FEDERAL COURT OF AUSTRALIA

Naing v Minister for Immigration & Multicultural Affairs [2000] FCA 344

MIGRATION – refugees – appeal from Refugee Review Tribunal decision to refuse to grant protection visa – whether s 424A of the Migration Act 1958 (Cth) is restricted to information specific to the applicant – whether Refugee Review Tribunal required to produce copy of transcript or tapes of hearing where it draws applicant’s attention to evidence which might cast doubt on the applicant’s evidence obtained in another application – whether the Refugee Review Tribunal misconceived its powers under s 415 of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) ss 415, 424A, 430, 476, 481

Migration Regulations 1994 reg 4.35(2)(b)

Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 174 considered

Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 considered

Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 considered

Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67 referred to

ZIN WAI NAING v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 735 of 1999

HILL J

31 MARCH 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant, Zin Wai Naing, applies to the Court for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the respondent Minister for Immigration and Multicultural Affairs, refusing to grant him a protection visa.  The application is made under s 476 of the Migration Act 1958 (“the Act”). 

2                     As set out in its amended form, the application is based on two grounds.  The first is that the Tribunal erred in law in interpreting s 424A of the Act as restricted to information specific to the applicant and also in interpreting its powers under s 415 of the Act.  The second ground alleges a failure of the Tribunal to observe procedures required by the Act to be observed by it in failing to make a finding in respect of material facts, those being said to be:

“1.       Whether or not the applicant participated in a funeral for U Nu and distributed pamphlets for the pro-democracy movement in Burma in February 1995.

2.         Whether the applicant was caned for expressing his political opinion through a black ribbon protest.”

3                     Under this heading it is also alleged that the Tribunal failed to comply with s 424A in not supplying sufficient particulars of the information relating to the applicant’s father and brother which it considered would be part of its reasons for confirming the decision under review and not ensuring, so far as was reasonably practical, that the applicant understood why that information was relevant to the review.

4                     It will be convenient to consider this second aspect of failure to comply with procedures together with the first ground, given that the two relate to each other.

The decision of the Tribunal

5                     In accordance with the usual practice of the Tribunal its reasons commence with a summary of the terms of the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”) and the relevant principles of case law as extracted from decisions of the High Court and this Court.  There is no complaint directed at this summary.  For present purposes it suffices to note here only that Article 1A(2) of the Convention defines a refugee to be a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

6                     The Tribunal then summarised the case which had been advanced by the applicant before it.

7                     Mr Naing is a citizen of Burma (now Myanmar) who arrived in Australia on 2 July 1996.  He claimed to have first become involved with the pro-democracy movement in that country in June 1988 while a student in Year 7.  He claimed to have participated in a protest against the killing of Phone Maw and other students on 21 June of that year.  The demonstration was violent and some 100 students are purported to have been killed.

8                     Mr Naing did not participate in a later demonstration in August of that year because he was not permitted so to do by his parents.  However he said that he had participated in a march on 14 September organised by the principal of the school as well as in another demonstration against the government on 17 September in which his father also participated.  He also claimed to have participated on 8 August 1990 in a memorial for students killed in August 1988 by wearing and handing out black ribbons to students.  The school principal caught him and three of his friends wearing these ribbons and scolded them, telling him that if he persisted in wearing the ribbons, he would be suspended.  He claimed to have been caned five times.

9                     According to the applicant, he continued to be involved in the pro-democracy movement by putting up posters and distributing pamphlets.  He said that, after leaving school, he was unable to attend university due to their closure.  It was only in January 1995, after their reopening, that he commenced study at the Institute of Medicine at Rangoon University.

10                  Mr Naing said that, in February 1995, he had participated in a funeral commemoration for U Nu and distributed pamphlets to some 5,000 persons at the funeral service.  He claimed that in the early hours of the next morning he was awakened by military intelligence, driven to a building where he was punched, ultimately arrested and sent to Insein gaol, where he was held for six months.  He said that in this time he had been interrogated on a regular basis, kicked and beaten.  Contact with his family was denied during this time as was adequate food and drink.

11                  According to the applicant he was released from gaol in August 1995 and told that if he got involved in politics again he would be punished more severely and sentenced to detention for 20 years.  He claimed also to have been suspended from university.

