NAEQ v Minister for Immigration

[2003] FMCA 482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAEQ v MINISTER FOR IMMIGRATION [2003] FMCA 482

MIGRATION – Application to review decision of Refugee Review Tribunal – Failure to identify perceived inconsistency in claims forming ground for adverse credibility finding – Applicant discouraged from clarification of claims in hearing – whether obligation to canvass issues in hearing where conclusion not an obvious or natural evaluation of material – lack of procedural fairness – s.425 and s.422B – jurisdictional error.

Migration Act 1958

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Craig v South Australia (1995) 184 CLR 163
Applicant NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31
Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 74 ALJR 405
The Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 CLR 24
VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAF 74
WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220
Minister for Immigration & Multicultural Affairs Re; Ex parte Miah (2001) 206 CLR 57
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781
WAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1375
Minister for Immigration & Multicultural & Indigenous Affairsv SCAR [2003] FCAFC 126
WAKH v Minister for Immigration & Multicultural Affairs [2003] FCAF 159
Minister for Immigration & Multicultural & Indigenous Affairs v Rajamanikkam (2002) 190 ALR 402
Kioa v West (1985) 159 CLR 550
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
Somaghi v Minister for Immigration & Local Government & Ethnic Affairs (1991) 102 ALR 339 or (1991) 31 FCR 100
Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188
VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 804
Toban v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1050
W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788
Sinnathamby v Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502

Applicant: APPLICANT NAEQ OF 2002

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1338 of 2002

Delivered on: 14 November 2003

Delivered at: Sydney

Hearing Dates: 21 May, 26 June & 5 August 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Ms L McCallum

Solicitors for the Applicant: Gilbert & Tobin

Counsel for the Respondent: Mr R Bromwich

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

THE COURT DECLARES:

1. That the decision of the Refugee Review Tribunal made on 24 October 2002 is invalid and of no effect. 

THE COURT ORDERS:

1. That the Minister is prohibited from acting in reliance upon the decision of the Tribunal. 

2. That the decision of the Tribunal is set aside. 

3. That the matter is remitted to the Tribunal for re-determination according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1338 of 2002

APPLICANT NAEQ OF 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal made on 24 October 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.  The applicant claims that the Tribunal took into account irrelevant considerations in making its decision, that it failed to take into account relevant considerations, that the decision was unreasonable, that the Tribunal failed to accord him natural justice, that the circumstances of the hearing by the Tribunal gave rise to a reasonable apprehension of a lack of impartiality on the part of the Tribunal and that the Tribunal made errors of law in arriving at its decision. 

2. The applicant, who is a citizen of Burma, arrived in Australia on

   
   

   9 March 2001 and is the holder of a student visa (check).  On 5 July 2002 he lodged an application for a protection visa claiming to fear persecution by reason of his political opinion due in particular to his involvement with the All Burma Students Democratic Front (ABSDF) in Burma.  On 27 August 2002 a delegate of the respondent refused to grant to the applicant a protection visa.  The Tribunal affirmed that decision on 24 October 2002.  It is necessary to set out details of the applicant’s claims at some length as the claimed jurisdictional errors relate to the Tribunal’s treatment of these claim, in particular its conclusion that the applicant presented his core claims in an inconsistent manner.

3. In a statement translated from Burmese to English provided on

   
   

   15 August 2002 in connection with his protection visa application the applicant claimed that in December 1996 he participated in student demonstrations against the government and that subsequently he joined the ABSDF and carried out underground activities primarily in the North Dagon township. 

4. In this statement he claimed that the names used by leaders of the group were not their real names and that other members of the group also kept their identities secret for security purposes and only their immediate leaders were aware of their real names.  Apart from the leader of his group he had most contact with Phyo Maung Maung but they did not disclose their addresses to each other.  They had attended the same computer school in Yangon (from which the applicant provided a certificate to the Department) and met frequently there.  According to the applicant Phyo Maung Maung later moved from North to South Dagon Township group but they still met occasionally. 

5. He stated that after several members of the ABSDF active in the South Dagon township were detained by the military, his group considered themselves in danger.  He moved to another town and applied for an Australian student visa.  Subsequently some underground reserve members of the South Dagon Township group were arrested.  Phyo Maung Maung managed to escape.  The applicant stated that:

   ‘I knew the army could arrest him at any time, and that if they did they would also definitely come and arrest me.  This was because we were from the same computer school, and I had kept original copies of information on the computer (sic)…

   As long as Phyo Maung Maung was not arrested by the authorities, I would not be in immediate danger.  Other members in my group did not know my real name or where I lived.  However Phyo Maung Maung and I had been very close, worked together, as well as had gone to the same computer school.  If he were arrested, the authorities would be able to trace me through the computer school.  Therefore, his arrest would place me in great danger.’

6. The applicant thought of ways to leave the country.  He held a passport because he had passed a Government test for the position of marine assistant electrician.  He successfully applied for an Australian student visa.  The applicant claimed that two days before he was due to leave Burma, Phyo Maung Maung was arrested and that when he heard this he was terrified because he knew he would be interrogated and ‘know [his] statement would be enough to condemn me’ and that the authorities ‘would go to the computer school and get more information about my activities, after which they would come and arrest me.’ 

7. He claimed that after he arrived in Australia (on 9 March 2001) he had wanted to apply for a protection visa but was afraid that he would be sent back to Burma.  His friends convinced him to lodge the application in July 2002.  He also claimed that his parents told him that not long he left the country, military intelligence officers had come to their home and asked questions about his whereabouts and had searched the home.  His parents told him that he was in grave danger. 

