FEDERAL COURT OF AUSTRALIA

WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225

MIGRATION – Refugee Review Tribunal – misdescription of evidence – whether jurisdictional error – breach of procedural fairness – corroborative documentary evidence – adverse findings of credibility – whether obligation on Tribunal to make inquiries

Migration Act 1958 (Cth) ss 91R, 91R(3), 91R(3)(b), 424A

Judiciary Act 1903 (Cth) s 39B

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, [2005] HCA 24 cited

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 cited

Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 cited

Inderjit Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1366 distinguished

Sivaganeshan Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159 distinguished

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 cited

Dranichnikov v Minister for Immigration and Multicultural Affairs (B96 of 2000) (2003) 197 ALR 389 cited

Re; Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited

WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 distinguished

Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 416 distinguished

WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 cited

WAJG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 cited

WAKK v Minister for Immigration and Multicultural and Indigenous Affairs and REFUGEE REVIEW TRIBUNAL

wad 268 OF 2004

MARSHALL, MANSFIELD & SIOPIS JJ

1 NOVEMBER 2005

PERTH

THE COURT ORDERS THAT:

1.                       The appeal is dismissed.

2.                       The appellant is to pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT

1                     This is an appeal from the judgment of the primary judge published on 9 November 2004.  His Honour dismissed the application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal has been joined as the second respondent in accordance with the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, [2005] HCA 24.

2                     For the reasons set out below the appeal should be dismissed.

Factual and Procedural Background

3                     The appellant was born on 8 August 1974 in Mandalay and is a citizen of Burma.  He entered Australia on a visitor’s visa on 13 November 1999.  Some five weeks later, on 21 December 1999, the appellant lodged an application for a protection visa.  In his statement setting out reasons for leaving his country, the appellant stated that his elder brother had been involved in political demonstrations in Mandalay in 1988 and had been arrested by military intelligence and detained for several weeks.  He was eventually released but after his brother’s release, his family had been harassed.  Military intelligence officers had visited them at home at night and demanded a list of persons in the household.  He also said that he was disgusted with the military regime in Burma.  Because of this, he had fled to the Chinese border in December 1994 but was detained at the border post.  When released he fled into the jungle and joined the Kachin Development Army (‘KDA’) which was based at the Chinese/Burmese border.  Following a ceasefire between the government and the KDA he returned to Mandalay and found employment.  However, following his return to Mandalay the harassment by the Burmese authorities continued.  He said that if he were now returned the military intelligence would arrest him.  He also said that he would be subjected to persecution by the military intelligence because since he had come to Perth he had become involved with refugees from Burma.  He claimed that there were agents of the Burmese military regime in Western Australia and he would be considered an enemy of the State of Burma.  The appellant supplied further material to the Department of Immigration and Multicultural and Indigenous Affairs (‘the department’) in support of his application for a protection visa and he was interviewed by a departmental officer on 21 June 2001.

4                     A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the delegate’) refused that application on 28 November 2001.  The delegate was not satisfied that the appellant had experienced persecution by Burmese authorities.

5                     In his reasons for decision the delegate stated that the appellant had applied for a special assistance category visa in 1994.  That visa application was sponsored by an uncle of the appellant who, at the time of the application, lived and continues to live in Western Australia.  The claims made on behalf of the appellant in that application were that he suffered persecution and discrimination on the basis of his Anglo‑Burmese ethnicity.  That visa application was refused as the claims presented at the interview were marginal and did not amount to substantial discrimination.  The delegate noted that no mention was made in that visa application of any claims based upon threatened persecution on the grounds of political opinion.

6                     In his reasons for decision, the delegate found that the appellant’s claims lacked credibility.  The delegate referred to the following elements of the appellant’s claims which the delegate found to be implausible.

7                     In his interview with the departmental officer, on 21 June 2001, the appellant had said that his difficulties at the Chinese border occurred when Burmese authorities checked his imported goods and wanted to impose a tax on the goods which the appellant said was excessive.  The incident resulted in the Burmese authorities taking his identification card and that of his companions.  To avoid arrest he and two of his companions fled into the jungle.  In the jungle, he sought refuge with the KDA until November 1995 in order to avoid arrest.  The delegate found it implausible that the appellant would remain in hiding in the jungle in respect of so trivial an issue as a replacement identification card and an altercation in relation to the tax due on imported goods.

8                     Secondly, the delegate noted that the appellant was able to obtain a police clearance so as to be able to obtain a passport in July 1999 which was valid until July 2002 and was able legally to depart Burma on that passport.  The delegate found that this raised serious questions in relation to his claim that he was a person who, prior to his departure, was under surveillance by the authorities and was a person of sufficient interest to them, such that he would be the subject of persecution on the grounds of political opinion.  The delegate was not satisfied that the appellant had experienced persecution at the hands of Burmese authorities.

9                     Further, the delegate was not satisfied that the appellant’s involvement with pro‑democracy activities in Australia had been other than intended to strengthen his claims to be a refugee.  The delegate did accept however that the appellant had some involvement in pro‑democracy activities in Perth but found that it had been a minor one.

10                  The delegate concluded by finding that the appellant was not a person of sufficient interest to the authorities in Burma because of his political opinion, such that there was a real chance he would suffer persecution in the Convention sense if he was to return to Burma.

The Tribunal

11                  On 12 December 2001 the appellant lodged an application with the Tribunal seeking a review of the delegate’s decision.  A typed supporting statement accompanied the appellant’s application for review.  In that statement the appellant stated that he could not practise his religion as a Christian as freely as he would in Australia and he stated that he was forced to discard his rightful name and take on a Burmese Buddhist name.  Among the documents that he attached to that statement was a newsletter entitled ‘Karenaid News’ dated September 2001.  The 10 page newsletter disclosed that the Karenaid organisation was registered as a charity, and set out the names of the persons then acting as its trustees.  Lord Alton of Liverpool was named as the patron of the organisation.  The newsletter also stated that the organisation provided financial assistance to help displaced persons from Burma, and that it was planning to hold a day long conference on the same weekend as the Day of Prayer for Burma – anticipated to be in March 2002.  In addition, the newsletter provided information about developments in Burma.

