WZAOF v Minister for Immigration - [2012] FMCA 668

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 668

MIGRATION – Protection visa application – judicial review – Refugee Review Tribunal decision – Burmese mother and daughter– alleged stress disorder – whether meaningful invitation to hearing – credibility – whether authenticity of documents raised – whether jurisdictional error.

Migration Act 1958 (Cth), ss.36(2), 422B, 425, 427(1)(d), 476

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582; [1999] FCA 81
Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration & Citizenship v SZMOK (2009) 110 ALD 15; [2009] FCAFC 83
Minister for Immigration & Citizenship v SZNCR [2011] FCA 369
Minister for Immigration & Citizenship v SZNVW & Anor (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426; [2001] FCA 274
Minister for Immigration & Multicultural Affairs v SZFDE & Ors (2006) 154 FCR 365; [2006] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 128 FCR 553; [2003] FCAFC 126
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801
Murphy v Doman & Anor (2003) 58 NSWLR 51; [2003] NSWCA 249
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398; [2006] FCA 900
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZFDE & Ors v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380
SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706
SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264
SZMRS v Minister for Immigration & Citizenship [2009] FCA 936
SZONA v Minister for Immigration & Anor [2011] FMCA 99
SZONR v Minister for Immigration & Anor [2011] FMCA 89
WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272; [2008] FCAFC 108
W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, [2001] FCA 679
WZAND v Minister for Immigration [2009] FMCA 26
WZANF v Minister for Immigration & Anor [2010] FMCA 110
WZANW v Minister for Immigration [2009] FMCA 1075
Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495; [2010] FCA 691

First Applicant:

WZAOF

Second Applicant:

WZAOG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 30 of 2011

Judgment of:

Lucev FM

Hearing date:

10 May 2011

Date of Last Submission:

10 May 2011

Delivered at:

Perth

Delivered on:

3 August 2012

REPRESENTATION

Counsel for the First and Second Applicants:

Mr R L Hooker

Solicitors for the First and Second Applicants:

SCALES Community Legal Centre

Counsel for the First and Second Respondents:

Mr P Hannan

Solicitors for the First and Second Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 30 of 2011

WZAOF

First Applicant

WZAOG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

By application dated 8 February 2011 the first and second applicants[1] sought judicial review under s.476 of the Migration Act1958 (Cth)[2] of the Refugee Review Tribunal[3] decision handed down on 10 January 2011,[4] affirming the decision of a delegate[5] of the first respondent[6] handed down on 31 March 2010.[7]
[1] The “Mother” and “Daughter” respectively.
[2] “Migration Act”.
[3] “Tribunal”.
[4] CB 490-535 (“Tribunal Decision”).
[5] “Delegate”.
[6] “Minister”.
[7] “Delegate’s Decision”.
The Mother and Daughter seek to:
a)insert a new ground 2 as follows:
2. [The Tribunal] Did not extend an objectively meaningful invitation to the First Applicant to attend its hearings and thereby contravened s.425 of the [Migration] Act.
Particulars
(The particulars of ground 1 are repeated)
b)re-number the existing ground 2 as ground 3; and
c)not press the existing ground 3, which whilst technically not an amendment to the application will be treated as such by the Court.
The proposed new ground 2:
a)is a contention of law, based upon existing facts, and indeed, the same particulars as ground 1;
b)was a matter of which the Minister had some notice (and at least five days notice prior to the hearing by way of the written submissions filed by the Mother and Daughter);
c)raises a legitimately arguable question;
d)was not objected to, but nor consented to, by the Minister; and
e)gives rise to no identifiable prejudice to the Minister, and the Minister did not assert otherwise, and, in fact, fully met the proposed new ground 2 in written and oral submissions.
In those circumstances, it is appropriate that the application be amended to insert the new ground 2. It follows that the existing ground 2 ought be re-numbered as ground 3, and because the existing ground 3 is not being pressed, that it ought to be struck out.

Background

The Mother and Daughter are each:
a)a citizen of Burma; and
b)an adherent of the Buddhist religion.
The Mother and Daughter arrived in Australia on 2 October 2009 and applied for class XA protection visas on 20 November 2009.
By reason of the Delegate’s Decision dated 31 March 2010 the Mother and Daughter were refused protection visas.
On 12 April 2010 the Mother and Daughter applied to the Tribunal for merits review of the Delegate’s Decision.
In a statutory declaration provided in support of her initial application[8] the Mother set out her claims for a protection visa, essentially as follows:
a)she had been involved in political affairs in Burma since 1988, subsequent to which she was pursued by military authorities in Burma, causing her to constantly seek new places to hide to remain safe;
b)the military authorities caught her in 1999 when she was arrested, sent to prison and seriously ill-treated;
c)she paid a bribe to judicial and prison officials, and was released from prison, but continued to be constantly monitored by the military authorities causing her to adopt a low profile so as to not attract the attention of authorities;
d)between 2000 and 2006 she elected not to be overtly involved in any political activities in Burma, however, in 2007 she was involved in the uprising commonly known as the Saffron Uprising; and
e)subsequently, she was pursued and located by the authorities, arrested and summonsed to a Burmese court on allegations of breaches of the Burmese criminal law.
[8] Court Book 110-131 (“CB”).
The Mother says that in light of having been arrested, imprisoned, seriously ill-treated, and subsequently summonsed to appear in court again by reason of her political opinion, which is an express Convention ground, she has a well-founded that she would be imprisoned and possibly killed if she returned to Burma.
The Daughter says that she has a well-founded fear of persecution by reason of having been imputed with her mother’s political opinion, and herself summonsed to attend court in Burma, and she therefore fears being arrested and put into prison if returned to Burma.

Tribunal Hearing

There were three Tribunal Hearings in respect of this application, held on 27 May 2010,[9] 17 June 2010,[10] and 4 October 2010.[11]
[9] “First Tribunal Hearing”.
[10] “Second Tribunal Hearing”.
[11] “Third Tribunal Hearing”.
The First Tribunal Hearing was conducted by video from Melbourne to Perth. The Mother and Daughter were both affirmed which would indicate that they gave information to the Tribunal orally. They were accompanied by their representative Ms Moss, whom other papers on the file indicate is both a solicitor and migration agent. The First Tribunal Hearing went for two hours and 30 minutes.[12]
[12] CB 358-359.
The Second Tribunal Hearing was again conducted by video from Melbourne to Perth. Again both the Mother and Daughter were affirmed, indicating that they gave information orally to the Tribunal. Once again they were accompanied by their representative Ms Moss. On this occasion the hearing went for approximately 40 minutes before it was adjourned for ten minutes and then for a further one hour and 15 minutes.[13]
[13] CB 371-372.
At both the First Tribunal Hearing and Second Tribunal Hearing the same male Burmese interpreter was affirmed to interpret.[14]
[14] CB 358 and 371.
The Third Tribunal Hearing was again conducted by video from Melbourne to Perth. On this occasion only the Mother was affirmed, and she gave her evidence by telephone. The Daughter did not attend. Ms Copeland, again a solicitor and migration agent, attended as a representative of the Mother and Daughter. Two witnesses gave evidence, one by video and one by phone. Both of those witnesses were of Burmese descent. There were also three observers present at the Third Tribunal Hearing.
At the Third Tribunal Hearing a female, Burmese interpreter was affirmed to interpret. The Third Tribunal Hearing lasted for approximately three hours and 20 minutes.[15]
[15] CB 453-454.

Consultant psychiatrist’s report

On 30 August 2010 the representative for the Mother provided to the Tribunal a consultant psychiatrist’s report from Dr Susan Lutton dated 27 August 2010.[16] The terms of that report were as follows:
I am a consultant psychiatrist with extensive experience in trauma, war trauma and post traumatic stress disorder currently working with ASeTTS. It was in this capacity I was recently requested to assess … [the Mother]. In do doing, it was immediately evident she is suffering from severe symptoms of post traumatic stress disorder with an associated major depressive illness. It was also evident that the symptoms were of such intensity that they would impact on her presentation and capacity to represent herself and her history.
[The Mother] is currently experiencing intense intrusive traumatic imagery, episodes of dissociation, disturbed concentration and inability to sleep with terrifying nightmares. Her mood is depressed with auditory hallucinations of threatening voices and at times traumatic visual imagery which creates a marked fear response. Her symptoms are present most of the time and worsening in severity. Whilst she can superficially present quite well as soon as she begins to recall events of her history it triggers a marked trauma response. I therefore have considerable concern that … [the Mother] would have been at risk to dissociate and experience quite disabling anxiety in the process of recalling and providing the details of her past history.
Symptoms of this severity are rarely seen without there having been a significant background history of trauma and persecution. It so often creates the paradox that the trauma itself precipitates such a severe post traumatic stress disorder that this then makes access to the trauma and the precipitating events more difficult to access, verify and resolve.
Currently … [the Mother] is in need of urgent counselling and medication which has now been commenced. Her symptoms have been emerging over the last twelve months with rapid worsening in the last three months. It is hoped with appropriate intervention we will be …[This paragraph is incomplete in the original copy]
In view of … [the Mother’s] current psychiatric state it would be pertinent for this to be considered in assessing her history and presentation.
I would be pleased to provide any further details if required. Your consideration of these facts is greatly appreciated.[17]
[16] “Lutton Report”. CB 433-434.
[17] CB 433-434.