8. This statement was provided by the applicant from Villawood Detention Centre.  His student visa had been cancelled on 25 July 2002.  A subsequent bridging visa application was refused, the applicant being unable to provide a security.  He was not legally represented. 

9. On 27 August 2002 a delegate of the Department of Immigration refused the application.  The delegate understood from the applicant’s statement that his claim was that in addition to his ABSDF connection he feared that the authorities would trace his association with Phyo Maung Maung to the computer school and discover information he had left on computer.  The delegate found it highly unlikely that the applicant would have risked leaving incriminating information on computer at the computer school he attended for two months in 1999 particularly after the arrests of ABSDF members in early 2001 and given his awareness of the need for secrecy in anti-government activity.  The delegate noted:

   ‘The claimant himself stated that members did not even tell each other their real names, but used alternative names and they did not disclose their home addresses to each other.’

10. The delegate also had regard to the pervasiveness of military/government security in Burma and the fact that others would have had access to the computer school computers in the 16 month period between the applicant’s course completion and the arrest of Phyo Maung Maung. 

11. The applicant sought review by the Tribunal on 28 August 2002.  On 25 September 2002 the Tribunal received a submission from a migration agent enclosing a statement by the applicant.  It consisted of the same statement submitted to the Department on 15 August 2002 except that the reference to keeping original copies of information on the computer at the computer school was corrected to read ‘(my info) It was kept on the school records.  Kept original copies of information, my data, my d.o.b., name, etc.. by my school reception/school management group/my school authorities.’ (sic).  The accompanying letter explained that these corrections related to the applicant’s personal information (i.e. name, date of birth etc…) being kept at the computer school and that he would clarify the corrections in the Tribunal hearing. 

12. Prior to the hearing the applicant provide a further lengthy handwritten submission on 26 September 2002 (which was re-sent as a more complete version) addressing claimed errors in the Departmental decision.  In this submission the applicant addressed a number of issues.  In particular he clarified that he had never left information or stored ABSDF activities inside the computer school computer as that would not have been safe.  He claimed that there was a translation error in his earlier statement and that his claim was that ‘The MI men got my real about, my CV, my real name and date of birth and others from our computer school after I was leaving from Burma’ (i.e. not from his computer).  He repeated that ‘after I gone to the aboard, the MI men got my name or d.o.b. or address or other, or my CV from the school management group.  Because the school’s persons always took and stored the history(ies) or curriculum vitae or some factors of every students’.  He also claimed when they visited his home the military intelligence asked his parents ‘about me and ABSDF’s tasks of mine, they investigated about my ABSDF political activities’ and said they would arrest him political reasons. 

13. In addition the applicant addressed his failure to apply for a protection visa until 5 July 2002 despite arriving in Australia in March 2001 and elaborated on his ABSDF activities and other matters.  Also included was a table of ABSDF’s underground groups and an explanation that same rank persons (such as himself and Phyo Maung Maung) did not know each other’s records (which he explained meant ‘Name (Real), Date of birth, address and curriculum vitae and other important factors’.  He then stated:

    ‘They [the MI] got the information, something, some factors of about me from my friend, ABSDF member of UG, Phyo Maung Maung.  Because he was arrested, collected the news of about me from him.  After that, they got some of my news.  But, it was even Phyo Maung Maung didn’t know my real date of birth or my address or some necessaries more sure can arrest to me.  He knew only my secret name, not real name.  Mostly, he knew, we worked together UG tasks and attend the same computer school.  He also knew our ABSDF activities.  But, at last, the MI men got my important information from school authorities persons.  At the time of MI men go to inquiry of my school, Phyo Maung Maung already described about our ABSDF’s UG political activities.  (emphasis added)

    Therefore I mean the MI men went to my house to detain to me which I did the ABSDF’s activities for political reasons.’ 

14. He suggested that all educational institutions kept student records about students and that after he left Burma he was in danger:

    ‘Because they would arrest to me because they know my real name, d.o.b. and others.  But, at first before they got it, I secreted about my data for everybody except my larger and larger rank leaders.  But, they were not arrested, before I escape or departed.  Otherwise, I would definitely arrest by MI men before I go to abroad or may be arrest if I could not escape …’ ‘to arrest a person, the detained/MI men needed the informations of the political person’s real name, real d.o.b. or address and other necessaries things.  After I departed they got it, about me.  Therefore, they go to my house and asked my parents & searched my house which it … tried to arrest to me.  They knew, after I departed from Burma about my real necessaries.’

15. In the second handwritten submission faxed to the Tribunal on

    
    

    26 September 2002 which further elaborated on his original submission to the Department, the applicant revealed the name he used for UG tasks, repeated that the 11 members of the ABSDF underground movement for North Dagon township did not use their real names, keeping their real identities secret for security purposes, that he and Phyo Maung Maung did not disclose their addresses to each other. 

16. He repeated that the computer school he and Phyo Maung Maung had attended had his real name, date of birth and address on record.  He also explained that although Phyo Maung Maung had escaped when the South Dagon township members were first detained, as Phyo Maung Maung’s higher ranked leaders would know his real name and address, he (Phyo Maung Maung) was in danger of being identified and located. 