12                  Further, a 45 page typed submission was lodged on behalf of the appellant by SCALES, an advocacy agency representing the appellant.  The appellant also made a 37 paragraph statutory declaration dated 30 December 2002 in further support of his application.

13                  In each of these documents the appellant outlined and expanded upon the claims that he had made in support of his application for a protection visa.  The appellant claimed firstly that he had a well founded fear of persecution due to ethnicity and religion.  He also claimed he had a well founded fear of persecution for political opinion founded on his activities in the context of the pro‑democracy movement and the KDA, and upon imputed political opinion arising from the political activities of his brother.  Further he claimed that he had a well founded fear of persecution arising from his political activities since arriving in Australia and his association with a political activist in Australia with whom the appellant claimed that he was ‘closely and publicly’ associated.

14                  The appellant stated in the statutory declaration that he returned to Mandalay at the end of the fighting between the KDA and the government, that the KDA was formally recognised by the Burmese government, and the KDA headquarters was opened in Mandalay.  He then went on to say:

‘Nothing happened to the top leaders of the KDA as a result of the surrender, but myself and other soldiers and fighters in the KDA were harassed and made to check in weekly to sign a register at the local police station, sometimes having to pay to sign it.  I also had to sign and notify the government if I wanted to leave Mandalay.  This “reporting in” process was later reduced to monthly, but I would again be called in weekly if things became unsettled, in terms of a lot of student demonstrations and political activity in the city.  Whilst the government now formally recognised the KDA, both groups were not on good terms, and were merely upholding the cease‑fire.  There was a lot of suspicion and the government believed that I had senior information about the operations of KDA due to my relationship with [the prominent dissident].  The Military Intelligence continued to harass me in my home, coming to search the house, looking for evidence of any involvement with other underground political groups, and to intimidate.  When I came to Australia I didn’t sign out.  A letter of demand, dated September 21, 2000 was sent to my grandmother’s house which was given to me by my uncle, [on his return to Australia after visiting relatives in Burma].  It is an official letter dated September 21, 2000 sent by the local police station noting that I had not been in to sign the register for 10 months and requiring me to report to the police station immediately and without fail.’

15                  A copy of the letter and a translation of the letter was annexed to the statutory declaration.  The letter is addressed to the appellant and uses both his Buddhist name and his English name.  The body of the letter states as follows:

‘Subject:  Notification to report to the police station

This is to notify [the appellant’s name and address] who has been required to sign on a monthly basis, in accordance with the Emergency Provision Ordinance Section 5 – (nya) to report at the police station.  As he has been absent for nearly 10 months, he is hereby required to attend without fail.’

16                  The appellant stated that he feared on his return to Burma he would be arrested immediately.  Further he claimed that he would be the subject of psychological torture if he was not put in prison because the military intelligence would interrogate him about the reasons for his absence and come to know of his involvement in political activities in Australia if they were not already so aware.

17                  As to his political activities in Australia, he said in his statutory declaration that he was a member of Tribal Refugee Welfare (‘TRW’) in Perth.  He made a speech for the commemoration committee about the human rights situation in Burma.  He also said that he was involved in a group known as ‘Free Burma’.  The prominent dissident also provided a statement to the Tribunal in support of the appellant’s application.  The appellant and the prominent dissident gave evidence at the hearing.

18                  One of the issues which the Tribunal raised with the appellant at the hearing was the police letter of 21 September 2000.  A transcript of the evidence before the Tribunal indicates that the following exchange occurred at the hearing:

‘Q.    Why, when you’re English name is not recognised at all in Burma do they include your English name in the document?

A.           When I was admitted to the school, my name was in English but they asked me to change into Burmese, then only they will accept my admission.  That’s why I had to change Burmese name.

Q.           I understand that, but I don’t understand why they would use your English name on an official document when it is not recognised at all?

A.      Which document you mean?

Q.           The document asking you to report to the police station.

A.     Because when the police ask my mother, she explained that “he has left for foreign country”.  When I had to sign, they only knew my Burmese name.  When the police officer ask my mother why I was not coming to the station to sign, she told police that I was in Australia.  I left Burma and “he was in a foreign country”.  At the time one of my uncles went to Burma on a tourist visa and the police officer ask my mother to send the letter to me.  So my mother requested the police station to put my English name there because my Burmese name was not known in Australia.  The letter was sent through my uncle.’

19                  The Tribunal also raised with the appellant his political activities in Australia.  The transcript reveals the following exchange occurred at the hearing:

‘Q.    Do you have any contact with the Karen people?

A.           Which people?

Q.           The KAL or Karen Aid?

A.           What is KAL?

Q.           Do you have any contact with Karen Aid Organisation?  It’s called Karen Aid.

A.           I use to go to their functions with [the prominent dissident].

Q.           No, I mean in Australia, have you had any involvement with the Karen Aid Organisation?

A.           Yes I do.

Q.           What is your involvement?

A.           TRW was also Karen Organisation so I used to take part in all the activities from them.’

20                  The interpreter then said that the appellant had said the object of the organisation was also to ‘restore democracy in Burma’.

21                  In its reasons dated 24 September 2003, the Tribunal affirmed the decision of the delegate not to grant the protection visa.  In relation to the claim that the appellant feared persecution by reason of his religion, the Tribunal accepted that there had been some low level discrimination suffered by the appellant due to his Anglo‑Burmese Christian background, but the Tribunal found that the discrimination did not involve serious harm amounting to persecution as defined in the Convention.  No issue is taken in this appeal in relation to this finding.

22                  The Tribunal considered the appellant’s claim of persecution by reason of imputed political opinion as a result of his brother’s political activities.  The Tribunal accepted the evidence that the appellant’s brother had been detained for two months as a result of his pro‑democracy activities and had suffered ill treatment whilst in detention.  But it noted that the brother’s detention was during a period where thousands of people were being arrested.  The Tribunal also accepted that after the brother’s release the family was placed under surveillance, but found that the surveillance had ceased within eight months of his brother’s release from detention.  The Tribunal could not accept that the appellant’s family would still be under surveillance as a result of political activities by his brother in 1988.  The Tribunal concluded that the appellant:

‘has not been persecuted in the past as a result of his brother’s political activities, he was not imputed with anti‑government political opinion as a result of his brother’s political activities, and that there is no real chance that he will be persecuted in the reasonable foreseeable future for reasons of his brother’s political activities in 1988 and his fear of persecution is not well‑founded.’

