SZGOO v Minister for Immigration - [2005] FMCA 1662

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGOO v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1662

MIGRATION – RRT decision – Burmese national – claimed political activities in Burma disbelieved by Tribunal – finding that Australian pro‑democracy activities not genuine – significance of factual inaccuracies in Tribunal’s reasons – no jurisdictional error found – relief also refused under discretion.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 91R(3), 424A, 424A(1), 425, 474(1), 477(1A), 483A, Pt.8
Migration Legislation Amendment Act (No. 6) 2001 (Cth), Sch.1 Pt.2 cl.7(c)

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60, 201 ALR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZGOO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1622 of 2005

Judgment of:

Smith FM

Hearing dates:

25 October 2005, 4 November 2005

Delivered at:

Sydney

Delivered on:

4 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr Z Chami

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000 including reserved costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1622 of 2005

SZGOO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 January 2002 and handed down on 5 February 2002. The Tribunal affirmed the decision of a delegate taken on 13 May 1998 which refused to grant a protection visa to the applicant. The applicant had applied for his visa on 8 February 1996.
The long delays in the processing of the matter are not explained in the evidence but it is clear that the case developed complexity, both before the delegate and the Tribunal. The applicant was represented before the Tribunal by two firms of solicitors experienced in immigration law, and his case was presented fully by them. A further delay occurred before the applicant sought judicial review of the Tribunal decision. He first applied to this Court on 24 March 2005 in proceedings which he discontinued on 3 June 2005. He had a change of mind and on 21 June 2005 he commenced the present application. Both of his applications were brought after he was taken into immigration detention.
While in immigration detention he has obtained assistance from several people, including Mrs Nicholls, a former teacher and retired public servant. She has no legal qualifications, but has endeavoured to identify arguments to help the applicant. It is also apparent that an amended application was prepared on his behalf by somebody with some legal background. I shall address their arguments below.
There are some aspects of the Tribunal’s statement of reasons which caused me some concern, but I have come to the view that its decision was not affected by jurisdictional error. I shall also address the effect of the applicant’s delay in commencing judicial review proceedings, since the Minister has submitted that relief should be refused on that ground even if jurisdictional error were identified.
The need to identify jurisdictional error affecting the Tribunal’s decision arises by reason of the privative clause provisions in Part 8 of the Migration Act. These confine the powers of the Court under s.39B of the Judiciary Act 1903 (Cth) so that, as interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the giving of relief in the present case would be barred by s.474(1) and by the time limit in s.477(1A), unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant’s claim should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia on a three month visitor’s visa in November 1995. His application for a protection visa was lodged on 8 February 1996. It shows no involvement of a migration agent but has an interpreter’s declaration that the application form was translated into Burmese. The name of the interpreter was subsequently identified by the applicant to be that of an uncle.
Attached to his application were typed responses to questions inviting the applicant to explain the basis of his fear to return to his country of nationality, which was Burma. The applicant said that he was a 31‑year‑old man who came from a family who had told him about atrocities and injustice committed by the military government of Burma. He said that in 1988 “when the whole nation demonstrated against the government” he had actively participated in demonstrations as an official of a workers’ union. He said that he raised funds, posted posters, participated in a hunger strike, and had been arrested and taken away for questioning when the military crushed the demonstrations. He claimed to have been held in detention for three days, questioned, kicked and beaten and transferred to a jail. He was there questioned twice, and gave assurances that he had never had contact with rebels. He claimed to have been released more than one year later:
with a written undertaking that I would never participate in anti‑government demonstrations and that I would report to the MI [Military Intelligence] whenever I left Rangoon. I was warned that they would take very strong action if I participated in anti‑government movements again.
The applicant claimed to have returned to his previous occupation in a government department, but was ordered to report for questioning at MI. He said he secretly became a member of a democratic party, and was required to resign from his job in 1991. After that, he “went and helped my uncle grow and sell vegetables”, but was “put on the black list of the government” and became desperate to leave the country and came to Australia.
He said that, after arriving in Australia, he was told by his wife that she had received a letter for him to attend for questioning. He said: “I am sure they will take action against me” for obtaining a passport, and:
I have vowed to do my best to bring down this military government and restore democracy to my country. That is why after my arrival in Sydney I contacted all the anti‑government organisation and actively participated in their pro‑democracy movements. However as I have not been very long in Australia, I haven’t had the chance to participate in any public demonstration. According to my friends here I believe there are quite a number of Military Intelligence people in Sydney who have been assigned to keep an eye on people like me.
