WAKT v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1337
•21 SEPTEMBER 2005
FEDERAL COURT OF AUSTRALIA
WAKT v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1337Migration Act 1958 (Cth) – judicial review – protection visa – application to Minister’s delegate – oral interview promised by Minister’s delegate – promise not honoured – application for review by Refugee Review Tribunal – relevant evidence – whether ignored – obligation to provide applicant for Tribunal review with relevant adverse information pursuant to s 424A(1)(c) of the Migration Act 1958 – post return conduct prognosis – failure to have regard to material evidence
Migration Act 1958 (Cth) s 29, s 424A, s 56(2), s 63, s 414, s 412
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 261 cited
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 cited
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 cited
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 cited
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 cited
S395/2002 v Minister for Immigration and Multicultural Affairs (2004) 203 ALR 112 citedWAKT, WAKU and WAKV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
WAD 224 of 2003FRENCH J
21 SEPTEMBER 2005
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD224 OF 2003
BETWEEN:
WAKT, WAKU, WAKV
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
FRENCH J
DATE OF ORDER:
21 SEPTEMBER 2005
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicants pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 224 OF 2003
BETWEEN:
WAKT, WAKU, WAKV
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
FRENCH J
DATE:
21 SEPTEMBER 2005
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
The applicants, a husband, his wife and daughter, are Burmese nationals who arrived in Australia on 4 December 2000 and 24 January 1999 respectively. They lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). The application was refused and they then sought review before the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the delegate’s decision to refuse to grant the applicants protection visas. The applicants have now sought judicial review of the Tribunal’s decision in this Court. For the reasons that follow I am satisfied that there are no grounds made out for interfering with the Tribunal’s decision.
Factual and Procedural Background
The applicant WAKT, his wife, WAKU, and their daughter, WAKV, are citizens of Burma. WAKT and his wife arrived in Australia at Perth International Airport in Western Australia on 4 December 2000. Their visitors visas authorised them to remain in Australia until 6 May 2001. Their daughter, WAKV, was already in Western Australia, having arrived on 24 January 1999. She was the holder of a student visa which authorised her to remain until 15 March 2003. An application for a protection visa was lodged with DIMIA on 26 April 2001 in the name of all three as applicants.
In completing that part of the form requiring an explanation of his reason for leaving Burma, WAKT cited discrimination against ‘ethnic races’. His explanation was somewhat cryptic referring to detention and imprisonment, danger to himself and to his family’s life and properties, and to his daughter’s life and her future. He referred to human rights abuses by a barbaric government and a life and death situation facing him and his family. He said that if he were returned to Burma he and his family would be arrested and prosecuted.
In a typed ‘biography’ attached to the application, WAKT described his nationality as ‘Mon’ and his citizenship as Burmese. The word ‘Mon’ was a reference to his ethnicity. His wife is of ‘Shan’ ethnicity. He qualified as a physiotherapist and worked in a hospital in Rangoon. He held a senior position from 1970 and was a lecturer in physiotherapy until 1990.
WAKT said that the military junta that rules Burma had seized power in 1962. It changed the name of the country from ‘The Union of Burma’ to ‘Myanmar’ and ‘deregistered all the self-ruling ethnic States’. His father’s factory was confiscated without compensation. His wife’s parents also had many acres of paddy fields confiscated without compensation. Popular feeling against the government particularly among university students increased from 1974. There were clashes in which students were shot dead by the military. He described incidents which occurred in the 1970s and in 1988. The last mentioned was a major demonstration in which students were killed. It was the catalyst for his involvement in anti-government action.
On the day of the 1988 demonstration, 10 August 1988, WAKT like other hospital staff members, was assigned to 24 hour duty in the emergency department. He described how the hospital floor was covered with the blood of students some of whom were as young as eight to ten years old. Students were treated for gunshot wounds. Military Intelligence personnel watched the doctors at work and informed their superiors of the students’ ‘whereabouts’. Although WAKT and other staff members tried to persuade students to pretend that they had not been directly involved in the demonstration he was very moved by their defiance and readiness to say they had participated in the demonstration and that they had been shot as a result. WAKT said:
‘That was the day our timidity had disappeared; that was the day our political ideology was inherited and born.’
Nurses from the hospital participated in the demonstrations on that day and he and other paramedical students joined them. They marched around inside the hospital compound calling for an end to government brutality and human rights abuses. In the afternoon of the same day soldiers fired upon them from two army trucks. Two male nurses were critically wounded and a monk killed. Twenty others had minor injuries.
At this time, according to WAKT, he and WAKU decided that they would fully support anti-government activities. From that time on they organised medical professionals to operate secret clinics set up inside district elementary school classrooms and inside some monasteries. The reason for setting up such clinics was to provide treatment for those who were injured in demonstrations so that they could be treated in a safe clandestine location from which they could not be removed by military intelligence.
WAKT described events that occurred after what he called ‘the landslide defeat in 1990 election’. The junta permitted an election in 1990 for a parliament to which it had promised to transfer power. Voters overwhelmingly supported anti-government parties with the National League for Democracy (NLD) winning more than 60% of the popular vote and 80% of the parliamentary seats. This led to a reaction by the junta which, according to WAKT, began to crack down fiercely on those who were involved in anti-government activities. The head of his clinic was detained and interrogated about the secret clinics and the names of medical staff involved. He was released about three months later. He then joined the NLD openly as a Deputy Secretary. He and his colleagues ceased the secret clinic activities but continued, through a home visiting program, to treat and manage those who were injured in anti-government activities. He claimed that his office phone was tapped and his movements closely watched.