23                  The Tribunal then considered the appellant’s own activities in Burma.  It dealt firstly with his claims of harassment arising from his association with the KDA.  The Tribunal referred to inconsistencies in the appellant’s claims in this respect.  The appellant had initially claimed that he was forced to flee to the border.  However, at the hearing he explained that he went to the Burmese border to earn money for his family, not to escape any ill treatment that the family was receiving in Mandalay.  The appellant had stated in his evidence that he did not know that groups like the KDA existed until he went to the border areas.

24                  The appellant also initially claimed that he became involved with the KDA and was a bodyguard to one of the division leaders.  However, he also said, that he had no military training, and at the time he was appointed as the bodyguard, he hardly knew this person.  When the Tribunal put to the appellant that it was implausible that a leader of a division of the KDA would have a person who was untrained and unknown to him as a bodyguard, the appellant stated that the leader actually had another bodyguard and he was more like an assistant.  Further, the appellant’s evidence was that he was never involved in any combat or military activities with the KDA.  The Tribunal was not prepared to accept that he had acted as a bodyguard for one of the leaders of the KDA.  The Tribunal accepted that the appellant ‘may have’ sheltered with the KDA at the time of their negotiations with the Burmese government for a ceasefire.

25                  The Tribunal referred to further inconsistencies in the appellant’s claims in relation to his claimed fear of persecution founded on his association with the KDA.  The appellant initially claimed that after the ceasefire he returned to Mandalay and was under constant surveillance by the military authorities.  The appellant provided conflicting evidence as to the reasons for this surveillance.  His initial claim in his interview and statutory declaration was that it was because of his association with the KDA that he was under surveillance.  He stated that soldiers and fighters with the KDA were harassed and made to check in weekly to the local authorities in Mandalay.  There was a lot of suspicion and the government believed that the appellant had ‘senior information’ about the activities of the KDA.  He said further that whilst the government now formally recognised the KDA, both groups were not on good terms and were merely upholding a ceasefire.  However, the appellant’s evidence at the hearing was ‘diametrically opposed to his earlier claims’.  He stated that the KDA had become affiliated with the government authorities and that he was under surveillance because he had left the KDA and the surveillance commenced two weeks after he had left the KDA.  The appellant admitted at the hearing that he had changed his evidence and stated the evidence that he had given on earlier occasions when interviewed by the delegate and in his statement was incorrect.  When asked to explain the inconsistency, the appellant said that upon reflection he realised that his initial claims were wrong.  The Tribunal found that if the Burmese authorities had targeted the appellant because of his association with the KDA, he could not have possibly got his initial story wrong.  He would have been aware of the government’s attitude towards the KDA; it would be something that would have been basic and fundamental to his understanding.  The Tribunal said that for these reasons it did not accept that the appellant was under surveillance or required to report after he returned to Mandalay.  The Tribunal did not accept that he was required to report to the Burmese authorities because of his involvement with the KDA.

26                  The Tribunal found further inconsistencies with regard to the appellant’s claimed pro‑democracy activities in Burma.  The appellant said that after his return to Mandalay he was involved in pro‑democracy activities from 1995 to 1999 including meetings with university students and members, distributing anti‑government information and participating in protests at the university.  At the hearing the appellant said that whilst in Burma, he had not been caught by military authorities for his pro‑democracy activities and he had never been called for questioning, arrested or interrogated by the Burmese authorities.  He said that he was suspected of being involved in such activities but the authorities could not do anything unless he was caught ‘red-handed’.  The Tribunal found that this evidence was inconsistent with country information, which indicated that people suspected of pro‑democracy activities did not need to be caught ‘red-handed’ by the authorities before action against them could be taken.  When the country information was put to the appellant at the hearing, he responded by stating that he tried to avoid being involved in anti‑government activities.  The Tribunal found this to be at odds with his claimed political activism.  The Tribunal said that by reason of these inconsistencies and the fact that the appellant knew little of political issues, it did not accept that the appellant was involved in pro‑democracy activities during that time.  The Tribunal found that even if he was involved in some minor activities on his own evidence none of these minor political activities came to the attention of the Burmese authorities so even on his own account he could not have developed an elevated political profile in the eyes of the military regime.

27                  The Tribunal then considered the claim based on the appellant’s activities since arriving in Australia.  The Tribunal said that the appellant claimed to be involved in the organisation of a political forum at Edith Cowan University, but when questioned about the forum, the appellant was unable to explain its nature and stated that the extent of his involvement was decorating the hall and singing songs.  Further, the Tribunal said:

‘The [appellant] had submitted some information regarding the KLA and the Karen Aid Organisation.  When asked about these two organizations at the hearing, he did not know who they were; he did not know where they operated from or what their activities were.  The Tribunal would expect that someone who is involved with the TRW or in pro‑democracy activities in Australia would be aware of their activities.’

The Tribunal found that he attended pro‑democracy demonstrations in Perth but had a limited understanding of the pro‑democracy movement.

28                  In relation to the appellant’s association with the prominent dissident, the Tribunal accepted some association but was not prepared to accept on the evidence that it was a close association such that would lead the Burmese authorities to identify the appellant with the prominent dissident.  The Tribunal then said:

‘…if the [appellant] was closely associated with [the prominent dissident] the Tribunal would have expected him to know something about Karen groups and their activities, which he did not know’.

29                  The Tribunal also referred to the appellant’s activities in Perth including his setting up a website with his photograph commemorating ‘8/8/88’.  Pursuant to s 91R(3)(b) of the Migraton Act 1958 (Cth) (‘the Act’) the Tribunal found that his conduct had been engaged in for the purpose of strengthening his claims for refugee status rather than because of his pro‑democracy convictions.  Section 91R(3) of the Act required the Tribunal to disregard the appellant’s conduct in Australia unless satisfied that the appellant engaged in conduct otherwise than for the purpose of strengthening his refugee claims.