If these MI people found out and sent back reports about me I believe I would be tortured and put back in jail. That is why I do not want to return to Burma.
A delegate refused the application on 13 May 1998. She disbelieved the applicant’s claims, significantly due to what was perceived to be inconsistency in his account of obtaining a passport in 1994, which the delegate noted was a re‑issue of a passport given to him in 1991.
The applicant appealed to the Refugee Review Tribunal on 20 May 1998, assisted by a solicitor at Kessels & Associates. He subsequently employed different solicitors at Craddock Murray & Newman. His solicitors presented statutory declarations, country information and many supporting documents, which were claimed to establish his participation in the late 1990s in Burmese demonstrations and pro‑democracy activities in Australia.
The applicant attended two hearings held by the member who constituted the Tribunal when giving its decision. The first was on 14 August 2000 where the applicant attended with his solicitor. A transcript of that hearing is not in evidence, and all I have is a description by the Tribunal in its statement of reasons as to what transpired. Following that hearing the applicant’s solicitor made a further submission enclosing further evidence of the applicant’s recent activism.
The Tribunal then invited the applicant to a second hearing which was held on 30 August 2000. The applicant attended with his solicitor. There is before me two attempts to produce a transcript of tapes recording that hearing. They are verified by affidavits, but it is apparent from comparing them that there were many points where the tapes were difficult to understand. I shall return to aspects of this hearing further below.
Following the second hearing, the applicant’s solicitors made a further submission to the Tribunal. There was then an unexplained delay of approximately 17 months before the Tribunal handed down its decision. However, the Tribunal’s statement of reasons reads as a thorough attempt to assess the evidence. It recites the documentary evidence in a manner which appears to me to be generally accurate. Subject to the two matters raised by Mrs Nicholls concerning the evidence of one witness, to which I will refer below, I have no reason to conclude that the Tribunal reached its decision upon an inaccurate memory or notes of the hearings.
The Tribunal referred to various inconsistencies in the applicant’s accounts of his history in Burma given in his written and oral evidence. It then commenced its “Findings and Reasons” with a general statement concerning its understanding of the situation in Burma, which followed earlier reference to country information:
119.I am aware Burma is ruled by a highly authoritarian repressive military regime. The regime has not allowed the overwhelming will of voters who support the National League for Democracy (NLD) to take legitimate power and rule the country. The oppressive, ignorant and self‑indulgent regime has a poor human rights record. I must assess the applicant’s claims in this context.
It then introduced its discussion of the applicant’s claims:
122.The applicant’s evidence in relation to most aspects of his claims was vague, unconvincing, contained significant internal inconsistencies and was inconsistent with the independent information. I am unable to accept that the applicant has been entirely truthful in his evidence or that he was a reliable or credible witness. The lack of credibility of the applicant’s evidence, as well as my consideration of the independent evidence set out above, leads me to conclude that the applicant does not face a real chance of persecution in the foreseeable future if he returns to Iran [sic: Burma], and that I am unable to be satisfied that he has a well‑founded fear of persecution.
One element in the Tribunal’s disbelief of the applicant was what it regarded as inconsistency in the applicant’s evidence concerning an uncle in Australia. In particular, it said that at the first hearing the applicant presented as his uncle a person who accompanied him, but then disclaimed this relationship at the second hearing. The Tribunal said:
127.In any case, I have serious doubts as to the veracity of the applicant’s evidence with regard to his ‘uncle’ in Australia. In his protection visa application the applicant makes no mention of any uncle who lives in Australia. It was the applicant’s evidence that when he applied for a visa to visit Australia, his purpose was to visit his uncle in Australia, M…, who he claimed lived in Sydney, and that this uncle had sent him the ticket to Australia. However, at the hearing of 14 August 2000, the applicant had a witness, S… and a friend, ZH. The applicant indicated that this friend was also his uncle. At the hearing of 30 August 2000 the applicant had two witnesses, one by telephone S…, and the other a Mr H… or K…, and again his friend and uncle, ZH. Yet when the applicant was asked about his relationship with the two people present at the hearing, the applicant then claimed that in fact H was his uncle and that ZH was a friend.
128.The applicant has not been truthful in his evidence to the Tribunal. He claimed that M was his uncle, the uncle who he had applied for a visa to visit in Australia, who had sent him the ticket to come to Australia, and who had prepared his protection visa application and supporting statement. He then attempted to pass off ZH as his uncle at the first hearing of 18 [sic: 14] August 2000, yet claimed that H was his uncle at the second hearing. This is not the evidence and behaviour of a person whose credibility and veracity should be accepted.