At midnight on 18 June 1990 a member of the District Office of the junta, a policeman and two military intelligence officers came to WAKT’s house. While they were there his daughter ran away to tell her uncles what was happening. She stayed with them. The men searched the house and when they found nothing they took WAKT and his wife to a military intelligence camp where they were separately interrogated about the secret clinic activities. They threatened WAKT that they would kill his wife and daughter if he did not confess. They made like threats to his wife. Both confessed to having participated in demonstrations. However they denied any involvement with the secret clinics.
Shortly before WAKT and his wife were to be taken to prison his brothers and sisters sold all their jewellery and a house belonging to one of his sisters and used the proceeds, amounting to 350,000 Kyats, to secure their freedom. WAKT’s nephew, a doctor, who had participated in the student movement and helped in the secret clinics was arrested in August 1990 and detained for nearly seven months. WAKT and his wife decided they should flee Burma.
WAKT said that by paying a bribe he obtained a passport. He spread the false information that he was intending to go to work in the United Kingdom. He travelled to Singapore on 10 January 1991. His wife and his daughter arrived in Singapore on 15 March 1992. They remained in Singapore and worked there for nine years. During that time, he said, they became wanted persons in Burma. His youngest brother faxed him information saying the Military Intelligence was looking for them in Burma and that they had often asked questions of their whereabouts and warned the family that they should not come back to Burma. According to WAKT, on the last extension of his wife’s passport in May 2000, staff whom they had bribed to get the passport extension done warned them that they had recently received a black list of names which included WAKT and his wife. The staff member who worked at the Burmese Embassy in Singapore also informed them that he would soon be returning to Burma.
WAKT and his wife decided to leave Singapore and to seek asylum in Australia. Their daughter was studying at Curtin University at the time. She was trying to get a Masters Degree in Accountancy and Information Systems. WAKT said he was told by the Australian High Commissioner’s office in Singapore that he would have to apply in Burma for an entry visa to Australia. He returned to Burma very discreetly so he could apply for a visa to enter Australia. He did not stay at his own house or that of any of his family members. Even his relatives did not know he was back in Burma. He arrived in Perth on 4 December 2000 and after a time made contact with the Tribal Refugee Welfare Association (TRW). In March 2001, WAKU received a warning from WAKT’s youngest brother by way of a letter saying the situation in Burma was worse and that lots of their hospital colleagues had been arrested.
Following the lodgement of the application for protection visas, the applicants were advised by correspondence from DIMIA that they would be asked to attend an interview with a departmental officer in relation to their claims. It was postponed, rescheduled and postponed again. On 27 March 2002, with no interview having been conducted, the delegate of the Minister rejected their application for protection visas. The applicants applied for review of that decision on 24 April 2002. Their application for review before the Tribunal was supported by a two and a half page typed statement signed by each of them. That statement took the form of a response to the delegate’s findings. The applicants asserted that no foreign government would be notified of the arrest or detention of asylum seekers returned to Burma. They said that pro-democracy demonstrators had had to flee to neighbouring countries to take refuge from the Burmese junta. There were thousands of such refugees in Thailand, India and Bangladesh. Some were to be found in Japan, China, Vietnam, Laos and Nepal. These people were considered low profile but were accepted because they had participated in the demonstrations as did WAKT and his wife. The applicants said that the Burmese junta would not make any distinction between high or low profile involvement in deciding whether to detain people. The statement also referred to the attempts of the Burmese junta to eliminate members of the Mon and Shan ethnic groups.
At times the statement was expressed in the first person singular taking the form of claims made by WAKT. WAKT said in the statement that his return to Burma was very risky. Because of his desperation he took his life in his hands and returned to Burma in order to get an entry visa into Australia. He had asked friends to arrange safe passage for him at the airport. When he arrived at Rangoon airport he saw a man holding a sign card with his name on it. The man took him through the immigration and customs departments. The same man accompanied him on his departure. WAKT later found out that the man was a military intelligence officer on duty at the airport. He added in parentheses that ‘money talks’. His friends helped him to hide in a remote cheap hotel while they did what was necessary to obtain his entry visa to Australia. He lived in fear of being caught.
The applicants said that there was no guarantee that the applications for refugee status were not known by the Burmese junta as there were sympathisers in the community who had regular contacts with the government and provided it with information. WAKT said:
‘I have seen and handle the victims of the Burmese Government of the low and high profile demonstrators.
Both my wife and I have participated in organizing, supplying and treating the Victims working in Underground Medical Clinic situations around Rangoon
Being Underground constitutes working with the rebel factions of Burma who are anti-government.’ (sic)
Other material provided to the Tribunal included photographs of the applicants taking part in a demonstration in Perth in August 2001 with other ‘ethnic refugees’ from the Burma/Thai border. One photograph showed WAKU participating in a public demonstration in which persons were shown holding signs calling for the release of Aung San Suu Kyi and for the boycott of tourism to Burma. Another photograph showed WAKT handing out leaflets to passers by in Perth inviting them to a function that evening attended by many ethnic group leaders denouncing the military regime. These photographs were taken in August 2001. A number of other photographs were also included to indicate the applicants’ activism in 2001 and later between April and June 2002. A substantial amount of country information was also provided from a variety of sources.
The hearing before the Tribunal proceeded on 16 September 2003. On 23 September 2003 the Tribunal affirmed the decision not to grant the applicants protection visas. It appears that the applicants were not notified of the Tribunal’s decision until 10 October 2003. On 10 November 2003, they filed an application in this Court seeking judicial review of the Tribunal’s decision under s 39B of the Judiciary Act 1903 (Cth).
