SZQMB v MIAC
[2012] FMCA 24
•20 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQMB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 24 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – request for impermissible merits review – submissions made reference to Administrative Decisions (Judicial Review) Act – whether the Tribunal exhibited bias – whether the Tribunal failed to afford procedural fairness – Tribunal’s findings were open to it on what was before it – no jurisdictional error – appeal dismissed. |
| Migration Act 1958 (Cth), ss.5E, 36, 65, 91R, 414, 422B, 424, 424A, 425, 427, 474, 476, Pt.7 Administrative Decisions (Judicial Review) Act 1977 (Cth), s.13, Sch.1 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Applicant: | SZQMB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1629 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 15 November 2011 |
| Date of Last Submission: | 15 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr T A Kolomyjec |
| Solicitors for the Applicant: | Davidson James & Associates |
| Appearing for the Respondents: | Ms L Weston |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application filed on 29 July 2011, and amended on 27 September 2011, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1629 of 2011
| SZQMB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application said on its face to be made on 29 July 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 27 September 2011, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 July 2011, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The applicant is a citizen of Burma (also known as Myanmar) who arrived in Australia as the holder of a tourist visa on 30 September 2011. He applied for a protection visa on 4 November 2010 (see Court Book – “CB” – CB 1 to CB 35 with annexures).
Claims to Protection
The applicant claimed to fear persecutory harm in Burma on the Convention ground of political persecution (Convention Relating to the Status of Refugees).[1] Amongst other matters, the applicant claimed to have engaged in online communications with opponents of the military regime in Burma, while friends “secretly gathered information” (CB 30.5, see also copies of emails at CB 34 to CB 35).
[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
The Delegate
The applicant was interviewed by the Minister’s delegate on 21 February 2011. Despite doubts the delegate accepted that the applicant had been involved in the distribution of supplies to cyclone affected villages in 2008 (CB 52.5).
As to the remainder, the delegate considered some of the applicant’s claims to be implausible, and other key aspects of his claims to lack credibility, and further to be lacking in substance, particularly in light of country information available to him.
The delegate found that he could not be satisfied that the applicant had experienced mistreatment or persecution in the past, or that he would face a real chance of persecution if he were to return to Burma in the foreseeable future. The application was therefore refused.
The Tribunal
The applicant applied to the Tribunal for review on 17 March 2011.
He was represented by a migration agent who now appears as the lawyer on the record in these proceedings (CB 63 to CB 68). Submissions were made on the applicant’s behalf, which included a Statutory Declaration by the applicant (CB 89 to CB 127).
The applicant and his representative attended a hearing before the Tribunal on 25 May 2011. The Tribunal’s record of what occurred is set out in its decision record at [26] (at CB 145) to [98] (at CB 153). Following the hearing, further written submissions were made by the applicant’s representatives (CB 128 to CB 134).
Before the Tribunal the applicant claimed that he and some friends had founded a “pro-democracy group”, and had created a “blog” called “Support Burmese People” where anti-government statements were posted.
The applicant claimed that he feared arrest and persecution because the authorities had found out that he had become involved in politics.
In particular, he claimed to fear detention and torture because of the discovery by authorities of CDs, posters and campaign pamphlets from his involvement in this political group.
Having reminded itself of some relevant law concerning how to approach the evaluation of an applicant’s evidence and claims before it ([122] at CB 170 to [126] at CB 171), the Tribunal found that based on what occurred at the hearing the applicant’s evidence was unreliable ([128] at CB 171).
Further, the Tribunal found that there was “a disconnect” between his written statement in support of his application and his oral evidence.
It found his oral evidence to be “vague and lacking in detail”. All of this led the Tribunal to find that he was: “… not a truthful or credible witness in relation to his claims to be politically active and/or of interest to the Burmese authorities and that his fears of persecution for a Convention reason are not well-founded.” ([128] at CB 171.)
As against this finding the Tribunal also considered the various factual assertions made by the applicant. It rejected his claim to have a political profile such as for there to be a real risk of serious harm to him if he were to return to Burma in the reasonably foreseeable future ([135] at CB 172).
The Tribunal’s reasons for this were then extensively set out ([136] at CB 172 to [168] at CB 177). In particular, the Tribunal rejected the applicant’s claim to have been the administrator of a blog with a linked email address said to have been used in the promotion of
anti-government activities ([147] at CB 174).
The Tribunal also considered the applicant’s claim that he had attended political protests in Australia. This conduct was disregarded pursuant to s.91R(3) of the Act ([109] at CB 177).
