the Department and then clearly added "by way of clarification" other material, including the assertion that he was known by the authorities as "the Indian leader". I accept, as submitted by the First Respondent, that those comments could properly be regarded as an acknowledgment of the previous statement by the Applicant and relied upon before the Tribunal contained omissions regarding the Applicant's profile as an Indian leader in the 1987 and 1988 demonstrations.
The clarification of the Applicant's role was confirmed in the written submissions to the Tribunal of 16 December 2005 by the Applicant's representatives. The response to the s.424A letter by the Applicant clearly states that the Applicant refers to his "previous comments in writing and orally".
It was submitted in the alternative by the First Respondent, and I accept, that the chronology of submissions and Statutory Declarations and the content of the material highlighted in this judgment demonstrate the Applicant had given information to the Tribunal about perceived omissions in his initial statements to the Department. In the alternative, I accept therefore, that s.424A does not apply, as that information would fall properly within the terms of s.424A(3)(b) of the Act (see SZCJR v Minister for Immigration and Multicultural Affairs [2006] FCA 1083 at [11]-[12]).

b) Failure to deal with an element or integer of the claim

It was submitted by the Applicant that a fundamental integer of the claim was the fact of the Applicant's longstanding employment at the US Embassy and the implications to him of that relationship. Specific reference was made to a warning claimed to be given to the Applicant by US Embassy staff and the implications for him on return of his no longer working for the Embassy. It was submitted the Tribunal treated these claims as significant as it made specific findings on various elements or integers of his claim associated with this warning and his employment with the US Embassy.
It was argued that the failure of the Tribunal occurred by reason of it neither expressly or impliedly considering a discrete and significant claim, namely that the Applicant told his superiors at the US Embassy of his need to flee the country and that they assisted him to come to Australia through their links with the Australian Embassy.

The “Findings and Reasons”, it was argued, are silent about that issue. As I understood the submission, it was specifically argued that that allegation was relevant in its own right but further specifically relevant as it provided a degree of corroboration relevant to the Tribunal's assessment of the Applicant's political profile.
To understand the Applicant's submission, it is relevant to set out paragraph 6 of the Statutory Declaration dated 5 April 2006 where the Applicant declares:
“6.At a meeting in February 2004, I had a meeting with US Embassy staff ... I said I had to flee Burma because of the dangers I faced. They told me if I apply for asylum in the US, it would be a big problem. They strongly urged me to apply to go to another country. They said they would help me. That's why I applied to come to Australia instead. The Australian Embassy were very close friends with the US Embassy. The US Regional Secretary Officer and the Australian First Secretary were close friends. I was told by the US Embassy officials that they would write me a letter of support to get to Australia and that they would call up the Australian Embassy. I believe this is what happened and why I ended up getting visa to Australia. I don't know whether they had done this before for other Burmese staff (sic).”
(Court Book p.249).
It is noted that a letter from the US Embassy appears in the Court Book at page 104 and is dated 26 February 2004 supporting the Applicant and his application to visit Australia. The letter does state that the Applicant has "been granted one month's leave from March 1, 2004".
It would appear to be common ground that the Tribunal does not specifically refer to the discussion between the Applicant and US Embassy staff, set out above, either in its findings concerning his profile or the risk to the Applicant arising from his employment with the US Embassy. It is noted the Tribunal found, as set out earlier in this judgment, that it did not accept that the Applicant's work with the Embassy would be of any concern to the authorities in Burma and otherwise rejected associated allegations.
The First Respondent submitted that there is no jurisdictional error arising out of the claimed failure to consider an integer of the claim.

It was submitted the Applicant did not claim that the authorities were aware of what he had told his superiors in the US Embassy or of any subsequent contact between the US and Australian Embassies.
The First Respondent submitted that it is not necessary for the Tribunal to refer to every piece of the Applicant's evidence or to give a line‑by‑line refutation of the evidence which was contrary to its findings of material fact (see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 593; and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] and [47]).
The First Respondent submitted that in the alternative the Tribunal's reasons are comprehensive and the issue identified, with findings made regarding the likelihood of the Applicant facing harm in Burma as a result of his longstanding involvement with the US Embassy together with his resignation from employment at the Embassy.
It was argued that those findings addressed any issue that might conceivably arise out of this item in the evidence now questioned by the Applicant. It could not be claimed, it was submitted, that there was an issue raised by the evidence advanced on behalf of the Applicant and that if resolved one way it would have been in any event dispositive of the Tribunal's review.

