Aung v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Refugee Review Tribunal ("the RRT"). By that decision, the RRT affirmed a decision which had earlier been made by a delegate of the Minister for Immigration & Multicultural Affairs ("the delegate" and "the Minister" respectively). The delegate's decision had been one to refuse to grant a protection visa which had been sought by Mr Myint Aung, a Burmese national. In seeking that visa, Mr Aung had claimed (as he did again before the RRT) that, owing to a well-founded fear of being persecuted for reasons of political opinion, he was both outside Burma and unwilling to avail himself of that country's protection. 2 At the forefront of Mr Aung's submissions as ultimately presented before me of the RRT's having fallen into judicially-reviewable error in determining his application to it for review of the delegate's decision was a submission that the RRT had misconceived the significance of the delegate's decision for the performance by it of its review function. It is convenient that I make some general remarks about what that significance is before dealing with the matters relied on by Mr Aung as establishing that the RRT had, in determining his application to it, misconceived that significance. 3 The powers of the RRT, as set out in s 415 of the Migration Act 1958 (Cth) ("the Act"), are broadly similar to those of the Administrative Appeals Tribunal ("the AAT"), as set out in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AATA"). Indeed, there seems to be no doubt that the former provision was modelled on the latter. By reference to the latter provision, the cases have long since established the general significance of the decisions of those primary decision-makers whose decisions are reviewable by the AAT for the performance by the AAT of its review functions. There also seems to be no doubt that, by reference to the former provision, a similar approach should be taken to the general significance of the decisions of those of the Minister's delegates who make decisions under the Act on protection visa applications for the performance by the RRT of its review function. 4 A foundation case regarding the general significance of the decisions of those primary decision-makers whose decisions are reviewable by the AAT for the performance by the AAT of its review functions is Collins v Minister for Immigration & Ethnic Affairs (1981) 36 ALR 598 (FCA: Fox, Deane and Morling JJ). That was a case in which the AAT, in affirming the Minister's decision to deport a person from Australia, had stated in its statement of findings and reasons that it gave the Minister's decision "some weight" in arriving at its own. It was submitted on behalf of the appellant that the Minister's decision had been an irrelevant consideration in the exercise by the AAT of its discretion whether or not to affirm the Minister's decision and that the AAT had therefore committed an error of law in having regard to the Minister's decision. (Error of law is, of course, the only available ground of appeal to this Court from decisions of the AAT: see subs 44(1) of the AATA.) The Full Court, in setting aside the AAT's decision as manifesting an error of law, said (at 602-03), "[A] difficulty immediately arises in placing any weight upon the Minister's decision for the purposes of the determination of the application for review of the same decision. It seems to us to be unsound in determining the correctness of a decision to treat the decision itself as being probative of its own correctness…. The decision is, of course, a necessary jurisdictional basis for the making of an application for review. But it is no more than that. … [W]e do not doubt that, in an appropriate case, the expressed reasons of the Minister may carry weight with the Tribunal because of the fact that the Tribunal is impressed by, or finds itself in agreement with, a line of reasoning or an analysis of established fact which those reasons contain. In such circumstances, the Tribunal may give weight to the Minister's reasons in the same way as it gives weight to the oral argument of the legal or other representatives of the parties appearing before it. There is, however, no presumption that the Minister's decision is correct and the Tribunal is neither required nor entitled to place weight, in the ultimate weighing process, upon the fact that the Minister has decided the issue before him, on the material before him, in a particular way. Putting to one side the position where the decision-maker is a person or Tribunal having special expertise where the position may conceivably be different, the actual decision does not, in itself, carry any weight." 5 Subsequently, in Commonwealth of Australia v Twyman (1985) 8 ALD 554 (FCA), Keely J was also concerned with a decision of the AAT, which decision had on that occasion set aside a decision of a delegate of the Commissioner of Employees' Compensation. The AAT's decision had been based on a finding by it that Mr Twyman was, at the time of its decision, totally incapacitated for work. In setting aside the AAT's decision, Keely J referred to the circumstance that the AAT had attached some weight, in making its finding that Mr Twyman was, at the time of its decision, totally incapacitated for work, to the fact that the same finding had earlier been made by officers of the Social Security Department. His Honour said (at 559) that he accepted a submission which had been made before him by the Commonwealth that, "… although the Tribunal is not bound by the rules of evidence, it erred in law in so doing. The Tribunal's duty was to form its own view on the merits of the case without any presumption as to the correctness of a finding by the Social Security Department that Mr Twyman was incapacitated for work. … On the question of the Tribunal's duty to form its own view, without any presumption, assistance is gained from the decision of Fox, Deane and Morling JJ in Collins v Minister for Immigration and Ethnic Affairs … although it is not directly in point; that decision would have had direct relevance had the Tribunal attached weight to the decision, adverse to Mr Twyman, given by the Delegate." 