The Application to the Court
The application, as amended, puts forward the following grounds (without particulars):
“Ground 1
The Tribunal made an error of law on the ground that there is no evidence or other material to justify its making of the decision that the applicant was not a member of a group which was at risk of harm from Burmese authorities for its pro democracy activities in Burma. Furthermore, the Tribunal made an error of law by failing to address the question of whether there was any evidence of a particular fact which supported the applicant’s contention that he qualified as a refugee by his membership of a particular social group.
Ground 2
That the Tribunal made an error of law in that it based its decision for the purpose of Section 65 of the Migration Act not to grant the applicant a protection visa on facts that did not exist. There was no evidence before the Tribunal to the effect that the applicant was not a member of a pro democracy group in Burma. The Tribunal as a decision maker is restricted to reach the decision only if a particular matter was established.
Ground 3 – Tribunal ignored relevant materials
The Tribunal ignored or failed to take into account certain facts.
The Tribunal made an error of law by identifying wrong issues and ignoring relevant materials before it to make its ultimate decision. This failure to take into account certain facts that a reasonable decision maker would have found in the applicant’s materials and taken into account provides a ground for review.
Ground 4 – Tribunal failed to provide procedural fairness
The Tribunal failed to provide procedural fairness to the applicant.”
Before the Court
Mr T A Kolomyjec of counsel appeared for the applicant. Ms L Weston appeared for the Minister.
The applicant sought leave to read his affidavit of 27 September 2011 annexing documents which were said to go to the matter of his claim that he was the administrator of a particular “hotmail email address” in Burma used as part of his claimed anti-government activities.
In support of this claim, the applicant referred to his Statutory Declaration and to his reference therein to a “website” (CB 30). The Court was also taken to further references to the website, the “blog” and “video clips” in the material put before the Tribunal (CB 120 to CB 124).
The thrust of the submission made in support of the admissibility of the evidence in the affidavit was expressed as that the affidavit “simply reiterates… evidence that was before the Minister”.
While some intention was expressed to refer to authorities in support of the leave sought, ultimately nothing of relevance was handed up.
The Minister opposed the granting of leave. The Minister’s position was that the affidavit and the material attached to it were not relevant to the issues arising on judicial review.
I agree. To the extent that some of the material was already before the Tribunal, then it was for the Tribunal to deal with the information in the conduct of its review.
These, and any additional documents now, can only be brought forward to revisit and challenge factual findings made by the Tribunal. The Court cannot engage in an exercise of reviewing the merits of the Tribunal’s factual finding (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481 (“Wu Shan Liang”)).
Leave to read the affidavit was therefore refused.
The applicant’s written submissions filed on 22 September 2011 appear to address the grounds of the amended application. However they are largely misconceived. They rely on assertions of breaches of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).
At the beginning of his submission Mr Kolomyjec appeared to commence with references to the ADJR Act. But subsequently agreed with the Minister that that Act did not apply to the Tribunal’s decision.
Schedule 1 to that Act (at paragraphs (da) and (db)) makes plain that a privative clause decision within the meaning of s.474(2) of the Act and a purported privative clause decision within s.5E of the Act are decisions to which the ADJR Act does not apply (see also for example Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 per Gummow ACJ and Kiefel J at [5])
Consideration
Ground One
Ground one as stated appears to assert two errors of law on the part of the Tribunal:
1)There was no evidence before the Tribunal to “justify” its decision that the applicant was not a member of a group that was at risk of persecutory harm in Burma.
2)The Tribunal failed to address the question as to whether there was any evidence that the applicant was at risk of harm because of his membership of a particular social group.
The applicant’s particulars and the reference to different findings made by the Tribunal provide the answer to the applicant’s ground, particularly in relation to [29] above. The applicant seeks to challenge factual findings, including findings on credibility made by the Tribunal within the exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex ParteDurarajasingham [2000] HCA 1; (2000) 168 ALR 407). The ground seeks impermissible merits review (Wu Shan Liang).
The applicant also claims that there was no evidence before the Tribunal that would allow it to find, or infer, that he was not a member of an anti-government group.
The short answer is that there was such evidence. This was the applicant’s own evidence, both oral and written, which was before the Tribunal. What the applicant’s ground and submissions fail to grasp is that the Tribunal’s analysis of the evidence before it which leads to adverse findings for the applicant is, in the first part, simply the Tribunal doing the job it was jurisdictionally tasked to do.
The applicant’s attack, emphasised in submissions, was that the applicant gave evidence which was contrary to the findings made by the Tribunal. I understood the complaint in this regard therefore, to be that in the absence of any other evidence, the Tribunal should have accepted the applicant’s factual account.