The Tribunal then dealt with the various elements in the applicant’s claim to have been politically active in Burma and to have encountered persecution as a result. It is unnecessary for me to identify its reasoning in relation to each of these matters. The Tribunal clearly did not accept that the applicant had joined a workplace union in 1988 and participated in the demonstrations of the period. It did not accept that he had been arrested, detained, interrogated and tortured as a result of his claimed participation. It did not accept that he had been imprisoned in a jail. In the Tribunal’s opinion, “it was apparent that the applicant had never been in” the jail named.
The Tribunal did not accept that the applicant was accepted back into his job after his release from prison, as it had found that he never was in prison. The Tribunal took the view that the proper inference from the applicant being issued with a passport in March 1991 was that he resigned his position in anticipation of using his passport for going overseas. The Tribunal did not accept that the applicant had secretly joined the democratic party in Burma. It said: “The applicant’s evidence in regards to this claim was vague, generalised, inconsistent and contradictory”. It did not accept that after dismissal from his employment in 1991 the applicant was on a government black list and subject to reporting conditions, nor that he lived in a hut working as a farmer.
I have considered the Tribunal’s reasoning in relation to all of these conclusions, and consider that the Tribunal points to logical and relevant reasons. The assessment of the applicant’s credibility was essentially a matter for the Tribunal, and I am not satisfied that it was not open as a matter of law for the Tribunal to have arrived at the conclusions it did. These led it to express the following conclusion about the applicant’s departure from Burma:
143.The applicant was able to have his passport re‑issued December 1994, have its validity extended in September 1995, obtain an Australian visa to visit his uncle issued in October 1995, and leave Burma without any problems from the authorities in November 1995. In light of my previous findings concerning his claims, that I am unable to accept them, I am unable to accept that the applicant had to ‘escape’ from Burma and made his arrangements to leave accordingly. I accept that the applicant was issued his passport and left Burma in the normal and legitimate way without any problems.
The Tribunal then dealt with the applicant’s claims to be a refugee sur place. It referred to the provisions of s.91R(3), which provided:
SECT 91R
…
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal referred to the applicant’s sur place claims that he had been a public attendee at anti‑Burmese government demonstrations and was involved in several of the Burmese organisations in Australia. It noted that he had submitted letters, documents, and photographs in support of this claim, and that he had called two witnesses who indicated that this was so “albeit in general terms”. However, the Tribunal was not satisfied as to these claims nor as to the issue raised by s.91R(3). Its reasoning was:
147.The witness interviewed via teleconference gave evidence generalised evidence about failed asylum seekers returning to Burma but without any specific details. He was unable or unwilling to identify the asylum seeker returnee to Burma. When he was asked what involvement the applicant had in Australia, he said it was his understanding that the applicant was a ABSDO member. Although he claimed that they had attended demonstrations together, he was unable or unwilling to specify what those demonstrations were. The witness did not provide any bone fides of his claims of being an office holder in the organisations he claimed to belong to. The other witness gave evidence that the applicant was a ABSDO member, had attended demonstrations and produced literature for the CRPP campaign. Similarly, he did not provide any evidence of his membership of the organisation he claimed to belong to. In light of the applicant’s attempts to pass off various people as his uncle in his applications, statements and at the hearings, and the generalised nature of the witnesses evidence, I am unable to [give] much weight on the witnesses’ evidence of the applicant’s genuineness with regard to his democracy activities in Australia.
148.I am unable to accept that this evidence demonstrates the applicant’s genuine involvement in the Burmese democracy cause in Australia. This is so because of my findings of the applicant’s total lack of any previous political activity in Burma and the little weight I am able to put on the witnesses’ evidence. Consequently, I am not satisfied that the applicant has pursued this political activism in Australia for any other reason [than] to [provide] for himself the profile of a political activist in Australia and to strengthen his claim to be a refugee. I am satisfied that section 91R(3) of the Act applies to the applicant and that his conduct in Australia must be disregarded in determining whether he has a well founded fear of being persecuted for a Convention reason.
The Tribunal’s reasoning in these paragraphs was the subject of criticisms by Mrs Nicholls, to which I shall refer below.
The Tribunal’s ultimate conclusion was:
150.I have found that the applicant had not been involved in political activities in Burma or of adverse interest to the Burmese authorities for political reasons at the time he left Burma. I have also found that the applicant engaged in activities in Australia for the purpose of strengthening his claim to be a refugee within the meaning of the Convention. In light of these findings, I am not satisfied that the applicant will be politically active in Burma in the future.
Summary
151.I am not satisfied that the applicant has a well founded fear of persecution in Burma by reason of his political opinion. I am not satisfied that the applicant has a well founded fear of persecution in the foreseeable future if he returns to Burma by reason of his political opinion.