12                  In early 1996, according to the applicant, he started to attend meetings of the National League for Democracy.  Members of the youth wing of that organisation (which he had been invited to join) were arrested.  The applicant however escaped arrest by going to the home of an aunt and uncle.  The uncle arranged a passport for him for which a substantial bribe of 70,000 kyats was paid and an Australian visa was obtained.  After the applicant arrived in Australia, he was a member of the National League for Democracy here for some five months but had thereafter resigned and has taken no part in political activities in the 3-4 months prior to the hearing.

13                  It was the applicant’s claim that he would be arrested if he returned to Burma because of his involvement with the National League for Democracy in 1996.

14                  The Tribunal accepted that the applicant had been involved with the pro-democracy movement in June 1988, that he had not participated in the demonstration of August 1998 because his parents did not want him to, but that he had participated in a demonstration in September 1988 with his father.  It made no finding whether the applicant was caned for expressing his political opinion through a black ribbon protest.  It said in this context:

“If he was caned five times for expressing his political opinion through a black ribbon protest this is a serious breach of human rights.”

15                  The Tribunal rejected what was the core of the applicant’s claim, namely that he had been imprisoned and maltreated for participating in the funeral of U Nu (a Burmese politician).  It found his claims to be inconsistent with reports of conditions in gaol.  The Tribunal was, no doubt, influenced by the fact that the applicant was unable to name any prisoners who had been in gaol with him at the time and did not know where the prison was in Rangoon.

16                  Apparently the applicant’s brother had also, prior to the time of hearing, applied for a protection visa.  So, too, had his father, although the father’s application was made from outside Australia whereas that of the brother’s was made in Australia.  The bother’s application was heard by the same Tribunal member who had constituted a tribunal for Mr Naing’s application.  At the hearing, the Tribunal member initially referred to the father’s application and file, indicating that there was material in it that might be adverse to the applicant.  The Tribunal member referred to the Regulations (the reference may have been to Regulation 4.35(2)(b) or s 424A of the Act but nothing turns upon this) indicating that he wished to put to the applicant some material in his father’s file but he was unclear whether he was able to do that except so far as the material had the applicant’s signature on it.  After some discussion, the Tribunal member indicated that he wished to read to the applicant parts of his father’s story and ask for comment.  He noted that the father, inter alia, had claimed to have been arrested and gaoled twice: once for four months and once for three months after interrogation by the military in 1988.  The applicant responded that he did not know about this and that his father had not told him of the imprisonment.  The applicant had signed the father’s application in some capacity and indicated that the contents of it were true.

17                  The interview was then adjourned.  When it recommenced, the Tribunal member referred to the brother’s application.  It was apparently heard on the same day.  He noted that the applicant’s brother had said he did not know about the applicant’s imprisonment and, in particular, that he had not been told about it by Mr Naing’s parents.  The Tribunal member enquired how this could be the case.  The Tribunal member noted that the brother had also known nothing of the death of Mr Naing’s uncle.  I must say, however, that nothing suggests the uncle’s death (if he died) had any relevance to the case.

18                  Subsequently, the applicant’s agents pointed out to the Tribunal that the applicant was not aware of the facts or claims of his father’s imprisonment and did not know about the claims that his father had made or other details.  Likewise he said that the brother had not been aware of the applicant’s imprisonment (until the brother arrived in Australia) because the parents of the applicant had regarded the brother as “somewhat headstrong and stubborn” and may not have wanted to inform him.  A request was made for copies of material in the Tribunal’s files which gave rise to any reservations that the Tribunal held.  It was not complied with.

19                  The Tribunal referred to these matters in its reasons and made the following comments in its conclusions:

“The advisor sought copies of the documents some of which the applicant was shown at the hearing and others of which he was asked about at hearing.  I thought some information from his father’s application that was also signed by the applicant may be covered under section 424A so sent the applicant a notice so the interview could be held with his hearing.  The applicant gave clear evidence at hearing that he was sure his father was not in prison.  He now claims he does not know whether the details I asked him about indicating his father was in prison on two occasions are true or not.  I accept the applicant gave a truthful response at hearing and I am satisfied that there is nothing to be gained by giving the applicant a further opportunity to consider the matter.  I note also he took advice from his parents in relation to a demonstration in August 1988 and he was with his father in September 1988 in a demonstration.  I do not accept his explanation that his parents often did not tell him about their problems and that he cannot say one way or the other about those specific claims without further more specific disclosure by the Tribunal as it is clear he knows nothing of his father’s claimed imprisonment.