30                  Finally the Tribunal referred to the police document sent to the appellant’s home in September 2000 demanding that the appellant report to the Burmese authorities on his return to Burma.  The Tribunal recorded the evidence given by the appellant in relation to the use of the appellant’s English name in the police letter as follows:

‘The [appellant] was asked about the Order to Report, dated September 2000.  He was asked why his English name was included in this Order when he was never known by this name if Burma.  The [appellant] stated that when the authorities came to his home looking for him, his mother told them he had gone to a foreign country.  His mother insisted that his name be placed on the Order in English because outside of Burma he is only known by his English name.’

31                  The Tribunal said that it seemed odd that the appellant’s mother’s will could ‘overbear’ that of the Burmese authorities.  The Tribunal referred to the fact that in his evidence at the hearing the appellant had said that he had not been called in for questioning or detained during his time in Burma and it seemed strange that he should now receive a letter from the authorities calling on him to report immediately.  The Tribunal said it had doubts about the document and said even if it was a genuine request to report to the Burmese authorities, there was nothing to indicate that the request was because of the appellant’s political activities.  The request could be because the appellant has been outside of Burma for longer than previously indicated.  The Tribunal said that it did not accept that the ‘document means that the appellant faces a real chance of persecution in the reasonably foreseeable future if he returns to Burma’.

32                  In summary the Tribunal found the following:

‘…the [appellant] has not been persecuted in the past for reasons of being Anglo Burmese Christian and there is no real chance that he will be persecuted in the reasonable foreseeable future.  The [appellant] has not been persecuted in the past for reasons of his political opinions or imputed political opinions, and the Tribunal finds that there is no real chance that he will be persecuted in the reasonable foreseeable future if he was to return to Burma and his fear of persecution is not well‑founded.’

33                  The Tribunal concluded by saying:

‘Having considered the evidence as a whole, the Tribunal is not satisfied that the appellant is a person in whom Australia has protection obligations under the Refugees Convention…’

The review before the primary judge

34                  On 21 November 2003, the appellant lodged an application pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking a review of the decision of the Tribunal.

35                  An amended application was filed on 24 May 2004.  The appellant relied on several grounds of review but, there were three grounds that remain relevant for the purposes of the appeal.

36                  The first ground related to the way the Tribunal dealt with the police letter.  The appellant alleged that the Tribunal had misapprehended the evidence that the appellant had given as to the presence of his English name.  The Tribunal had reported the evidence as his mother ‘insisting’ that the English name be included in the letter, when the evidence actually was that the mother had ‘requested’ that the English name be included.  Further, the appellant said that the letter referred to the Emergency Provision Ordinance as being the basis on which the appellant had been required to report to the police and so the Tribunal was wrong to have stated that there was nothing in the police letter to indicate that the authorities were interested in him for his political activities. These errors were said to be jurisdictional errors.

37                  Further, the appellant alleged that the Tribunal had failed to accord procedural fairness in not advising him in terms that it had doubts as to the authenticity of the police letter.  If the police letter had been accepted as genuine, said the appellant, that would have undermined the Tribunal’s refusal to accept that he was required to report to the police at all.

38                  The second ground was that the Tribunal had erred in rejecting his claim that he had been involved in pro‑democracy activities in Australia, on the ground that the appellant had, when questioned by the Tribunal, shown little knowledge of the KLA and Karen Aid Organisation.  The error was that during the hearing the Tribunal questioned the appellant about organisations which it referred to as ‘KAL’ and ‘Karen Aid’, when in fact there were no such organisations.  There was only a newsletter called ‘Karenaid News’ – which the appellant had supplied to the Tribunal.  This was also an error allegedly which went to jurisdiction.

39                  The third ground was that the Tribunal should have found that the relationship between the appellant and the prominent dissident was close because there was evidence to that effect from the prominent dissident.  The Tribunal erred also in relying on the appellant’s absence of knowledge of the Karen Aid and KAL to find that the relationship was not very close.

40                  As to the first ground, the primary judge accepted that the Tribunal had misdescribed the evidence that the appellant had given.  His Honour said that it was open to the Tribunal to query the use of the English name.  It was also open to the Tribunal not to accept the evidence that he gave that his mother had suggested that they use his English name because the appellant was in Australia.  His Honour concluded that although the mischaracterisation of the evidence of his mother’s request was careless, it did not vitiate the Tribunal’s decision.  The Tribunal had made no positive finding about the letter.  His Honour referred to the case of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [53] (‘NABE’).  He said that the error of fact was not one that would have affected the outcome of the case.

41                  Further, his Honour said that there was no breach of procedural fairness arising out of the absence of any notification from the Tribunal of its doubts about the document.  The Tribunal had put to the appellant its concerns about the presence of the English name and it did not find the letter to be a forgery.  His Honour did not expressly deal with the appellant’s complaint that the Tribunal had said there was ‘nothing in the letter’ to indicate that the authorities wanted to see the appellant about political activities when there was a reference in the letter of the Emergency Provision Ordinance.  However, his Honour did make the observation that before the Court the appellant relied on corroborative evidence from the uncle, but that evidence was not before the Tribunal.  The evidence from the uncle to which his Honour referred included a copy of the relevant Emergency Provision Ordinance.

42                  In respect of the alleged errors in relation to the references by the Tribunal to the ‘KAL’ and the ‘Karen Aid Organisation’, his Honour accepted that the Tribunal had erred in its reference to KAL, and that there was no such organisation.  The error did not go to jurisdiction.  His Honour found that on the basis of the appellant having submitted the Karenaid newsletter to the Tribunal, but only being able to speak of Karenaid in the broadest of generalities, it was open to the Tribunal to make its finding regarding the appellant’s knowledge of the Karen Aid Organisation.

43                  The primary judge found that in relation to the appellant’s association with the prominent dissident, the Tribunal’s error related to a finding of fact.  The error does not constitute jurisdictional error.  Further, it was open to the Tribunal to conclude that the appellant’s association with the prominent dissident ‘was at a minor level’.  His Honour also referred to s 91R of the Act and said that, in any event, the Tribunal found that the appellant engaged in conduct in Australia for the purpose of strengthening his claim for refugee status rather than for pro‑democracy convictions.