The applicant’s application in this Court has four grounds (numbering added):
1.The decision made by the Refugee Review Tribunal was with a preset mind.
2.The decision was made contrary to the definition of the Refugee Convention.
3.The Tribunal made an legal error in my decision at RRT.
4.The Migration Act of 1958 was not properly observed.
In the absence of particulars of these claims, I have difficulty giving them meaningful application to the Tribunal’s decision. The applicant himself did not prepare any written submissions, nor make any oral submissions in support of his case.
In relation to the allegation that the Tribunal made its decision “with a preset mind”, I take this to raise a concern in relation to the duty on the Tribunal not to conduct its review proceedings in a manner which might cause a lay observer to form a reasonable apprehension of bias, in the sense that the Tribunal might not have brought a disinterested and detached mind to the decision which it had to make. However, there is no evidence, in my opinion, which might give rise to that apprehension. I do not consider that the manner in which the Tribunal ultimately reached its decision reveals that it did not fully and impartially assess the material before it without preconception or prejudgment.
The contentions that there was a failure to apply the definition in the Refugees Convention, or other legal error, were not made out so far as I can identify.
The amended application prepared for the applicant contains three grounds. The first challenges the Tribunal’s use of s.91R(3), noting that that provision was introduced by the “Migration Legislation Amendment Act (No. 6) of 2001”. It is contended that it was “not applicable to my application” because “the section does not apply retrospectively”. This, presumably, refers to the fact that the application before the Tribunal had been brought in May 1998 and the amending Act was proclaimed to commence on 1 October 2001. However, the amending Act contained transitional provisions which clearly, in my opinion, required the Tribunal to address that provision when making its decision after the commencement (see Sch.1 Pt.2 cl.7(c)).
The second ground in the amended application contends that the Tribunal “did not comply with section 424A or in the alternative with section 425 of the Migration Act”. The particulars given were:
Particulars
(a)The Tribunal did not give to the applicant particulars of information that it considered would be the reason or part of the reason for affirming the delegate’s decision, namely that the RRT did not intend to give any proper weight to the documentary evidence submitted by me in respect of my political militancy and affiliations both in Burma and in Australia.
I am unable to identify any failure by the Tribunal to comply with s.424A. This requires the Tribunal to have given a written invitation for written comments in relation to certain information used as part of its reasons for affirming the delegate’s decision. However, in my opinion, the contention that the Tribunal was obliged to invite the applicant to comment upon information that it “did not intend to give any proper weight to the documentary evidence submitted by me” does not identify anything which would amount to a breach of s.424A. The Tribunal is not obliged under s.424A(1) to reveal its thought processes about the evidence presented to it by an applicant and, in particular, is not obliged to warn that it might give that evidence diminished weight (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24(iii)]).
The third ground in the amended application is that the Tribunal “ignored a valid claim and therefore incurred in jurisdictional error” by failing to address a claim “that my family land was expropriated without compensation by the military regime”.
The Tribunal in its reasons shows that it was aware of the claim that this had occurred (see [33] of its reasons), but does not give any examination of this in its “Findings and Reasons”. However, in my opinion this does not give rise to jurisdictional error. The information which was given to the Tribunal by the applicant at the hearing and in a letter to him from his wife did not, in my opinion, raise a suggestion that the expropriation had occurred for any reason relating to the applicant’s refugee claims or for any other Convention reason. In my opinion, this was not a matter requiring specific attention by the Tribunal.
I therefore do not consider that any ground of jurisdictional error is made out under the applicant’s application or amended application.
As I have indicated, one of the applicant’s helpers, Mrs Nicholls, prepared a transcript of tapes from the second hearing. She also identified some points arising from her consideration of that material which she explained in her affidavit. I treated these parts of the affidavit as being of the nature of submissions on behalf of the applicant. I also gave her the opportunity to address me about them at the hearing today. Her concerns focussed upon the Tribunal’s reasons for not being satisfied as to what it referred to as the genuineness of the applicant’s involvement in the Burmese democracy cause in Australia. I set out its reasons above.