17. This submission also elaborates on the applicant’s claim about ‘other’ members in his group set out in paragraph 5 above as made in his original protection visa application and stated:

    ‘May I restart again about my story.  As long Phyo Maung Maung was not arrested by the authorities.  Other members in my group, except my leaders and larger, larger leaders, did not know my real name or where I lived, I mean same rank and lesser rank members/reserve members could not know my real datas.  Only knew our leaders.  However Phyo Maung Maung and I had been closed, worked UG tasks together, as well as had gone to the same computer school.  If he was arrested, the authorities would be able to arrest to me which step by step, from Phyo Maung Maung and from my school getting my curriculum vitae/information/name, date of birth, address or something like that …

    My political things/activities of UG/political record/political profile of concern would describe by Phyo Maung Maung …

    
    

    I mean Phyo Maung Maung could describe about me and our activities.  After he already told, so many things, Military Intelligence men would know to take/to get my information (real name, d.o.b., my address), from my school management group/from school office’s staff/reception …Therefore, his arrest would place me in grave danger.  I mean, Phyo Maung Maung cannot know my real important facts which to convenience (sic) to arrest to me.  But if he told my real datas were having in our school management group, its really, really dangerous for me.  I never said my real important things to Phyo Maung Maung before which my d.o.b. or my real address) or something like that.  I take care upon my security.’

18. He suggested that MI would only get identifying information about him from his leaders (in North Dagon) or through Phyo Maung Maung.  He spoke of a fear that the MI would get ‘my informations’ from Phyo Maung Maung.  Accompanying this submission were details of three corrections to the translation of his original submission including correction of ‘I had kept original copies of information on the computer’ to ‘I was kept original true data of about my curriculum vitae on the my school computer by school management group’s person’.  He suggested that his translator was only human and that some Burmese definitions/meaning(s) have two definitions or more.  He had not changed the original translation because the translator told him if he did so she would not guarantee her English translation and he had thought if the Departmental officer did not understand she would ask him about her suspicions.  He included the Burmese written version of his original submission and also said that some of the meanings and spellings in the translation he did not understand. 

19. Further faxes repeated and expanded on information about his ABSDF group and activities.  He elaborated on the work he and Phyo Maung Maung did, their closeness and attendance at the same computer school and that they did not know each other’s addresses.  He repeated that Phyo Maung Maung knew him, ‘he knew my face and we attended together at the same school and worked our duties together, he know only that things.  But he didn’t knew my real name (emphasis added), date of birth and address’ and that if Phyo Maung Maung ‘described about me, the MI men would go to our computer institute.  They would got my real name, date of birth and address.  After that, they would surely arrest me.  But Phyo Maung Maung knew only my new name (emphasis added).  But, he remembered my photograph.  The MI men would use to him to find my record at the computer institute office by checking photograph’.  He expressed concern that, when interrogated Phyo Maung Maung would have been forced to ‘describe’ him and the MI men would have found his identity from the computer school records. 

The Tribunal hearing

1. The Tribunal held a hearing on 27 September 2002.  A transcript of the hearing was tendered in evidence.  In the course of the hearing the Tribunal member referred to the 4 faxes sent by the applicant on

   
   

   26 September 2002.  He described them as ‘a little bit of a mess’ but said that he thought he had understood what the applicant was trying to communicate to support his application.  He continued: ‘However … we’re going to use the opportunity of this hearing to go through it again … just to make sure that we know that you’re talking about.’ (transcript p.5)

2. The Tribunal then asked specific question about the applicant’s claims.  When asked how he knew that the Burmese authorities knew of his activities in Burma, the applicant replied (in English, not through the interpreter):

   ‘If I say Mr Phyo Maung Maung from the South Dagon townships [??? Inaudible] group and he was arrest by MI men so after that they ask him some question.  Mr Phyo Maung Maung persecuted to him so he described about me and we are the working together on dangerous underground work in Rangoon.  Very long.’ (transcript p.6)

3. The Tribunal asked the applicant how he knew what had happened to Phyo Maung Maung after he left Burma.  He described the MI visit to his house to arrest him for political reasons.  When asked if he knew what was happening to Phyo Maung Maung now the applicant said (in English) ‘I definitely know only that he was arrested and he described  about me and the MI men also know about me so they come to my house and whereabouts which prison or which detainee can or I don’t know exactly because I can’t see from here’ (p.7).  He agreed that he had not contacted ABSDF in Sydney or elsewhere to find out what had happened to Phyo Maung Maung in Burma.  The applicant was then asked about any involvement with the ABSDF in Sydney and was invited to provide details of a person named as a potential witness in relation to his activities in Australia. 

1. The Tribunal member then returned to questions about the applicant’s circumstances in Burma stating that ‘I’ve read all the stuff you’ve written about what happened back there and you’ve provided a lot of details but I’m still a little unclear as to exactly what information you collected, how you collected it and what happened to that information that, you know, what you actually did for the ABSDF.’ (p.13)  Related questions and answers continued.  The applicant explained that for security reasons different parts of the ABSDF (particularly the armed soldiers and those working underground) operated independently of each other and secretly. 

2. He also explained that the person directly above him in the North Dagon township had escaped and that as such person knew his real name and all his particulars he would have been arrested had his superior been captured before he left Burma.  The Tribunal member put to the applicant ‘Your basic claim is, or your essential claim I should say is that after you left Burma your political activities were revealed to the authorities by your colleague … Phyo Maung Maung, and if you go back there now you’re going to be arrested and mistreated by the authorities because of his confession.’ (p.18)  The applicant agreed that ‘that’s very true’.  Further questions related to his time in Australia. 

3. The following exchange then occurred (at p.21):

   Tribunal Member:

   ‘Now, Mr …, I’m not going to pretend that your application is strong because there’s a lot of detail but if you get rid of all the detail, it’s a very … it’s not a very strong claim. 

   A lot depends on this whole, this confession of your friend, of your colleague back in Burma, and, really, apart from … there’s a lot of speculation but you don’t actually know what happened to him and the crux of your claim is that MI visited your parents and said they wanted you because of something you had done or political activities you’d done.’