Tribunal invitation to comment and responses

On 19 July 2010 the Tribunal sent an invitation to comment on or respond to information to the Mother and Daughter.[18] The First Invitation to Comment raised particulars of information relating to:
a)the confiscation of the Mother’s restaurants;
b)her political activities between 2000 and 2007, including her assistance to the monks during the Saffron Uprising in September 2007;
c)the Daughter’s involvement and knowledge of the Mother’s political activities;
d)the authenticity of court documents sent to Australia by email from a government approved internet shop; and
e)various business licences in relation to the Mother’s restaurants.
[18] “First Invitation to Comment”.
The information particularised was said to be such that it may lead the Tribunal to conclude that the Mother and Daughter were not telling the truth.[19] Various inconsistencies in the evidence of the Mother, and between the evidence of the Mother and the Daughter, particularly in relation to the Mother’s political activities, the Daughter’s court attendance, and the activities of other relatives in relation to the Saffron Uprising were also referred to. It was also asserted that it was not a covert way to send documents via a government approved internet shop in circumstances where the Mother had asserted that the documents were being sent covertly so as not to put the senders in Burma at risk.[20]
[19] CB 406-408.
[20] CB 406-407.
On 25 August 2010 Ms Copeland, a solicitor and migration agent acting for the Mother and Daughter, responded to the First Invitation to Comment.[21]
[21] “First Invitation to Comment Response”. CB 419 (covering letter) and CB 420-430 (response).
The First Invitation to Comment Response raised as preliminary issues, and made submissions with respect to:
a)interpreting of the Tribunal Hearing;[22] and
b)the impact of trauma on the Mother, and the inter-relationship between that trauma and an assessment of the Mother’s credibility.[23]
[22] CB 421.
[23] CB 421-423.
The First Invitation to Comment Response then dealt with the inconsistencies in evidence particularised by the Tribunal in the First Invitation to Comment in relation to:
a)the Mother’s restaurants being confiscated or closed;
b)the email sent from a government approved internet shop;
c)the Mother’s inability to provide original court documents;
d)the Daughter’s involvement in preparing leaflets during the Saffron Uprising;
e)police clearances obtained for the Mother and Daughter; and
f)licence renewals for the restaurants.
The First Invitation to Comment Response then went on to deal with discrepancies in the country information raised by the Tribunal in relation to:
a)the Mother’s involvement in the 1988 demonstrations; and
b)the Mother’s summons to attend court in 2009.[24]
[24] CB 427-429.
The First Invitation to Comment Response was received by the Tribunal well in advance of the Third Tribunal Hearing.
On 29 November 2010, that is, after the Third Tribunal Hearing, the Tribunal wrote to Ms Copeland referring to various court documents provided by the Mother and Daughter, and relevant provisions of Burmese legislation. Also attached was a copy of certain country information in relation the manner in which political activists are charged in Burma. An invitation to comment on this country information was extended to the Mother and Daughter by the Tribunal.[25]
[25] “Second Invitation to Comment”.
On 13 December 2010 Ms Copeland responded to the Second Invitation to Comment on behalf of the Mother and Daughter.[26]
[26] “Second Invitation to Comment Response”. CB 479 (covering letter) and CB 480-489 (response and attached documents).
The Second Invitation to Comment Response deals specifically with the issue of the genuineness of the court documents, and makes specific submissions in relation to those documents.[27] More generally, the Second Invitation to Comment Response:
[27] CB 481-487.
a)by way of introduction observes that:
We understand the genuineness of the legal documents provided by the applicants has long been an issue for the Tribunal. We appreciate that in raising these issues the Tribunal is attempting to examine the credibility of these documents. It is our submission that these documents are genuine and are what the applicant has always said they are; legal documents issued by the court in Pyin Oo Lwin.[28]
[28] CB 480.
Having referred to Federal Court authority with respect to the issue of the genuineness of documents, it was then observed that:
In our submission it cannot be said that the applicants’ claims in this case are discredited by comprehensive findings of dishonesty or untruthfulness, such as to negate the corroborative material. This then leaves the Tribunal with the task of assessing the genuineness of the documents themselves, but in doing so the Tribunal must look at the totality of evidence and not become waylaid on errors in translation or alternative meanings.[29]
b)in conclusion the Second Invitation to Comment Response observed that:
The documents submitted to the Tribunal are genuine, and we contend that the explanations provided above adequately deal with the associated interpretation issues.[30]

Tribunal Decision

[29] CB 480.

[30] CB 487.

The Mother

The Tribunal turned quickly in its findings and reasons to concerns that it had regarding the Mother’s credibility. The Tribunal:
a)highlighted inconsistent answers in relation to the Daughter’s arrest and attendance at school and the Mother’s participation in voting in the 1990 Burmese election;[31]
[31] Tribunal Decision, CB 526 at para.148.
b)highlighted several examples where the Mother did not respond to questions but instead appeared to provide a rehearsed statement, and other examples of where she gave extremely vague answers to quite specific questions;[32]
[32] Tribunal Decision, CB 526 at para.149.
c)observed that some of the Mother’s evidence “had the tenor that she was making up material as she went along in the hearing”, and highlighted her evidence concerning the difference between being physically and verbally involved in political activities, her evidence concerning the closure of her shop about which she was not able to provide detail, and the suggestion that she had supplied assistance to Aung San Su Kyi which the Tribunal found “implausible” and lacking in credibility, particularly given the Mother had never been involved in the National League for Democracy and that that party was the most organised political opposition group in Burma, who would be unlikely to seek advice from the Mother, in relation to a claim that she had not mentioned prior to the Tribunal Hearing;[33]
d)observed the Mother’s lack of knowledge about major political events in Burma despite her claim to have been involved in politics throughout her life;[34]
e)observed that despite having claimed to be involved during the September 2007 Saffron Uprising the Mother had little knowledge with respect to the detail of the Saffron Uprising, including the route that the monks took through Mandalay, and she was “extremely evasive” in her description of her own involvement in those activities;[35]
f)observed that some of the Mother’s evidence was “implausible or far-fetched”[36] including her description and reasons for sending documents from Burma. The Tribunal observed that:
She explained that they could not post them through the normal mail as they were afraid that the authorities would see them. However, she gave evidence that they had been emailed from a government controlled email office and that the contents had been checked by people in the office before they were emailed. This was to verify that they were real summonses and real arrest warrants. If the applicant’s family was afraid that the authorities would discover that they were sending the documents out of Burma it seemed odd that their preferred process was to take them somewhere where they would be checked before they were emailed.[37]
g)observed that although the Mother claimed to have been extensively involved in monk’s activities she was unaware of specific instances relating to monk’s protests in Mandalay in 2003;[38]
h)observed that the Mother claimed to be “on the run from the authorities”, but had attended a government hospital in 1999 where she provided her identity card, and was not arrested until a month after attending the hospital;[39] and
i)observed that the Mother claimed that she did not have to transfer her household registration from one residence in one city to another residence in another city, or report to the local authorities in the second city, which was at odds with country information that indicates that homes are regularly searched by the Burmese authorities to ascertain who is living in the homes.[40]
[33] Tribunal Decision, CB 527 at para.150.
[34] Tribunal Decision, CB 527 at para.151.
[35] Tribunal Decision, CB 527 at para.152.
[36] Tribunal Decision, CB 527 at para.154.
[37] Tribunal Decision, CB 528 at para.154.
[38] Tribunal Decision, CB 528 at para.155.
[39] Tribunal Decision, CB 528 at para.155.
[40] Tribunal Decision, CB 528 at para.155.