The Tribunal’s decision
The Tribunal set out WAKT’s contentions and evidence. This was substantially by reference to his ‘biography’ provided in support of the protection visa application. It noted that the applicants had been invited to an interview by a departmental delegate on 7 February 2002 but that no interview had been afforded prior to the decision to refuse the application for a protection visa. The Tribunal had regard to the applicants’ statement in support of the application for review. The application also attached biographies of WAKU and WAKV. The Tribunal referred to the photographs of political activity in Australia and various other articles and letters submitted in support of the application.
The Tribunal set out the evidence given at the hearing. WAKT told the Tribunal that he had not been physically harmed during his interrogation in June 1990 but had been threatened. He said that arresting people was something of a tactic and that an agent of military intelligence would go to members of the families of those arrested and negotiate a price for the release of the prisoner. He also said that he had obtained his family’s passports by bribery through an agent. He had been too frightened to make a personal application. The agent arranged everything up to his departure from Burma. His home and work telephones had been tapped for the duration of his time in Burma.
WAKT said he went to Singapore because it was the nearest and easiest country to travel to from Burma. There were lots of political problems in Thailand. Although he tried in Singapore to see if he could obtain protection there he learned that Singapore does not provide protection for would-be refugees. In Singapore he had obtained a good job which paid around $SGD 4,000 per month plus a housing allowance. He needed the money to pay his relatives back for the financial help they had given him.
WAKT arranged for his wife and daughter to follow him to Singapore. He claimed that at the time he did not know that Australia and other countries offered protection to refugees. Because Singapore offered him a good salary he stayed there. He tried to find out which other countries offered asylum and only found out after six years or so in Singapore. He did not want to go to Thailand because people were ‘making trouble’ there and although Malaysia was safe in some places there were no guarantees.
He was asked about the Burmese community in Singapore and said that half the physiotherapists working there had been his students. His three year contract in Singapore was extended three times until his retirement in March 2000. He had kept in touch with two friends from Burma while in Singapore. One of these had arranged for his secret return to Burma by bribing appropriate officials.
WAKT told the Tribunal that he never went to the Burmese Embassy in Singapore and had used an agent to obtain the extensions of his passport. His passport was extended six times while he stayed in Singapore. He had been warned by an Embassy staff member, who was bribed to extend the passports, that the names of WAKT, WAKU and WAKV were on a black list. WAKT said he thought he might have been put on a black list because a fellow doctor who had been arrested could have given up his name as involved in the secret clinics.
WAKT told the Tribunal that his post-retirement plan was to stay in Malaysia on the basis that as long as he stayed there quietly he would have no concerns about his safety. He said it was difficult to remain in Singapore once one was retired. His travel to Australia in 1999 had been to see his daughter and find out about a protection visa. He did not know about the procedure for applying and only found out what to do after his return to Australia and after consultation with the TRW.
In relation to his political involvement in Australia and his activities the Tribunal pointed out that he had earlier suggested he could live safely in Johore Bahru if he kept his head down. WAKT replied that he would be protected in Australia. He was certain that his activities had been watched by Burmese officials but he had decided he was not going back to Burma and had done what he could to have a chance in Australia.
The Tribunal set out country information at some length in its reasons. One of the items it included was a report from the Department of Foreign Affairs and Trade (DFAT) made in January 2000. According to that report Burmese people involved in demonstrations in Australia, while often known to the authorities, were generally of little concern even if they returned to Burma. Repetitive demonstrators and active and high profile members of anti-junta associations would fall into a different category. Information about TRW indicated that it was a prominent organisation with a significant history of public opposition to the regime in Burma and of support for the struggle of Karen people and other oppressed groups in Burma.
In its findings and reasons the Tribunal accepted country information which described Burma as ruled by a highly authoritarian military regime that since the 1990s had systematically violated human rights in the country, suppressed the pro-democracy movement and had reinforced its firm military rule with a pervasive security apparatus led by its military intelligence organisation. Such control was reinforced by arbitrary restrictions on citizens’ contacts with foreigners, surveillance of government employees and private citizens, harassment of political activists, intimidation, arrest, detention and physical abuse.
The Tribunal found that WAKT is a citizen of Burma. It accepted his background account of his training in Burma and England and his appointment to a senior medical position in Burma until his departure in January 1991. It was prepared to find on his oral evidence that although he achieved senior rank in Burma he did not receive a salary which matched his position. While acknowledging that such treatment was discriminatory it did not regard it as persecution.
The Tribunal found that WAKT had not been politically active until 1988 when he and his wife became involved in demonstrations and supplying medicines to secret clinics following the student demonstrations that year. It also accepted that they had provided a home visits program thereafter. It accepted that WAKT and his wife had to sign a document from the Health Ministry that they would not be involved in anti-government activities. They were arrested and interrogated in June 1990 for three days over their involvement with the secret clinics. There was ample independent evidence available in relation to the junta’s continuing abuses of basic human rights following the student demonstrations such as that set out in the US Department of State Report in 2002.
The Tribunal accepted WAKT’s evidence that he was released from detention after three days and that although he had been threatened, he had not been physically harmed. This release was secured by the payment of a large bribe to an agent of Burmese military intelligence. WAKT was not further arrested and retained his government appointment until the time of his departure from Burma. The Tribunal said:
‘On the basis of his release from detention and the fact that he retained his government position after his arrest and release and was not further disturbed by Burmese officials prior to his departure, the Tribunal finds that the applicant was not persecuted by Burmese officials for his activities and that he did not have a serious adverse profile with Burmese officials.’
The Tribunal was not prepared to find that WAKT’s home and work telephones were tapped. This was merely speculative. When he left the country he was ‘unwanted by Burmese officials’ and did so on a travel document bearing his own name and personal particulars.