It is the case that once a valid application for review is made to it the Tribunal is compelled to conduct the review (s.414 of the Act). In the conduct of the review it is for an applicant to put forward his claims and evidence, and for the Tribunal to evaluate this evidence, also in light of any other information or material the Tribunal may get, or inquire about (see ss.424 and 427 of the Act), or draw from its own resources such as to ultimately answer the question as to whether it can be satisfied, in effect, that the applicant meets the definition of “refugee” contained in Art.1A(2) of the Refugees Convention. If it is so satisfied, then the visa must be granted (ss.65 and 36(2) of the Act and see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In evaluating the applicant’s evidence the Tribunal is not required to automatically accept any, or even all, of an applicant’s evidence (Randhawa v Minister for Immigration & Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437). It is for the applicant to put his case and for the Tribunal to reach, or not reach, the requisite level of satisfaction.
Further, this was not a case, nor did the applicant assert before the Court that the Tribunal was compelled to make some further inquiry or investigation (see Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429).
Before the Court, the applicant referred to the Tribunal’s findings as to the difference between the applicant’s written statement before it which it found to be “relatively sophisticated”, and the applicant’s oral evidence which was found to be “fairly unsophisticated”, “vague and lacking in detail” and not always “cogent” ([128] at CB 171).
The submissions before the Court took issue with this and accused the Tribunal of “not going into much detail” in circumstances where “the written evidence is certainly more convincing”.
As I put to the applicant’s counsel, it may appear more convincing to him, but the issue for the Court is not to evaluate the evidence before the Tribunal and substitute its own factual findings for those of the Tribunal. But to ask the question, while recognising that minds may differ as to these matters, as to whether the Tribunal’s findings were reasonably open to it on what was before it, and whether it gave reasons probative of that material
The answer to this question in the current case is in the affirmative. No legal error is revealed in these circumstances.
The submission was also that given the applicant’s “credible” evidence that there was a “blog”, and that an anti-government group had then been formed, that the Tribunal should have given the applicant the benefit of the doubt and presumably accepted his claim to fear persecutory harm.
What this submission misses, apart from the issues clearly set out above, is that the Tribunal’s relevant findings were not attendant with such doubt as to engage any consideration as to whether the applicant should be given any benefit of the doubt. It is clear that for reasons which it gave, that the Tribunal had no doubt about its relevant findings in respect of which any benefit could be considered.
It must be remembered that the central question the Tribunal was required to answer in the conduct of the review was whether, in the circumstances, the applicant had a well-founded fear of persecution for a Convention reason. As referred to above, this is not to be answered strictly by a “yes” or “no”. The relevant legislative regime requires the reaching of a requisite level of satisfaction. This is predicated upon, and arises from, questions of degree.
As was set out in Minister for Immigration and Ethnic Affairs vGuo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) at 575 in this exercise the Tribunal is entitled to weigh what is before it and make findings of fact. The weight to be assigned is a matter for the Tribunal within the exercise of its jurisdiction (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 66 ALR 299). Based on those findings, the Tribunal moves to consider whether the applicant’s fear of persecutory harm for a Convention reason is well-founded.
It is only where the Tribunal in making a finding within this process lacks sufficient confidence that it is attendant with some doubt, and where such a finding is adverse to the applicant, that the Tribunal should consider the possibility that the finding is not correct, in the process of considering whether the fear is not well-founded (Wu Shan Liang, Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1).
It is in this sense that the benefit of the doubt is engaged, usually with the asking of what is colloquially referred to as the “what if I am wrong?” approach, in the consideration of the “real chance” test (Wu Shan Liang at 293 per Kirby J).
In the current circumstances the Tribunal’s findings were of such a nature as to not require this approach in considering whether the applicant had a well-founded fear of persecution for a Convention reason.
It may be that the applicant’s submissions were based on some misunderstanding of what is set out in the “Handbook on Procedures and Criteria for Determining Refugee Status” (Office of the UNHCR, Re-edited edition, Geneva, January 1992) under the heading of “Benefit of the doubt” at [203]-[204].
As is set out there:
“203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to ‘prove’ every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.”
What is clear however is that, even under these guidelines, the “benefit of the doubt” should only be given if the decision-maker is satisfied as to the applicant’s general credibility. This is not the situation in the present case.
I should also note, in any event, that other than those parts of the Handbook that have been specifically accepted by the Courts in Australia, the Handbook remains as a “practical guide” and is not prescriptive in Australian law (Chan v Minister for Immigration & Anor [1989] HCA 62; (1989) 169 CLR 379 (“Chan”) at 392 per Gaudron J. See further Semunigus v The Minister for Immigration & Multicultural Affairs [1999] FCA 422 per Finn J and Shah v Minister for Immigration & Anor [2000] FCA 489 at [9] per Tamberlin J).