Given the applicant’s brother claimed to be escaping from the authorities for reason of his own political activism I do not accept his claim that his parents may not have wanted to inform his brother that the applicant had been imprisoned out of a fear that Phyo might follow that lead.  I consider his [sic] implausible in the particular circumstances of this case.”

20                  A third matter which was suggested to come from the files of the father or brother (or both) related to whether various relatives of the applicant went backwards and forwards to Burma without difficulty.  This matter was raised by the Tribunal early in the proceedings.  At the very outset of the interview the applicant was questioned as to whether he had relatives in Australia and agreed he had a third cousin and knew some of his mother’s friends.  Later the Tribunal returned to the topic.  The applicant again agreed that he knew persons who went backwards and forwards between Australia and Burma but said then:  “Ah I just know like relatives that go back and I don’t know about the others, I haven’t heard about them”. 

21                  Later again the Tribunal referred to the fact that the applicant’s aunt had gone several times from Australia to Burma.

22                  The significance of the facts, as the Tribunal pointed out to the applicant’s agent, was that the family faced little political difficulty in Burma.  The less close the relation or friend might be, the less relevant the evidence would be.

23                  Although there is some ambiguity I am of the view that this last mentioned matter came not from the files of the father or the brother so that s 424A of the Act had nothing to do with it.  At first, the applicant agreed that relatives (plural) went back and forth but then referred to one relative only, a third cousin.

24                  As I have already indicated the Tribunal rejected the applicant’s claim of imprisonment and maltreatment.  It also rejected evidence, that the applicant had given, that he had been unable to continue at university because of the profile in politics he had in Burma.

25                  The Tribunal then said:

“Having considered the applicant’s claims on an individual and cumulative basis I am satisfied that a person in the applicant’s circumstances returning to Burma would create such interest with authorities that he would have a real chance of persecution.  I am satisfied he is not an active National League for Democracy member or a known student activist and that his level of involvement is such that he is not a high profile figure in any group and he has no contact with organisations that operate on the Thai border.  I am satisfied his level of involvement is such that he can be characterised as a normal member of the community in Australia and there is no evidence he would face adverse consequences on return to Burma.

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.”

Error in construction of s 424A

26                  Section 424A of the Act provides:

“(1)     Subject to subsection (3), the Tribunal must:

(a)               give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)               invite the applicant to comment on it.

(2)               ...

(3)               This section does not apply to information:

(a)               that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)               that the applicant gave for the purpose of the application; or

(c)               that is non-disclosable information.”

27                  It is submitted that the Tribunal misconstrued the application of this section as not being related to information about persons other than the applicant.  Reliance is placed upon material in the transcript relating to the father’s file to which reference has already been made and the fact that the Tribunal clearly relied (adversely, to the applicant’s credit) upon the brother’s testimony that he did not know that the applicant was in gaol.  When the Tribunal member disclosed this to the applicant, he made no reference to the fact that the Tribunal had a statutory obligation to do so.  This is in contrast to the comments made by the Tribunal about material in the father’s file, which had contained a document signed by the applicant, making it personal information about the applicant.

28                  It is common ground that the obligation of the Tribunal under s 424A is not limited to giving the applicant particulars of information only relating to him or her, but that it could extend to particulars of information concerning some other person.  This is, no doubt, subject to the obvious qualification that the information must be such as could provide a reason, or part of a reason, for affirming the decision under review and thereby finding against an applicant.

29                  It is clear enough that the Tribunal was, during the course of the hearing, somewhat confused about the regulation to which the Tribunal made reference and, for that matter, if that was what the Tribunal intended to refer to, the terms of s 424A.  But there is nothing in the comments made by the Tribunal, or indeed the actions of the Tribunal, which ultimately suggests that the Tribunal erred in construing s 424A.  So far as appears from the Tribunal’s reasons the only matter which the Tribunal mentioned as being adverse to the applicant arising from the files of the applicant’s father was the question whether the father had been in gaol.  That was obviously a matter relevant only to the father.  It did not form part of the applicant’s case.