The Tribunal did accept that WAKT paid bribes to obtain passports. This was consistent with DFAT reports. The Tribunal considered all of WAKT’s claims in relation to his nine years in Singapore and had difficulty in accepting any of them. His evidence was consistent with a person who had found and developed a comfortable lifestyle in Singapore. It did not reflect the situation of a man who feared persecution from Burmese officials and who needed to avail himself of protection in a place other than Singapore.
The Tribunal did not believe WAKT’s claims that he only learned late in the piece about the availability of protection in other countries. He was ‘a very experienced, well-educated and well-travelled senior official’. His claim of ignorance over such an extended period about a matter of such fundamental importance to his situation was seriously inconsistent with his training and experience. The Tribunal rejected his claim in this respect.
The Tribunal noted that WAKT had stayed in Singapore for some nine years without problems. By virtue of his teaching position and his knowledge of, and probable exposure to, the Burmese community in a place as small as Singapore the Tribunal assessed that WAKT would have had a public profile there. On the basis of his trouble free existence in Singapore it did not consider that he was of interest to any local or visiting Burmese official. The Tribunal did not accept that WAKT was on a Burmese black list. He was able to leave Burma without difficulty and his wife and daughter were able to follow him to Singapore a year later. This was not consistent with the contention that he was wanted by authorities.
The Tribunal found no reason to believe that WAKT was sought by Burmese officials in Singapore for any reason. It did not accept that he had to use an agent to renew his passport. The Tribunal said:
‘The applicant was not of adverse interest when he left Burma and did nothing in Singapore to attract adverse interest, so if he used an agent, it was not to avoid being allegedly wanted by Burmese authorities. (sic) For the same reason, the Tribunal rejects the applicant’s claim that the applicant received a facsimile from his younger brother that Military Intelligence was still looking for them.’
The Tribunal rejected WAKT’s claims that he was in any danger from Burmese authorities at the time that he returned to Burma in order to obtain an entry visa for Australia.
The Tribunal then turned to the sur place claims. It noted the claims and the evidence and concluded, having regard to WAKT’s very limited political involvement in Burma and the absence of any activity in Singapore, that he took up a public role in Western Australia partly with the express aim of gaining support for his protection visa application. The Tribunal assumed that his activities, although not of a high level, might have been noted by an informer and fed back to authorities in Burma. It noted DFAT advice, in 1999, regarding Burmese official interest in Burmese demonstrators in Australia. It acknowledged that any Burmese returning to Burma after a lengthy period in Australia would come to the attention of local township authorities. The movements of such returnees might be monitored for an initial period. The Tribunal also acknowledged that WAKT was likely to face questioning on his return. It did not accept that such attention and questioning would amount to persecution.
The Tribunal found that WAKT had not acquired a serious dissident profile while in Perth. His profile was that of a person who had attended some TRW and other functions in Perth. His focus was on supporting people with health consultations and directing them to medical services and helping with the community welfare activities of the TRW. He had not taken any leading political position and there was no convincing evidence that the Burmese authorities would do anything more than question those who returned with such a low level profile after such experiences and work periods overseas. The Tribunal further said:
‘If the applicant were to return to Burma the Tribunal is satisfied that he would not become involved in anti-government activities. He has a brief record of such involvement while in Burma – primarily limited to providing medical support to injured people – to which he has not added substantially while in Australia. Even were the applicant to provide such medical support on return to Burma the Tribunal is satisfied he would not do so in such a way as to put himself at risk with Burmese authorities.’
The Tribunal then considered the claim of apprehended discrimination by reason of ethnic background. While it was prepared to accept that the Mon and Shan peoples face systematic discrimination in Burma it noted that membership of one of those ethnic groups did not of itself suggest that their members were at risk of torture or of being killed. It did not accept that such discrimination as is referred to in the US Department of State Reports amounted to the government tracking minorities down to eliminate them as claimed by WAKT. In the end, the Tribunal was satisfied that WAKT did not have a real chance of persecution by Burmese authorities.
Grounds of review
The grounds of review as set out in the re-amended application were detailed. It is sufficient here to summarise them:
1.The delegate, having failed before decision to afford WAKT an oral interview as promised, the applicants lost an opportunity to present evidence to the delegate at such interview. The Tribunal should have remitted the matter to the delegate. (Ground 1)
2.The Tribunal, in finding that WAKT was not of interest to the Burmese authorities, ignored relevant evidence and did not comply with s 424A(1)(c) of the Migration Act 1958 (Cth) (the Act) and/or the requirements of common law procedural fairness. (Ground 2)
3.The Tribunal found that WAKT would not become involved in anti-government activities should he be returned to Burma and in so doing did not comply with s 424A of the Act or the rules of procedural fairness and asked itself the wrong legal question. (Ground 3)
4.The Tribunal did not accept WAKT’s claim that he was on a Burmese black list and in so doing ignored material evidence or failed to comply with the requirements of s 424A of the Act and the rules of procedural fairness. (Ground 4)
Statutory framework
The Minister is empowered by s 29 of the Act to grant to a non-citizen, permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia. A non-citizen wanting a visa must apply for a visa of a particular class (s 45). The Minister is required to consider a valid application for a visa (s 47). That requirement continues until the application is withdrawn or the Minister grants or refuses to grant the visa or where further consideration is prevented by operation of other provisions of the Act which are not material for present purposes (s 47).
Section 63 of the Act is headed ‘When decision about visa may be made’. It refers in s 63(2) to the case in which the Minister has invited the applicant to give additional information under s 56. Section 63(2) states:
‘The Minister is not to refuse to grant a visa after inviting the applicant to give information and before whichever of the following happens first:
(a)the information is given;
(b)the applicant tells the Minister that the applicant does not wish to give the information or does not have it;
(c)the time in which the information may be given ends.’