It is also the case that the applicant’s ground as stated, and its reliance on the “no evidence” line of attack, also appears to ignore, as the Minister submits, what was said in Applicant A169 of 2003 v Minister of Immigration & Anor [2005] FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ where the idea that judicial error would occur “… through a legal deficiency including the absence of evidence or the insufficiency of evidence to support the decision…” was rejected.
The applicant also complains that the Tribunal failed to consider the applicant’s evidence as to the “question” as to whether he was a “member of a particular anti-government group” ([18.2] of written submissions).
There was no reference, yet alone reliance, by the applicant on any of the relevant leading authorities on the matter of how the Tribunal should approach the consideration of the issue of membership of a particular social group (for example Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225, Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387; (2004) 206 ALR 242, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 and Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1; (2002) 187 ALR 574).
Nor was any such aspect pressed in any submissions. The complaint therefore is to be understood as being that the Tribunal failed to consider the applicant’s evidence, and his assertions, to have been involved in the anti-government group.
To the extent therefore that this was another iteration of the “no evidence” attack as set out above, it fails for the same reasons. The applicant cavils with the Tribunal’s findings of fact and seeks impermissible merits review (Wu Shan Liang).
However, the submissions, both written and oral, raised a number of other matters in this regard. It must be said there appeared to be some confusion between “no evidence”, and “no direct evidence”, to support the Tribunal’s findings.
In relation to the latter in particular, the applicant, curiously, conceded that whether particular evidence should be accepted, and the weight to be accorded to the evidence, is a matter for the Tribunal. He referred in this regard to Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 273 ALR 122 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (see at [18.30] of written submissions).
The difficulty for the applicant, again, is that his attack was premised on the assumption that the Tribunal should have accepted the applicant’s evidence because it was credible, and that there was “no direct evidence” to say that it was not credible, or that it should not be accepted.
This again fails for the reasons set out above. The relevant evidence before the Tribunal was the applicant’s own evidence and country information available to it.
In relation to the first, as set out above, the findings of fact made as to the credibility of the applicant’s account, and arising out of its evaluation, was open to the Tribunal on what was before it.
In relation to the second, the choice and weight to be accorded to country information is for the Tribunal to determine (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] - [14] per Gray, Tamberlin and Lander JJ).
As to the “blog print-outs”, including email exchanges, submitted by the applicant in support of his claims to have been involved in
anti-government activities, the Tribunal’s various findings here were all open to it on what was before it (see [146] - [148] at CB 174).
The applicant’s submissions here seek to again challenge the Tribunal’s findings of fact. In relation to the “blog” material I also agree with the Minister that no jurisdictional error is revealed. It was not clear that the applicant was actually asserting some misunderstanding of the evidence by the Tribunal (as opposed to “no evidence”), or that some evidence had been overlooked. But even if it extended to this, no error is revealed (see for example the Minister’s reliance on Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51).
This is not a case where the Tribunal failed to consider a claim, or an aspect of a claim, expressly made or clearly arising from the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2004] FCAFC 263; (2004) 144 FCR 1, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184).
For the sake of completeness, the Minister also submitted that in case the Court were to also construe the applicant’s first ground as to include some assertion of illogical reasoning on the part of the Tribunal, then no such error is evident.
I agree with the Minister on the basis of the understanding and direction provided by SZMDS v Minister for Immigration and Citizenship [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) per Crennan and Bell JJ (at [130]) and Heydon J generally in his Honour’s analysis of the circumstances presented in that case).
Finally, during oral submissions the applicant’s counsel raised the spectre of bias on the part of the Tribunal. Whether this was subsequently abandoned was not clear.
In any event, the argument was that in rejecting the applicant’s evidence the Tribunal “formed the view very early” during the hearing that the applicant’s evidence was unreliable.
It is the case that for bias to be made out, including the apprehension of bias, it must be distinctly asserted and clearly proven (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairsv Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27] - [28] and [30] - [31] per Gleeson CJ, Gaudron and Gummow JJ and Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [14] per Branson, Finn and Bennett JJ).
The need for this is obvious given that unlike most other assertions of legal error, such a charge goes to the very integrity of the
decision-maker.
The applicant in the current case has failed to achieve either of the two elements set out at [70] above.
In the current case Mr Kolomyjec relied on what the Tribunal said at [128] of the decision record (CB 171): “At the outset the Tribunal records that during the hearing it found the applicant’s evidence unreliable.”
As I attempted to explain to counsel, the words “at the outset” (at [128] at CB 171) plainly in context refer to “the outset” of the Tribunal’s final consideration, not “at the outset” of the hearing. That is, having concluded the hearing it found it “at the outset” of its consideration of that evidence, for the purpose of its final analysis, to be “unreliable”.