Whether the particulars supplied by the Tribunal under s 424A(1) were insufficient

30                  At the hearing counsel for the applicant sought leave to serve a notice to produce the Tribunal’s file so far as it concerned the brother and to make further submissions if necessary once that was produced.  Subsequently the applicant sought to tender the whole tape taken at the hearing.  I am not prepared to accept a tender of the whole tape.  Clearly all of it can not be relevant.  Excerpts from the tape are referred to in the submissions filed.  I propose to accept a tender of the tape only so far as it relates to the material which has been transcribed and is set out in the applicant’s submissions (paragraph 10).  I shall return to that material shortly.

31                  In the supplementary submissions counsel for the applicant submitted that the Tribunal’s obligation under s 424A is not confined to matters on which the Tribunal has made up its mind to affirm the decision and which is referred to in its reasons.  The section requires the Tribunal, once it has become aware of material and forms the view that “it has some probative weight” in support of affirming the decision under review, to give the applicant an opportunity to comment.  For the Minister it was submitted that it is only once the Tribunal has formed a preliminary view that it will affirm the decision and any part of its reasons for so doing depend upon information of the kind to which s 424A applies, that an opportunity for comment must be given.

32                  I think that the correct view of s 424A(1) is that when the Tribunal forms the view that there is information that is relevant to the review and that that information is or may be adverse to the applicant, the obligation under s 424A(1) arises.  That this is so follows from the language of paragraph (b).

33                  Failure to comply with s 424A(1) however could never found a ground of review unless the material was in fact adverse and in fact considered relevant by the Tribunal.  This will be so when it is referred to in the Tribunal’s reasons for decision.  Material not referred to by the Tribunal can generally and certainly in the present case be inferred by it to have ultimately not been considered relevant to its decision.  It is for this reason that I would reject the tender of the whole tape of the hearing of the brother’s application.

34                  Next it must be kept in mind that s 424A(1) does not require the Tribunal to produce documents or, for that matter, tapes of hearings.  It requires only that the Tribunal give “particulars of ... information”.  In the present case where the only matter arising out of the brother’s application which the Tribunal saw as relevant was the fact that the brother had told the Tribunal that he was unaware whether the applicant had been punished for wearing a black ribbon when the two lived together and went to school together, the Tribunal was obliged by s 424A to give particulars of this information to the applicant for comment.  It was not obliged to give more than that.  The Tribunal supplied those particulars and in so doing complied with s 424A.

35                  Finally I should say that there is nothing in the material before me which would justify the conclusion that there was any other information which the Tribunal regarded as both relevant and adverse so as to form a reason or part of the reasons for dismissing the application.

Failure to give reasons

36                  As is well-known, Full Courts of this Court have expressed conflicting views on the question of whether the failure of a tribunal to make findings in respect of a material matter can be a ground of review of that tribunal’s decision under the terms of s 476(1) and s 430 of the Act.  In Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 174, a majority of the Court, Whitlam and Gyles JJ, (Nicholson J expressly not deciding), held that failure to make findings of material facts was not a ground of review.  The contrary view was taken in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681.  More recently, Burchett J in Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60, sitting as a single Judge of this Court, expressed the view that the decision in Xu was obiter dictum and refused to follow it. 

37                  The controversy is likely to be resolved in the near future when a Full Court of five members of the Court is to be convened to consider the question.  In the meantime, unless it is absolutely necessary to do so, it is undesirable that a single judge add to the conflicting jurisprudence.  It is only where there can be shown to be a failure to make a finding on a material fact that the issue will arise.  Thus, if I am of the view that there has been no such failure, it is unnecessary to consider the question whether failure to comply with s 430 constituted a ground of review.

38                  As the particulars in the application make clear, the complaint is that the Tribunal failed to make findings on two matters.  The first related to the question of whether the applicant had participated in a funeral for U Nu and distributed pamphlets for the pro-democracy movement in February 1995.  The second was whether he had been suspended and caned for expressing his political opinions through a black ribbon protest. 

39                  Materiality is said to be established in respect of the first matter because it was a specific instance of mistreatment upon which the applicant’s fear of persecution was based.  The second matter was said to be a past event that caused the applicant to fear persecution for a reason covered by the Convention. 

