SZFKS v Minister for Immigration & Anor

Case •

[2006] FMCA 1394

•

22 September 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFKS  v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1394

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Burma (Myanmar) claiming fear of persecution for political opinion – credibility – procedural fairness – whether the Tribunal breached Migration Act 1958 (Cth) s.424A (1) – whether denial of procedural fairness – no reviewable error.

PRACTICE & PROCEDURE – Delay – refusal of relief on discretionary grounds – where Tribunal handed down its decision on 14 March 2001 but application not filed at court until 10 January 2005 – no evidence to explain delay.
Migration Act 1958 (Cth), ss.422B, 424A, 474
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) Schedule 1, Items 6 and 7
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 applied
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 followed
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 referred to
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 referred to
SZGPB v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 587 referred to
Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 referred to
Kioa v West (1985) 159 CLR 550 referred to
Applicant M87 of 2003 v minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 310 referred to
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 followed.
Applicant: SZFKS

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL
File Number: SYG 51 of 2005
Judgment of: Scarlett FM
Hearing date: 15 August 2006
Date of Last Submission: 28 August 2006
Delivered at: Sydney
Delivered on: 22 September2006

REPRESENTATION

Counsel for the Applicant: Mr Burwood
Counsel for the Respondent: Mr Mitchell
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

  4. I allow six (6) months to pay. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 51 of 2005

SZFKS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal signed on 22nd February and handed down on 14th March 2001. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.

  2. The Applicant seeks writs of certiorari and mandamus, an order that no action be taken to remove the Applicant from Australia while the decision of the Tribunal is pending, and costs.

Background

  1. The Applicant is a citizen of Burma, now known as Myanmar, who arrived in Australia on 28th December 1997. He applied for a protection visa on 9th February 1998, but it was refused on 27th April of that year. The Applicant then sought a review of that decision by the Refugee Review Tribunal.

RRT Review

  1. The Applicant lodged his application for review with the Tribunal on 29th May 1998. He did not lodge any further information with his application.

  2. The Applicant attended a hearing before the Tribunal on 5th October 2000. He gave evidence and brought another Burmese person as a witness on his behalf. He provided a statutory declaration and a number of other documents to the Tribunal in support of his claim.

  3. The Applicant claimed that he fled Burma in order to avoid arrest by the authorities over his political activities. His activities continued in Australia, and he fears prison or even execution if he returns to Burma.

The Tribunal’s findings and reasons

  1. The Tribunal’s findings and reasons are set out on pages 204 to 210 of the Court Book. The Tribunal accepted that the Applicant was a Burmese national who was, at least in principle, opposed to the ruling regime in that country. The Tribunal also accepted that:

    ·The regime in Burma is undemocratic and has a poor record in human rights.

    ·The regime has persecuted its opponents

    ·Generally speaking, there are plenty of examples of the authorities in Burma engaging in Convention-related persecution.

  2. The Tribunal did not accept that the Applicant faced a real chance of Convention-related persecution in Burma. The Tribunal found the Applicant’s evidence as to his political career in Burma to be “implausible, contradictory and highly inconsistent”.[1] The Tribunal set out a number of reasons as to why it did not find the Applicant’s evidence to be credible. These reasons are as follows:

    a)The Tribunal did not accept that the Applicant had a high leadership profile at the age of 15 years.

    b)The Tribunal did not accept that an ordinary member of the National league for Democracy (NLD) from one of the branches in North Okkalapa would have been invited into the home of Aung San Suu Kyi for a meeting in 1990.

    c)The Tribunal did not find credible the Applicant’s explanation as to what he did after deciding to flee the country.

    d)The Tribunal did not accept as reliable the Applicant’s evidence as to how he managed to escape from Burma.

    e)The Tribunal doubted that the Applicant “did not know one end of (the NLD) from the other and, even if he were, did not think his membership was considered by the authorities to be a serious issue.

    [1] Court Book page 205

  3. The Tribunal went on to make this finding:

    The Tribunal does not accept that the Applicant faces a real chance of persecution arising from anything he did or anything that occurred to or around him prior to his departure from Burma; nor does the Tribunal accept that the Applicant’s act of departing from Burma or remaining outside of it for longer than might have been his expected leave taking introduces a real chance of persecution.[2]

    [2] Court Book at 206

  4. Having made that finding, the Tribunal considered what chance of persecution a Burmese person might face upon returning to Burma after having associated with pro-democracy groups in Australia.


    The Tribunal found that there was virtually no evidence to suggest that Burmese persons who have returned to Burma from Australia have been of serious interest to the authorities there.