Part of its reasons was its opinion that it should give “little weight” or “not much weight” to the evidence of the two witnesses called by the applicant. In relation to the first witness (S), the Tribunal gave the following description of his evidence earlier in its reasons:
72.The witness claimed that pro‑democracy activities in Australia had caused problems for refugee applicants in Australia. He claimed that the applicant had been involved in the demonstration movement in Australia, and he was unsure what the Burmese authorities would do in the applicant’s case. He claimed that a failed asylum seeker deported to Burma in September 1999 had been arrested on return and had serious trouble in Burma, so he had heard. The man could not be contacted in Rangoon. The witness was unable or unwilling to say who it was that he was referring to.
73.As a consequence, the witness claimed that he was concerned about any Burmese citizen involved in the democracy movement or who applied for refugee status. He claimed that he did not know what could happen to them if returned to Burma. He claimed that the applicant had been involved in the pro‑democracy movement in Australia and if he returned to Burma he could not protect his life.
74.The witness was asked about his involvement in the movement. The witness stated that he was involved in the 1988 student movement in Burma, that he went to join a Thai student group for 8½ months, then he got a visa to Australia. He was the former chairman of the ABSL (All Burma Students League) and was the representative of the ABSL in Australia, he worked for the ABSDO (All Burma Student Democracy Organisation) and the All Burma Student Support Group. He was also a member of the JACDB, and that many of the groups worked together.
75.The witness was asked what involvement the applicant had in Australia. The witness stated that he understood the applicant to be a ABSDO member. He said that they came from the same place in Burma, and that he understood that the applicant was involved in the movement and helped them. They were at the same demonstrations together. He claimed that K could explain, and that the witness was concerned for the applicant. The witness then disconnected himself before any further questions could be put.
On both transcripts which were submitted to me, this account of the evidence of S contains two inaccuracies. First, the Tribunal’s statement: “The witness was unable or unwilling to say who it was that he was referring to” is inaccurate, because S did refer to the name of the person whom he claimed had suffered after being deported to Burma. The transcript prepared by the Minister records this:
S:I can mention his name only. I cannot mention the other things because it is not mine personally I can mention his name, you can check with his name on the immigration list, his name is S……. And the last name is H…..
S:Can I continue?
Mrs Nicholls’ transcript is slightly different:
35.Lw. I can mention his name only I cannot mention the other things because it is not my personal [unclear] I can mention his name, you can check with his name on the Immigration list. His name is S… P… H…. Can I continue?
These transcripts did allow the Tribunal to find that the witness was unwilling to give any details other than the name of the person, but if the Tribunal when it came to assess the witness’ evidence thought that the name of the person had been withheld, it would have been under a misapprehension of fact.
A second aspect which was criticised by Mrs Nicholls was the Tribunal’s concluding statement about the evidence given by the witness S: “The witness then disconnected himself before any further questions could be put”.
Both transcripts indicate that the Tribunal gave the witness every opportunity to tell it “what you can tell me of [the applicant’s] involvement in activities here in Australia”. The witness then made some very general statements about this, which did not advance his evidence beyond the generalities he had provided in a letter he had signed. The Tribunal (RG) then asked him:
RG:Okay is there anything else to say Mr S?
S:Oh no. That was I think you understand what my concern about [the applicant]. I just only want you please think considering his basically humanitarian and that his democracy movement that’s why please consider his case and his future life. I really appreciate your thinking about him in the Tribunal case. Thank you very much.
RG:Okay thank you Mr S. Before we disconnect you Ms P [the applicant’s solicitor] is there anything that you think I should press to Mr S?
CP:Sorry. No I think in combination with the letter that covers all the evidence from Mr S.
RG:Okay. Righteo, thank you very much Mr S.
S:Okay thank you Mr Gibson.