6 As I have already foreshadowed, I consider that the approach taken in the two cases which I have mentioned above to the general significance of the decisions of those primary decision-makers whose decisions are reviewable by the AAT for the performance by the AAT of its review functions is equally applicable to the general significance of the decisions of those of the Minister's delegates who make decisions under the Act on protection visa applications for the performance by the RRT of its review function. 7 It follows that the RRT would err if, in its review of the delegate's decision in a particular case, it gave weight to the delegate's decision in arriving at its own decision. It further follows, in my view, that the RRT would err if, in its review of a delegate's decision in a particular case, it found a certain fact to exist because the delegate had earlier done so. In either event, the RRT would be said to have committed an error of law, in the same way that this Court held both in the Collins and Twyman cases that the AAT had committed an error of law. 8 I note that although, in Collins, the specific error of law which had been relied on before the Full Court by the appellant was the taking into account by the AAT of an irrelevant consideration, it is not apparent that the Full Court acted on that characterisation by the appellant of the AAT's error of law. If the appellant had been correct so to characterise the AAT's error of law, then there could be a difficulty in applying Collins in this Court if the RRT were, in a review of a delegate's decision in a particular case, to give weight to the delegate's decision in arriving at its own decision. That potential difficulty would arise by reason of the fact that, because of par 476(3)(d) of the Act, the taking into account of an irrelevant consideration by the RRT in the exercise of a power would not be an error judicially reviewable in this Court. 9 However, I do not accept that such conduct by the RRT, if it were to occur, would be an error of law solely (if at all) by reason of its being the taking into account of an irrelevant consideration in the exercise of a power. To my mind, it would (even if not solely) be an error of law by reason of a misconstruction by the RRT of s 415 of the Act and would therefore be reviewable under the first limb of par 476(1)(e) of the Act, in spite of the presence in the Act of par 476(3)(d). I take a similar view about the application of Twyman in this Court, if the RRT were, in a review of a delegate's decision in a particular case, to find a certain fact to exist because the delegate had earlier done so. 10 Having completed my general remarks about the significance of the delegate's decision for the performance by the RRT of its review function, I turn now to those matters relied on by Mr Aung before me as establishing that the RRT had laboured, in his application to it, under a misconception as to that significance. 11 Mr Aung directed attention in that respect to three specific statements made by the RRT in its statement of findings and reasons. 12 The first of those statements was, "The delegate could not be satisfied that the applicant was a refugee according to the Refugees Convention". 13 The context in which that statement was made was the following. As is typical of statements of findings and reasons by the RRT, the RRT's statement of findings and reasons in Mr Aung's case was divided into parts, each of which had a heading. Those headings in Mr Aung's case were: background; the legislation; the Refugees Convention; claims and evidence; claims and information provided to the Department of Immigration; statutory declaration; documents submitted to the Department in support of the application; the Department's decision; written claims made to the Tribunal; supporting documents; further documents submitted to the Tribunal; claims made at Tribunal hearing; independent evidence; findings and reasons; conclusion; and decision. Under the eighth of those sixteen headings, "The Department's decision", the totality of what the RRT had stated was the following (the words in brackets are mine): "The Delegate noted that a number of the applicant's claims are inconsistent with independent evidence. For example: The applicant claimed that he went to hear Aung San Suu Kyi speak in March 1988, but independent evidence shows that Aung San Suu Kyi was not in Rangoon in March 1988 and gave her first public address on 24 August 1988. The applicant claimed to have attended a demonstration outside the General Hospital in July 1988 but independent evidence shows that at that time things were quiet in Rangoon. The applicant's claims regarding events on 20 August 1988 are also inconsistent with independent evidence - for example Tin Oo's first appearance was on the 27th of August, and Baw Oo Tin a.k.a. Min Ko Naing was not elected as a leader of the students until 28 August. The applicant claimed to have joined the South Oklappa branch of the NLD [that is, the National League for Democracy] in October 1988 but the delegate found that the NLD was not established until late September 1988 and doubted that there would be branches so quickly. The applicant claimed to have been staffing a stand at the Water festival in April 1995. The NLD was not represented at the Water festival in 1995. The applicant claimed to have been forced to undergo labour but provided the Embassy with a 'Household members list' when applying for a visa stating that the applicant was living in Dagon Myothit (south) at the time he claimed to be undergoing labour. The applicant departed Burma on a passport in his own name. The delegate could not be satisfied that the applicant was a refugee according to the Refugees Convention." (It is, of course, the last sentence in the passage which I have just quoted on which Mr Aung relied for present purposes.) 