Subdivision AB of Div 3 of Pt 2 of the Act sets out what is described as a ‘Code of procedure for dealing fairly, efficiently and quickly with visa applications’. The subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with (s 51A(1)).
A visa applicant or interested person must communicate with the Minister in the prescribed way (s 52(1)). The Minister in deciding whether to grant or refuse to grant a visa must have regard to all of the information in the application (s 54(1)). Section 54(3) provides:
‘Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.’
The Act allows an applicant for a visa to provide the Minister with any additional relevant information up until the point at which the Minister has made a decision whether to grant or refuse to grant the visa. In that event the Minister must have regard to such information when making the decision (s 55(1)). But that does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information (s 55(2)).
In considering an application for a visa the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to it when making the decision whether to grant or refuse the visa (s 56(1)). Without limiting the operation of s 56(1) the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way (s 56(2)).
Section 57 provides for information to be disclosed to the applicant where the Minister considers it would be the reason or part of the reason for refusing to grant a visa and is specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member (s 57(1)). Section 58 provides that if a person is invited, under s 56, to give additional information or under s 57 to comment on information, the invitation is to specify whether the additional information or comments may be given in writing or at an interview between the applicant and an officer or by telephone. Section 59 provides that an applicant must make every reasonable effort to be available for, and attend, an interview.
Subdivision AC of Div 3 of Pt 2, dealing with the grant of visas requires that where the Minister, after considering a valid application for a visa, is satisfied that various criteria for its grant have been satisfied and that any amount of visa charge payable has been paid, is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.
All of these provisions relating to the ministerial power to grant visas must be read with s 496 of the Act which provides, inter alia:
‘(1)The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.’
It is not in dispute in the present case that the initial decision to refuse the visa was made by a delegate of the Minister.
Division 2 of Pt 7 of the Act deals with review of protection visa decisions by the Tribunal. The refusal of a protection visa is a decision reviewable by the Tribunal (s 411(1)(a)). Section 412 provides for applications for review of such decisions to be made in the approved form and be given to the Tribunal within the relevant period. The primary obligation of the Tribunal in such a case is imposed by s 414:
‘(1)Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).’
The powers of the Tribunal are set out in s 415 of the Act which provides, inter alia:
‘(1)The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2)The Tribunal may:
(a)affirm the decision; or
(b)vary the decision; or
(c)if the decision relates to a prescribed matter – remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d)set the decision aside and substitute a new decision.’
Regulation 4.33 of the Migration Regulations 1994 provides:
‘(1)For the purposes of paragraph 415(2)(c) of the Act, an application for a Protection (Class XA) visa is prescribed.’
Division 4 of Pt 7 of the Act deals with the conduct of reviews by the Tribunal. Section 422B provides that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Section 424A provides, inter alia:
‘(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
...
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.’
There is a requirement in s 425 of the Act that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)). This does not apply if the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the materials before it or the applicant consents to the Tribunal deciding the review without the applicant appearing before it. The requirement for an invitation to give evidence also will not apply where the applicant has been invited, under s 424, to give additional information or under s 424A to comment on information and does not give the information or the comment before the time for doing so has passed.
Ground 1 – The absence of an oral interview prior to the delegate’s decision
On 3 January 2002 an officer of DIMIA sent letters to each of the applicants inviting them to attend an interview with a departmental officer on 30 January 2002 at 2.30pm. The purpose of the interview was said, in each of the letters, to be ‘To assist in the assessment of your claims’. The applicants were invited to bring any additional material that they might wish to submit. The letters each had an attachment headed ‘IMPORTANT INFORMATION ABOUT YOUR INTERVIEW FOR A PROTECTION VISA’. In the first paragraph of the document the following statement appeared:
‘The interview is an important part of the process in deciding whether you are a refugee and are therefore in need of protection.’
The document contained other information about the kinds of supporting material that should be brought to interview and the persons who would be present. It also stated that the applicants could bring with them any person of their choice, such as their representative, or a friend or relative.
The document went on to explain the procedures at the interview and concluded with the statement:
‘A decision may be made on your application at any time after the date of the interview. When a decision is made, you will be notified.’
On 16 January 2002, the officer who had written the letter of 3 January 2002, wrote again to each of the applicants advising that she had had to postpone the Protection Visa interview ‘due to operational requirements’. Each of the letters said:
‘You will be notified in writing once a new Protection Visa interview has been scheduled.’
On 23 January 2002 the officer again wrote to the applicants advising that the protection visa interview would occur on 7 February 2002. This letter was in the standard form of the first letter and made no reference to the fact of the earlier postponement. On 31 January 2002, WAKT received a telephone call from the officer at 11.45 am saying that the interviews scheduled for 7 February 2002 would have to be postponed until a date to be notified in March 2002. In the event, with no further notification, the delegate proceeded to reject the applications on 27 March 2002.
In an affidavit sworn in support of the application WAKT said that it was the applicants’ intention to supplement the evidence presented with their initial application with further oral submissions and additional documentary materials. They intended to present these to the delegate at an interview. They had ensured that they had properly prepared themselves for the interview.
WAKT informed the Tribunal of these events in the course of his evidence at the Tribunal hearing on 16 September 2003. The Tribunal referred to the failure to provide an interview in its reasons for decision stating simply:
‘The applicant was invited to an interview by a departmental delegate on 7 February 2002, but no interview was ever provided by the department.’
The applicant was evidently unrepresented before the Tribunal and it does not appear that any submission was made about the effect of the delegate’s failure to provide an interview. The Tribunal itself made no finding on that question.