The Tribunal specifically noted that when assessing the Mother’s credibility and weighing matters that caused the Tribunal concern it took into account the Lutton Report. The Tribunal noted that it was immediately evident to Dr Lutton that the Mother “was suffering from severe symptoms of post-traumatic stress disorder.” Further, the Tribunal noted that the symptoms “were of such intensity that they would impact on her presentation and the capacity to present herself and her history.”[41] The Tribunal then said:
… the Tribunal acknowledges that these symptoms may have been attributing to her vague contradictory evidence and the difficulties she appeared to have in answering in any specific way questions put to her by the Tribunal. However, even taking this into account the Tribunal also notes that the applicant’s account was inconsistent with independent country information.[42]
[41] Tribunal Decision, CB 528 at para.156.
[42] Tribunal Decision, CB 528 at para.156.
The Tribunal noted a number of indicators that the Mother “was a very successful businesswoman in Myanmar”[43] Those indicators included that:
a)the Mother provided evidence to the Australian Embassy that she had access to AUD$43,000;
b)she had a home worth well in excess of AUD$43,000;
c)she held business licences for two restaurants;
d)she owned property in Rangoon;
e)she had travelled overseas to India and Nepal in 2006, and to Singapore in 2006 and 2008; and
f)the business licences for the two restaurants were in her name and had been renewed annually including on 24 July 2009 and 9 June 2009.[44]
[43] Tribunal Decision, CB 528 at para.157.
[44] Tribunal Decision, CB 528-529 at para.157.
In relation to the above indicators the Tribunal noted that wage levels for all levels of employees in Burma were low and, for example, that skilled workers in the private sector earned approximately $30 per month. The Tribunal further noted that country information indicated that “for people to operate successful businesses in Burma they needed to ‘tow the line in regards to government departments’”.[45]
[45] Tribunal Decision, CB 528-529 at para.157.
With respect to the Mother’s business, and particularly business licence renewals, the Tribunal referred to country information and to the evidence of a witness called by the Mother. The Tribunal observed that:
a)a person suspected by the Burmese government of anti-government or pro-democracy activities would have their lives made difficult for them by the government refusing business licence renewals;
b)because the Mother was able to operate a successful business for a period of time it suggested that she was not a political activist in Burma; and
c)the business licences were held in the Mother’s own name which meant that:
i)she was granted at least one licence at a time when she alleged she was in prison, or shortly after she was released from prison; and
ii)by putting the business licence in her name if she was not operating it would severely jeopardise the operation of the business if she was a political activist as she claimed.[46]
[46] Tribunal Decision, CB 529 at para.158.
In relation to the Mother’s travels outside of Burma, the Tribunal noted that the Mother travelled to Singapore in December 2008 at a time between her participation in the Saffron Uprising and the alleged summons to attend court in January 2009. In relation to this the Tribunal’s view was that:
a)she would not have been allowed to leave the country if the authorities were investigating her at the time;
b)the fact that she was able to leave and return to Burma on many occasions was indicative of the fact that she was not of interest to the authorities; and
c)the country information indicates that persons who are of interest to authorities have difficulty in leaving Burma.[47]
[47] Tribunal Decision, CB 529 at para.159.
In relation to the Mother’s claimed arrest in 1999 for involvement in political activities in 1988 the Tribunal noted that, even on her own account, her involvement was minor and she was not a member of any political party or organisation. Further, she claimed she was involved in the Galoni Movement for two weeks. Based on published information the Tribunal concluded that the Galoni Movement “was a low level group that would not have been regarded as much of a threat by the authorities.”[48]
[48] Tribunal Decision, CB 529 at para.161.
The Tribunal noted that the Mother was “not an organiser; she was not a member of any political party. She was not part of the National League for Democracy, the main opposition group in Burma. Further, she does not appear to have any connections to any of these groups.”[49] The Tribunal observed that millions of people took part in the 1988 demonstrations, and that other than those who were politically active or involved in major opposition parties, the government was not looking to arrest or fine people who took part in the 1988 demonstrations. The Tribunal concluded, based on country information, that “there would be no reason for the authorities to be looking for or to arrest the Mother in 1999 for her very minor involvement in the 8888 demonstrations.”[50]
[49] Tribunal Decision, CB 530 at para.163.
[50] Tribunal Decision, CB 531 at para.163. The 1988 demonstrations are apparently also known as the “8888 demonstrations”.
The Tribunal had regard to evidence in relation to a caesarean section scar on the Mother’s lower abdomen, but noted that the medical evidence did not indicate that there was anything abnormal about the scar or that the Mother was unable to have children as a result of her treatment in custody, as claimed. Further, in relation to a head scar, this was a matter which had never been mentioned at any stage in the Tribunal proceedings.[51]
[51] Tribunal Decision, CB 531 at para.164.
The Tribunal noted the Mother’s claim that she refused to sign an undertaking when released from prison that she would not be involved further in political activities. The Tribunal concluded that a person refusing to sign such an undertaking would not be released from prison in Burma.[52]
[52] Tribunal Decision, CB 531 at para.165.
The Tribunal noted the Mother’s evidence concerning the Saffron Uprising, and that the Mother claimed she was not arrested at the time because she was wearing a nun’s habit. The Tribunal cited country information which indicated that both monks and nuns were arrested by the Burmese authorities during the Saffron Uprising, and that the Tribunal therefore considered that wearing a nun’s habit would not have prevented her arrest if she was considered to be involved by the Burmese authorities. The Tribunal noted that those arrested were released within a few months, and that there seemed to be no reason why the Mother would have been summonsed two years later for her involvement with events of the Saffron Uprising in 2007.[53]
[53] Tribunal Decision, CB 531 at para.166.
The Tribunal also indicated that the Mother’s evidence that she had been summoned directly to court in relation to her activities in 2007 was contrary to country information which indicated that a person was usually detained or interrogated first by the authorities, or, if unable to be found, that family members were detained or interrogated.[54]
[54] Tribunal Decision, CB 531-532 at para.167.
The Tribunal considered certain court and legal documents provided by the Mother.
The first of these was a summons to attend court issued on 28 October 2009. Thus, the summons was issued at a time when the Mother’s evidence indicated she had already been summoned to court in January 2009, and had been attending court for many months hearing the evidence against her. It would appear that witnesses were called from time to time, and not all heard together at the one time.
The summons related to an offence under the Burmese Criminal Act, s.337. The Tribunal appears to have assumed this related to s.337 of the Burmese Penal Code which is an offence of causing harm to a person by the doing of any rash or negligent act so as to endanger human life or the personal safety of others. The Tribunal noted that the offence that the Mother was summoned to court on appeared to be one that did not relate to her involvement in the 2007 demonstrations.[55]
[55] Tribunal Decision, CB 532 at paras.168-170.
The Tribunal then noted that the Mother relied upon an arrest warrant issued after the Mother left Burma as a result of her failing to attend court on 28 October 2009. However, the order to arrest is noted by the Tribunal as not indicating that the Mother did not attend court when required to do so. Further, the Tribunal notes that it refers to a different offence, namely violating s.10 of the Burmese Unlawful Associations Act, a provision which according to information available to the Tribunal, had been repealed. The Tribunal cited the correct section of the Burmese Unlawful Associations Act under which it said that the Mother should have been charged.[56]
[56] Tribunal Decision, CB 532 at paras.170-171.
The Tribunal therefore concluded that the arrest warrant did not seem to relate to the previous summons, and in addition, it was at odds with the Mother’s evidence that she had been attending court regularly since January 2009. It therefore appeared that there was no reason for the authorities to summon her in October and then issue an arrest warrant for her in November 2009.
The Tribunal says that it raised these concerns with the Mother and Daughter, and that the mother indicated that there had been a mistranslation of one of the documents, and that there was legislation not referred to in the warrants and summonses. The Tribunal found that this was “unusual”. Further, that it “might mean that the persons drafting these documents are lax or incompetent or it could indicate that they are not genuine.”[57] The Tribunal also noted that its concerns about the date of the documents were not addressed by the Mother and Daughter.
[57] Tribunal Decision, CB 532 at para.173.
Having considered the above matters the Tribunal said that:
Due to the discrepancies in these documents and the matters set out above and the country information regarding the ready availability of false or fraudulent documents the Tribunal gives them no weight.[58]
[58] Tribunal Decision, CB 533 at para.174.
The Tribunal also referred to a letter from the Mother’s lawyer dated 30 April 2010. It noted that the lawyer referred to a differently titled Act to that referred to in the court documents, and that the lawyer did not indicate that the Mother was ever detained in 1999, nor did the lawyer refer to the court case in 2009 commencing in January 2009. Further, the charges mentioned in the lawyer’s letter are also different to those mentioned in the summonses and the arrest warrants. The Tribunal concluded that “due to the discrepancies in these documents the Tribunal gives them no weight.”[59]
[59] Tribunal Decision, CB 533 at para.176.
In relation to her involvement with her restaurant businesses the Tribunal noted that the Mother had stated when interviewed by the Delegate on 21 January 2010, three months after she left Burma, that she was in regular contact with her family, but that she did not mention that the restaurants had been confiscated, as she subsequently alleged.[60] Photographs of the two restaurants were produced by the Mother, but due to certain discrepancies in each of the photographs the Tribunal did not accept that they were evidence that either of the restaurants had been closed down or confiscated.
[60] Tribunal Decision, CB 533 at para.177.
In conclusion, the Tribunal found as follows:
180. Taking into account all the concerns outlined by the Tribunal above it finds that it does not accept many aspects of the applicant’s claims. The Tribunal is prepared to accept that the applicant participated in the 8888 demonstration. Millions of persons in Burma participated in these demonstrations. The Tribunal finds that the applicant is not connected or involved in any political party or any organisations. It does not accept that she was in hiding after 8888 for a period of 11 years. The Tribunal does not accept that the applicant was arrested in 1999 and detained for three months in prison. As it does not accept that she was in prison it does not accept that she was tortured whilst in prison.
181. The Tribunal accepts that the applicant is a devoted Buddhist and is involved with the activities with the monks and nuns in the area in which she lives. It accepts that she supported the monks during the Saffron Revolution in 2007. It does not accept that she distributed leaflets and it does not accept that the authorities are looking for her as a result of her involvement in these activities. The Tribunal does not accept that the applicant was summoned to court in 2009 as a result of her involvement in the Saffron Revolution in 2007. It may be that the applicant is facing another court case in relation to criminal charges relating to negligently endangering someone’s life, but she has made no claims in relation to this court case and the Tribunal is unable to assess whether she faces a real chance of persecution for a Convention ground in relation to any such court case. On the evidence before it the Tribunal does not accept that the applicant’s businesses have been confiscated.
182. The Tribunal must consider whether there is a real chance that the applicant would be persecuted in the reasonable foreseeable future as a result of her political opinion or an imputed political opinion. Given that the applicant, despite her minimal involvement in political activities in Burma, has not come to the attention of, or had difficulty with, the authorities in the past, particularly in light of the fact that she appears to be a successful business woman operating two restaurants, the Tribunal finds that there is no real chance that the applicant would be persecuted in the reasonable foreseeable future for reasons of her political opinion (actual and imputed) and that her fear of persecution is not well founded.[61]
[61] Tribunal Decision, CB 533-534 at paras.180-182.

The Daughter

In relation to the Daughter the Tribunal noted that she essentially claimed that she had assisted her Mother in her political activities connected to the Saffron Uprising and had also been summoned to court in Burma. The Tribunal noted that she had given evidence that she had attended university in Burma and that during the Saffron Uprising she had taken her Mother, who was wearing a monk’s habit, on a bicycle on three or four occasions, and that that was the extent of her involvement in her Mother’s political activities.[62]
[62] Tribunal Decision, CB 534 at paras.185-186.
The Daughter, the Tribunal noted, claimed that she had attended court once a fortnight between January 2009 and 26 September 2009 but when “asked what the allegations were against her or what the prosecution witnesses were saying she claimed she didn’t take much notice of what they were saying.”[63] This caused the Tribunal to observe as follows:
The Tribunal finds it odd that somebody would attend court on this many occasions and not be able to give an outline of what had been said in court against them.[64]
[63] Tribunal Decision, CB 534 at para.186.
[64] Tribunal Decision, CB 534 at para.187.
The Tribunal noted not dissimilar inconsistencies in the Burmese court documents for the Daughter as with the Mother, and found that its concerns about the Mother’s documents applied equally to the documents produced by the Daughter, and therefore gave them little weight.[65] The Tribunal referred to its earlier finding that the Burmese authorities were not pursing or interested in the Mother because of her minimal support for the Saffron Uprising, and therefore found that the “daughter is also not of interest to the Burmese authorities.”[66] The Tribunal did not accept that the Daughter was facing charges in relation to her Mother’s involvement and her assistance to her Mother in the Saffron Uprising.[67]
[65] Tribunal Decision, CB 535 at paras.188-189.
[66] Tribunal Decision, CB 535 at para.189.
[67] Tribunal Decision, CB 535 at para.190.

Tribunal conclusion

The Tribunal therefore concluded that there is no real chance that either the Mother or the Daughter will be persecuted in Burma in the reasonably foreseeable future for reasons of political opinion, either actual in the case of the Mother, or imputed in the case of the Daughter. In relation to both the Mother and the Daughter the Tribunal was not satisfied that they were persons to whom Australia has protection obligations, and that they did not satisfy the criterion under s.36(2)(a) or (b) of the Migration Act for a protection visa, and the Tribunal therefore affirmed the Delegate’s Decision not to grant the Mother and Daughter protection visas.[68]
[68] Tribunal Decision, CB 535 at para.191.