   Applicant (through interpreter):

   ‘Phyo Maung Maung had been arrested.  I had to leave within two days because it’s a certainty that once he has been arrested I would be arrested as well if I had to be there for another month or so.’

   Tribunal member:

   ‘Let’s not go with the same information again.  You’ve said this already.  I don’t want to go through it … I’m just basically summarising where I see the case at this point.  Everything before you … sorry interpret.’ 

   Applicant (through interpreter):

   ‘I’d like to present two points.  The first point is that after Phyo Maung Maung was arrested I would certainly have been arrested if I had remained in Burma.  And the second point is that the military intelligence have come to my parent’s house saying they want to arrest me.’

   Tribunal member:

   ‘Ok, I’ve got those two points.  Everything before those two incidents – your friend being arrested and your parents coming to your place.  Your life is pretty privileged as far as I can tell with regards to conditions in Burma …’ 

4. The Tribunal member put to the applicant that he had had a privileged life in Burma and had had no difficulty obtaining education, work, a passport and was able to leave the country.  The Tribunal member stated that he did not accept that the applicant had not had time to be involved with the ABSDF in Sydney.  The Tribunal expressed surprise that if the applicant needed assistance with the Australian authorities he would not seek it from or be helped by the ABSDF in Australia.  The applicant was given time to provide further information about his connection with the ABSDF in Australia.  He was asked about other matters such as the delay in applying for a protection visa. 

5. The Tribunal member than said:  ‘Now I don’t have anything else to ask you.  Is there anything you want to ask me or anything you want to tell me.’ (at 26)  The applicant repeated his fear of arrest in Burma because Phyo Maung Maung had been arrested, the South Dagon group had been taken in and the MI had visited his parent’s home.  His agent was given an opportunity to add anything and was asked to assist in providing information from the Sydney ABSDF. 

6. The Tribunal member told the applicant that although he was not seeking any further information if the applicant decided to put in more submissions they should be focussed.  He commented ‘Those submissions you gave me yesterday are … were a mess to work though. It took me a long time and I’m not sure that all of it was … that I understood everything.’ (at 28)

7. The applicant’s offer to clarify anything or answer further questions was not taken up by the Tribunal.  He did provide further written submissions on 16 October 2002 enclosing letters of support from local ABSDF members and photographs and repeating a ‘more complete’ version of the first of his submissions.  He reiterated that if Phyo Maung Maung was arrested he would ‘describe’ him and their activities and the military intelligence men would be able to get his information (real name, date of birth, and address) from the computer school records and also re-stated and elaborated the initial claim about the knowledge of ‘other’ members of his group set out at para 5 above.  While repetitious it is necessary to set out this further elaboration:

   ‘I may restart again about my story.  As long Phyo Maung Maung was not arrested by the authorities, I would may be/or may not in immediate danger.  Every other members and reserve members at in my North Dagon township group didn’t know my real name, my date of birth and where I lived and other factors that except my leaders, larger and larger position leaders.  I mean, same rank and less than rank members/reserve members could not know my real data.  But, my leaders and their upper position leaders knew about my data that worked at North Dagon Township.  But, their upper position leaders didn’t live at South Dagon Township, they worked at another township.  The South Dagon Township’s leaders also didn’t know about my data, nothing.  However, Phyo Maung Maung and I had been very close, worked UG tasks together, as well as had gong to the same computer school.  If he was arrested, the authorities would be able to arrest to me which getting my curriculum Vitae/information/name, date of birth address or something like that.  If they/MI got above I mentions, I would be difficult to depart/escape from my country.  Before they didn’t get that things they would not get my political record/political profile of concern and I would also do faculty to depart lawfully.  I mean, Phyo Maung Maung Maung could describe about me & our activities & after he already told so many things, the Military intelligence men would know to take/to get my information (real name, date of birth and my address) from my school management group/from school office’s staff/reception.’ (emphasis added)

The Tribunal decision

1. The Tribunal made its decision on 24 October 2002.  It accepted that the applicant had participated in a student protest movement against the military government of Burma in 1996, that he did not support the military regime in Burma and that he had had contact with ABSDF members in Australia and other politically active individuals and had spoken to them regarding his political opinion.  It also accepted that he had assisted ABSDF in Australia doing fundraising events. 

2. However the Tribunal did not accept as credible the applicant’s claims that in 1997 he became a member of the ABSDF in Rangoon, that two days prior to his departure from Burma another member was detained, and that after his arrival in Australia he was informed by his parents that military intelligence officers had gone to his house to arrest him.  The Tribunal was not satisfied that these claims were credible.  The Tribunal found that the applicant did not present a truthful account of his circumstances in Burma.  It stated [at RD 277]:

   ‘The applicant claims that in 1997 he joined the ABSDF and for three years he collected information on behalf of the organisation to assist ABSDF fighters liberate Rangoon from the military regime.  The applicant claims that when the authorities began to arrest ABSDF members in Rangoon he immediately arranged to leave the country.  The applicant stated that soon after he arrived in Australia he was informed by his parents that the authorities in Rangoon were seeking to arrest him due to his political activities. 

   The applicant initially stated, in his submission to the Department on 15 August 2002, that MI went to his house and ‘asked questions about [his] whereabouts’ and ‘searched’ the house (Department file, folio 55).  He also claimed that his ABSDF colleague Phyo Maung Maung, with whom he was ‘very close, worked together, as well as had gone to the same computer school’ (Department file, folio 55) was arrested two days before he left the country and through him the authorities learned of the of the applicant’s involvement with ABSDF.  In later submissions the applicant stated that Phyo Maung Maung did not know his name, address, or any other identifying information but the authorities could obtain that information from the computer school they both attended.  The applicant has no meaningful information regarding the circumstances of ABSDF members in Burma and he made no attempt to obtain information after he left the country.  He also did not seek assistance from ABSDF or any other human rights organisation to determine if indeed ABSDF members had been arrested or to assist those he claims were arrested, such as Phyo Maung Maung.  The applicant’s core claim is the arrest of Phyo Maung Maung and the MI visit to his house in Rangoon but, as indicated above, he did not present these claims consistently. 