Full Court Appeal

44                  An amended notice of appeal from the whole of the judgment of the primary judge was filed on 2 May 2005.  The amended grounds of appeal are as follows:

‘GROUNDS OF APPEAL

1.1     The Appellant (hereinafter referred to as “the Applicant”) claimed that after he returned to Mandalay in 1995, having been involved with the Kachin Development Army (“KDA”), he was required to report to the police and that this continued until 1999 when he came to Australia.  In support of this claim the Applicant presented a document “Notification to report to the police station” dated 21 September 2000 (“the document”) in Burmese with an English translation of the text.

1.2         In regard to this evidence of notification the Tribunal said:

(a)          that the Tribunal has “doubts” about the genuineness of this document because the Applicant said the authorities would not let him use his English name so it “seems strange that they would use his English name in an official document.  It seems odd that his mother’s will could overbear that of the security authorities in Burma”;

(b)     since the Applicant had never been questioned or detained in Burma it is “odd” that the authorities would at this stage be calling him to report to the local authorities if it was in any way connected with political activities;

(c)          even if the document is genuine “it could well be because he has stayed outside Burma…that they wish to question him” and not because they wish him to report because of political activities;

(d)          accordingly the Tribunal does not accept that this document means that the Applicant faces a real chance of persecution in the reasonably foreseeable future;

(e)          the Tribunal did not accept the Applicant was required to report after he returned to Mandalay in 1995.

1.3         The Tribunal erred in its findings and reasons referred to in 1.2:

(a)          as to 1.2(a) the Tribunal misconstrued the explanation give [sic] by the Applicant at the oral hearing which was that his mother had told the police that he was in Australia and that the police officer asked her to send the letter to the Applicant.  His mother requested the police to put the English name on the letter because the Burmese name was unknown in Australia.  The Tribunal was mistaken in believing therefore that the explanation necessitated in any way the will of the mother overbearing that of the security authorities;

(b)          as to 1.2(b) the Tribunal accepted that the Applicant had been “sheltered for a period of time with the KDA whilst they were negotiating a ceasefire with the government”, and, therefore, it was not “odd” that the Applicant might be required to report shortly thereafter at the police station in Mandalay in connection with political activities;

(c)          as to 1.2(c) it was not open to the Tribunal to contend that, on the assumption the document was genuine, the document could be explained because the Applicant has been outside Burma longer than he intended.  The document itself states the Applicant “has been required to sign in on a monthly basis…in accordance with Emergency Powers Ordinance Section 5 – (nya) to report at the police station” (emphasis added) which provision was not referable to prolonged absence from Burma but penalised criticism of the government.

1.4         The errors referred to in 1.3 constituted jurisdictional errors in that:

(a)          although the findings and reasons of the Tribunal, referred to in paragraph 1.2, formed part of the reason for determining that the Applicant did not qualify as a refugee, the Tribunal did not invite the Applicant at the hearing to comment on the genuineness of the said document, merely asking him why the police would use his English name on an official document, and therefore the Tribunal breached the rules of natural justice;

(b)          the Tribunal did not invite the Applicant under s.424A of the Act to comment on the authenticity of the said document;

(c)          the Tribunal ignored relevant material referred to in 1.3(a), (b) and (c) and/or in regard to 1.3(a) and 1.3(c) relied upon irrelevant material;

(d)          the Tribunal failed to ask itself the correct questions in determining whether or not the document was genuine and whether the document was evidence indicative of the Applicant’s fear of persecution being well founded.

1.5         The Learned Primary Judge:

(a)         accepted the Tribunal misdescribed the Applicant’s evidence about the document but said “it was open to the Tribunal not to accept the evidence he gave about his mother’s suggestion to police that they use his English name because he is in Australia” and, although “careless”, his Honour considered it did not vitiate the Tribunal’s decision [para 38 of reasons];

(b)         there was no failure of procedural fairness in failing to notify the Applicant about its doubts over the genuineness of the document.  It put questions about the use of his English name [para 40 of reasons];

(c)         considered that the Tribunal made “no positive finding about the letter” and the Tribunal’s finding, assuming the letter to be genuine, disclosed no jurisdictional error in its reasoning and did not “affect the outcome of the case” [para 39 of reasons];

1.6         The Learned Primary Judge erred:

(a)         as to 1.5(a), his Honour accepted that the Tribunal misdescribed the Applicant’s evidence about the presence of the Applicant’s name on the document.  The Tribunal proceeded on an illusory basis to conclude that it could properly doubt the genuineness of the document.  While it would be “open to the Tribunal not to accept the evidence he (the Applicant) gave about the use of his English name” on the document but the Tribunal misunderstood the explanation the Applicant advanced at all and did not therefore address it;

(b)         as to 1.5(b), s.424A and/or the common law required the Tribunal to do more than put “questions to the Applicant…about the use of his English name” if it was to find either that the document was not genuine or did not bear for some other reason the meaning ascribed to it;

(c)         as to 1.5(c), the Tribunal’s view that the document could have been sent because the Applicant had been overseas for longer than intended is contradicted by the document itself for the reasons referred to in paragraph 1.3(c) above, which reasons were never addressed by His Honour;

(d)         as to 1.5(c), the Tribunal’s rejection of the Applicant’s evidence about the document affected the outcome of the case because the finding enabled rejection of the Applicant’s claim that he was required to report regularly at the police station by reason of his political activities, after he returned to Mandalay in 1995, and to conclude therefore that the Applicant was not of adverse interest to the authorities from 1995 until he left Burma in 1999.

2.1         The Applicant claimed that his association with a high profile dissident, [the prominent dissident], put him at risk of persecution if he returns to Burma.

2.2         The Tribunal said:

(a)         it accepts that [the prominent dissident] has a profile as a pro democracy activist in Australia, particularly in relation to the situation of the Karen people;

(b)         it accepts that the Applicant has “some association” with [the prominent dissident], but does not accept that it is a close association such that would lead to the Burmese authorities to identify the Applicant with [the prominent dissident];

(c)         if the Applicant was closely associated with [the prominent dissident] the Tribunal would have expected him to know something about Karen groups and their activities, which he did not know;

(d)         that the Applicant does not have the profile of a ringleader or organiser or repetitive activist and there is no real chance that he will be persecuted for his low‑level involvement in pro‑democracy groups in Australia.