14 Mr Aung submitted before me that the making of the statement which I am now discussing demonstrated that the RRT had given weight to the delegate's decision in arriving at its own. 15 I reject that submission. The structure of the RRT's statement of findings and reasons makes plain, in my view, that the passage which I have quoted in the next preceding paragraph of these reasons, including the particular statement now being relied on by Mr Aung, was merely part of a historical narrative by the RRT and that the RRT was not, by setting out the passage, in any way intending to give weight to the delegate's decision in arriving at its own. If the RRT had been intending, by what it stated about the delegate's decision, to give weight to the delegate's decision in arriving at its own, then one would have expected, at the very least, to find that statement under the heading, "Findings and Reasons", rather than under the heading, "The Department's decision". (Incidentally, I add for what it is worth that I have compared the quoted passage with the record created by the delegate of the reasons for her decision to refuse Mr Aung's application for a protection visa and I consider that the passage represents an adequate summary of the delegate's reasons.) 16 The second statement in the RRT's statement of findings and reasons which was relied on before me by Mr Aung as demonstrating that the RRT had misunderstood the significance of the delegate's decision in the performance of its review function was one which, unlike the first statement on which Mr Aung relied, did at least appear in that part of the RRT's statement of findings and reasons headed "Findings and Reasons". The statement occurred in the following passage (except for the emphasis which I have added to identify the statement and an asterisk which I have also added, I set the passage out verbatim, the words in brackets in the passage being the RRT's): "The applicant claimed that he was arrested following his participation in the Water Festival in April 1995. The applicant has made contradictory claims regarding this event. On the one hand, in his written statement to the Tribunal* the applicant claimed that He was representing the NLD at the Water Festival - 'openly' The Tribunal noted that this statement suggests that you did this officially under the aegis of the NLD. When it was noted [by the departmental delegate] that according to the independent the NLD did not have a presence at the Water Festival, the applicant modified his claim [in his statement of 25 May 1998] to the effect that his participation in the Water festival was 'unofficial'. The Tribunal asked the applicant to explain why he has amended his statement in this manner? The applicant did not actually answer this question, but rather responded that if they had been officially representing the NLD they would not have been permitted to have the stall, although he went on to claim that they nonetheless 'used the NLD name'. The Tribunal asked the applicant why he [and his colleagues] used the name of the NLD - wouldn't that be asking for trouble in light of the government's attitude towards the NLD? The applicant stated that the authorities knew they were from the NLD but that they were not representing the NLD officially. The Tribunal noted that the applicant had stated earlier that he claimed to be afraid of being arrested simply because of his membership of the NLD and yet he was now claiming that the authorities knew he was a member of the NLD and that in spite of this they permitted you to have a stall at the water festival. The applicant responded that the aim of the water festival was to have fun and enjoyment and the applicant 'temporarily' forgot his fear. The Tribunal finds that the applicant's claims to have been involved in the Water festival to be lacking in credibility. On the one had he claimed to be officially representing the NLD, he resiled from this claim when challenged, and claimed rather, that he was not representing the NLD 'officially'. The applicant had claimed at hearing that because of his fear of arrest, he did not become involved in any political activities after 1989, and yet he claims to have been openly involved at the Water Festival - as a known NLD member - because he 'temporarily forgot' his fear. In light of the inconsistencies between the claims made to the Department and those made to the Tribunal, and the implausibility of the claim, the Tribunal finds this claim to be lacking in credibility and cannot be satisfied that the applicant participated in the Water Festival as claimed [in 1995]." (It is apparent to me from other material before me that the use by the RRT of the word "Tribunal" at the point in the quoted passage at which I have inserted the asterisk was a typographical error and that what the RRT had intended to refer to had been, not a written statement made to it, but rather a written statement made to the Minister's Department dated 6 August 1996.) 