Judicial review

A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[69] Further, an error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks a wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding, or failing to exercise, the authority or powers given under the relevant statute.[70]
[69] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[70] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ (“Yusuf”).
In determining this matter the Court must have regard to the proper nature of judicial review. That encompasses a number of matters which bear upon the Court’s considerations, including the following:
a)there is no error of law, and hence no jurisdictional error, in the Tribunal making a wrong finding of fact;[71]
[71] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16-17 per Black CJ, French and Selway JJ; [2004] FCAFC 263 at paras.52-54 per Black CJ, French and Selway JJ (“NABE (No. 2)”); SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at para.17 per Jacobson J (“SZJEH”).
b)so long as a particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place;[72]
[72] Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 at 294-296 per Greenwood J; [2008] FCAFC 108 at paras.97-99 per Greenwood J.
c)a misconception by the Tribunal of a visa applicant’s evidence does not constitute a jurisdictional error;[73]
[73] WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at paras.46-47 and 58-63 per Marshall, Mansfield and Siopis JJ; WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 at para.7 per Lee J.
d)there may be cases where the Tribunal’s statements or questions during the hearing sufficiently indicate to an applicant that everything said in support of the application is in issue. That indication may be given in various ways and it is not necessary, and often would be inappropriate, for the Tribunal to put to an applicant, in so many words, that they are lying, that they may not be accepted as a witness of truth, or that they may be thought to be embellishing an account of certain events. The proceedings are not adversarial, and the Tribunal does not adopt the position of a contradictor;[74]
[74] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 165-166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; [2006] HCA 63 at para.47 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”).
e)where there are specific aspects of an applicant’s account which the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal need only ask an applicant to expand upon those aspects of the account and ask an applicant to explain why the account should be accepted;[75]
[75] SZBEL CLR at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.47 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
f)procedural fairness does not require:
i)the Tribunal to continuously disclose its process of reasoning or reactions so as to enable the parties a further opportunity of criticising them before a final decision is reached;[76] and
ii)there is no necessity for the Tribunal to provide a running commentary upon what it thinks about the evidence as it is given, and to do so might carry a serious risk of conveying an impression of prejudgment;[77]
g)it is important not to confuse taking into account relevant considerations with taking into account particular pieces of evidence, and a failure to take into account a particular piece of evidence does not necessarily give rise to jurisdictional error;[78]
h)a Court conducting judicial review must be astute not to turn judicial review into merits review, and it is not appropriate to analyse the Tribunal Decision minutely and with a focus upon perceiving error;[79]
i)in deciding to grant or refuse a protection visa the Tribunal must decide if it is satisfied an applicant is a refugee under the Convention;[80]
j)the onus is on an applicant to make out the factual basis of an application for review of a decision not to grant a protection visa;[81] and
k)findings of fact, including the making of credibility findings, are matters par excellence for the Tribunal.[82]
[76] SZBEL CLR at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[77] SZBEL CLR at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[78] Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236-237 per Carr J (with whom Sheppard & Gummow JJ agreed); WZAND v Minister for Immigration [2009] FMCA 26 at para.57 per Lucev FM.
[79] Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611 at 623-624 per Gummow A-CJ and Kiefel J, at 634, footnote 73 per Heydon J; [2010] HCA 16 at para.35 per Gummow A-CJ and Kiefel J, at para.85, footnote 73 per Heydon J; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh & Gummow JJ (“Wu Shan Liang”); Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 67 per Gleeson CJ and Hayne J; [2001] HCA 22 at para.23 per Gleeson CJ and Hayne J.
[80] Migration Act, s.36(2)(a); NABE (No. 2) FCR at 14 per Black CJ, French and Selway JJ; FCAFC at para.44 per Black CJ, French and Selway JJ.
[81] Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J (“Selvadurai”).
[82] NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at para.9 per Heerey, RD Nicholson and Selway JJ (“NADR”).

Grounds of review – consideration

The grounds of review are set out below. It is convenient to start with ground 2, before dealing with grounds 1 and 3.

Ground 2 (Section 425)

Ground 2

Ground 2 of the Amended Application asserts that the Tribunal committed jurisdictional error in that it:
2. Did not extend an objectively meaningful invitation to the First Applicant to attend its hearings and thereby contravened s.425 of the [Migration] Act.
Particulars
(The particulars of ground 1 are repeated.)
The particulars to ground 1 are as follows:
Particulars
(i)After the First Applicant gave evidence before the Second Respondent on 27 May and 17 June 2010, the Second Respondent formed certain views about the First Applicant’s credibility, some of which it expressed in a letter dated 11 July 2010 pursuant to s.424A of the Migration Act 1958 (the Act).
(ii)There was unchallenged expert evidence that:
A.the First Applicant was suffering from severe symptoms of post traumatic stress disorder with an associated depressive illness, which symptoms were present most of the time and worsening in severity;
B.those symptoms were of such intensity that they would impact on her presentation and capacity to represent herself and her history;
C.as one consequence, there is difficulty in accessing, verifying and resolving the trauma and precipitating events which have caused the severe symptoms and major illness.
(iii)That evidence was contained in a psychiatrist’s report dated 27 August 2010 which the Second Respondent had before it only on the third occasion the First Applicant appeared before it, being 4 October 2010.
(iv)Despite the unchallenged expert evidence, the Second Respondent arrived at findings about the First Applicant’s credibility based on what it regarded as inconsistent answers, the “appearance” of providing a rehearsed statement, the giving of “extremely vague” answers and the “tenor” that she was making up material as she went along.
(v)Having expressed its findings about the First Applicant’s credibility in those terms, the Second Respondent then said that it took into account the expert evidence that the First Applicant was suffering from severe symptoms of post-traumatic stress disorder.
(vi)The Second Respondent then purported to reconcile its own observations about the way the First Applicant gave her evidence with the expert opinions by reference to independent country information.
(vii)Apart from that purported means of reconciliation of those discrepancies, the Second Respondent made no attempt to assess how the First Applicant’s illness and associated symptoms may have impacted upon her evidence, and hence upon the undertaking of a review of the First Respondent’s decision, beyond noting that it had “taken into account” the expert evidence. In particular, the Second Respondent did not:
A.address the evidence of the illness and symptoms before expressing its findings about the manner in which the First Applicant gave her evidence;
B.obtain any further evidence about or otherwise investigate the impact of the First Applicant’s illness and symptoms on the account she provided of the matters which she asserted gave rise to a well-founded fear of persecution for a Convention-based reason; or
C.advert in its reasons to the existence of the illness and symptoms save for the one shortly expressed reference to the expert opinion evidence.

Mother and Daughter’s submissions

The Mother and Daughter submit as follows with respect to ground 2:
a)there was unchallenged evidence before the Tribunal, by the time of the Third Tribunal Hearing, that the Mother was suffering from severe symptoms of Post Traumatic Stress Disorder[83] with an associated major depressive illness. The evidence was in the Lutton Report and extended to the following consequences of critical importance to the conduct of the Tribunal’s review:
[83] “PTSD”.
i)the Mother’s symptoms caused her PTSD and major depression, and were of such intensity that they would impact on her presentation and capacity to represent herself and her history;
ii)symptoms of such severity are rarely seen without there having been a significant background history of trauma and persecution; and
iii)as one particular consequence, there is difficulty in accessing, verifying and resolving the trauma and its precipitating events which have caused the PTSD and associated illness;[84]
[84] Lutton Report, CB 433-434.
b)the Tribunal took evidence from the Mother on three occasions. The first two of those occasions, 27 May 2010 and 17 June 2010, were prior to the Tribunal’s receipt of the Lutton Report. The third occasion when evidence was taken, 4 October 2010, was after the receipt of the Lutton Report. The Tribunal Decision cites verbatim an extract from the Lutton Report[85] and, several pages later in the Tribunal Decision, refers to having taken that extract into account.[86] The Tribunal’s analysis expresses an “acknowledgement” that the symptoms described by Dr Lutton’s opinion “may have been attributing to” the Mother’s vague contradictory evidence and the difficulty she appeared to have in answering in any specific way questions put to her by” the Tribunal.[87] Beyond these two references the Lutton Report is otherwise:
i)not subsequently referred to in the Tribunal Decision;
ii)accorded the most minimal weight; and
iii)not the subject of any attempt to assess the apparent discrepancies and inconsistencies in the Mother’s accounts as perceived by the Tribunal in light of the major and substantial impairments described in the Lutton Report;
c)in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[88] a Full Court of the Federal Court construed s.425 of the Migration Act as requiring a “real and meaningful” invitation to attend an oral hearing for the purposes of giving evidence and presenting argument. The Full Court of the Federal Court held that that provision may be contravened, with material unfairness to an applicant, where medical evidence establishes that the applicant was, in substance, in no condition properly to participate in an interview.[89] An effective subversion of the operation of s.425 of the Migration Act also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review;[90]
d)the question is whether or not the Tribunal’s review function has been stultified or frustrated because the Mother was denied the opportunity to adduce evidence as to her medical condition;[91]
e)the present circumstances are distinguishable from SCAR and SZNVW, in that there was before the Tribunal in this case explicit and unchallenged evidence of serious mental impairment with considerable consequences as to the Mother’s capacity to present her claims and her history, and the Tribunal at no point properly came to grips with the nature and consequences of the expert evidence which, by the Third Tribunal Hearing, was before it; and
f)properly understood in light of the medical evidence and the limited way it was considered by the Tribunal, the literal “invitations” to appear which the Mother availed herself of were merely formalities, and not real and meaningful, as was required by s.425 of the Migration Act.
[85] Tribunal Decision, CB 511-512 at para.108.
[86] Tribunal Decision, CB 528 at para.156.
[87] Tribunal Decision, CB 525 at para.156.
[88] [2003] 128 FCR 553; [2003] FCAFC 126 (“SCAR”).
[89] Citing SCAR FCR at 560-561 per Gray, Cooper and Selway JJ; FCAFC at paras.33-37 per Gray, Cooper and Selway JJ.
[90] Citing SZFDE & Ors v Minister for Immigration & Citizenship (2007) 232 CLR 189 at 201 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; [2007] HCA 35 at para.32 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ (“SZFDE”).
[91] Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575 at 586 per Keane CJ; [2010] FCAFC 41 at paras.37-38 per Keane CJ (“SZNVW”).