The applicants submitted in these proceedings that s 56(2) of the Act authorises the Minister to invite an applicant for a visa to give additional information in a specified way. The letters of 3 January 2002 and 23 January 2002 invited the applicants to ‘bring any additional material that you wish to submit in relation to your application’ to the proposed interview. It seems to have been implicit in the applicants’ submission to the Court that the letters of 3 January 2002 and 23 January 2002 constituted an invitation to give additional information for the purposes of s 56(2). They then pointed to the provisions of s 63(2) under which the Minister is not to refuse to grant a visa after inviting the applicants to give information and before the time ends in which the information may be given.
It was submitted for the applicants that the failure of the delegate to hold an interview after inviting them to attend for one was not only a breach of the rules of natural justice but also left a necessary statutory duty unperformed. That is to say there was a failure by the delegate to complete the statutory function of making the relevant administrative decision. The applicants however disclaimed any suggestion that the delegate’s decision was not reviewable by the Tribunal. Rather they argued that the Tribunal was statutorily empowered to remit the case to the delegate to fully perform the delegate’s statutory duty where good administration called for such a course.
It was submitted that the applicants had lost the opportunity of persuading the delegate by oral and written presentations, made at interview, to find in their favour. Had they been given this chance then they could have been granted protection visas without the necessity for recourse to the Tribunal. The loss of a chance of a favourable decision before the delegate was a serious detriment because it would have been a final resolution in the applicants’ favour.
The evidence that would have been presented by the applicants in oral and documentary form at the hearing before the delegate would have been available to the Tribunal. In this case, it was said, the Tribunal proceeded to judgment without the assistance of material that the applicants could and would have advanced at a hearing before the delegate.
Counsel for the Minister conceded that the applicants were not accorded an interview before the delegate made the decision to refuse the grant of protection visas. However, it was said, the Tribunal in conducting its review function, conducts a rehearing de novo of the decision under review. It is therefore capable of curing any defect which has occurred earlier in the administrative decision making process. No reviewable error was committed by the Tribunal by electing not to exercise either of the powers in s 415(2)(c or (d) of the Act by reason of shortcomings in the primary decision making process. The proper focus of these proceedings, it was submitted, is upon the question whether the Tribunal committed jurisdictional error in making its decision.
It is not disputed that the decision made by the delegate in this case was properly reviewable by the Tribunal despite the failure to afford the applicants an interview. That being accepted, the duty of the Tribunal imposed by s 414 of the Act, was to ‘review the decision’. In so doing it was empowered by s 415(1) to ‘exercise all of the powers and discretions that are conferred by this Act on the person who made the decision’. It is well established that the review is in the nature of an administrative rehearing. It provides the disappointed applicant with a second opportunity to present his or her case to an administrative tribunal. It is not necessary in so doing that the applicant demonstrate error in law or fact on the part of the delegate. The delegate’s decision of itself cannot count for anything in the decision-making process of the Tribunal. It would be a significant error on the part of the Tribunal to have regard to the delegate’s adverse decision as a factor to be taken into account in any way against the application for review. The Tribunal is not a judicial review body. It is charged with making the correct or preferable decision on the material before it.
In discussing the functions of the Migration Review Tribunal, which are governed by provisions similar in terms to those which govern the Refugee Review Tribunal, the Full Court in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 261 considered the nature of the review process (at 268):
‘There is no reason why the Act, which provides for a full merits review by the tribunal of decisions which may be brought to it, should impose upon the tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the tribunal’s decision as to the existence of a valid delegate’s decision … to review by a court even where … the tribunal has fully reviewed the decision on the merits.’
The Full Court referred to the powers conferred on the Migration Review Tribunal by s 349 of the Act which is in terms similar to s 415 conferring the like powers on the Refugee Review Tribunal. It noted that these powers are similar to those conferred on the Administrative Appeals Tribunal by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) and said (at 269):
‘In that context it has been held that review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective…’
The Court also cited Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 314 (Bowen CJ), 337 (Smithers J) and 342-343 (Deane J). See also Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 and Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495. The strength of this line of authority underpins the propriety of the applicants’ concession that the Tribunal was able to undertake the review process in relation to the delegate’s decision notwithstanding that decision might have been infected by jurisdictional error.
The question in this case is whether, rather than proceeding to determine whether the applicants qualified for the issue of protection visas, the Tribunal should have remitted the application to the delegate.
Having regard to the nature of the Tribunal’s function, in my opinion, it cannot be said that there has been any jurisdictional error on the part of the Tribunal in proceeding to determine the case before it on the merits rather than sending it back to the delegate. Any procedural unfairness attending the delegate’s decision was subsumed by the full merits review and hearing provided by the Tribunal. I do not consider that there is any merit in the contention that the applicants have lost one of their two chances to obtain a favourable decision. There may be many cases in which the delegate has made an error of process or of fact. These are not matters with which the Tribunal is required to concern itself. Its function is with the correct decision on the material before it.
The first ground of appeal, in my opinion, does not succeed.
Ground 2 – Failure to have regard to relevant evidence and non-compliance with common law procedural fairness
The applicants submit that significant evidence before the Tribunal was overlooked or not properly elicited from them.
The Tribunal found that WAKT and his wife were politically active in 1988 and involved in demonstrations, that they supported and supplied medicines to ‘secret clinics’ and were involved in a home visits program. It also found that they were arrested and interrogated in June 1990 for three days and that their release was only secured by payment of a large bribe to the Burmese Military Intelligence.
The applicants referred to the Tribunal’s finding that following WAKT’s release from detention he retained his government position and was not persecuted by Burmese officials for his activities and did not have any serious adverse profile with them.