2.3         As to 2.2(b) the Tribunal erred in that it ignored relevant material presented to it by [the prominent dissident] as to his association with the Applicant.  In particular:

(a)         that the Applicant was his right hand man in Perth and that they had been very close;

(b)         that the Applicant would be associated with him and others by the regime and persecuted if returned to Burma;

(c)         notwithstanding many requests by Asylum seekers this is the first time he has given evidence for one.

2.4         As to 2.2(b) and 2.2(c) the Tribunal erred in concluding for the reasons it advanced that the association was not very close.  It expected the Applicant to know about organizations called Karenaid and the KLA in Australia although there are no such organizations.  In coming to this conclusion the Tribunal made a finding based on no evidence.

2.5         As to 2.2(d) the Applicant did not claim he was a high profile activist or leader in the pro‑democracy movement, but by reason of his association with [the prominent dissident] the Applicant contended he is at risk if returned to Burma.  The Tribunal had a duty to consider that a claim of such an association, might give rise to a real chance of persecution for a convention reason.  Further, the Tribunal ignored Tribunal decisions where low profile dissidents have qualified as refugees through their association with a high profile dissident.

2.6         The Learned Primary Judge said:

(a)         there was error on the part of the Tribunal in its references to “KAL” but it was open to make the finding it did about the Applicant’s knowledge regarding the Karenaid organisation.  The error made was a factual error and did not go to jurisdiction (para 48 of reasons);

(b)         it was open to the Tribunal to find that the Applicant’s involvement with [the prominent dissident] was at a minor level, but in any event the Applicant’s “conduct in Perth” was found by the Tribunal to have been engaged in for the purpose of strengthening his claim for refugee status rather than because of his pro‑democracy convictions.

2.7         The Learned Primary Judge erred:

(a)         in accepting the Tribunal finding that the Applicant’s association with [the prominent dissident], a high profile dissident, was not a close association.  The Tribunal’s finding rested upon the view that the Applicant was not aware of “two of the main groups in Australia”.  These two groups were believed by the Tribunal to be KAL and Karenaid;

(b)         in ignoring evidence that the newsletter “Karenaid News”, published in the United Kingdom and forwarded by TRW to the Tribunal, did not indicate the existence of a Karenaid group in Australia or elsewhere about which the Applicant ought to know.  No such organisation or group exists (see affidavit of Applicant, 28 September 2004, paras 9.1, 9.2, 10 and 11);

(c)         in construing the Tribunal’s reference to “this type of activity”, being engaged in by the Applicant to strengthen his claim for refugee status, as necessarily embracing a reference to the Applicant’s association with [the prominent dissident] rather than a reference to setting up a pro‑democracy website.  Alternatively, if the Tribunal’s finding under s.91R of the Act is intended to refer to the Applicant’s association with [the prominent dissident], the Tribunal’s finding is predicated upon its misapprehension that KAL and Karenaid are groups in Australia.’

Appellant’s submissions

45                  The appellant relied upon four arguments – the first two relate to par 1.6 of the grounds of appeal, and, the third and fourth go to par 2.7 of the grounds of appeal.

46                  First, the appellant submitted that the primary judge erred in holding that the error which the Tribunal made in recording the effect of the evidence as to how his English name came to appear in the police document, was not a jurisdictional error.  In the appellant’s submission, the error could not simply be described as a misdescription of the evidence, which was the way the primary judge characterised it, but it should have been characterised as a misconception which went to jurisdiction.  The appellant relied upon the following observations of Dixon J in the case of Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353 at 360 (‘Avon Downs’) which had been cited by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62, at [8] (‘S20/2002’):

‘But it is for [the decision‑maker], not for me, to be satisfied of the state of the voting power at the end of the year of income.  His decision, it is true, is not unexaminable.  If [the decision‑maker] does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review.  Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision.  The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception.  If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition.’

47                  The appellant also submitted that misapprehension or misstatement of evidence may properly ground judicial review for jurisdictional error.  He relied upon the cases of Inderjit Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1366 (‘Inderjit Singh’) and Sivaganeshan Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159 (‘Sivaganeshan Kathiresan’).

48                  The second of the appellant’s arguments related to the breach of procedural fairness.  In his oral submissions, the appellant’s counsel accepted that the provisions of s 424A of the Act were not applicable in this instance.  However, the appellant’s counsel argued that the common law duty to accord procedural fairness applied and the duty required the Tribunal to put to the appellant in terms its doubts as to the authenticity of the police document.  Further, the appellant submitted that the Tribunal should also have warned the appellant of its view that there was nothing in the police document to indicate that the police required him to report on account of his political activities in Burma.  The police document was an important component in the appellant’s case in relation to his claim that he feared persecution in relation to his political opinion.  If the document was accepted this would corroborate his claims that he was required to report to the police after his return from being with the KDA, and that he feared persecution on the grounds of his political activities and opinion.  The appellant relied upon the case of Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 and, in particular, on the observations to the effect that acceptance of a witness on some points can assist in reaching a conclusion that the witness is acceptable on others as well.  The appellant submitted that, had the appellant been warned of these matters, his uncle could have given evidence on these matters.  It followed, so the appellant submitted, that the primary judge had erred in finding that there was no procedural unfairness.

49                  The appellant also argued that the Tribunal ought to have ascertained what s 5 ‑ (nya) of the Emergency Provision Ordinance was directed to before saying that there was nothing in the letter to indicate that the police wanted the appellant to report on account of his political activities.  It was argued that as a consequence of this omission the Tribunal ignored relevant evidence in the body of the document and took into account irrelevant material, in that it speculated that the Burmese authorities may have been concerned with his prolonged absence from Burma.  The appellant alleged that the primary judge erred in not addressing these arguments in his judgment.