Respondents’ submissions

The respondents submit as follows:
a)there is no evidence to demonstrate that the Mother was unfit to “give evidence and present arguments” at the Tribunal Hearing. Neither:
i)the Lutton Report; nor
ii)the evidence of Kok, a counsellor with Assisting Survivors of Torture and Trauma,
suggests that at the Tribunal hearings on 27 May 2010, 17 June 2010 and 4 October 2010 the Mother was suffering from a mental condition of such a magnitude as to make her unfit in the relevant sense;[92]
[92] Citing SCAR FCR at 557 per Gray, Cooper and Selway JJ; FCAFC at para.12 per Gray, Cooper and Selway JJ.
b)the Tribunal’s adverse view of the Mother’s credibility does not reflect an impaired opportunity for the Mother to give evidence and present arguments;[93]
[93] Citing SZNVW FCR at 586 per Keane CJ (with whom Emmett J agreed); FCAFC at para.34 per Keane CJ (with whom Emmett J agreed).
c)medical evidence suggesting that an applicant’s mental state interfered with their capacity to advance their case before the Tribunal does not mean that an applicant is unfit to prosecute its case before the Tribunal;[94]
d)the law presumes every person to be sane and, in modern times, there has been expressed to be a presumption that a person of full age is capable of managing their affairs,[95] and, therefore, a person who asserts incapacity must prove it;[96]
e)in the present case there is nothing to suggest that, at the date of the Lutton Report, Dr Lutton had read or listened to the Tribunal hearings on 27 May 2010 or 17 June 2010;[97]
f)it is relevant to bear in mind that the Mother was, at all material times, assisted by solicitors and migration agents, who were assiduous in seeking to protect the Mother’s interests, going to the extent of correcting alleged translation errors, and that assistance is relevant in the context of an application for judicial review;[98]
g)a party to ordinary civil litigation is not under a disability within the meaning of rules of court if the party has sufficient capacity to:
i)instruct a solicitor with sufficient clarity to enable the solicitor to understand the problem and advise appropriately; and
ii)understand and to make decisions based upon, or otherwise give effect to, such advice as the party may receive from the solicitor,[99] and, therefore, on the material before the Court the Mother cannot be regarded as being under a disability for the purposes of typical civil rules of court;[100] and
h)the integrity of the hearing under s.425 of the Migration Act was not subverted by a want of an appreciation on the part of the Tribunal that the Mother’s presentation of her case might have been adversely affected by an impaired mental state of which the Tribunal was oblivious,[101] because the Lutton Report was placed before the Tribunal, not only before the Tribunal Decision was given, but also before the last hearing, that is the Third Tribunal Hearing.[102]
[94] Citing Minister for Immigration & Citizenship v SZNCR [2011] FCA 369 at para.34 per Tracey J.
[95] Citing Murphy v Doman & Anor (2003) 58 NSWLR 51 at 58 per Handley JA; [2003] NSWCA 249 at para.36 per Handley JA; Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398 at 414 per Edmonds J; [2006] FCA 900 at para.66 per Edmonds J (“Strata Plan No 23007”).
[96] Citing Strata Plan No 23007 FCR at 414-415 per Edmonds J; FCA at paras.66-67 per Edmonds J.
[97] SZNCR FCA at paras.36-39 per Tracey J.
[98] Citing Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 446 per Heerey, Goldberg and Weinberg JJ; [2001] FCA 274 at para.88 per Heerey, Goldberg and Weinberg JJ (“Anthonypillai”).
[99] Citing Strata Plan No 23007 FCR at 411-413 per Edmonds J; FCA at paras.53-60; SZNVW FCR at 586 per Keane CJ (with whom Emmett J agreed); FCAFC at para.36 per Keane CJ (with whom Emmett J agreed).
[100] Lutton Report; see also CB 152, 156, 163, 255, 256, 257, 264, 301, 303, 315, 318, 319(1), 320, 339, 346, 358, 369, 371, 373, 402, 416, 419, 432, 435, 448, 452, 453, 455, 456 and 479.
[101] Citing SZNVW FCR at 586 per Keane CJ (with whom Emmett J agreed); FCAFC at para.37 per Keane CJ (with whom Emmett J agreed).
[102] Tribunal Decision, CB 511, 512 and 528 at paras.103, 104 and 156.

Consideration

Section 425(1) of the Migration Act provides as follows:
(1) 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.
Under s.425(1) of the Migration Act the Tribunal is required to extend an objectively meaningful invitation to an applicant to attend a Tribunal hearing. Essentially, that means that an applicant must be afforded natural justice by being given an opportunity to give evidence and present arguments in support of their application.[103] That is the imperative statutory function with respect to the conduct of the review by the Tribunal which s.425 contemplates will be carried into effect.[104] Put negatively, s.425 of the Migration Act requires that the Tribunal hearing process, that is the taking of evidence and the presentation of argument, not be “subverted”,[105] “stultified”,[106] “corrupted”,[107] “compromised or lost”.[108]
[103] SZNVW FCR at 582 per Keane CJ and 588 per Emmett J; FCAFC at para.19 per Keane CJ and at para.48 per Emmett J.
[104] SZFDE CLR at 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.51 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZNVW FCR at 597 per Perram J; FCAFC at para.83 per Perram J.
[105] SZFDE CLR at 201 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.32 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZNVW FCR at 586 per Keane CJ and 597 per Perram J; FCAFC at para.37 per Keane CJ and at para.83 per Perram J.
[106] SZFDE CLR at 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; HCA at para.49 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
[107] Minister for Immigration & Multicultural Affairs v SZFDE & Ors (2006) 154 FCR 365 at 400 per French J; [2006] FCAFC 142 at para.130 per French J (“SZFDE – Full Federal Court”). French J was in the minority in SZFDE – Full Federal Court in relation to the outcome, but that dissent was upheld on appeal in SZFDE.
[108] SZFDE – Full Federal Court FCR at 391 per French J; FCAFC at para.101 per French J.
It must be noted that in SZFDE and SZFDE – Full Federal Court what was being dealt with was procedural unfairness not attributable to a decision-maker, as was also the case in SCAR. This case is distinguishable because it is alleged that the relevant procedural unfairness said to arise from the alleged failure to extend a meaningful invitation to give evidence and hear argument under s.425(1) of the Migration Act was attributable to the Tribunal because of its treatment of what was said in the Lutton Report.
In this case, the Mother and Daughter were afforded three opportunities to give evidence and present arguments at oral hearings before the Tribunal. At all times, the Mother and Daughter were represented by solicitors, who were also migration agents, namely, Ms Moss and Ms Copeland.[109] In addition to attending at the Tribunal Hearings, and assisting the Mother and Daughter at those hearings, the solicitors and migration agents lodged detailed written submissions on behalf of the Mother and Daughter:
a)of 24 pages on 1 July 2010, after the Second Tribunal Hearing on 17 June 2010;[110]
b)a two page letter by way of submission on 16 July 2010, submitting that:
i)the translation at two points in the First Tribunal Hearing was incorrect; and
ii)at the Second Tribunal Hearing the Tribunal had wrongly put the evidence of the Daughter to the Mother in one respect;[111]
c)of 11 pages on 25 August 2010 in response to an invitation to comment from the Tribunal following the Second Tribunal Hearing;[112] and
d)of eight pages on 13 December 2010 in respect to an invitation to comment from the Tribunal following the Third Tribunal Hearing.[113]
[109] Indeed, the Mother and Daughter were represented from the time of the filing of the protection visa application by solicitors who were also migration agents, namely Ms Moss and Ms Copeland.
[110] CB 374-397.
[111] CB 402-403.
[112] CB 420-430.
[113] CB 480-487.
There were also other minor submissions, documents and a general practitioner’s report, provided by the Mother and Daughter’s representatives to the Tribunal, in addition to the Lutton Report.
It was not until after the Second Tribunal Hearing that the Lutton Report was produced and provided, under cover of a letter and facsimile from the Mother and Daughter’s representatives, to the Tribunal.[114] The Lutton Report is quite short. It is just under a page and a half, and there are effectively only four paragraphs with relevant content.
[114] CB 431-432.
The Lutton Report was considered by the Tribunal. The Mother and Daughter criticised the Tribunal for the brevity of the reference to the Lutton Report in the Tribunal Decision. The length of the consideration of the Lutton Report by the Tribunal was hardly surprising given the length (one and half pages) of the Lutton Report, but that is not really to the point. What matters is that the Tribunal took into account the Lutton Report when assessing the Mother’s credibility, and weighing the matters of concern to the Tribunal.[115] It is not, as suggested by the Mother and Daughter’s submissions, the case that the Tribunal has reached a determination as to credibility of the Mother, and then taken into account the Lutton Report, but discounted it by reference to independent country information. The Tribunal Decision indicates that the Tribunal considered the content of the Lutton Report “[W]hen assessing … credibility”.[116] There is no basis for doubting that statement by the Tribunal. Moreover, the Tribunal had regard to the fact that the Lutton Report indicates that the Mother’s PTSD would impact upon her presentation and capacity to present herself and her history, and acknowledges that that may have contributed to her vague contradictory evidence and the difficulty in specifically answering questions.[117] The Tribunal, in fact, did exactly what the Lutton Report said it should do, in that it “considered” the Mother’s “current psychiatric state … in assessing her history and presentation”.[118]
[115] Tribunal Decision, CB 528 at para.156.
[116] Tribunal Decision, CB 528 at para.156.
[117] Tribunal Decision, CB 528 at para.156.
[118] Lutton Report, CB 434, para.6, set out at para.18 above.
The Lutton Report does not go so far as to say that the Mother was incapable of giving evidence, either at all or on the prior occasions at which she had given evidence at the First and Second Tribunal Hearings. Obviously, there was an “impact” and the effect of that might be to give rise to a “risk” of dissociation and “quite disabling anxiety” at a Tribunal Hearing.[119] However, no evidence was put before the Tribunal, or for any relevant purpose, before this Court, that:
a)these potential impacts and effects had an actual affect on the Mother at the First, Second or Third Tribunal Hearings;
b)Dr Lutton, or any other psychiatrist or psychologist or medically trained person, was with the Mother when she gave her evidence by telephone to the Third Tribunal Hearing, and that giving evidence did in fact affect the Mother’s appearance at the Third Tribunal Hearing; or
c)Dr Lutton was of the view that the Mother could not, or ought not to, give evidence or appear at the Third Tribunal Hearing, indeed, as set out above, the Mother’s psychiatric state was something to be “considered” as part of assessing her case or her evidence.[120]
[119] Lutton Report, CB 433, para.2.
[120] See paras.18 and 68 above.