3. The Tribunal also noted information from external sources which indicated that the authorities in Rangoon have a ‘pervasive intelligence network and administrative procedures’, systematically monitored the travel of all citizens and closely monitored the activities of many citizens, particularly those known to be active politically’ but that the applicant claimed they had demonstrated no interest in him in the three years he was involved with ABSDF and that when his colleagues were arrested or had gone into hiding, the military intelligence demonstrated no interest in him and instead gave him the opportunity to work in the merchant navy or study in Australia.  The Tribunal found that the applicant did not present a truthful account of his circumstances in Burma.  It considered it implausible that he experienced the circumstances he described but made no attempt to seek assistance or at least to discuss these matters with ABSDF in Thailand or Australia.  The Tribunal also considered it implausible that with the Burmese government’s extensive monitoring network the applicant was able to leave the country while his political associates were pursued and arrested.  The Tribunal found the inconsistent manner in which he presented his claims further demonstrated that he did not present a truthful account of his circumstances in Burma.  For these reasons the Tribunal did not accept the applicant’s claim that he was an ABSDF member in Rangoon or that the authorities sought to arrest him after he left the country due to his political activities.  The Tribunal also found the applicant’s claims as to involvement in political activities in Australia to be greatly exaggerated and that he had not had any meaningful involvement in political activities since arriving here.  The Tribunal found that he had exaggerated both his involvement in political activities and his commitment to participate in such activities.  His claim to be a political activist committed to expressing his political opinion against the government of Burma was found to lack credibility and was not accepted by the Tribunal. 

4. The Tribunal went on to consider the implications of the finding that the applicant had publicly expressed his views against the government of Burma in 1996 during the mass student protest movement and the finding that he did not support the military regime in Burma.  The Tribunal found that in minor ways in Australia the applicant had also demonstrated his lack of support for the regime but that, on the basis of information from external sources that political activists are only of interest to the authorities in Burma while they are politically active and that previous or minor political activities will not result in adverse attention from the authorities in Burma unless the individual persists in criticising the government of Burma, the Tribunal was not satisfied that the applicant was a political activist or that he had any involvement in activities which would be of any interest and concern to the authorities in Burma.  The Tribunal was also not satisfied that he had been involved in political activities which identified him as a committed opponent of the government of Burma or that he was a person who would seek to express his views in the reasonably foreseeable future.  It was the Tribunal’s view that the applicant was not of interest to the authorities in Burma at the time of his departure in 2000 and that he had not been involved in political activities in Australia which would attract the adverse interest of the authorities in Burma.  Accordingly the Tribunal was not satisfied that the applicant had a well-founded fear of suffering persecution in Burma for reason of his political opinion or for any other Convention reason. 

5. In the ‘findings and reasons’ part of its decision the Tribunal did not elaborate on the inconsistencies in the applicant’s so called ‘core claim’.  It appears from the extract quoted above that the Tribunal was of the view that initially the applicant had claimed that the authorities learnt of his identity and involvement with the ABSDF from Phyo Maung Maung but that in later submissions he had suggested that the authorities could obtain identifying information (which Phyo Maung Maung did not know) from the computer school they had both attended.  This was the ‘inconsistency’ identified by Counsel for the respondent. 

This application

1. A number of grounds were relied on by the applicant in these proceedings.  One ground in the amended application was that the Tribunal failed to comply with the natural justice hearing rule in arriving at the decision in that it:

   ·did not give the information to the applicant that it proposed to make adverse findings as to his credit and truthfulness or the credibility of his claims;

   ·did not ensure that the applicant understood why the proposed adverse findings were relevant to the review; and

   ·did not invite the applicant to comment on the proposed adverse findings as to his credit. 

2. The ground was clarified in subsequent submissions.  It was submitted initially that the Tribunal’s rejection of the claims of the applicant on the basis that they were ‘inconsistent’ or ‘implausible’ was erroneous as he had presented a consistent and plausible account in his numerous submissions and at the Tribunal hearing.  The detail of his repeated consistent claims was set out at length in written submissions.  It was submitted that in making the finding of the inconsistency the Tribunal had failed to take relevant considerations into account, arrived a conclusion that no Tribunal acting reasonably could conclude was available on the evidence before it and that in the circumstances of the hearing there was a reasonable apprehension of lack of impartiality by the Tribunal.  It was submitted that on no less than 23 occasions (the more significant of which are described above) the applicant gave a consistent account of why he was safe from arrest until the arrest of Phyo Maung Maung, how he would become endangered once Phyo Maung Maung was arrested through the combination of Phyo Maung Maung’s knowledge of the applicant’s political activities and identifying information kept by the computer school both had attended and how these concerns were borne out when the military authorities did seek to arrest him shortly after they captured Phyo Maung Maung. 

3. It was also submitted, inter alia, that the Tribunal failed to comply with the natural justice hearing rule in relation to the adverse credibility finding against the applicant in not notifying him of the information upon which it proposed to make an adverse credit finding and in not giving him the opportunity to respond to that information.  The Tribunal approach to assessing the credibility of the applicant was said to involve a jurisdictional error.  It was submitted that in a case such as this a mere inconsistency in presentation of claims (if there were, contrary to the applicant’s submissions, such an inconsistency) was an insufficient basis for an adverse credit finding. 