No evidence has been put before the Court of what occurred at the hearing, other the Tribunal’s own record (see [26] at CB 245 to [98] at CB 153 of the decision record).
There is nothing on the evidence before the Court to suggest bias, or even the apprehension of bias, on the part of the Tribunal, let alone that it can be made out.
In all ground one is not made out.
Ground Two
In ground two the complaint appears to be an extension of ground one. Variously, this complaint is that the Tribunal based its decision on “facts that did not exist”. This is explained, perhaps, by asserting that there was no evidence before the Tribunal that the applicant was not a member of a pro-democracy group.
In relation to the ground itself, it must be noted of course, that it is not for the applicant’s legal representatives now to assert, or to make findings of fact, as to the merits of the applicant’s claims. It is, of course, the task central to, and reserved for, ultimately the Tribunal.
The particulars contradict the ground as stated. Here the complaint is not that there was “no evidence”, but that the Tribunal’s analysis was unreasonable because the applicant had given evidence of the activities of his group, and other relevant matters.
Further that this was evidence which was “clear and concise”. In those circumstances, without any “contrary evidence”, the Tribunal rejected the applicant’s claims, and used references to “extraneous evidence” ([159] at CB 176). This was a reference to country information about Burma.
As with ground one, ground two is misconceived and misunderstands essential characteristics of the statutory task given to the Tribunal. Ultimately, the applicant seeks impermissible merits review (Wu Shan Liang).
The matters addressed above in ground one equally apply here.
The relevant statutory scheme (ss.65 and 36(2) of the Act) obliges the Tribunal to reach a requisite level of satisfaction before the visa must be granted. In the exercise of this task, the Tribunal is required to evaluate the evidence and material before it. It must consider all claims expressly made, and clearly arising in the circumstances. It does not have to uncritically accept what an applicant says. It must make findings of fact probative of the material before it. As long as the findings are reasonably open to it to make, then no legal error is revealed.
In the current circumstances the applicant’s complaints seek to cavil with the Tribunal’s findings which, as with ground one, where open to it to make on what was before it, and for which it gave reasons. Therefore, no legal error is revealed.
Further, before the Court the applicant was unable to explain how a reference to Chan assisted the applicant’s case. Assertions that the Tribunal should have given the applicant the benefit of the doubt, again, do not reveal error on the part of the Tribunal in the current circumstances, for the same reasons as in ground one.
Ultimately, I understood the reliance on Chan was to establish that that case deals with the “question of well-founded fear of persecution”. In the circumstance, this does not assist the applicant’s grounds.
To the extent that ground two seeks to also infer bias, or an appearance of bias, on the part of the Tribunal, it has not been expressly made, nor, in the circumstances, can I see that it can be properly contended, let alone made out.
In oral submissions the applicant submitted that he wished to proceed and rely on the authority of Re Minister of Immigration Local Government and Ethnic Affairs v Abdol Hamid Pashmforoosh and Marzieh Pashmforoosh [1989] FCA 234 (“Pashmforoosh”), for the proposition that the Tribunal’s decision may be set aside because it was insufficiently supported by reasons.
Pashmforoosh, arising in the late 1980’s, dealt with a very different statutory regime to the one relevant to the current proceedings. It dealt with a then Ministerial decision based on advice from the Minister’s department concerning whether “entry permits” should be granted pursuant to the then s.6A(1)(e) of the Act.
The issue considered there was whether there had been a breach of procedural fairness. The Court, on appeal, upheld the trial Judge’s finding that the Minister had failed to take into account relevant considerations, and failed to consider the substance of the case raised.
In the current case, putting aside the various differences in the statutory regime, there is no suggestion that the Tribunal failed to take into account a relevant consideration or failed to consider the substance of the case put, as those concepts are properly understood.
Rather, the applicant’s attack may be said to be that the Tribunal did not “properly consider” the applicant’s claims because it did not accept his evidence and there was no evidence on which to base its rejection of his evidence.
I do not respectfully understand Pashmforoosh to provide any source of authority for this attack. In any event, when pressed before the Court, the applicant’s representative was unable to say how Pashmforoosh assisted his case and ultimately did not press it.
It may be that once having abandoned submissions based on the ADJR Act, before this Court, any expectation of relying on references to s.13 of that Act in Pashmforoosh, and the observation of that Court (at [19]) that a decision-maker “… may be found to be in error if the statement [provided pursuant to s.13 of the ADJR Act] simply rejects the substance of an applicant’s case without giving reasons which can rationally support that rejection”, also fell away.
Even putting aside the fact that s.13 of the ADJR Act does not apply to the present case, the thrust of that observation does not apply to the current circumstances. The Tribunal did not simply reject the applicant’s case without giving rational reasons.
The Tribunal’s reasoning cannot be said to be unreasonable in the “Wednesbury sense” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”)). Nor does it fall foul of what was relevantly held in SZMDS (see [67] above).
Ground two also lacks merit and is therefore not made out.
Ground Three
In ground three the assertion is, essentially, that the Tribunal “ignored” certain materials, or failed to take into account certain facts, or identified “wrong issues”.
The particulars concern the copies of emails arising from the applicant’s claimed anti-government “web-blog site”. The particulars assert that the Tribunal received this documentation, but failed to consider it, and to draw conclusions about the possible harm to the applicant on return to Burma.
Further, that the Tribunal “ignored” this evidence and failed to take into account that the applicant was a member of an anti-government group. The particulars also assert that the applicant demonstrated this by creating his own email and “web-blog site”.
Before the Court the applicant’s submissions emphasised that this documentation was a critical piece of evidence and that the Tribunal failed to take it into account.
I understood the oral submission to be in contradiction to what was asserted in the other grounds, that the Tribunal considered the applicant’s oral evidence, and in contradiction to other submissions on this ground, that the Tribunal did note “certain aspects of this website.” But it did not look at this “… evidence in such detail as to answer the question which it answered by finding that he was not a member or administrator of the website account which is not made out by the documentary evidence…”.
This was also said to be unreasonable and arbitrary. This issue was not asserted in the amended application, but was proposed in submissions.
If the applicant were to properly consider his own submissions as outlined at [103] above, or was able to have them properly explained, they provide, and contain, the answer to his complaint.
It is quite understandable that a lay person having given oral and documentary evidence to the Tribunal would feel aggrieved that the Tribunal would find adversely to him.
It is quite another thing though for legal practitioners to put forward grounds and submissions that misunderstand the nature of the jurisdictional error that needs to be shown in proceedings of this type. That is, if the applicant is to succeed in the judicial review of an administrative decision, under the Migration Act, unless of course they were acting under instruction.
As has already been emphasised above in relation to grounds one and two, it is not for the applicant, his legal representatives, nor the Court, to substitute their own findings of fact for those of the Tribunal.
When pared down to its core, the applicant’s complaint is that the Tribunal should have believed his oral evidence, and that this would have led it to find he had a well-founded fear of persecution on return to Burma. But, failing this, the Tribunal should certainly have believed his account because the documentation was such as to make any other conclusion unreasonable and arbitrary.
As already set out above, the Tribunal’s reasons for rejecting the applicant’s oral account, and evidence, as giving rise to a well-founded fear are set out in the decision record (in particular, see [128] (at CB 171), [134] (at CB 172) to [145] (at CB 173), [149] (at CB 174) and [157] (at CB 176) to [168] (at CB 177)). While the applicant may not accept it, it remains that the Tribunal’s findings in this regard were all reasonably open to it on what was before it. No error is evident in these circumstances.
Contrary to some of the applicant’s submissions, the Tribunal did consider the “blog” documentation ([146] – [148] at CB 174). Any plain reading, let alone a fair reading reveals that the Tribunal was unable to give any weight to the “blog print outs” as supporting the applicant’s evidence of “blog” activity.
The Tribunal gave reasons for this (essentially at [147] at CB 174). They may not be reasons that the applicant accepts, and even if they were not reasons the Court may have used, nonetheless they were the Tribunal’s reasons which were open to it on the totality of the evidence before it. No error is revealed.
Nor on any fair reading is this a case where the Tribunal failed to consider, or have regard to, the documents, in the sense of failing to turn its mind to them or to engage with them.
The applicant’s complaint misunderstands the actual, and relevant, reasoning of the Tribunal. At least a fair reading of its analysis reveals that the Tribunal rejected critical points of the applicant’s claims because of its adverse view of his credibility.
In this context the Tribunal was not persuaded as to the existence of such a group because it was: “… unable to find any reliable evidence to connect the claimed blogs to the applicant’s claimed group or the applicant personally.” ([147] at CB 174.) The Tribunal noted that the applicant himself made no claims of any ill-treatment, or incidents, as a result of his claimed blog. When these findings were added to the finding that the applicant made no claim of having pursued his claimed political agenda once coming to Australia, it was, in the circumstances, unable to give weight to the “blog print-outs” as being evidence of the applicant’s “politically-critical blogging activity” ([148] at CB 174).
The Tribunal did not ignore or fail to take into account any claim or integer of a claim. For that matter it did not ignore or fail to consider the evidence of the blog print-outs. Weight is for the Tribunal to decide. Simply, in light of all the other evidence, it was unable to give weight to the documentary evidence.
The Tribunal’s analysis was not unreasonable in the “Wednesbury sense”. It did not display the elements of illogicality or unreasonableness as explained in SZMDS (per Crennan and Bell JJ, and also Heydon J).
In all ground three is without merit and is also not made out.
Ground Four
In ground four the applicant asserts that the Tribunal failed to provide procedural fairness to the applicant. The particulars assert:
1)The Tribunal did not give the applicant a reasonable opportunity to adduce evidence to “prove” his assertions.
2)With reference to [147] (at CB 174) of the Tribunal’s decision record, the Tribunal did not bring to the applicant’s attention that he needed to produce evidence that if the “blog activities” of the anti-government group were brought to the attention of the Burmese authorities that would have resulted in reprisals.
3)The Tribunal ignored evidence favourable to the applicant.
4)The Tribunal failed to request the applicant to adduce additional material in support of his “group’s anti junta blogging” activity.
The written submission (at [21.5]) appear to raise further complaints. These will be dealt with separately. The oral submissions did not expand the scope of the attack.
The applicant’s ground seeks to rely on an alleged failure of procedural fairness at common law. The applicant made no attempt to explain that s.422B of the Act did not apply to the current circumstance such that the exhaustive statement of the natural justice hearing rule set out in Div.4 of Pt.7 of the Act did not apply to the current case.
Turning first to the particulars.
An assertion that the Tribunal did not give the applicant an opportunity to address evidence is an assertion that raises a matter dealt within Div.4, Pt.7 of the Act (Saeedv Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204). That is s.425 of the Act.
This section obliged the Tribunal to invite the applicant to a hearing to give evidence in relation to an issue arising in relation to the review of the delegate’s decision.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”), the High Court set out the Tribunal’s procedural fairness obligations in this regard. Relevantly, the applicant is entitled to have exposed, at the hearing, those issues dispositive of at the review, which were not live issues said to arise from the delegate’s decision.
The applicant’s submissions describe the “critical factor” in the review (at [21.2]) as being “proof” that he applicant was the administrator and account holder and that he operated the anti-government blog site.
While the applicant claimed before the delegate that he created a “blog site” (CB 30.5), the focus of his claims in this regard appeared to be his activities at an “internet café” (CB 30.4). The matter of the blog site was expanded before the Tribunal.
In light of SZBEL then, the question now becomes one of what occurred at the hearing before the Tribunal in relation to the determinative or dispositive issues in the review.
While the applicant’s “critical factor” probably reduces the understanding of what constitutes an issue to a level of specificity below that explained in SZBEL, it is not necessary in the circumstances of this case to delineate between an issue and one finding made by the Tribunal within the issue of the applicant’s claim to have been involved in anti-government activities, including the administration of an
anti-government group and involvement in putting anti-government material on a web blog site.
The applicant has not provided any evidence of what occurred at the hearing before the Tribunal. For example, a transcript of that hearing. In these circumstances the only relevant evidence is the record of the hearing contained in the Tribunal’s decision record at [26] (at CB 142) to [98] (at CB 153). It is not open to the Court to draw inferences as to what may have otherwise occurred (NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264).
Even on a fair reading of this, there is no explicit statement to the applicant at the hearing that his credibility was at stake. However, this is not what is required to discharge the procedural fairness obligations as explained in SZBEL (see also SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 per Stone J).
First, it is clear that the matter of the anti-government group and the “blog” were extensively discussed at the hearing (see [38] (at CB 146) to [45] (at CB 147), [77] (at CB 150), [84] to [86] (at CB 151) and [94] (at CB 152)).
Second, I do not agree with the Minister’s submissions that the credibility of the entirety of the applicant’s factual account was at issue as a result of the delegate’s decision. While the delegate expressed some concerns (CB 52.5), and found some aspects not to be credible (CB 53.4 and in particular CB 54.5), he did accept the applicant’s claims that he and “… fellow students were politically active and participated covertly in a pro-democracy group…” (CB 52.6).
Third, however, I do agree with the Minister that with reference to SZBEL (at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), the Tribunal did “sufficiently indicate” to the applicant at the hearing that his factual account was as issue, especially with reference to his claimed political activity (see at [41] (at CB 146), [42] and [48] (at CB 147), [60] (at CB 148), [65] (at CB 149), [77] to [78] (at CB 150), [83] (at CB 151), [86] (at CB 151), [89] (at CB 152) and [91] (at CB 152)).
The particulars also complain that the Tribunal did not bring to the applicant’s attention that he needed to provide evidence of the Burmese authorities’ reaction to his claimed anti-government activities.
First, there is no obligation on the Tribunal to make out the applicant’s case for him. In light of SZBEL the applicant is entitled to be made aware of the issue, or issues, determinative of the review. As set out above, the Tribunal did that at the hearing.
Second, what the Tribunal makes of the applicant’s evidence, its evaluation, is not of itself an issue in the review. The evaluation is about the issues. To the extent that the applicant’s second particular seeks to cavil with the Tribunal’s analysis it therefore does not reveal any failure of procedural fairness pursuant to s.425 of the Act. That obligation was satisfied with the Tribunal’s exposure to the application of the issues in the review.
The fourth particular, that the Tribunal failed to provide an opportunity for the applicant to adduce further evidence, falls into the same category. It also fails at the factual level. As set out above, the Tribunal did not ignore any of the applicant’s evidence.
It is the case that the applicant’s particulars also fail to reveal any denial of procedural fairness at common law. In that regard, the applicant is entitled to know the case against him such that he can answer it and is given the opportunity to do so (Kioa v West [1985] HCA 81; (1985) 159 CLR 550; (1985) 62 ALR 321, Commissioner for Australian Capital Territory Revenue vAlphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 and Re Minister for Immigration and Multicultural Affairs; Ex parteMiah [2001] HCA 22; (2001) 206 CLR 57; (2001) 179 ALR 238). That opportunity was given to the applicant at the hearing. The Tribunal’s canvassing of the relevant matters, its questioning of the applicant on important elements of him claims, was such as to discharge its obligation here.
The Tribunal is not obliged to make out an applicants case for him (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429). Nor to provide a running commentary on the applicant’s evidence or its evaluation of it (Re Minister for Migration and Indigenous Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [54] per Gummow and Heydon JJ).
The written submissions (at [21.5]) raise a number of other matters not particularised in ground four.
Item (a) complains that the Tribunal failed to take into account that the applicant’s brother wrote the applicant’s initial written statement of claims which was prepared in the English language. Presumably, the import now for the applicant is that the Tribunal unfavourably compared his oral evidence with what was set out in writing to, in part, find adversely to his credibility.
I cannot see that this is a particular going to a claim of a failure of procedural fairness. At its highest, it seeks to cavil with findings of fact made by the Tribunal.
The Tribunal understood that the applicant’s brother wrote the applicant’s written statement submitted at the time of the protection visa application (see [32] at CB 145). I also understood the matter of the brother giving evidence was specifically raised at the conclusion of the hearing. The applicant’s representative advised the Tribunal that there was never any original intention to “call” the brother to give evidence ([98] at CB 153).
The difficulty for the applicant here is at the factual level. Any suggestion that the brother was the author of the document cannot be sustained in light of the Tribunal’s unchallenged (by any evidence to the contrary) account of the hearing.
It was the applicant’s evidence that he authored the written account in the Burmese language and that his brother helped him to “put it into English” ([32] at CB 145). While the brother did most of the translation, the applicant’s evidence was that it was his statement and that he had made a declaration to the effect that it was true and correct (CB 25).
Similarly, item (b) seeks to challenge with the Tribunal’s evaluation of the evidence before it. It challenges the factual findings of the Tribunal in this regard. It seeks impermissible merits review (Wu Shan Liang).
Item (c) asserts an apprehension of bias on the part of the Tribunal. This is said to be because it was “unfair” of the Tribunal to compare the two “versions” of the applicant’s claims so as to find adversely to him.
The relevant law is set out above (see at [70]). I cannot see in this light that the applicant’s compliant is any more than a challenge to the Tribunal’s factual findings.
Item (d) asserts a breach of s.424A of the Act. The explanation that this section was breached is because the Tribunal failed to “specifically address the issue of the ‘sophisticated style’ of the written statement”.
Section 424A of the Act requires the Tribunal to invite comment on information that it considers would be the reason, or a part of the reason, for affirming the delegate’s decision. The Tribunal’s alleged failure to address this is not “information” for the purposes of s.424A (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) at [17] to [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
If what the applicant seeks to say is that the Tribunal should have put to the applicant for comment its view of the character of the written statement then this is also not “information” for the purposes of s.424A of the Act (SZBYR at [17] to [18]).
Further, the written statement, and indeed all the written material, was exempt from the obligation in s.424A(1) of the Act by either the operation of s.424A(3)(b) or (ba) of the Act. No legal error is revealed here.
Conclusion
With the benefit of legal advice and representation, the applicant has put forward four grounds alleging jurisdictional error on the part of the Tribunal, further complaints were also made in submissions. None of the grounds, or complaints, are made out. It is appropriate therefore, that the application to the Court be dismissed. I will make an order accordingly.
For I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 20 January 2012
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