Reasoning

In order to uphold this ground, it is my view that the court would be required to impermissibly undertake what is often referred to as a “line‑by‑line” analysis of the Tribunal's reasoning. I accept that it is not necessary for the Tribunal to refer to each and every piece of evidence and it is not the court's role to scrutinise the Tribunal's reasons "with an eye keenly attuned to error".
The issue of the Applicant's profile and the basis upon which he believed he was required to flee Burma, that is, because of the "dangers" that he faced appears to me to have been squarely raised by the Tribunal in its assessment of the background and circumstance of the Applicant, including his profile. The mere fact that he may have complained to staff members of a requirement to flee because of dangers, whilst providing some further material, does not of itself constitute a separate integer of the claim. It is part of the matrix of facts which the Tribunal is required to analyse.
In analysing all of the facts presented by the Applicant in his detailed submissions and declarations, the Tribunal, in my view, is not required to then recite each and every element or fact raised by the Applicant in support of the general claim of a fear of persecution as a result of his political profile.
I am satisfied, on a proper reading of the Tribunal's decision, that it has not failed to consider what could properly be regarded as an integer of the claim and accordingly I accept the First Respondent's submissions that this ground should fail.

c) Failure to make inquiries

The Applicant submitted that this is one of the rare cases where the court should conclude that there was material readily available which is centrally relevant to the decision to be made and the conduct of the Tribunal in proceeding to a decision without making any attempt to obtain that information should properly be regarded as so unreasonable as to vitiate the exercise of the decision‑making power (see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169‑170).
Reference was made to the Applicant's statement, set out earlier in this judgment, that he was happy for the Tribunal to "make inquiries with the US Embassy in Burma". It was submitted that that invitation, combined with the claim by the Applicant of fearing persecution as a result of his close links to the US Embassy or consular personnel and longstanding employment in Burma by the US government as a locally engaged staff member, should have been the subject of further inquiry by the Tribunal of relevant United States Embassy personnel. Information, it was submitted, would have been readily available had suitable inquiries been made in response to the Applicant's invitation or request for the Tribunal to take that course.
It was submitted by the Applicant that the comments made by this court in the matter of Wickramasinghe v Minister for Immigration & Anor [2005] FMCA 1558 (Wickramasinghe) are apposite to the present case, in the sense that the information in this case might properly be regarded as information which had the potential to corroborate the assertions of the Applicant. This relates to, in the present case, the importance of the US Embassy connection to the Applicant's claims, including the evidence about the warning he was given by Embassy staff.
The First Respondent submitted that the Tribunal did not have a duty to make further inquiries of the kind claimed by the Applicant. There was no general duty on the Tribunal to seek additional material, it was argued, from the Applicant or other sources. Reference was made to the Applicant's response to the invitation to attend the hearing where the Applicant had ticked the box "No" in relation to the question of whether he required the Tribunal to take oral evidence from any witnesses. It was argued the facts in the present case are materially distinguishable from those in Wickramasinghe.
In the alternative, it was submitted the common law of natural justice hearing rule did not apply to the review before the Tribunal as a result of the application of s.422B of the Act (see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [60]-[70]; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 at [7]-[8]).

Reasoning

In my view, the present case can be distinguished from the decision of the court in Wickramasinghe. That case concerned an application arising from a decision of the Migration Review Tribunal and, in particular, an application for a student visa. The material sought to be obtained in that case concerned material which could properly be regarded as "readily available". Further, it was information as a result of the circumstances peculiar to that case where the education provider ceased to continue its service, should properly be retained from records readily available and which at the very least has the potential to corroborate assertions of the Applicant.
I do not accept that the present case could properly fall within the category of those circumstances where material is readily available which is centrally relevant to the decision to be made. At best, the information which may have been obtained from witnesses, whose attendance was not specifically sought by the Applicant, would not conceivably be determinative of the outcome. The Tribunal assessed the Applicant's own evidence and his very detailed submissions and declarations in reaching a decision reasonably open to it concerning the Applicant's profile.
An assertion by the Applicant, that he was in danger, to Embassy staff, who at least assisted him to come to Australia, does not of itself confirm that the basis for the danger could be established by the Embassy staff or that the Embassy staff would be able to assess the Applicant's profile. It is noted the correspondence from the Embassy simply refers to the Applicant being granted leave for one month and supporting his application to come to Australia.
If the Applicant believed that there was further information available from staff members, rather than declining the opportunity to provide further evidence, he could have made appropriate arrangements himself, rather than simply indicating to the Tribunal that he would be happy for the Tribunal to make further inquiries. That vague invitation, against the backdrop of indicating that the Applicant did not wish the Tribunal to hear the oral evidence of other witnesses, in my view, does not lead to a conclusion that the Tribunal in this instance has failed to comply with any requirements to make further inquires in the matter.
I accept as a general principle that the Tribunal does not have a duty to seek additional material from the Applicant or some other source in order to remedy deficiencies in the case (see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]-[21]).
It follows for those reasons that this ground fails.

Conclusion

Accordingly, it follows the application as amended should be dismissed with costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 17 November 2006