4. Counsel for the respondent submitted that the inconsistency in presentation of claims identified by the Tribunal was apparent from the applicant’s original claim quoted by the Tribunal [at RD 270.3] and referred to in the findings and reasons part of the decision [at RD 277.5 quoted above].  This was the initial submission that:

   ‘As long as Phyo Maung Maung was not arrested by the authorities, I would not be in immediate danger.  Other members in my group did not know my real name or where I lived.  However, Phyo Maung Maung and I had been very close, work together, as well as had gone to the same computer school.  If he were arrested, the authorities would be able to trace me through the computer school (folio 55).  Therefore his arrest would place me in grave danger [emphasis added by the respondent].

5. According to the respondent’s submissions, the applicant had stated that Phyo Maung Maung had known who he was, and that this was significant when he went on to say that Phyo Maung Maung had been arrested and that his statement would be ‘enough to condemn [him]’.  It was suggested that in the first submission there was no reference to the authorities needing more than Phyo Maung Maung’s word to identify the applicant, but that, in contrast, in his later submission of

   
   

   26 September 2002 the applicant had given a different account of Phyo Maung Maung’s knowledge about him, stating that he did know his real name. 

6. It was submitted that on any view this was inconsistent but that in any event the Tribunal was entitled to regard the two representations as inconsistent as the suggestion that Phyo Maung Maung could not identify the applicant only came in the later submission. 

7. As to the claim of denial of natural justice the respondent submitted that there was no obligation to forewarn what the result of the Tribunal’s review would be (although the Tribunal went a long way towards doing this by warning the applicant that his case was very strong and by asking him to provide more evidence).  It was submitted that the hearing rule means no more than that there is a right to be heard and that as was said in Re MIMA Ex parte Durairajasingham (2000) 74 ALJR 405 at [67] credibility is a function of the Tribunal par excellence. It was submitted that there was no right of an applicant to be warned in advance what the views of the Tribunal were likely to be. Further it was said that there was no obligation on the Tribunal to ensure that the applicant understood why proposed adverse findings were relevant or to invite him to comment on proposed adverse findings as to his credit – it being for the Tribunal to assess the material before it, including making an assessment to credit. The applicant and the respondent also made submissions as to whether the Tribunal breached s.424A of the Migration Act and the natural justice hearing rule by failing to provide the applicant with copies of material or the address of an internet website containing material relied upon.

8. Subsequently the applicant sought and was granted leave to file and serve evidence relating to the translation of his ‘first’ submission to the Department.  The affidavit evidence of the original translator and of an independent translator establish that the translation of part of the applicant’s original submission presented as ‘Other members in my group did not know my real name or where I lived’ was incorrect, as in the original Burmese sentence the word ‘other’ did not appear, although this was not known to the Tribunal.  According to the original translator the message the applicant conveyed in Burmese was in fact ‘Members of the group other than myself did not know my real name or where I lived.’ 

1. In a separate affidavit Ida Pay, who served as the Burmese translator and interpreter for the Australian Department of Immigration and Ethnic Affairs from 1978 until her retirement in 1988 provided the following translation of the paragraph in the ‘first’ submission containing the claim said to be inconsistent with later claims as follows:

   ‘To pick up on the subject of feeling endangered, prior to my friend and companion Phyo Maung Maung being arrested, it cannot be said that my being caught was certain.  The reason is that members in the group do not know my hidden name, my address and my personal details.  However, because Phyo Maung Maung is not only from South Dagon Township group, we are companions attending school together and he is closest to me – his being caught is definitely going to cause me great harm.’ 

2. A critical consideration in the Tribunal’s conclusion that the applicant did not present a truthful account of his circumstances in Burma was the finding that the applicant’s core claim was not presented consistently.  It was submitted that the only inconsistency adverted to had been shown not to be such an inconsistency (as the applicant did not make a representation that members of his group other than Phyo Maung Maung did not know his name or by implication a representation that Phyo Maung Maung knew his name).  It was contended that the Tribunal reliance on an incorrect translation had produced a jurisdictional error in that the applicant was denied procedural fairness as a result of the unknown incorrect translation being before the Tribunal and the fact that it was not put to the applicant at the hearing that his claims appeared to have been presented inconsistently.  While it was not submitted that a Tribunal is invariably obliged to put a party on notice of each and every anticipated adverse finding as to credit, it was submitted that in the present case the applicant was discouraged from continuing to address the Tribunal on the issue of Phyo Maung Maung’s arrest on the basis that it was information he had already provided (transcript p.22).  Moreover it was said that the Tribunal then examined the translated words minutely to find one single inconsistency which turned on a comparison between an implication from a translated document and another representation.  Such so-called inconsistency became the central platform of the decision.  It was submitted that these circumstances and the failure to canvass any of these issues at the hearing produced the result that the Tribunal failed to perform the duty imposed on it because it did not fully listen to the case the applicant wished to put and thereby failed to exercise its jurisdiction. 

3. Counsel for the respondent pointed out that the case did not simply turn on the inconsistency (albeit that it had a part to play) and submitted that none of what occurred established jurisdictional error.  It was pointed out that there was nothing that the Tribunal could have done about the unknown mistranslation (cf The Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52, WAIZ v MIMIA [2002] FCA 1375 and Minister for Immigration & Multicultural & Indigenous Affairsv SCAR [2003] FCAFC 126 which were relied on by the applicant). It was further submitted that even without the word ‘other’, the applicant’s first submission carried the implication that Phyo Maung Maung had identifying information (in contrast to the later submission). It was also submitted that the applicant was aware of the translation and had the opportunity to address it and did so in his later modified submissions (where, for example he stated that ‘every other member’ instead of ‘other members’). Nonetheless it was said that this left, on a fair reading, inconsistency between his original statement and his later statements.