RG:Right. I’m going to disconnect you now.
S:Okay. Bye.
RG:Can you interpret that please Mr HB [Interpreter].
HB:To Mr S.
RG: No to the Applicant.
HB:Yes, what Mr S said.
It is clear that it is the Tribunal itself who caused the telephone connection to be disconnected, and that it erroneously found that “the witness disconnected himself”. However, I do not consider that its summary should be read as making a finding that the witness disconnected the telephone call to avoid further questions. It was open to the Tribunal to form a view that this witness had not in fact given any evidence concerning the applicant’s involvement at demonstrations other than in generalities, and that neither he nor the applicant’s solicitors had taken up an opportunity to provide detail.
Mrs Nicholls criticised the Tribunal for these two inaccuracies, and also for not itself asking more questions to elicit whether the witness could provide details of the applicant’s activities in Australia. However, in my opinion, there was no obligation on the Tribunal to ask more questions, either as part of its review function or under duties of procedural fairness (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
Assessing the Tribunal’s findings about this witness’ evidence in the context of its findings when applying s.91R, I do not think that its inaccuracies give rise to jurisdictional error affecting the Tribunal’s decision. They were, in my opinion, no more than errors of fact (c.f. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [68]). Moreover, although they may have played a small part in the Tribunal’s lack of satisfaction in relation to the applicant’s activities in Australia, in my opinion its conclusion was supported by other elements in its reasoning. Most significantly, it was supported by its previous findings which rejected the credibility of the applicant’s claims about his political activities in Burma. I also consider that it was open to the Tribunal to consider that the witness’ evidence suffered in weight due to its generality. Other points the Tribunal makes about the witnesses are not factually incorrect. I therefore consider that any errors by the Tribunal as to how witness S gave his evidence, did not vitiate its decision.
I reach a similar opinion in relation to the Tribunal’s assessment of the evidence of the other witness, K. Mrs Nicholls did not identify any inaccuracy in the Tribunal’s references to this witness’ evidence, but criticised the Tribunal for not asking the witness for more details of his knowledge of the applicant’s involvement in the Burmese democracy cause in Australia. However, as I have indicated above, I do not consider that the Tribunal was obliged to do that. I do not consider that any point of procedural fairness or other jurisdictional error arises from the Tribunal’s failure to do that before discounting this witness’ evidence. I am fortified in this conclusion by the fact that, unlike many other refugee cases, the applicant was attended at the hearings before the Refugee Review Tribunal by a solicitor who made post‑hearing submissions following both hearings. The solicitor was given more than enough opportunity to seek to amplify the applicant’s case if it was thought to have been inadequately explored in the course of the hearings.
Another point made by Mrs Nicholls relating to the Tribunal’s conclusions as to the applicant’s Australian activities, was that the transcript of the second hearing did not indicate the Tribunal asking the applicant any questions about his Australian activities, nor does it appear that questions were asked of him at the first hearing. However, in my view, there was no obligation on the Tribunal to do that before reaching its conclusions about the genuineness of his activities.
The issue was clearly a live one, since it went to the applicant’s general credibility and to acceptance of his sur place claim. He had put at the forefront of his case to the delegate and the Tribunal his participation in those activities, and it must have been apparent to him and his solicitors that acceptance of these claims was not a foregone conclusion. There is no evidence before me that they were misled by the Tribunal into thinking that it accepted these claims. In my opinion, the Tribunal was under no obligation to give the applicant a Browne v Dunn warning that it might decline to find that he had genuinely involved himself in political activities in Australia (c.f. Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60, 201 ALR 437 at [56‑58]). In my opinion, there was nothing unreasonable or irrational about the Tribunal’s assessment of this aspect by reference to its findings about his history in Burma before coming to Australia and his making of his protection visa application. I cannot find jurisdictional error affecting the Tribunal’s findings concerning this, nor affecting its failure to arrive at the satisfaction required by s.91R(3).