  5. The Tribunal also consulted some reports, including DFAT Country Information Report 55/00. The Tribunal also considered the Applicant’s activities in Australia and was not satisfied that those activities would be of other than “slight concern to the authorities in Burma”[3]. The Tribunal went on to find:

    The Tribunal has fully considered all of the evidence before it, including the submission of the Applicant’s adviser dated

    [3] Court Book at 209

    [4] Court Book at 209-210

    17 October 2000, lodged 12 days after the hearing. However, the Tribunal remains of the view that the Applicant has exaggerated his history, role with the pro-democracy struggle and vulnerability to harassment. The Tribunal finds that he has trodden the safest possible path within the local “pro-democracy” culture, and that this is evidence that his desire to make a case to remain in Australia is much stronger than his desire to achieve anything for politics in Burma. The Tribunal does not accept that he has attracted sufficient attention here to lead to serious harm in Burma. Having considered all of the material before it, the Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Burma. He is not a refugee.[4]

Application to the Federal Magistrates Court

  1. On 10th January 2005 the Applicant filed an application for relief under s.39B of the Judiciary Act 1903. He filed an amended application and an affidavit on 21st March 2005. The affidavit refers to his claims but provides nothing by way of any explanation as to why he took nearly four years to commence proceedings for review of that decision.

  2. The Applicant was represented by counsel at the hearing. He was granted leave to file in court a further amended application which contained the following grounds:

    i)The Second Respondent breached the provisions of s.424A of the Migration act by failing to provide to the Applicant particulars of any information that the Tribunal considered would be the reason or part of the reason for affirming the decision.

    ii)The Second Respondent made a finding in relation to the Applicant’s youth and his political activities in Burma for which there was no evidence.

    iii)The Second Respondent dismissed a claim by the Applicant that he never in fact made.

    iv)(Proposed new ground). The decision of the Tribunal was made in breach of the rules of natural justice and/or the duty of procedural fairness in that the Tribunal failed to give to the Applicant notice of material or information adverse to his interests which it was proposing to take into account, and did rely upon, in the exercise of its power.

  3. The particulars of the proposed new ground are that the Tribunal failed to supply the report Human Rights Update Country Information Report No. 55/00 Source DFAT dated 28/1/00 or details of the contents thereof to the Applicant.

Submissions

  1. The Applicant’s counsel submitted that the Tribunal had breached the provisions of s.424A(1) of the Migration Act by not providing a copy of the DFAT Country Information Report 55/00 to the Applicant, nor explained why it was relevant or invited comment from the Applicant about it. It is clear from the Tribunal decision that the DFAT Report was part of the reason why the Tribunal affirmed the decision of the delegate.[5]

    [5] See Court Book at 206-207, 209.

  2. As to the second ground, counsel for the applicant submitted that the Tribunal’s scepticism of the applicant’s claim to have had a leadership profile at the age of 15 was a major factor in dismissing the applicant’s claims. However, there was no evidence “that the applicant’s claims to have been politically active in a leadership role at 15 at the time in Burma were inaccurate or contradicted by evidence that demonstrators as young as 15 did not play a leadership role in anti government activities.”[6]

    [6] Applicant’s Outline of Submissions at [20]

  3. As to the Applicant’s third ground, Mr Burwood of counsel submitted that there was no evidence that the Applicant claimed that he had been invited to the home of Aung San Suu Kyi in August 1990. It is submitted that there is independent evidence that the Myanmar government allowed the NLD to celebrate key party events with public gatherings at Aung San Suu Kyi’s residence at page 248 of the Court Book.

  4. The fourth ground was added by the further amended application, to which I gave leave for filing in court on the day of the hearing.


    The Applicant’s written outline of submissions did not cover this ground. I heard an oral submission from counsel for the Applicant and gave leave for a further written submission to be filed on behalf of the First Respondent.

  5. The Applicant submitted that the rules of common law procedural fairness still applied to this decision, as s.422B of the Migration Act, which states that the particular Subdivision is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with, had not come into force. Section 422B and its corresponding ss.51A and 357A, were inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth).


    Those particular sections did not come into operation 4th July 2002. There is no issue that s.422B does not apply in this case.

  6. It is submitted on behalf of the Applicant that common law procedural fairness requires that the Applicant should have been made aware of the contents of the DFAT Country Information Report 55/00. There is nothing to show that this information was ever communicated to the applicant, let alone that he was given any opportunity to comment on it.

  7. Counsel for the First Respondent submitted that there was no breach of s.424A in respect of the DFAT Report, in that it was not specifically about the Applicant or another person and therefore satisfied the exception in s.424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [126] and [138]).