50                  The appellant’s third argument relates to the findings of the Tribunal that there was not a close association between the appellant and the prominent dissident.  The primary judge erred in finding that there was no jurisdictional error which attended the Tribunal’s findings in this respect.  The appellant submitted that whilst there was a newsletter known as ‘Karenaid News’ which the appellant had forwarded to the Tribunal, there was no such thing as the ‘Karenaid Organisation’.  The primary judge should have found that there was jurisdictional error in the Tribunal’s findings on this point because those findings were illogical or irrational.

51                  Finally, the appellant argued that the primary judge had erred in construing the Tribunal’s reasons in such a way that the Tribunal included all of the appellant’s activities in Australia within s 91R(3)(b) of the Act including the appellant’s association with the prominent dissident.  It was submitted that, on a proper construction of the Tribunal’s reasons, the reference was confined to the appellant setting up a website with his photograph on it.

Respondent’s Submissions

52                  As to the appellant’s first argument, the respondent argued that the primary judge was correct in the manner in which he classified the error made by the Tribunal in misstating the evidence.  This argument ran as follows.  The error was factual and did not demonstrate a failure by the Tribunal to apply the correct test.  Factual error may disclose jurisdictional error but it is not in itself a ground for review.  The error did not show that the Tribunal failed to ask the right question.

53                  As to the argument on procedural fairness, the respondent’s submission, summarised below, was that the Tribunal considered the letter along with other evidence given in support of the appellant’s claim of well founded fear of persecution.  The letter was to be considered in the context of all the evidence, particularly the oral evidence at the hearing and the inconsistencies disclosed by that evidence.  On analysis it emerged that, in considering the ultimate question of whether the appellant had a well founded fear of persecution if he was to return to Burma, the Tribunal placed much greater weight on the inconsistencies in the oral evidence and no weight on the letter.  The way in which the Tribunal proceeded, submitted the respondent was, consistent with the observations made by McHugh and Gummow JJ in the case of S20/2002 which are referred to below.

54                  Further, the Tribunal expressed that it ‘has some doubts about the document’, but it made no finding that the document was not authentic or genuine.  Its concerns about the use of the appellant’s English name on the document were put to the appellant.  Also the Tribunal had put to the appellant its doubts about whether he had been required to report to the police and whether he had been involved in political activities during the period 1995 to 1999 and the appellant had given oral evidence as to those issues.  The Tribunal, however, found that the evidence revealed inconsistencies which undermined the credibility of the appellant’s claims.  The Tribunal did not fail to accord procedural fairness.

55                  As to the argument that the Tribunal erred by not making enquiries as to the references in the letter to the Emergency Provision Ordinance, the respondent argued that the Ordinance was not in evidence before the Tribunal and it was not obliged to make further inquiries.

56                  As to the appellant’s third argument, the respondent submitted that the reference by the Tribunal to the KAL and Karenaid Organisation was primarily concerned with the Karenaid Organisation.  The appellant sent an article from Karenaid to the Tribunal and claimed involvement with the organisation but when questioned, he knew nothing about it.  Whilst the Tribunal erred in its questioning on the KAL, it was contended that it was open to the Tribunal to make the findings it did in relation to Karenaid.  The respondent further submitted that on the evidence, the statement that the appellant should have known something about Karenaid groups if he was a close associate to the prominent dissident, is correct.  Counsel submitted that the Tribunal did not fail to take into account the material provided by the prominent dissident, it simply did not accept the material for the reasons it provided.  The Tribunal found that the appellant displayed very little understanding of the pro‑democracy movement.  As such, counsel contended that the primary judge was correct in classifying the error as to the KAL as not going to jurisdiction, and otherwise holding that it was open to the Tribunal to make the finding that it did.

57                  As to the appellant’s fourth argument, the respondent submitted that the appellant’s submission that the reference to s 91R of the Act relates only to the set up of the appellant’s website is inconsistent with the structure of the decision.  Counsel contended that the primary judge correctly accepted that in its decision, the Tribunal applied s 91R of the Act to the whole of the appellant’s activities in Australia.

Reasoning

58                  As to the appellant’s first argument, we do not agree with the appellant’s submission that the error by the Tribunal in misstating the evidence amounted to a ‘misconception’ in the sense referred to in the Avon Downs case relied upon by the appellant.

59                  In Dranichnikov v Minister for Immigration and Multicultural Affairs (B96 of 2000) (2003) 197 ALR 389, Kirby J distinguished between jurisdictional and non jurisdictional error in the following terms at 407, at [87]‑[88]:

‘This court has repeatedly held that, for the issue of prohibition or mandamus under s 75(v) of the Constitution, it is necessary to demonstrate jurisdictional error on the part of the proposed subject of such relief.  Thus, it is essential to establish something more than an error of law within jurisdiction.  Difficult as it may sometimes be to differentiate jurisdictional and non‑jurisdictional error with exactitude, in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the area will be classified as an error of jurisdiction.  It will be treated as a constructive failure of the decision‑maker to exercise the jurisdiction and powers given to it.

Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction.’

60                  The primary judge relied upon the following observations of the Full Court in the case of NABE at [63]:

‘It is plain enough, in the light of [Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389], that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.  It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.  The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.  Every case must be considered according to its own circumstances.  Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.  It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected” – [Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630] (at 641 [47]).’

61                  In this case, the Tribunal considered the letter in the context of whether it supported the appellant’s claim that he faced a real chance of persecution in the reasonably foreseeable future if he returned to Burma.  The letter was advanced and relied upon in support of that claim.  The Tribunal said that it did not accept that this document meant that the appellant did face such a real chance of persecution.  There was no failure by the Tribunal to ask itself the right question.  There was no misunderstanding or misconstruction by the Tribunal of the appellant’s claim.

62                  In our view, the primary judge was correct in identifying the mistake made by the Tribunal in recording the evidence of the mother as ‘insisting’ rather than ‘requesting’ the inclusion of the name as a misdescription which did not go to jurisdiction.  We agree that the Tribunal’s error in reporting the evidence did not affect the outcome of the case.  The outcome depended primarily on the credibility findings made against the appellant on the basis of matters independent of the letter.  Further, the Tribunal’s view that it was ‘odd’ that authorities, which, according to the appellant, had required him to abandon his English name in favour of a Buddhist name, would agree to include the English name in an official letter, is open, whether the communication from the mother was characterised as a request or an insistence.  In addition, the rejection of the explanation of the curiosity of the appellant’s English name in the letter was not the only basis upon which the Tribunal came to the view that the letter did not mean that the appellant faced a real risk of persecution if he was to return to Burma.  The Tribunal also relied upon the fact that there was an incongruity between the appellant’s evidence that he had not been called for interrogation or questioning by the authorities throughout the time in Burma, and the terms of the letter which required him to attend the police station ‘without fail’.