4. The application for review by the Tribunal was made by the applicant on 28 August 2002.  The respondent did not raise s422B, which applies to applications for review made on or after 4 July 2002, as an obstacle to the applicant’s natural justice claims.  Section 422B(1) provides:

   ‘(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.’

5. It has been established that a failure to accord procedural fairness constitutes jurisdictional error (the RRT; Ex parte Aala(2000) 204 CLR 82 per Gleeson and Gummow JJ at 101, Kirby J at 135 and Hayne J at 143) and that s.474 of the Migration Act 1958 does not protect a purported decision made as a result of jurisdictional error (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 CLR 24). Section 422B seeks to exclude the common law requirements of natural justice (see VAAC v MIMIA [2003] FCAF 74 at [30]).  The precise effect of this provision (and its equivalents such as s.357A) is yet to be determined authoritatively (see WAID v MIMIA [2003] FCA 220, and compare NAQF v MIMIA [2003] FCA 781 in relation to s.360(1) (the equivalent of s.425) as to the implication of natural justice obligations under such provisions. Further see MIMIA v SCAR [2003] FCAFC 126 in which the Full Court expressed the view (at [35]) that s.425 ‘is directed to the invitation, rather than the hearing itself’ – which leaves open the possibility that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness are not encompassed by s.425 and hence may not excluded by s.422B not being matters dealt with by the Division). In the absence of any contention by the respondent that the claim must fail because of s.422B, I consider that in the particular circumstances of this case it is not necessary for me to determine whether and the extent to which natural justice obligations may arise by implication from s.425 (see NAQF at [86] – [87]) or, despite s.424B, as a matter not dealt with in Division 4 of Part 7 of the Migration Act or otherwise. In my view, in this case there is a failure to accord procedural fairness constituting jurisdictional error. No submissions were made on s422B. However if s.422B is a bar to relief on the basis of common law procedural fairness I am satisfied that the failure to accord procedural fairness is, in this case, a breach of s.425 constituting jurisdictional error.

6. Both the common law concept of procedural fairness and s.425 require that the Tribunal is bound to give a person affected by its decision an opportunity to be heard.  Underlying this obligation is the entitlement of an applicant to know the case sought to be made against him and to be given the opportunity to reply to it (Kioa v West (1985) 159 CLR 550 at 582 per Mason J). It is the case that ‘Generally where it is clear that factual matters are in dispute it will not be necessary for the decision maker to indicate to the person affected that the decision maker is likely to reach an adverse conclusion’: WACO v MIMIA [2003] FCAFC 171 at [46]. Further it is well-established that there is no unfairness where a person affected knew what he was required to prove to the decision maker and was given the opportunity to do so and that an applicant in those circumstances could not complain if the decision maker rejected what was put forward without notice to him. The Tribunal member is not required to invite comment on his thought processes or what he or she is minded to decide (Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at [28]). However there are qualifications on these general propositions as enunciated by Jenkinson J in Somaghi v MILGEA (1991) 31 FCR 100 at 108 – 109 and adopted in Alphaone at [29] – [30]. Hence:

   ‘The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it … [and]

   The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material – Minister for Immigration & Ethnic Affairs v Kumar (Full Court Federal Court, unrep. 31 May 1990); Kioa v West … at 573, 588 and 634.’

7. Procedural fairness and, depending on the circumstances of the particular case, the obligations imposed by s.425, may extend to require identification to the applicant of ‘any adverse conclusion which has been arrived at which would not obviously be open on the known material’ (Alphaone at [30]) whether that is material provided by the applicant or from other sources. The invitation to a hearing must be ‘real’ and meaningful and not a hollow shell or empty gesture: Mazhar v MIMA (2000) 183 ALR 188 at [31]. Section 425 is breached where statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal (VBAB of 2002 v MIMIA [2002] FCA 804) and this can be so even where the fact or event resulting in unfairness was not realised by the Tribunal (for example where an inadequate translator or no translator was provided Toban v MIMIA [2002] FCA 1050; W284 v MIMA [2001] FCA 1788).

8. The error in this case arose from a combination of circumstances.  It is necessary to consider first the nature of the perceived inconsistency which the Tribunal relied as a central factor (albeit not the only one) in concluding that the applicant’s claims were not truthful.  Such inconsistency arose by implication only.  In only one part of one of several extensive submissions was there any possible relevant inconsistency.  The applicant provided increasingly elaborate clarifications of his original submission which were consistent in all relevant respects.  The inconsistency relied on by the Tribunal turned on a possible interpretation of one paragraph of the first submission and particularly the one sentence which began ‘other members’.  As the respondent contended, an inconsistency may, on one view of the meaning of the submission, be discerned between the first and subsequent submissions (even on the versions now provided to the Court).  There is some ambiguity in the first submission, whichever translation is considered. The interpretation placed on this part of the submission by the Tribunal cannot be said not to have been open to the Tribunal.  Nor can it be said that the view taken by the Tribunal was so unreasonable that it was one which no Tribunal acting reasonably could have taken.  The ambiguity is such that it cannot be said that the decision of the Tribunal was based on a particular fact (a submission by the applicant that Phyo Maung Maung knew his real identity) that did not exist.  This is not a case where there was ‘no’ evidence or other material to justify the decision made by the Tribunal.  (See WAKH v MIMA [2003] FCAF 159 at [14] – [16] and MIMIA v Rajamanikkam (2002) 190 ALR 402).