Mrs Nicholls also made a point concerning the Tribunal’s finding that the applicant gave inconsistent evidence concerning a person who attended the first hearing but did not give evidence. I have set out above the Tribunal’s references to this person ZH in the course of its “Findings and Reasons”. Her argument appeared to be that there was no evidence that at the first hearing the applicant had introduced ZH as more than “a friend”, and in particular that he had been introduced to the Tribunal as his uncle. This might appear so in the Tribunal’s opening description of its first hearing at [71], where ZH is referred to as “a friend”. However, the Tribunal, referring to the applicant’s evidence at the second hearing, said:
76.The applicant was asked about the relationship of the two others present at the hearing. The applicant claimed that Mr H was his uncle, and that Mr ZH was a friend. Mr ZH had accompanied the applicant at the first hearing, and had passed himself off as the applicant’s uncle then. In his visitor visa application made to the Australian embassy in Burma, the applicant had claimed, and there was a statutory declaration from M to that effect, that M was the applicant’s uncle in Australia. This was the same person who signed and declared as the interpreter on the applicant’s protection visa application. There was no mention of an uncle resident in Australia in any of the applicant’s applications or statements. (my emphasis)
It appears to me from this that the Tribunal had a memory or notes or some other evidence allowing it to identify an inconsistency. There is no sufficient evidence before me which would allow me to conclude that it was not open to the Tribunal to find that there was inconsistency.
Mrs Nicholls’ last point raised a concern about the delay in the Tribunal’s handing down of its reasons for its decision. However, there was no provision of the Act which requires a Tribunal’s decision to be arrived at within any particular time. I accept that a significant lapse of time might give rise to the need for the Court to consider whether the Tribunal properly assessed the evidence before it, so as to arrive at a decision in the proper exercise of its review function. However, in the present case I am not persuaded that the delay in this Tribunal’s proceedings can be characterised as a failure to perform its review function according to law, nor that it evidenced such a failure.
For the above reasons, I have not been able to identify jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision and the giving of relief is barred both by s.474(1) and s.477(1A).
It is therefore unnecessary for me to address the question whether relief would be refused in the exercise of discretion due to the applicant’s delay, if I had found jurisdictional error. However, I have considered this aspect and concluded that I would have refused relief.
The applicant gave evidence under oath about the circumstances which caused him to delay until March 2005 before commencing judicial review proceedings. He also explained why he had discontinued before commencing the present proceeding. I might be ready to overlook the short delay arising by reason of his discontinuance and change of mind, but the three year delay after receiving the decision gives rise to more concern.
The applicant’s evidence was in some respects unsatisfactory, but in response to questions from me, I understood him to be saying clearly that he received a copy of the Tribunal’s decision on the day that it was handed down, when he attended at the hearing and had conversations with his solicitor.
He denied that at that time he understood the information given in the letter from the Tribunal that: “You may have a limited right to seek review of this decision by the Federal Court, Federal Magistrates Court and/or the High Court”. He also denied that he had received any advice about the existence of that right from his solicitors. I have great difficulty believing either of those aspects of his evidence, but shall not find this to be untrue.
However, the applicant did concede that six months later he sought advice from another solicitor and that, as a result of that advice, he thought that there was nothing he could do. I find that, at least from that time in the second half of 2002, he decided to allow his rights to obtain court intervention to be abandoned. He only changed his view about this once he was taken into immigration detention in 2005.

In my opinion, his explanation for the delay and the delay itself does reveal conduct which should disentitle him from obtaining relief from the Court. The principle involved was recently described by McHugh J in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24:
[80]The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome. (citations omitted)
For the above reasons, I dismiss the application.
RECORDED : NOT TRANSCRIBED

I certify that the preceding fifty‑seven (57) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 17 November 2005