In the course of the oral hearing before the Tribunal WAKT was asked if he worked at an institute until he left Burma. He was also asked if he had the position of Chief Physiotherapist at the time he left the country and whether he continued to work for the government while waiting to go to Singapore. It was pointed out by the applicants that the Tribunal did not ask him about adverse treatment prior to his departure.
In WAKT’s affidavit evidence he claimed that on 1 October 1990 he was ‘suspended from work activity’ although he remained Chief Physiotherapist at the hospital in which he had been working until his departure in January 1991 for Singapore. He could not work after that suspension. He said, in his affidavit:
‘If I had been asked by the Tribunal whether my wife and I were adversely affected in our work following release from interrogation I would have referred the Tribunal to the suspension letter. This letter was amongst the documents which I intended to show the delegate at the interview.’
He then exhibited to his affidavit a copy of the suspension letter and an English translation. A similar letter was sent to his wife.
The letter which WAKT said was issued to him, dated 1 October 1990, was on the letterhead of the Ministry of Health of the Union of Myanmar and stated:
‘The Ministry of Health has repeatedly issued several warnings to all hospital employees from Yangon not to get involved in politics, to avoid participating in any anti-government activities, not to support nor to be personally get involved in the movements. (sic)
Despite these repeated warnings and your agreement your personal conditional bond for the above restrictions, it has come to our attention that you have been involved in anti-government activities. As you have violated these orders you are hereby notified that your services are terminated indefinitely effective the issue date of this letter.’
The letter was signed by a Divisional Health Director of the Yangon Health Division. A letter in identical terms addressed to WAKU was also exhibited to the affidavit.
The applicants submitted that these letters indicated that they did have a ‘serious adverse profile’ with Burmese officials prior to their departure. It was in large part because the Tribunal considered that they were not of adverse interest to the Burmese authorities that it also rejected their claim that WAKT had received a facsimile from his younger brother that military intelligence were still looking for them after WAKT had arrived in Singapore.
WAKT also mentioned in his ‘biography’ attached to the original application for a protection visa that in March 2001 his wife had received a serious warning letter from his younger brother handed to her personally by a sailor friend. He mentioned this letter in his interview to the Tribunal as well as referring to the facsimile. However, the Tribunal made no finding about it. The particular passage from the ‘biography’ attached to the original application was in the following terms:
‘In March 2001, my wife received a serious warning letter from my youngest brother handed to her by personally (sic) through one of his sailor friends, saying the situation back in Burma is worst and worst and lots of my hospital colleagues were arrested. My brother warned me to take double care than before. My wife sent me that letter in Perth. (sic)
As appears from p 27 of the transcript of proceedings WAKT made reference to the March 2001 letter in his interview with the Tribunal. He also made reference to the facsimile which he had received from his younger brother. His brother said in the letter that officials often came to WAKT’s house asking for information about their family. However his brothers told them nothing.
The applicants submitted that the Tribunal committed a jurisdictional error in two respects. First, it failed to put to WAKT what, if any, steps were taken against him at his workplace after he and his wife had been interrogated. It did not question him with a view to satisfying itself that he was not thereafter of adverse interest to Burmese authorities. In the second place it failed to consider the possible existence or authenticity of the letter sent by WAKT’s brother on 20 March 2001. If accepted, that evidence would have indicated a real danger to the applicants should they return to Burma. Jurisdictional error arose from the failure to interrogate the applicants on these matters. It was said that the Tribunal thereby contravened s 424A. It was said that its failure was procedurally unfair and that its findings ignored the evidence about the letter.
Counsel for the Minister submitted in reply that the non-acceptance of evidence by a tribunal does not constitute an error of law let alone a jurisdictional error. Mere factual error will not ground judicial review unless it relates to jurisdictional fact or manifest an error of law jurisdictional in character.
It was submitted that it was incumbent upon the applicants to demonstrate the existence of the alleged evidence and to demonstrate how it was that it was merely ‘ignored’ as opposed to not being accepted. It was also necessary, it was said, to show how the Tribunal’s ‘ignoring’ of the evidence arose from an error of law. There was no obligation upon the Tribunal under s 424A of the Act. That section requires the Tribunal to give to an applicant particulars of any ‘information’ that the Tribunal considers would be the reason or part of the reason for affirming the decision under review and invite the applicant to comment on it. It was submitted that no relevant information was identified and, in particular, that the term ‘information’ does not extend to the Tribunal’s thought processes or determinations.
Counsel for the applicants conceded that they said nothing to the
Tribunal about the letters terminating their services as physiotherapists.
The warning letter of 20 March 2001 said to have come from WAKT’s brother was exhibited to his affidavit of 14 September 2004. It stated inter alia:-
‘Hope you are in good health [WAKT]? Over here, all of us including the children, the brothers and sisters are fine. We are all missing you and also very worried for you. [X] has just been arrested again three days ago. Just before [X] was detained I was warned that there have been some enquiries about [Y] and [Z].
I heard that Dr [A] has been sentenced to many years.
The MI have been coming to our home for questioning for four or five times now. That is why I have to send this message urgently through a seaman.
When I am able to send messages through reliable persons I will contact you about the situation.
Please look after your health. Please be careful always. Please don’t worry about your brothers and sisters.’
MI was a reference to Military Intelligence. Although the letter was referred to in the biography it was not tendered before the Tribunal.
Counsel for the applicants endeavoured to link the failure to produce these materials in the Tribunal to the failure to afford the applicants an interview before the primary delegate. In my opinion this ground is not sustainable. The Tribunal was not obliged to enter upon a line of inquiry which might have led it to elicit from the applicants the evidence of the letter terminating their services. Nor was it required to elicit from the applicants the production of WAKT’s brother’s letter of 20 March 2001. There was no failure in this case to consider a claim articulated in or apparent from the materials before the Tribunal – see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263.
The second ground of the application fails.
Ground 3 – Whether the finding of WAKT’s non-involvement in anti-government activities if returned to Burma involved legal error and breach of procedural fairness
In relation to ground 3 the applicants referred to the Tribunal’s finding that:
‘If the applicant were to return to Burma the Tribunal is satisfied that he would not become involved in anti-government activities. He has a brief record of such involvement while in Burma – primarily limited to providing medical support to injured people – to which he has not added substantially while in Australia. Even were the applicant to provide such medical support on return to Burma the Tribunal is satisfied he would not do so in such a way as to put himself at risk with Burmese authorities.’
The applicants submitted that the preceding passage discloses two significant legal errors. The first was that the Tribunal did not invite WAKT to comment before making the finding adverse to him that he would not become involved in anti-government activities if returned to Burma. Secondly, it found that if he were to provide medical support to people on his return to Burma, he would not do so in such a way as to put himself at risk with Burmese authorities. In making this finding it was said that the Tribunal did not consider whether the nature of WAKT’s predicted activity upon return to Burma was influenced by the threat of harm. Counsel for WAKT quoted the dictum of McHugh and Kirby JJ in S395/2002 v Minister for Immigration and Multicultural Affairs (2004) 203 ALR 112 (at 123):
‘To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider the issue properly.
It was submitted that there was no evidence before the Tribunal to justify the conclusion that WAKT would not become involved in anti-government activities. Section 424A required the Tribunal to invite him to comment on whether he would become involved on return since the passage quoted was part of the reasons for the Tribunal’s adverse findings. In relation to the second aspect of ground 3 it was said that the Tribunal had not examined whether any modified conduct, which it was supposed would guide WAKT’s behaviour and that of his wife, would be influenced by the threat of harm or by some other cause.
The Tribunal, it was said failed to accord WAKT the natural justice required by s 424A of the Act. It had also asked itself the wrong legal question. Protection under the Refugee Convention, it was submitted, does not depend whether a person takes steps on return to avoid putting himself or herself at risk with government.
So far as s 424A is concerned, it is sufficient to say that the complaint made by the applicants does not disclose any failure on the part of the Tribunal to provide ‘particulars of any information that the Tribunal [considered] would be the reason or part of the reason for affirming the decision that is under review’. The applicants’ complaint is concerned with the Tribunal’s findings and its thought processes. It does not disclose ‘information’, not disclosed to the applicants, upon which the Tribunal acted in coming to an adverse decision.
On the second aspect counsel for the Minister submitted that WAKT was found by the Tribunal not to have a profile of negative interest to the authorities when he left Burma. The Tribunal also found that he was not of any interest to the Burmese authorities during the nine years he was in Singapore. These findings, coupled with the finding that he had not acquired a significant dissident profile while in Perth, left it open to the Tribunal to be satisfied that he would not in fact become involved in anti-government activities. That factual finding, it was said, reflected an understanding of the correct question which the Tribunal had to ask. That question was whether WAKT’s fear of persecution was well-founded. The Tribunal’s reasoning was unaffected by any possible considerations of modification of conduct. I agree with that submission. In my opinion the third ground also fails.
Ground 4 – Whether the Tribunal ignored evidence or otherwise failed to comply with
s 424A of the Act
In its reasons for decision the Tribunal made the following observations:
‘It follows from this [that the applicants stayed in Singapore for nine years without problems] that the Tribunal does not accept his claims that he was on any Burmese blacklist.’
‘… When asked why he thought he was on a blacklist, the applicant claimed it was because another doctor who had been arrested may have given up his name as being involved in the secret clinics, but such a claim is nothing more than speculation on the part of the applicant.’
The Tribunal is said to have erred by ignoring material evidence from WAKT contained in his ‘biography’ which had been submitted to the Tribunal. WAKT said it was the Burmese Embassy staff who ‘warned me that they have recently received the black list names including me and my wife’. Asked at the oral hearing about this conversation the applicant said that the Burmese Embassy staff had told his named agent who had arranged in Singapore for the extension of passports for WAKT and his wife to ascertain whether she is on a black list. WAKT told the Tribunal that being on a black list meant that if he and his wife were found back in Burma they would be arrested. He gave the name of his agent to the Tribunal and told the Tribunal that he had to select the telephone number of the agent.
Counsel for the Minister responded quite briefly that the final ground of review, namely ground 4, does not assert error of a jurisdictional character. Even if the Tribunal did not refer in detail to the evidence regarding the claimed source of the applicants being placed on a black list and the alleged reasons therefore:
(a) Such an arguable shortcoming would not constitute jurisdictional error; and
(b)The relevant conclusion was still justified. The claim of being on a Burmese black list was rejected on the basis of the applicant husband leaving Burma without difficulty with his wife and daughter following him to Singapore a year later.
The oral submissions for the applicants on the fourth ground were brief. In my opinion the ground discloses no jurisdictional error. The mere fact that the Tribunal did not advert to a particular item of evidence does not of itself amount to an error of law that will vitiate its decision. In my opinion, there is no merit in ground 4.
Conclusion
For the preceding reasons the application will be dismissed.
I certify that the preceding ninety six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 21 September 2005
Counsel for the Applicant: Mr RE Lindsay Solicitor for the Applicant: Wojtowicz Kelly Counsel for the Respondent: Mr RL Hooker Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 March 2005 Date of Judgment: 21 September 2005
7
0