9. Nonetheless, while the implication of inconsistency cannot be said not to have been open to the Tribunal it was not an ‘obvious and natural evaluation’ of the original wording of the whole of the first statement of the applicant (Kumar, Kioa v West at 573, 588, 634 and Alphaone at [29] and [30]). The meaning attributed by the Tribunal to the first statement was not so obvious on the known material that a reasonable observer would attribute such meaning so that the applicant should be treated as knowing such meaning. It arose by implication from one paragraph taken in isolation. The inconsistency was not apparent on the face of the material considered by the Tribunal when all of the applicant’s submissions were considered. This is particularly so when the first submission (in its original form) is read as a whole. In an earlier part of the same submission the applicant described the membership of the North Dagon Township underground group of the ABSDF. He named the leader but continued ‘His name, as well as the names of other leaders, were not their real names. Other members of the group also kept their real identity secret for security purposes, and only their immediate leaders were aware of their real names.’ At no point does the applicant expressly state that Phyo Maung Maung knew his real name or where he lived. In later submissions he stated that this was not the case. Contrary to the statement of the Tribunal (at RD 269) the applicant did not claim in this submission that as the Tribunal put it, ‘he knew the true identity of only one ABSDF member, Phyo Maung Maung because they attended the same computer school’. Nor did he at any stage say that Phyo Maung Maung was the real name or identity of his friend.

10. In pre-hearing written submissions the applicant expressed doubt to the Tribunal about the accuracy of the translation of his first statement from Burmese to English.  The Tribunal was aware, before the hearing, of the applicant’s concern that in addition to specific inaccuracies addressed by him (one of which had been of significance in the Departmental decision) other portions of the translation may have been inaccurate.  The Tribunal was also aware that the first statement was provided while the applicant was in detention and without representation.  While these factors would not go so far as to establish a denial of natural justice (or breach of s.425) and while I would not be satisfied the Tribunal’s reliance on an inaccurate translation tendered by the applicant of itself constituted a denial of procedural fairness, such factors are relevant in considering whether the invitation extended under s.425 was real and meaningful and whether there was any procedural unfairness in the whole of the circumstances of this matter.

11. In the hearing the Tribunal member did not ask the applicant to comment on the perceived inconsistency or to give an oral account of his claims or to respond to particular questions on this issue.  This was not simply a failure to alert the applicant to the possibility that his claims might not be accepted (cf Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [50]) The conduct of the hearing was such as to mislead the applicant in relation to this critical issue. As set out above, the questions about Phyo Maung Maung related only to the applicant’s knowledge of his present situation. Further, while the Tribunal member told the applicant that they would use the hearing to go through what the applicant was trying to communicate to make sure that the Tribunal knew what he was talking about, this did not happen. The Tribunal member did put the applicant’s central claim to him very briefly but the only concern he raised about this aspect of the claim (apart from a general statement that the claim was not strong) related to the fact that the applicant did not actually know what had happened to Phyo Maung Maung. Importantly the applicant was positively discouraged from providing what the Tribunal member described as ‘the same information again’ (when the applicant started to address his claim about Phyo Maung Maung and the risk of arrest). Yet the Tribunal member, while at first stating that he thought he understood what the applicant was trying to communicate in his written submissions, indicated at the end of the hearing that he was not sure that he understood everything. While the applicant had the opportunity to provide further information at the end of and after the hearing, he had been discouraged from addressing this aspect of his claims and, moreover, could not reasonably be expected to be aware of the significance of the perceived inconsistency.

12. Merely stating that the applicant’s case was not very strong did not discharge the Tribunal obligations in the particular circumstances of this case.  Had the Tribunal member raised the claimed inconsistency with the applicant he would have had an opportunity to clarify what he had actually said (in Burmese) in his first submission.  It was not objectively clear that the ‘factual matter’ of whether the Phyo Maung Maung knew the applicant’s real identity was in dispute (cf Kioa v West and WACO v MIMIA [2003] FCAFC 171). The question of inconsistency went beyond an evaluation of ‘facts’ made known by the applicant (cf Sinnathamby v MIEA (1986) 66 ALR 502 at [16] and [19]). It related to a key issue. There was a risk of prejudice to the applicant because of the reliance the Tribunal placed on the perception that there was an inconsistency. The issue was material to the Tribunal conclusion as to the truthfulness and credibility of the applicant. It was a matter that the applicant could have addressed. This is apparent from the material tendered to the Court which establishes that the translation was incorrect.

13. In all these circumstances I am satisfied that the Tribunal member was under an obligation either to put his concerns about possible inconsistency directly to the applicant in the hearing and give him an opportunity to comment or at least to seek clarification of the applicant’s claims in this respect so that the applicant would be alerted to the prospect of an adverse conclusion on that critical issue based on inconsistency (albeit that it was not the sole issue).  There was a denial of procedural fairness in the conduct of the hearing.  Whether such failure is viewed as a breach of the common law rules or of s.425 as the statutory expression of the content of the rules of procedural fairness (see Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 and MIMIA v Awan [2003] FCAFC 140 per Gray ACJ at [12] – [14]) or as a failure to meet an obligation arising from a statutory pre-requisite to the functioning of the Tribunal (see Gray ACJ in Awan at [13]) in relation to s360), I am satisfied that the failure by the Tribunal in this instance constitutes jurisdictional error in relation to which relief should be granted. (Plaintiff S157 and see NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 135 at [57]).

14. These findings mean that it is unnecessary to consider the other bases for error relied on.  A jurisdictional error has been established which affects the exercise of the Tribunal’s powers.  The matter should be remitted to the Tribunal for redetermination according to law.

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: