Vdao v Minister for Immigration; Vdap v Minister for Immigration
[2004] FMCA 619
•20 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VDAO v MINISTER FOR IMMIGRATION VDAP v MINISTER FOR IMMIGRATION | [2004] FMCA 619 |
| MIGRATION – Protection visa – whether jurisdictional error. |
Migration Act 1958, s.91R, 424A
Federal Magistrates Court Rules 2001, Rule 12.03
S157 v Commonwealth [2003] 195 ALR 24
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379-389
Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 2 KB 223
Waterford v Commonwealth Bank (1987) 163 CLR 54
R v District Court; Ex parte White (1966) 116 CLR 644
MIMA v Perera (2001) FCA 1212
MIMA v Eshetu (1999) 197 CLR 611
W148/00A (2001) FCA 679 (22 June 2001)
Avesta v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 121 (10 May 2002)
Minister for Immigration & Ethnics Affairs v Guo (1997) 191 CLR 559
| Applicant: | VDAO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 673 of 2002 |
| Applicant: | VDAP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 674 of 2002 |
| Delivered on: | 20 September 2004 |
| Delivered at: | Melbourne |
| Hearing Dates: | 18 June 2003 & 24 July 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Pro Bono Counsel for the Applicants: | Mr A Krohn |
| Counsel for the Respondents: | Dr S Donaghue |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The applications be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 673 of 2002
| VDAO |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
MZ 674 of 2002
| VDAP |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
REASONS FOR JUDGMENT
Introduction
There are two applications before the court which in the circumstances it was decided to consider at a joint hearing and to deliver a judgment in relation to both applications for reasons which will become apparent. The applicants are both male citizens of Burma and are brothers who made separate claims for refugee status. Both seek review in relation to two decisions by the Refugee Review Tribunal (the RRT). Both applicants claim a well-founded fear of persecution by reason of political opinion.
It is clear that each of the applicants base their claims on slightly different but related experiences in Burma and both claim to have engaged in subsequent similar political activity in Australia.
Both applicants arrived in Australia on 7 July 1997 and each made an application for a protection visa on 2 September 1999. They were both interviewed by a delegate of the respondent. Two decisions were made by a delegate of the respondent on 14 February 2000 rejecting each application.
Both applicants by applications filed 14 March 2000 applied for review of their respective decisions to the RRT. Each was invited by letter to attend a hearing before the RRT and give evidence on 20 February 2002 at a joint hearing. Both applicants who were represented gave evidence at that hearing. Another witness also gave evidence on behalf of both applicants.
By correspondence dated 22 February 2002 the RRT wrote to each of the applicants, who lived at the same address, pursuant to s.424A of the Migration Act 1958 (the Act) inviting them to comment on particular information relevant to their respective application.
By letter of 19 March 2002 the representative of both applicants provided a written response enclosing, in turn, a written response dated 12 March 2002 from applicant VDAO and an undated written response from applicant VDAP.
By two separate decisions handed down on 10 May 2002 the RRT affirmed each of the delegate's decisions refusing the grant of a protection visa.
Both applicants then filed applications dated 3 June 2002 seeking Constitutional, declaratory and injunctive relief in respect of each decision of the RRT. Those applications were filed in the Federal Court of Australia on 3 June 2002 and by order of that court transferred to the Federal Magistrates Court on 8 July 2002. Unfortunately, the Federal Magistrate scheduled to hear the applications was unavailable and accordingly, I dealt with both matters with both applicants being represented by pro bono counsel in whose favour the appropriate order was made on the date of the hearing, and, to the extent that it was necessary, I made an order pursuant to Rule 12.03 of the Federal Magistrates Court Rules 2001 and directed that that order be made nunc pro tunc. The hearing occurred on 18 June 2003. As a result of the recent decision of the High Court in S157 v Commonwealth [2003] 195 ALR 24 ("S157") both parties were given the opportunity to file further supplementary contentions of fact and law with the respondent doing so on 10 July 2003.
Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
‘falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further helpful decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
The background facts in both applications are otherwise set out in the respective decisions of the RRT under the heading "Claims and Evidence". It is appropriate by way of summary that I refer to the background to the claims and evidence which are very similar for both applicants. Where necessary, I will just specifically refer to those claims which are applicant specific.
The applicants' father is an orthopaedic surgeon working in Malaysia since 1992 and their mother is a paediatrician. Applicant VDAO claimed that in 1987 he was in grade 5 and associated with senior students who were actively involved in student affairs. After the demonstration at the age of 10 he helped his senior friends by distributing leaflets with another student. One day when they were distributing leaflets the security police tried to apprehend them. The applicant escaped but his friend was caught and suspended from school. The applicant became a member of the All Burma Basic Education Students Union (ABBESU). The applicant's school closed down in 1988 when he was in grade 6.
Applicant VDAP claimed that in 1988 when a pro-democracy demonstration started he was 13 years of age and then in high school. He claimed that a number of senior students at his school were active in the ABBESU and he became involved in the ABBESU mainly as a courier and messenger carrying documents and messages around the city area.
On 8 August 1988 both applicants marched their schools to the front of the city hall. The applicants' parents also took part in the process. Slogans were shouted and during the demonstration Applicant VDAO followed the ABBESU central committee members for meetings at other high schools and universities. Applicant VDAP, as well as demonstrating, delivered messages all over the city.
Both applicants managed to return home without being detected by security forces.
After the military takeover in September 1988 in Burma the applicants' father was taken to military intelligence headquarters for questioning. Applicant VDAO had been involved in a hunger strike, although it is claimed his mother picked him up to keep him out of trouble. The applicants' father, however, when taken to military intelligence headquarters for questioning was asked about assistance he had given to the wounded on 8 August 1988 and on 18 September 1988 he was detained for three months. He was forced to resign in July 1989. The mother of the applicants was also interrogated by military intelligence and refused further promotion.
Both applicants during the election worked for the National League for Democracy (NLD) with applicant VDAP working as a messenger and courier whilst his brother, applicant VDAO, worked as an organiser in his township. Applicant VDAP continued his education completing high school in 1992 and was ranked 45th in the country. He visited his father in Malaysia between December 1993 and March 1994. He commenced studies at Yangoon Institute of Technology (YIT) in September 1994. In 1995 there was a conflict between YIT students and the police. Two students were arrested and ill-treated.
Applicant VDAP was amongst hundreds of students that marched the police station in protest against the treatment of the students. During the disturbance the police station was burnt down, YIT was closed and two students expelled. Applicant VDAP and a number of other students were temporarily detained in Insein police station. Applicant VDAP was detained there for 15 days and interrogated and beaten. He had to sign a statement promising not to be involved in any further political activity.
Applicant VDAO continued his education in 1990 and in 1992 was suspended from school because he played a leading role in organising sport for Aung San Swu Kyi. Applicant VDAO completed high school in March 1994 and worked for a magazine as a typist. On 17 March 1994 he was caught distributing anti-government material in memory of Red Bridge Day. He was questioned for three days and had to sign a promise not to be involved in politics. Applicant VDAO obtained a passport and visited his father in Malaysia in August 1994. He returned to Burma to look after his ill grandmother twice in 1995. On 4 October 1995 he left Burma and went to Malaysia to study where he completed a diploma course in 1997 and from there he travelled to Australia to study at Monash University.
Applicant VDAP went to Malaysia on October 1995 where he completed a diploma course and from there travelled to Australia to study at Monash University. Applicant VDAP in 1997 received a letter from his grandmother who advised that the MIS had come to his home to question him about his role in student activities in 1995. She was informed that if he did not come home to report to them his family would be treated as unlawful citizens. The applicant was also informed that his mother was being watched and that MIS were monitoring all communications between applicant VDAP and his mother.
It seems that both applicants whilst in Australia met a Burmese student activist who introduced them to the All Burma Students Democratic Organisation (ABSDO). Both applicants joined the organisation in or about December 1997 and participated in demonstrations in front of the Burmese embassy in Canberra. Both applicants provided correspondence from ABSDO dated June 1999 referring to their membership of the organisation. Photographic evidence was provided by both applicants, together with other correspondence, including country information on conditions in Burma. Both provided additional statements outlining activities with ABSDO. In both applications they refer to membership of ABSDO and respective positions and involvement with that organisation.
Applicant VDAP told the RRT hearing that his mother and grandparents were in Burma and that his father was still working in Malaysia.
Applicant VDAO told the tribunal that he went to study in Malaysia because the situation in Burma was unstable. Although obtaining entry to a zoology course he went overseas because it was unclear whether he would be able to obtain an education in Burma. In 1994 applicant VDAO distributed a pamphlet containing the United Nations Declaration of Human Rights and speeches from student leaders. Consequently he was caught at the university compound with the material in his bag. He was detained with others for a period of three days and they were questioned, ultimately signing an undertaking not to do anything against the government.
Both applicants had similar experiences with the ABSDO which they conveyed to the RRT. The president of the ABSDO gave evidence in support of both applicants' applications. The RRT put to applicant VDAP that the letter from his mother indicated that in 1999 they wished to question him about his activities in 1995 and this seemed strange and that his mother, further, did not indicate that they had mentioned the applicant's activities in Australia. It was further put to him by the RRT that the authorities in Burma, although aware of protest activities in Australia, were only really interested in those people who were organisers or leaders. Applicant VDAP responded that they would be concerned about IT being used by the enemy. He claimed that the authorities would not want anti-government groups to have access to these sorts of skills and because he was a web master he is at risk because of this profile.
Applicant VDAP referred to computer law that he had supplied that indicated that what they were doing was regarded as illegal in Burma. When asked why he put his name on the web site he stated that normally he would not want to put his name to something like this, but he had to take responsibility and he could fight in this country. In Malaysia he only had access to the Internet towards the end of the time he was there and told the tribunal that he did not know how to contact other Burmese groups or how to start to become involved.
Applicant VDAO told the tribunal that in Malaysia both he and his brother had made contact with Burmese authorities and extended passports but in Australia had not contacted the embassy as required. He stated that he could "not fight for democracy within Burma because he would get into trouble. He would have to shut up".
On behalf of both applicants before the RRT their advisers submitted that their claims were credible. They were only able to enter and leave Burma because they paid bribes.
An issue arose whereby the RRT corresponded with both applicants on 22 February 2002 referring to the matter of the names of each applicant on the ABSDO web site occurring in March 2000 despite both applicants referring to assistance to that organisation since 1997. The RRT otherwise recites the response and issues concerning the web site of ABSDO.
The RRT findings
In relation to VDAP, the tribunal found that the fact that he had to pay some money to obtain his passport did not indicate that he was of interest to the authorities. It accepted that applicant VDAP was involved in a protest where the police station was burnt down. The RRT further accepted that applicant VDAP would have been detained for 15 days as a result of his involvement with that incident and that it was plausible that he was beaten during his detention. However, the fact that he was released after a relatively short period and subsequently able to leave the country, based on the country information, led the RRT to conclude that applicant VDAP was of no further interest to the authorities. A further finding was made that the parents of this applicant and his brother were of no continuing interest to the authorities based on the father being able to leave Burma and the mother continuing her employment at a hospital in Burma.
The RRT in both matters referred to relevant country information and found there was no real chance that either applicant would be persecuted in the reasonably foreseeable future by reason of what are described as the applicants' "minor political activities in Burma".
In both applications the RRT referred to what is described as "contradictory evidence regarding communications with Burma" and concluded that both were not being truthful about one particular aspect of their claim, namely, contact with their mother in Burma. It did not rely upon letters in evidence claiming that the authorities in Burma have an interest in the applicants. It noted neither applicant displayed an in-depth knowledge of the ABSDO. Both applicants, in any event, were found to have minimal political involvement.
It was concluded in relation to both that based on country information and their level of activities both applicants were determined not to have a profile that would warrant the attention of authorities on return to Burma. Hence, it was found neither have a real chance of persecution for a convention reason.
The application
In a further amended application for an order of review filed on 18 June 2003 both applicants sought the same relief and otherwise relied upon identical grounds in the application which I summarise as follows:
“1.The tribunal erred in law and thereby fell into jurisdictional error and acted without jurisdiction in the making of the decision in failing to take account of a relevant matter.
Particulars
(a)The Tribunal erred in failing to consider the probable risk to the applicant and his brother of persecution for a reason under the Refugees Convention arising if one or both of them return to Burma and engage in anti-government political activity. The Tribunal thereby failed to complete its task in that it has failed to ask an obvious question bearing upon the risk of persecution to the applicant.
(b) The Tribunal failed to determined whether the applicant VDAP had suffered persecution, although it accepted he "would have been detained" for 15 days in or about September 1995 and that it was "plausible" that he had been beaten during the detention just a very short time before leaving Burma in October 1995 (see the RRT file to consider the effect of the respective claims if VDAP had suffered treatment amounting to persecution by being detained and beaten in or about September 1995).
2.The RRT erred in interpreting or applying the applicable law and thereby fell into jurisdictional error and acted without jurisdiction in the making of the decision.
Particulars
The tribunal erred in interpreting or applying the term "well‑founded fear of persecution" in the definition of a "refugee" under the Refugees Convention, as incorporated by section 36(2) of the Migration Act 1958 and applied the wrong test, whether the applicant was "of interest to the authorities" shown eg by saying that "it finds based on the information [about difficulties in Burma in obtaining passports] of the fact that he had to pay some money to obtain his passport does not indicate that he was of interest to the authorities …(Emphasis added decision page 11.7 court book page 159.7) or again in saying "the tribunal finds it cannot rely on the letters [from the mother of the applicant and his brother] and evidence that the authorities in Burma have an interest in the applicants.
(Emphasis added decision page 14.5 court book page 162.5) or the way the tribunal dealt with the detention of VDAP which in itself did occur and his beating in detention which it accepted was a plausible claim and its claim that he had to sign a statement promising not to be involved in any further political activities, yet the tribunal found that he "was of no further interest to the authorities".
3.The Tribunal erred in law and thereby fell into jurisdictional error and acted without jurisdiction in the making of the decision in coming to a conclusion not open on the evidence.
Particulars
(a) The Tribunal erred in law in acting unreasonably in concluding on the basis of inconsistencies between the account of the applicant and his brother. Also, that the applicant before the tribunal "that they are not being truthful about this aspect of their claims. The tribunal finding did not rely on the [letters from the mother of the applicant and his brother] and evidence that the authorities in Burma have an interest in the applicants. (Decision page 14.5 court book 162.5) The Tribunal was unreasonable in concluding that if there was an inconsistency, then necessarily both brothers were to be disbelieved.
(b) The Tribunal's conclusion that the applicant and his brother are of no further interest to the authorities and therefore they have no well-founded fear of persecution was not open on the evidence in the light of the matters which the tribunal did accept shown by the matters set out in relation to grounds 1 and 2 herein.
4.The Tribunal erred in law and thereby fell into jurisdictional error and acted without jurisdiction in the making of its decision in acting so unreasonably that no reasonable tribunal could so have acted in the making of a decision.
Particulars
The tribunal was unreasonable shown in the matters set out in particulars to the other grounds herein.
5.The decision involved an error of law, and those errors appear on the face of the record.
Particulars
The applicant repeats the matters set out in relation to the other grounds herein.”
It should be noted that I paraphrased the further amended application of applicant VDAP so that the issues raised include terms for and on behalf of both applicants. It should be noted that page references to the court book relate only to applicant VDAP, although similar references are found in the RRT decision in relation to applicant VDAO.
Applicants' submissions
Submissions were made for and on behalf of the applicants and consistent with the application. Reliance was placed upon the "applicants' consolidated contentions of fact and law" filed 17 September 2002. After reciting the background details set out earlier in this judgment and the reasons for the decision of the joint hearing of the RRT it was claimed that the RRT was under an obligation to consider whether in the reasonably foreseeable future the applicants, if refused a protection visa, would have a well-founded fear of persecution upon return to Burma (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379-389 per Mason CJ and page 429 per McHugh J).
It was submitted in the present case the RRT had been prepared to accept some involvement, albeit minor, in political activity in Burma on the part of each of the applicants with some involvement, again albeit minor, in political activity in Australia and it was therefore incumbent upon the RRT to consider the possibility that the applicants or either of them might upon return to Burma again become involved in the anti-government political activity. It was submitted that even if only one engaged in political activity they might well be at risk of persecution to the other by reason of family membership. Failing to consider that obvious possibility, according to the submissions on behalf of the applicants, meant a failure by the RRT to apply the test it was required to apply under the act. It had failed to take into account a relevant matter and that failure, it was submitted, demonstrated a failure to apply the law required. Reference was made to the decision of Craig referred to earlier in this judgment.
It was further claimed the RRT applied the wrong test set out in Chan's case of whether there is a real chance of persecution as it was claimed that the test is not whether at some particular date the applicant "was of interest to the authorities".
In each case the RRT perceived to the detriment of each of the applicant inconsistencies between one applicant and his brother's account of contact with their mother and family in Burma. That adverse finding should not be visited upon the other brother. The decision was otherwise regarded as unreasonable in the sense considered by Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 2 KB 223.
It should be noted that no issue was taken as to the manner in which the RRT conducted the hearing, namely, that of a joint hearing of both applications.
During the course of submissions counsel on behalf of the applicants stressed the importance of the RRT failing to apply the correct tests and instead relying upon whether or not the applicants were of interest to the authorities at a particular point in time.
Criticism was made of the findings of the RRT and reliance was placed on s.91R of the Act. In particular, it was submitted that the RRT's findings of fact in relation to the detention of VDAP should have led to a conclusion that the applicants had a real fear of persecution upon return to Burma. It was claimed that the detention, combined with release upon extorted undertakings to abandon politics with a similar extortion undertaking given by the younger brother, should have led the RRT to reach a different conclusion.
Respondent's submissions
It was submitted on behalf of the respondent that the RRT did apply the "real chance" test. It recited the test and applied it correctly, according to the respondent's submissions. It is not appropriate, as submitted by the applicants, that the court should overly "dissect" the reasons of the RRT by focusing on the expression "of interest to the authorities". That expression it was submitted is used in the context of what are findings of fact, not examples of an application of an incorrect legal test.
It was submitted that the RRT was entitled to draw conclusions in relation to the contradictory evidence of the applicants in relation to the contact with their mother and to make a finding the applicants were not being truthful. The conclusions of the RRT it was submitted simply indicates a finding that it did not rely upon particular material. That conclusion is a conclusion reasonably open to the tribunal.
It was further submitted that even if the RRT's finding was an error or it had made a finding of fact which is incorrect, then that would not be an error of law (see Waterford v Commonwealth Bank (1987) 163 CLR 54 at 77). Specific reference was also made to the High Court decision of Mason CJ in R v District Court; Ex parte White (1966) 116 CLR 644 at 694 where the Court states:
Even if the reasoning whereby a court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some fault (illogical) inference of fact would not disclose an error of law.
That reasoning has been adopted, according to the respondent's submissions, on many occasions and reliance was placed upon the Full Court of the Federal Court decision in MIMA v Perera (2001) FCA 1212 at [22]-[25].
It was further submitted that the RRT made clear findings that neither applicant had a real fear of persecution and there was nothing to suggest that in making the findings the RRT excluded from consideration whether VDAP would experience similar treatment in the future to that which he found he may have experienced in the past. Any other criticism of the finding by the RRT could probably be characterised as a criticism of findings of fact which should not be canvassed in a review of this type (see MIMA v Eshetu (1999) 197 CLR 611 at 629). At its highest, in any event, the RRT had found that VDAP may have been detained for 15 days and "that it is plausible that he was beaten during his detention".
It was submitted that, in any event, there is nothing in the reasons to suggest the RRT had not fully considered VDAP's claims as to his political involvement, including the likelihood for that reason of persecution in the reasonably foreseeable future.
Reasoning
In my view, there is no demonstrable error in this matter of a kind which would attract judicial intervention.
Applying the authorities to which I have referred since S157 and even allowing for the broader interpretation of the court's role in relation to identifying jurisdictional error, I am satisfied that the RRT in its reasoning in both applications has properly considered and applied the correct test. It has properly found facts reasonably open to it in the determination of the issues before it, including the finding of the past detention of applicant VDAP, and had otherwise properly used its findings in relation to that aspect of the evidence concerning the applicants' correspondence with their mother in reaching its conclusion.
Although it is clear that one aspect of the case may have caused some concern to the RRT, namely, the requirement from each of the applicants to desist from political activity, which may in turn provide some basis for a finding of a reasonable fear of persecution, it is not for this court to substitute its finding of fact on that issue even if it were inclined to do so in a way different to the finding by the RRT. It is clear from a proper reading of the reasoning of the RRT, in my view, that it has taken into account all the relevant matters and its failure to perhaps place greater weight on one aspect of the background than another and reach a different outcome is a matter entirely for the RRT.
I should also add that in the present case, having regard to the RRT's findings as to the level of political involvement of both applicants in Australia, it is difficult to conclude that the outcome, in any event, as a matter of practical significance would be any different in the present application. The RRT is entitled to weigh up all relevant factors in making its decision and has clearly, in my view, taken into account those matters which it is entitled to consider in applications of this kind.
In my view, this is not a case where it could even be argued that the decision or conclusion of the RRT is demonstrably unsound, although even if it was, I accept and apply the authorities to which the respondent has referred in relation to whether or not this would constitute an error of law.
I apply and rely upon authorities otherwise referred to by counsel for the respondent. In particular I note the decision of the Federal Court in W148/00A (2001) FCA 679 (22 June 2001) where the court states the following:-
“64 The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ):
"If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge `has failed to use' or `has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the `evidence' or which was `glaringly improbable'".
See also Abalos v Australian Postal Commission (1988) 171 CLR 167 at 179. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the Court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”
I further note that apply the decision of the Federal Court in Avesta v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 121 (10 May 2002) and refer to paragraphs 15 and 16 as follows:-
“15 Whether a particular matter is inherently improbable can in certain circumstances be obvious, in other circumstances debatable, and, perhaps, in other circumstances just conceivable, but unless a conclusion that a particular matter is inherently improbable is perverse, that is to say is not open to the decision maker, it is not a matter on which the Court should substitute its view.
16 There is a further matter which is fatal to this appeal, and that is that the "facts" alleged in this case to be non-existent are, in our judgment, not "facts" of the kind referred to in S 476(4)(b) of the Act. They are assessments reached by the Tribunal after a consideration of the appellant's evidence and the claims he advanced. The Tribunal rejected the appellant's account because it did not believe him. The reasons for that disbelief were the Tribunal's assessment that the appellant had been inconsistent in significant ways in his recounting of particular matters and the Tribunal's determination that material features of his account were inherently improbable. These reasons are not "particular fact[s]" for the purposes of s 476(4)(b) of the Act. An attack on the correctness of the reasons for finding that the appellant was not believable is a challenge to the correctness and rationality of the reasoning process, and does not provide an available basis for review of the decision reached as a result of that reasoning.
Whilst I note the authority referred to by the applicant of Minister for Immigration & Ethnics Affairs v Guo (1997) 191 CLR 559 and in particular the following reference which appears at p.575 where the court states:-
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason." Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.”
Whilst I acknowledge that applying that authority that an assessment may be made of what has occurred in the past as to what might be likely to occur in the future, I am satisfied on a proper reading of the RRT’s decisions in this matter that it has undertaken its task according to law and has given proper consideration and due weight in its assessment to those facts asserted to be matters which occurred in the past. It is for the RRT to decide the extent to which its finding in relation to the matters which occurred in the past will influence the decision it makes as to the outcome of what might be described as future persecution of the Applicants. It did so in my view appropriately in the present case.
I am satisfied, having regard to the authorities to which I have referred, that there is insufficient in the present case to lead this court to conclude that there is any jurisdictional error. It follows, therefore, that in both applications the appropriate order is that the applications be dismissed with costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 17 September 2004
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