40                  As I said recently in Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67, a matter will be material, and the Tribunal thereby required to make findings with respect to it, where the matter is one that could affect the outcome of the review.  Where a finding one way or the other could have no effect on the outcome, a fortiori, the matter could not be material.  It is common ground that no findings of fact were made in respect of either of the two matters mentioned.

41                  In my view, neither of these matters was in the relevant sense material.  First, in respect of the incident in 1990, it was not the applicant's case that he feared persecution in respect of this incident of itself.  The Tribunal, however, rejected this claim, indicating that it was satisfied that neither his involvement in the protest nor, for that matter, any other political activity, had affected his ability to graduate from high school and enter the prestigious Institute of Medicine at Rangoon University.

42                  The applicant’s case was that the funeral had led to his imprisonment and mistreatment.  While it is true that  the Tribunal made no finding as to whether the applicant participated in the funeral, it found he had not been arrested and mistreated.  It was therefore of no significance whether or not the applicant had participated in the funeral itself for any participation had not brought with it, as the applicant claimed, the persecution upon which he claimed his fear depended. 

43                  The second matter was likewise not material to the outcome.  The Tribunal found it unnecessary to decide, accepting that if the applicant had worn a black ribbon and he had been caned, this was a serious breach of human rights but did not justify the ultimate conclusion that the applicant had a well-founded fear of persecution.  If this complaint related to the suspension of his education, it had thereafter resumed with his admission to the Institute of Medicine at Rangoon University.

Whether the Tribunal erred in its interpretation of s 415

44                  When the Tribunal commenced its hearing it made the following comment:

“I have only one power and that’s to decide whether or not you’re a refugee within the terms of the Convention of the Status of Refugee.  So I am not like an immigration officer, or I’m not like the Minister for Immigration ‘cause they’d have either wide powers or discretions which I don’t have, my powers are limited by that definition and are recognised by the international community and signed by Australia, and I must follow the interpretation of that definition given by the Australian courts.”

45                  It is common ground that the Tribunal member made this comment.  It is also no doubt true to say that s 415 provides that, for the purposes of a review, the Tribunal can exercise all the powers and discretions conferred by the Act on the decision-maker in undertaking its task of review.  It is, no doubt, also true that the Minister can substitute, for the decision of the Tribunal, a decision more favourable to an applicant and that this is a discretion that the Tribunal itself does not have.

46                  One must bear in mind that, where a decision of the Minister or a delegate refusing a protection visa, is referred to the Tribunal, the issue before the Tribunal should be correctly stated to be whether the Tribunal is satisfied that the applicant is a person to whom Australia owes protection obligations.  Strictly, the issue is not whether the applicant is or is not a refugee, as the Tribunal said, but whether the Tribunal has the relevant satisfaction.  This however was not the complaint made.

47                  This having been said, there is nothing in the manner in which the Tribunal conducted its review thereafter, or in its reasons for decision, which suggest in any way that the Tribunal misconceived it function.  Put in another way, if it be accepted that what the Tribunal said about its powers was inconsistent with s 415 or the issue it was required to consider, its erroneous view in no way affected the outcome.  Section 476(1)(e) of the Act when read in conjunction with s 481, makes it clear that this Court would only set aside a decision if the error of law complained of in some way affected the outcome.  The Court’s powers under s 481(1) are discretionary; Parliament should not be taken to have contemplated that the Court would set aside a decision merely because in the course of the proceeding an immaterial question of law was wrongly addressed.

48                  The result is that the application for review must be dismissed.  Given the state of affairs which exists in Burma, which the learned Tribunal member said had a “shocking record of human rights abuse”, and the danger which the applicant may be in if repatriated, it would be desirable if the Minister could examine the file and consider whether to exercise his discretion to permit the applicant to stay in Australia notwithstanding the Tribunal’s decision.

Costs

49                  Counsel for the applicant submitted that no order as to costs should be made because the present case involved the interpretation for the first time of an important and relatively recently enacted provision, s 424A(1).

50                  It is true that counsel for the applicant raised s 424A(1), that the subsection was only recently enacted and that the parties made submissions about it.  However I think that the submissions made on behalf of the applicant in respect of s 424A(1) were misconceived and I see no reason why, in the circumstances, the usual order that costs follow the event should not be made.  Accordingly the applicant should pay the respondent’s costs.

Associate:

Dated:                          31 March 2000