  8. As to the second ground, counsel for the First Respondent submitted that the finding made in respect of the Applicant’s claim to have had a political profile in Burma at the age of 15 is a credibility finding.


    As such, it was a finding of fact and no detailed reasons needed to be given as to why the applicant was not to be believed or why the Tribunal accepted or rejected evidence relevant to that finding (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]). Any complaint as to the correctness of the Tribunal’s credibility finding amounts to a claim for merits review, which is not permissible.

  9. Counsel for the First Respondent also submitted that the inference that the Applicant was invited to Aung San Suu Kyi’s house was open to the Tribunal on the evidence before it.

  10. Counsel for the First Respondent submitted that the delay between the date when the Tribunal handed down its decision and the date the Applicant filed his application in this Court is reason for the Court to exercise its discretion to refuse relief (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 at [80], [174] and [211]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 117 [82]-[83]; SZGPB v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 587 at [60]).

  11. The submission is that:

    a)Over five years have passed since the RRT decision was made.

    b)The Applicant has not sought to explain the reason for delay in filing an application in this court.

  12. Counsel for the Applicant submitted that, on his instructions, after the after the Tribunal was handed down the Applicant was involved in a class action in the High Court. He had obtained legal advice in early 2005.

  13. As to the fourth ground, counsel for the First Respondent submitted a supplementary outline of submissions on 28th August 2006, in accordance with a direction made on the date of the hearing.


    He submitted that the Tribunal’s common law obligation to accord procedural fairness depended on the particular circumstances of the case (see Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 at [123] and [236]; Kioa v West (1985) 159 CLR 550 at 611).

  14. The relevant question to be asked is whether the Tribunal failed to give the Applicant an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made (see Applicant M87 of 2003 v Minister for Information and Multicultural and Indigenous Affairs (2005) 214 ALR 310 at [29])?

  15. The First Respondent submits that the Tribunal reasons alone are not a sufficient basis for the court to make findings as to whether the Applicant was or was not afforded an opportunity to deal with adverse information, and that a transcript of the Tribunal hearing is required for such a finding (see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]). Accordingly, the First Respondent submits that without a transcript of the Tribunal hearing there was insufficient evidence to found an inference that the Applicant was not given an opportunity to deal with adverse information.

Conclusions

  1. There are four grounds for review given in the further amended application. As to the first, I am satisfied that the DFAT Country Information Report 55/00 is information that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant appears to be a member. It is clearly a part of the reason for affirming the decision under review. However, the DFAT Report is clearly information covered by s.424A (3) (a) and, therefore, s.424A (1) does not apply. The Applicant’s first ground must fail

  2. Turning to the second ground, relating to the Tribunal’s adverse finding of the Applicant’s claim to have had a leadership profile in the NLD at the age of 15, there is no need for the Tribunal to show specific evidence to the contrary. The finding is a credibility finding, and it is one entirely for the Tribunal to make (see Durairajasingham (supra) at [67]). The Tribunal did give reasons as to why it did not accept that evidence at page 205, being based on the Applicant’s age. The Tribunal only has to give the reasons, not the subset of reasons. This ground fails.

  3. Similarly, the third ground, relating to the Tribunal’s refusal to accept that an ordinary member from one of the branches in north Okkalapa would have been invited into Aung San Suu Kyi’s house for a meeting, is tantamount to a claim for merits review. The fact is that the Tribunal just did not believe the Applicant’s evidence on that point. That is entirely a matter for the Tribunal. The third ground fails.

  4. Whilst the lack of common law procedural fairness is a ground open to the Applicant in this case, because s.422B of the Migration Act had not come into force, in my view the fourth ground fails. There is no evidence before the court, by way of a transcript of the hearing, or an affidavit by the Applicant, that the issue raised in the DFAT report was not put to the Applicant at the hearing. In this regard, I am obliged to follow the decision of the Full Court of the Federal Court in NAOA (supra), which is on point and is binding on the Federal Magistrates Court.

  5. It follows that there is no jurisdictional error shown and the Tribunal decision is a privative clause decision as defined in s.474(2) of the Migration Act.

  6. As no jurisdictional error has been shown, it has not been necessary to consider the question of refusal of relief on discretionary grounds because of substantial and poorly explained delay. Again, there is no affidavit evidence from the applicant as to the reason for the delay.


    The explanation offered from the bar table, that the Applicant had been involved in a class action and had not obtained other legal advice until early 2005, even if proven by evidence, would have been unlikely to have been a satisfactory answer to what appears to be a delay of nearly four years. In any case, it has been unnecessary for me to consider that discretion because no jurisdictional error has been made out.

  7. The application will be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  22 September 2006


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