In the above respects, it may be that the Mother has not made the best of the opportunity to present compelling evidence as to the impact and effect of her PTSD on her evidence, or in relation to the fact that she ought not to have given evidence at the Third Tribunal Hearing.[121] Indeed, there is no suggestion that the Mother was unfit to, or incapable of, participating in any of the Tribunal Hearings. Moreover, she took part in the Third Tribunal Hearing, seemingly without demur, either from herself or her representatives, and without making any apparent submission as to her PTSD or its effect at that time, which was, of course, subsequent to the provision of the Lutton Report. That contrasts starkly with the conduct of her representatives in relation to the attendance at the Third Tribunal Hearing of:
a)witnesses on behalf of the Mother, in relation to whom the representatives wrote to the Tribunal seeking to have the Tribunal Hearing at a time convenient to the health and work commitments of those witnesses;[122]
b)observers, being persons who had assisted the Mother and Daughter’s representatives in the conduct of the matter,[123] and three of whom evidently attended the hearing;[124]
c)critically, the making of arrangements for the Mother to attend the hearing by telephone;[125] and
d)the attendance of a substitute witness for a witness whose ill health prevented him from giving evidence.[126]
Thus, whilst the representatives dealt with the attendance at times convenient for other witnesses, the health concerns of other witnesses, and the Mother’s attendance by telephone rather than in person, at no stage was it suggested to the Tribunal that the Mother was unfit or incapable of attending the Third Tribunal Hearing and giving evidence by reason of the matters raised in the Lutton Report.
[121] SZNVW FCR at 586 per Keane CJ and 597-598 per Perram J; FCAFC at para.37 per Keane CJ and paras.86-87 per Perram J.
[122] CB 441, 446 and 448.
[123] CB 451.
[124] CB 453.
[125] CB 452.
[126] CB 452.
The Mother placed significant reliance on the Full Federal Court judgment in SCAR. However, as in SZNVW, SCAR is distinguishable from the circumstances in this case. That is so for a number of reasons, including the following:
a)in SCAR the Tribunal was oblivious to the medical impairment of the applicant, whereas here, the Tribunal was fully aware of the medical condition and its impact upon the Mother, and took that into consideration, and thus there was no “want of appreciation” of the medical issue;[127]
b)that there was unequivocal evidence that the applicant in SCAR was not medically fit to give evidence on the day of the hearing, in circumstances where the applicant, who was in detention, had received news just days earlier of his father’s death; and
c)the applicant in SCAR was unrepresented, whereas here both the Mother and Daughter have been represented by a solicitor and migration agent from the commencement of the protection visa application process, and who, consistent with their professional obligations, and to their credit, have otherwise been utterly assiduous in their efforts on behalf of the Mother and Daughter.
[127] SZNVW FCR at 586 per Keane CJ; FCAFC at para.37 per Keane CJ.
In this case, the Mother had the opportunity to adduce evidence of her PTSD, and its effect, and did so. Moreover, she had the opportunity to submit that she ought not give evidence at the Third Tribunal Hearing, but did not do so. There was no denial of any opportunity to give evidence and present arguments concerning the Mother’s PTSD. Moreover, the Tribunal considered the PTSD when reaching its findings and reasons, as the Lutton Report suggested it do. In those circumstances, the Court does not consider that the meaningful invitation afforded by s.425(1) of the Migration Act to give evidence and present arguments has been denied to the Mother, or the Daughter.[128] Ground 2 is therefore not made out.
[128] SZNVW FCR at 586 per Keane CJ, at 588 per Emmett J and 597-598 per Perram J; FCAFC at paras.34 and 36 per Keane CJ, paras.48 and 49 per Emmett J and paras.83 and 86-87 per Perram J.

Ground 1 – Mother’s credibility

Ground 1 of the amended application asserts that the Tribunal committed jurisdictional error in that it:
1. Undertook an assessment of the First Applicant’s credibility which:
(a)constituted an improper exercise of the Second Respondent’s fact-finding function; further or alternatively
(b)caused practical injustice to the First Applicant, thereby denying the First Applicant and the Second Applicant procedural fairness.

Mother and Daughter’s submissions

To a significant extent the Mother and Daughter’s submissions with respect to ground 1 mirror those set out above with respect to ground 2.
The Mother therefore submits that there was jurisdictional error because whilst, in a literal sense, the Mother was given three distinct invitations to appear before it to give evidence and present arguments, the Tribunal then proceeded to use the evidence and arguments thereby obtained in a flawed and unfair manner, particularly to make adverse credit findings in relation to the Mother.

Respondents’ submissions

The respondents submit that:
a)the findings of facts, including the making of credibility findings, are uniquely within the jurisdiction of the Tribunal, and are not matters for the Court;[129]
b)the Tribunal is not required to hold a positive state of disbelief before making credibility findings;[130]
c)the Tribunal is not obliged to have rebutting evidence available before rejecting a factual assertion made by an applicant;[131]
d)a contention that the Tribunal failed to consider the evidence properly or fairly is not supported by reason of mere disagreement with the Tribunal’s findings of fact;[132]
e)it is not necessarily irrational, or illogical, for a finder of fact who is convinced that a witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the witness;[133] and
f)the Tribunal had proper regard to the Lutton Report,[134] and did not commit any jurisdictional error in the manner in which it dealt with the Lutton Report or in its assessment of the Mother’s credibility. Moreover, the Tribunal expressly stated that when assessing the Mother’s credibility in weighing up the matters that caused it concern, it had taken into account the Lutton Report. The Tribunal acknowledged that the Mother’s symptoms of PTSD may have been contributing to her vague contradictory evidence and the difficulties she appeared to have in answering in any specific way questions put to her by the Tribunal.[135]
[129] Citing NADR FCAFC at para.9 per Heerey, RD Nicholson and Selway JJ.
[130] Citing WZANW v Minister for Immigration [2009] FMCA 1075 at para.98 per Lucev FM.
[131] Selvadurai at 348 per Heerey J; Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at para.13 per French J.
[132] Citing SZJEH at para.14 per Jacobson J.
[133] Citing Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1168-1169 per Gleeson CJ; [2003] HCA 30 at para.12 per Gleeson CJ.
[134] CB 435-347.
[135] Tribunal Decision, CB 528 at para.156.
The respondents submit that the Tribunal’s approach to the assessment of the Mother’s credibility expressed a number of concerns, clearly open to the Tribunal on the material before it, as follows:
a)the Mother often provided inconsistent answers in evidence;[136]
b)the Mother sometimes did not respond to questions, but instead appeared to provide a rehearsed statement;[137]
c)the Mother was sometimes extremely vague in the answers that she provided to quite specific questions;[138]
d)some of the Mother’s evidence had the tenor that she was making up material as she went along in the hearing;[139]
e)the Mother was unable to provide details of when and where and how often her shop had been closed;[140]
f)the Mother’s evidence regarding her assistance to Aung San Suu Kyi was implausible and lacking in credibility;[141]
g)the Mother’s claim that she had been involved in politics throughout her life, contrasted with her seeming to have little knowledge about major political events within Burma;[142] and
h)the Mother was extremely evasive when asked to describe her own involvement in political activities.[143]
[136] Tribunal Decision , CB 526 at para.148.
[137] Tribunal Decision, CB 526 at para.149.
[138] Tribunal Decision, CB 526 at para.149.
[139] Tribunal Decision, CB 527 at para.150.
[140] Tribunal Decision, CB 527 at para.150.
[141] Tribunal Decision, CB 527 at para.150.
[142] Tribunal Decision, CB 527 and 528 at paras.151-152 and 155.
[143] Tribunal Decision, CB 527 at para.152.
The respondents submit that the Tribunal also noted that the Mother’s account was inconsistent with the following independent country information:
a)the evidence that the Mother was a very successful business woman, and the fact that she was able to operate a successful business for a period of time, suggested that she was not a political activist in Burma;[144]
b)the fact that the Mother was able to leave and return to Burma on many occasions was indicative of the fact that she was not of interest to the Burmese authorities;[145]
c)that there was no reason for the authorities to be looking for or to arrest the Mother in 1999 for her very minor involvement in the 1988 demonstrations;[146]
d)that the Mother would not have been released from prison if, as she claimed, she had refused to sign an undertaking that she would not be further involved in political activities;[147]
e)there was no reason why the authorities would summons the Mother two years later for her involvement in the Saffron Uprising;[148] and
f)the Mother’s claim that she was summonsed directly to court in relation to her activities in the Saffron Uprising was at odds with the country information which indicated that persons involved in a low level way in the Saffron Uprising were not of interest to the Burmese authorities.[149]
[144] Tribunal Decision, CB 528-529 at paras.157-158.
[145] Tribunal Decision, CB 529 at para.159.
[146] Tribunal Decision, CB 529 and 530-531 at paras.160 and 163.
[147] Tribunal Decision, CB 531 at para.165.
[148] Tribunal Decision, CB 531 at para.166.
[149] Tribunal Decision, CB 531-532 at para.167.
In relation to the Mother’s medical condition and symptoms the respondents submit that the Tribunal was not obliged to address the evidence of that before expressing findings about the manner in which the Mother gave her evidence.[150] The credibility ground is essentially a complaint about alleged factual error, but there is no reviewable error merely because of a wrong finding of fact, if there be one.[151]
[150] Citing Anthonypillai FCR at 445 per Heerey, Goldberg and Weinberg JJ; FCA at paras.82-86 per Heerey, Goldberg and Weinberg JJ.
[151] Citing Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582 at 602 per von Doussa, O’Loughlin and Mansfield JJ; [1999] FCA 81 at para.67 per von Doussa, O’Loughlin and Mansfield JJ.
The respondents submit that the Tribunal was not wrong to take an adverse view of the Mother’s credibility, and that the Mother and Daughter cannot demonstrate that the Tribunal was wrong to take an adverse view of the Mother’s credibility. Nor, it is said, can it be demonstrated that the Tribunal was wrong to attribute the Mother’s poor performance before the Tribunal to her dishonesty rather than to the effects of her psychological problems. It is not enough that more information relating to the Mother’s psychological problems might have lead to a different view of her credibility. The Mother does not thereby demonstrate that she was denied a real and meaningful opportunity of giving evidence and presenting arguments in support of her application.[152]
[152] Citing SZNVW FCR at 586 per Keane CJ (with whom Emmett J agreed); FCAFC at para.34 per Keane CJ (with whom Emmett J agreed).
Finally, the respondents submit that:
a)the Tribunal was not obliged to conduct an inquiry to discover whether the Mother’s case might be better put or supported by other evidence. The Mother had the opportunity to adduce evidence, and did so, and there was no suggestion that her capacity to make decisions in her own interests in that regard was impaired by her condition;[153] and
b)there was no duty on the Tribunal to undertake further inquiries in respect of the Mother’s medical information or psychological state vis-à-vis an assessment of her credibility.[154] The Tribunal’s only obligation was to conduct a review of the Delegate’s Decision.[155] There was nothing to prevent the Mother from providing further medical information concerning her psychological state, particularly as it related to an assessment of her credibility.[156]
[153] Citing SZNVW FCR at 586 per Keane CJ (with whom Emmett J agreed); FCAFC at para.36 Keane CJ (with whom Emmett J agreed).
[154] Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 602 per French CJ and Kiefel J (with whom Heydon and Crennan JJ agreed); [2011] HCA 1 at para.20 per French CJ and Kiefel J (with whom Heydon and Crennan JJ agreed) (“SZGUR”); SCAR FCR at 559-560 per Gray, Cooper and Selway JJ; FCAFC at para.31 per Gray, Cooper and Selway JJ.
[155] Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 39 at paras.25-27 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[156] Citing SZGUR CLR at 622-623 per Gummow J (with whom Heydon and Crennan JJ agreed); HCA at para.88 per Gummow J (with whom Heydon and Crennan JJ agreed).