63                  The cases of Sivaganeshan Kathiresan and Inderjit Singh referred to by the appellant are distinguishable.  In each of those cases the misconceptions of the evidence were serious and led to decisive credibility findings adverse to the case of each of the applicants.  In this case, however, the misdescription of the evidence by the Tribunal did not lead to credibility or any other findings that were decisive of the appellant’s case.  The decisive credibility findings that were made by the Tribunal related to serious inconsistencies between the statements that the appellant had made before the hearing and the evidence that he gave at the hearing.

64                  The appellant also argued that the primary judge had erred in failing to find that there was a breach of procedural fairness in that the Tribunal had not put to the appellant in terms that it had doubts as to the authenticity of the police letter.  A failure to afford procedural fairness will amount to jurisdictional error (Re; Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82).

65                  The question of when the duty to accord procedural fairness requires a Tribunal to advise an applicant in terms that it had doubts as to the authenticity of a letter relied on as to corroborate a claim, was considered in the case of WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (‘WACO’).  The Full Court observed at [42]:

‘The question raised here is whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness.  An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant’s comment (Abebe v Commonwealth of Australia (1999) 162 ALR 1 per Callinan J at 76).  However, the Tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend.’

66                  The case relied upon by the appellant, Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 416 (‘Singh’), is an instance of the application of that principle.  In each of Singh and WACO the Tribunal had made positive findings in relation to the authenticity of the document in question.  In Singh the Tribunal had found that the document was a forgery and in WACO the Tribunal found that the document was not genuine.

67                  In the case of S20/2002 McHugh and Gummow JJ said at 70, at [49]:

‘In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross‑examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well  has been poisoned beyond redemption.  It cannot be irrational for a decision‑maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that the case comprises lies by that party.  If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration.  The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question.  That may be a preferable method of going about the task presented by s 430 of the Act.  But it is not irrational to focus first upon the case as it was put by the appellant.’

68                  In the case of WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 (‘WAGU’), French J said at [34]:

‘It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant.  There is a danger in so proceeding because it may be that the documentary material itself should be taken into account in assessing credibility.  To proceed otherwise risks putting the cart before the horse.  But to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error.’

69                  At [36] French J said:

‘Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility.  In such a case, a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness.  This is just a special case of the general proposition that procedural fairness does not require the decision‑maker, in this case the Tribunal, to invite comment upon its thought processes on its way to its decision.  But where the corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure for procedural fairness.  Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party’s credibility.’

70                  In our view, the primary judge did not err when he decided that there was no failure to accord procedural fairness in relation to the letter.  We accept the submissions of the respondent that the Tribunal dealt with the letter as one piece of evidence which had to be weighed with the other evidence.  The Tribunal considered the letter and the other evidence in the context of whether the appellant would suffer persecution on the ground of his political opinions if he was to return to Burma.  The Tribunal considered the letter in light of the oral evidence given by the appellant and found an incongruity between the assertion in the letter that he was required to report to the police without fail and the oral evidence that he was never called in or questioned by the police whilst he was in Burma.  The Tribunal also relied on the curiosity of the English name.  The Tribunal said it did not accept that the letter meant that the appellant had a real chance of persecution.  It is apparent that the Tribunal, whilst making no positive finding that the letter was not genuine, accorded the letter no weight, in reaching its final conclusion that on the evidence the appellant did not have a well founded fear of persecution if he was returned to Burma.  This conclusion reflected the findings which the Tribunal had made, independently of the letter, which were based on serious credibility problems with the claims made by the appellant for which the letter was relied upon as corroboration.  The approach which the Tribunal took was consistent with the observations referred to above by McHugh and Gummow JJ in the case of S20/2002 and French J in WAGU.  This approach was not irrational or unfair.

71                  Further, as the primary judge said, there was no positive finding by the Tribunal that the letter was a forgery and so there was no requirement on that basis to warn the appellant of the possibility of that finding in order to accord the appellant procedural fairness.

72                  In any event, however, we accept the argument of counsel for the respondent that the Tribunal did put to the appellant during the hearing its doubts as to his claims that he was required to report to the police after he returned to Mandalay, and his claims that he had participated in pro‑democracy political activities in Burma during the period 1995 to 1999 ‑ being the claims which the letter sought to corroborate.  It was the appellant’s oral responses to those questions from the Tribunal which weighed with the Tribunal when it reached its final conclusion that on the evidence it was not satisfied that there was a real chance that the appellant would face persecution if he was returned to Burma.

73                  As to the claim that the Tribunal was under a duty to make inquiries as to the contents of the Emergency Provision Ordinance, we agree with the primary judge that there was no evidence of those provisions before the Tribunal.  The Tribunal was not under a duty to make inquiries in relation thereto (WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277).  It was for the appellant to make his case before the Tribunal.  It was open to the appellant to have produced evidence before the Tribunal as to the content of the Emergency Provision Ordinance.

74                  As to the appellant’s third argument, we agree with the primary judge that the findings that the Tribunal made in relation to the appellant’s lack of knowledge of the Karenaid Organisation was open to it.  There was no illogicality or irrationality in the manner in which the Tribunal came to its findings that there was not a close association between the appellant and the prominent dissident based on its findings that the appellant knew little about the Karenaid Organisation.  It was also a matter for the Tribunal whether or not to accept the evidence of the prominent dissident.

75                  As to the appellant’s fourth argument, we agree with the primary judge’s reasoning.  A proper construction of the Tribunal’s reasons shows that its findings in relation to s 91R of the Act related to the whole of the appellant’s pro‑democracy activities in Australia and was not limited only to his conduct in relation to the website.

76                  It follows that the appeal should be dismissed with costs.

Associate:

Dated:              1 November 2005