Consideration

As has so often been said the assessment of credibility is a matter for the Tribunal par excellence.[157]
[157] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J, and see, for example, SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM; SZONA v Minister for Immigration & Anor [2011] FMCA 99 at para.31 per Lloyd-Jones FM; SZONR v Minister for Immigration & Anor [2011] FMCA 89 at para.49 per Nicholls FM.
In W148/00A vMinister for Immigration and Multicultural Affairs[158] the plurality of a Full Court of the Federal Court observed that:

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; 112 ALR 641 at 646 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 (1990) 171 CLR 167 at 179; 96 ALR 354. “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.[159]
[158] (2001) 185 ALR 703, [2001] FCA 679 (“W148/00A”).
[159] W148/00A ALR at 716 per Tamberlin and RD Nicholson JJ; FCA at para.64 per Tamberlin and RD Nicholson JJ.

In this case the Mother’s credibility was:
a)extensively tested by the Tribunal during the course of the three Tribunal hearings, as is evident from the Tribunal Decision; and
b)the subject of specific submissions, particularly in relation to the inter-relationship between the Mother’s PTSD and her credibility in the First Invitation to Comment Response.
Setting aside for a moment the issue of the PTSD and the Lutton Report, it appears from the facts as they appear in the Tribunal Decision that there was otherwise sufficient material upon which to found a finding that the Mother’s evidence lacked credibility. That is so because of the various inconsistencies highlighted in the Tribunal Decision, which are set out above in the respondents’ submissions, and the inconsistencies with the independent country information, which are also set out in the respondents’ submissions cited above.[160]
[160] See paras.77 and 78 above, and generally the Tribunal Decision at CB 526-532 at paras148-167.
Consideration of the material in relation to the various inconsistencies highlighted by the Tribunal means that there was probative material from which it could logically or rationally be inferred that the Mother was not a witness of truth. That was a conclusion which any rational or logical decision-maker could draw on the evidence.[161]
[161] SZMDS CLR at 647-648 per Crennan and Bell JJ; HCA at para.130 per Crennan and Bell JJ.
Looking then at the position with respect to the credibility findings having regard to the Lutton Report, it is evident that the issue of the impact of the Mother’s PTSD and her credibility was put in issue prior to the receipt of the Lutton Report by the First Invitation to Comment Response. The Lutton Report simply reinforced the need for the Mother’s PTSD to be considered in the context of any findings to be made by the Tribunal Decision, as to credibility or otherwise. However, for reasons which are otherwise set out above in relation to ground 2, the Tribunal had proper regard to the Lutton Report when assessing the Mother’s credibility. Indeed, it acted precisely as the Lutton Report suggested: namely, it took into account the Mother’s psychiatric state in assessing her history and presentation before the Tribunal. That was the Tribunal’s function, and it is not for this Court to interfere where all of the evidence has been sifted and weighed by the Tribunal.[162] Were the Court to do so in these circumstances it would run a considerable risk of straying over the “vigorously policed” line between merits review and judicial review.[163]
[162] Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14.
[163] Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 589 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.
There is no doubt that the Tribunal’s view of this matter is one upon which minds might differ. Differing impressions might arise in the minds of different people, and this might make for a different decision by another decision-maker. That does not mean that this Tribunal Decision is in error. There was an evidentiary basis for the findings as to credibility, which flowed over into the ultimate findings.[164] There was, therefore, a basis for the Tribunal Decision in relation to the credibility in the evidence and materials which were before the Tribunal.
[164] SZMDS CLR at 632 per Heydon J; HCA at para.78 per Heydon J.

It follows therefore that ground 1 is not made out.

Ground 3

Ground 3 of the Amended Application asserts that the Tribunal committed jurisdictional error in that it:
2. Failed properly to assess the authenticity of documents relied upon by the Applicants, namely:
(a)the Summons for the Accused dated 28 October 2009;
(b)the Order to Arrest dated 2 November 2009;
(c)the Additional Summons to be sent to the Accused dated 3 December 2009 and in particular failed to:
(i)     consider the form and contents of the documents themselves to determine the inferences that could reasonably be drawn consistently with the documents’ authenticity;
(ii)    undertake any inquiries, pursuant to s.427(1)(d) of the Act or otherwise, about the documents’ authenticity;
(iii)   put to the Applicants that the documents were, or may have been, false or fraudulent documents and then give the Applicants a reasonable opportunity to be heard about that assertion.

Mother and Daughter’s submissions

The Mother and Daughter submit that:
a)an important component of the factual materials relied upon by the Mother and Daughter in support of their claims for protection visas was a series of documents evidencing their arrest and associated requirements to attend court in Burma. The most significant of those documents were:
i)a Summons for the Accused dated 28 October 2009, referring to both the Mother and the Daughter and alleging breaches of the “Criminal Act”;[165]
[165] CB 351.
ii)Orders to Arrest dated 2 November or 12 November 2009, informing of charges under the “Illegal Organisation Act” (in the Mother’s case) and the “Criminal Act” (in the Daughter’s case);[166] and
[166] CB 128 and 130.
iii)additional Summonses to be sent to the accused dated 3 December 2009;[167]
[167] CB 352-353. Together, these three sets of documents are the “Critical Court Documents”.
b)in the Second Invitation to Comment the Tribunal wrote to the Mother and Daughter by letter headed “Natural Justice” and setting out the Mother and Daughter’s names.[168] The Second Invitation to Comment referred to documents which included the Critical Court Documents, and made an observation concerning certain provisions of the Burmese Penal Code, asserting that the offences the Mother and Daughter were accused of committing appeared to be ones that do not relate to their involvement in protests or political activities. A further assertion was made about “how political activities are usually charged” in Burma. The Mother and Daughter were invited to “comment on this country information” by the Second Invitation to Comment, but no issues were otherwise raised concerning the authenticity or apparent probative content of the Critical Court Documents;
[168] CB 460-461.
c)the Mother and Daughter responded in the Second Invitation to Comment Response[169] which addressed the matters that had been raised;
[169] CB 479-489.
d)in the Tribunal Decision the Tribunal referred to the nature of the Critical Court Documents[170] and expressed concerns about their text in light of the Mother and Daughter’s evidence.[171] The Tribunal said that its “concerns were raised with the Applicant” and referred, in summary form, to aspects of the Second Invitation to Comment Response;[172]
[170] Tribunal Decision, CB 532 at para.168.
[171] Tribunal Decision, CB 532 at paras.169-172.
[172] Tribunal Decision, CB 532 at para.173.
e)the Tribunal Decision went on to suggest that the absence of reference in the Critical Court Documents to certain specified Burmese legislation “might mean that the persons drafting these documents are lax or incompetent or it could indicate that they are not genuine”.[173] It then concluded, consistently with the second of these two alternatives that:
[173] Tribunal Decision, CB 532 at para.173.
Due to the discrepancies in these documents and the matters set out above and the country information regarding the ready availability of false or fraudulent comments the Tribunal gives them no weight.[174]
[174] Tribunal Decision, CB 533 at para.174.
f)the Tribunal’s approach to assessing the authenticity of the Critical Court Documents and arriving at the conclusion it did was seriously flawed. No provisional conclusion that the documents were or may have been false or fraudulent documents was ever squarely put to the Mother and Daughter. The Second Invitation to Comment referred only to a limited set of issues relating to the documents, without squarely advancing the assertion that they may have lacked authenticity;
g)moreover, the analysis of the text, appearance and structure of the documents was superficial to the point of being, in effect, non-existent. The Tribunal did not, as it ought to have, undertake any meaningful assessment of whether the documents, on their face, appeared to be genuine and conveyed authenticity;
h)it was open to the Tribunal to itself initiate enquiries of its own, both through the Secretary to the Department pursuant to s.427(1)(d) of the Migration Act, and generally as part of its obligation to properly undertake a merits review of the Delegate’s Decision, regarding the Critical Court Documents’ authenticity. No enquiries of this nature were undertaken; and
i)the Tribunal, in:
i)failing to do any of the things referred to in sub-paragraphs (f)-(h) above;
ii)preferring the alternative that was adverse to the Mother and Daughter,[175] that is, coming to a conclusion that the Critical Court Documents were “not genuine” rather than preferring the more benign alternative (or any other benign alternative) without any accompanying reasoning tied to the text and form of the documents themselves; and
iii)failing to consider in the course of its fact-finding whether the documents in fact truly provided a corroborative source of the Mother and Daughter’s accounts rather than, on the other hand, reinforcing the conclusion that had otherwise been reached adverse to their credibility,
committed jurisdictional error.[176]
[175] See Tribunal Decision, CB 532 at para.173.
[176] Compare WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 at 574 per Lee and Moore JJ; [2004] FCAFC 74 at para.27 per Lee and Moore JJ; WZANF v Minister for Immigration & Anor [2010] FMCA 110 at para.62 per Lucev FM (“WZANF”).

Respondents’ submissions

The respondents submit that:
a)the Tribunal considered the Critical Court Documents, but gave those documents no weight;
b)there were significant discrepancies in the documents, such as the identification of the offences allegedly committed by the Mother and Daughter;[177]
[177] Tribunal Decision, CB 532 at paras.168-173.
c)the Critical Court Documents were at odds with the Mother’s evidence that she had been attending court regularly since January 2009, and therefore there was no reason for the authorities to summons the Mother in October 2009 and then issue a warrant for her arrest in November 2009;[178]
[178] Tribunal Decision, CB 532 at para.172.
d)the Tribunal was cognisant of the fact that country information reports suggested that false or fraudulent documents were readily available in Burma;[179]
[179] Tribunal Decision, CB 533 at para.174.
e)there was no duty on the Tribunal to undertake any enquiries pursuant to s.427(1)(d) of the Migration Act or otherwise, about a document’s authenticity;[180]
[180] SZGUR CLR 602 per French CJ and Kiefel J (with whom Heydon and Crennan JJ agreed); HCA at paras.1 and 20 per French CJ and Kiefel J (with whom Heydon and Crennan JJ agreed).
f)the Tribunal was under no obligation to put to the Mother and Daughter that the documents upon which they relied were or may have been false, and give the Mother and Daughter an opportunity to respond. Section 422B of the Migration Act applies to exclude the common law natural justice hearing rule in relation to onshore visa applicants;
g)in any event, the Tribunal did put to the Mother that it was easy to obtain false documents or real documents containing false information in Burma;[181]
[181] Tribunal Decision, CB 505 and 508 at para.83.
h)in the absence of evidence to the contrary, the Court must accept the statements of fact, such as what was said to an applicant by a Tribunal Member, recorded in a Tribunal decision;[182]
[182] SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at para.13 per Collier J; SZGUR CLR at 616 per Gummow J (with whom Heydon and Crennan JJ agreed); HCA at para.67 per Gummow J (with whom Heydon and Crennan JJ agreed).
i)the Mother was clearly on notice that authenticity of documents was a live issue, as evidenced by:
i)the Mother and Daughter’s solicitor’s submission to the Delegate dated 3 December 2009;[183]
[183] CB 163 and 171 at para.38.
ii)the reasoning in the Delegate’s Decision;[184]
[184] CB 275-276.
iii)the Mother’s statutory declaration made on 24 April 2010;[185]
[185] CB 302 at para.3.
iv)the Mother and Daughter’s solicitor’s submission to the Tribunal dated 1 July 2010, including, critically, those submissions under the heading “Documentary evidence and credibility”;[186]
[186] CB 373 and 393-397.
v)the First Invitation to Comment;[187]
[187] CB 406-407.
vi)the First Invitation to Comment Response dealing with:
(A)internet access;
(B) “Original Court Documents”;[188]
vii)the Second Invitation to Comment;[189] and
viii)the Mother and Daughter’s Second Invitation to Comment Response;[190]
j)the Mother and Daughter’s solicitor’s 27 January 2009 letter noted that certain types of documents could be obtained by paying large bribes to relevant Burmese officials, and referred specifically to summonses and arrest documents;[191]
k)the Tribunal afforded the Mother procedural fairness by sufficiently raising concerns about documents generally;[192]
l)the Tribunal may legitimately reject the authenticity of a document on the basis of adverse findings concerning an applicant’s credibility;[193]
m)a finding that documents are not genuine might, in a particular case, depend upon factors external to the documents and direct evidence that a document is a forgery will not always be necessary. It is not an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an applicant’s credit;[194] and
n)while the Tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the Mother and Daughter had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it.[195]
[188] CB 424-425. See also CB 426, 428 and 429.
[189] CB 460-461.
[190] CB 479-487.
[191] CB 255-256.
[192] SZMRS v Minister for Immigration & Citizenship [2009] FCA 936 at paras.28-32 per Flick J.
[193] SZGJY at paras.12 and 25 per Collier J; WAKK at paras.65-70 per Marshall, Mansfield and Siopis JJ.
[194] Minister for Immigration and Citizenship v SZMOK (2009) 110 ALD 15 at 27 per Emmett, Kenny and Jacobson JJ; [2009] FCAFC 83 at para.59 Emmett, Kenny and Jacobson JJ (“SZMOK”).
[195] SZMOK ALD at 29 per Emmett, Kenny and Jacobson JJ; FCAFC at para.68 per Emmett, Kenny and Jacobson JJ.

Consideration

It is apparent from the Tribunal Decision that the Tribunal did consider the form and content of the Critical Court Documents, and that in doing so it observed discrepancies on the face of those documents which were inconsistent with both the evidence of the Mother and Daughter and offences which the country information disclosed as being the relevant offences for the conduct which the Mother and Daughter said had occurred, but which were different to the offences charged in the Critical Court Documents.
Due to the various inconsistencies and discrepancies the Court ultimately concluded that it would give the Critical Court Documents no weight. The question of weight to be given to evidence is a matter for the Tribunal.
The Tribunal did not conclude that the Critical Court Documents were not genuine. It indicated that this was one possibility, but arrived at no conclusion with respect to that possibility, but rather gave the Critical Court Documents no weight due to the discrepancies and inconsistencies to which it referred.[196]
[196] Tribunal Decision, CB 533 at paras.176 and 177.
Even if it be considered that the Tribunal made findings with respect to the authenticity of the Critical Court Documents, the Court is of the view that it did consider their form and content with a view to determining authenticity. It was in the course of that process that it observed the various discrepancies and inconsistencies referred to above.
The Mother and Daughter say that the Tribunal failed to put to them that the documents were, or may have been, false or fraudulent documents, and did not give them a reasonable opportunity to be heard about that assertion. With great respect to them, nothing could be further from the truth. The respondents’ submissions, summarised at paragraph 92(i) above, set out those circumstances in which the genuineness of the Critical Court Documents was both put in issue and addressed by the Mother and Daughter. For present purposes it suffices to observe that:
a)the genuineness of the Critical Court Documents was clearly an issue at the RSA stage, and the subject of a finding in the Delegate’s Decision that the Delegate was not in a position to make a finding as to the genuineness of the Court Order and Arrest Warrant;[197]
b)the First Invitation to Comment Response has specific comment in relation to whether there are any issues that would bring into question the authenticity of what is described in the heading to that section of the First Invitation to Comment Response as the “Original Court Documents”;[198] and
c)the Critical Court Documents are addressed in the 10 page explanation in the Second Invitation to Comment Response, which, in relation to whether the genuineness of the Critical Court Documents, or any other documents, was in issue, is best summarised in the words of the Second Invitation to Comment Response:
We understand that genuineness of the legal documents provided by the applicants has long been an issue for the Tribunal.[199]
[197] CB 275.
[198] CB 424-425.
[199] CB 480. See also the slightly more extended quote and other quotes at para.28 above.
The genuineness of the Critical Court Documents was in issue, and was put to the Mother and Daughter, and there is therefore no foundation for any suggestion that the Mother and Daughter were denied a reasonable opportunity to reject any assertion that these documents were not genuine. Even if there was some error in the Tribunal’s approach, the “genuineness of the legal documents”[200] had been an issue since the RSA, and in issue from the commencement of the Tribunal’s review.[201] In that respect, there was no practical injustice giving rise to the need for relief.[202] However, in any event, as pointed out above, the Tribunal did not ever conclude that the Critical Court Documents were not genuine, it merely gave them no weight by reason by reason of the various inconsistencies and discrepancies which arose on the whole of the evidence before the Tribunal. Questions of weight are matters for the Tribunal.[203]
[200] CB 480.
[201] See CB 302 at para.3, 373 and 393-397.
[202] Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 per Gleeson CJ; [2003] HCA 6 at paras.37-38 per Gleeson CJ.
[203] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Mother and Daughter also assert that the Tribunal committed jurisdictional error because it failed to undertake any inquiries about the Critical Court Documents’ authenticity under s.427(1)(d) of the Migration Act.
The law in this regard is quite clear. The Tribunal is under no duty to undertake any inquiries about the authenticity of a document, save that where a matter might be the subject of a simple straightforward inquiry, the failure to make such a simple straightforward inquiry might constitute jurisdictional error.[204] In this case there was no obvious simple or straightforward inquiry which could be conducted. The Mother and Daughter admitted as much in the Second Invitation to Comment Response where they admitted that inquiries of this type, in Burma, “are not so straightforward or safely conducted”.[205] That comment related to making inquiries through official channels, which was a matter which in WZANF this Court had said could be undertaken in the circumstances of that case.[206] In WZANF the Court was dealing with a modern secular democracy, namely Turkey. That is self-evidently different to having to make official inquiries in Burma, which the evidence indicates was, at the material times, a secretive army and police run State. In any event, not only the difficulty, but the risk to safety in making such inquiries, is admitted by the Mother and Daughter’s own submissions, and is sufficient to dispose of the suggestion that any simple or straightforward inquiry could have been made in this case. Therefore, there was no obligation on the Tribunal to make any inquiries with respect to the authenticity of the Critical Court Documents in this case.
[204] SZGUR CLR 602 per French CJ and Kiefel J (with whom Heydon and Crennan JJ agreed); HCA at paras.1 and 20 per French CJ and Kiefel J (with whom Heydon and Crennan JJ agreed).
[205] CB 487 (underlining added).
[206] WZANF at para.109 per Lucev FM.
For the above reasons ground 3 is not made out.

Conclusion and orders

The Court has concluded that none of the grounds of the application have been made out. It follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 3 August 2012