17 By way of background to the above passage, I mention that there was independent evidence, both before the delegate and before the RRT (in the form of a dispatch from the German Press Agency, dpa), that there occurred in Burma each year, in celebration of the Burmese New Year, a festival known as the Water Festival. A traditional aspect of that festival was the setting up of stands (or stalls) in which entertainment took place and from which passers-by were doused with water. In 1995 (obviously in the Gregorian calendar), the festival lasted from 13 to 16 April, with New Year's Day occurring on 17 April. In Rangoon, where Mr Aung resided, the centre of the celebrations was the mayor's stand, although the biggest and most impressive stand was that of the SLORC (State Law and Order Restoration Council (the ruling military junta)). Other stands were set up by government Ministries and Departments (including the Defence Ministry and the Ministry for the Progress of Border Regions and National Races), banks, universities, private commercial houses, construction firms and local communities. The Union of Myanmar Economic Holdings Ltd, owned by the Burmese military and Burma's largest private company, was also among those with a stand. 18 When creating a record of her reasons for refusing to grant Mr Aung's application for a protection visa, a copy of which record which she supplied to Mr Aung, the delegate stated, "I have serious reservations regarding the applicant's claimed participation, as a representative of the NLD[,] in the April 1995 Water Festival. Detailed information about the 1995 Water Festival [that is, the dpa disptach] lists the organisations represented at the Festival in some detail and the NLD does not rate a mention. I consider[ ] that if the NLD had a stand, it would have been a matter of interest which would have been reported." 19 It was submitted before me by Mr Aung that, when the RRT stated, in the passage which I have set out at [16] above, that it had been noted by the delegate that, according to the independent evidence, the NLD had not had a presence at the 1995 Water Festival, the RRT was thereby expressing a finding of fact which it had made that the NLD had not had a presence at the 1995 Water Festival. Mr Aung further submitted that the RRT had made such a finding of fact because the delegate had done so. 20 I reject those submissions. As I read the relevant passage of the RRT's statement of findings and reasons, it was not making any finding of fact on the question whether the NLD had had a presence at the 1995 Water Festival, but only on the question whether Mr Aung had participated in the 1995 Water Festival. It rejected Mr Aung's claim in that respect for two reasons: the inconsistencies between his claims made to the Minister's Department, on the one hand, and to the RRT, on the other; and the implausibility of his claim as made to the RRT. The only purpose of the RRT's reference to the delegate's view as to whether the NLD had had a stand at the 1995 Water Festival was to explain how it was that Mr Aung had come to give a different account of events to the RRT than he had given to the Minister's Department. 21 The third statement in the RRT's statement of findings and reasons which was relied on before me by Mr Aung as demonstrating that the RRT had misunderstood the significance of the delegate's decision in the performance of its review function, like the second such statement on which Mr Aung relied, had appeared in that part of the RRT's statement of findings and reasons headed "Findings and Reasons". It was the statement to which I have added emphasis in the following passage (I have also added the words in brackets): "Finally, the applicant claimed to have undergone forced labour [during his detention following his arrest because of his involvement in the 1995 Water Festival for the NLD] and yet in a document submitted to the Australian Embassy by the applicant, it states that he was resident at his home in the period he cl[ai]med to have been undergoing forced labour. The applicant claimed in his written statement to the Tribunal that the document submitted to the Embassy was false but at hearing claimed that the document was genuine. Given the Tribunal's grave credibility findings on the applicant's credibility in relation to his participation in the Water Festival, the inconsistencies between the applicant's claims and the independent evidence regarding Insein Jail [where Mr Aung claimed to have been held for a week during his detention], and the inconsistencies in his claims regarding his whereabouts when he claimed to be in detention, the Tribunal cannot be satisfied that the applicant was ever in detention and gives this claim no weight." 22 I point out now that when creating the record of her reasons for refusing to grant Mr Aung's application for a protection visa (to which record I have already referred above), the delegate had stated (emphasis and words in brackets added), "Leading on from this [that is, certain findings of fact, including the one which I have quoted at [18] above], I do not accept the applicant's account of his arrest on 14/4/95 and subsequent imprisonment and forced labour. In addition to the information cited above, the applicant has himself provided documentation, in the form of a 'household members list' when applying for his visa, that he was resident in Dagon Myothit (south) in May 1995." 23 Mr Aung submitted before me that, in stating that a document submitted by him to the AustralianEmbassy had stated that he was resident at his home in the period he claimed to have been undergoing forced labour, the RRT was thereby finding a fact to exist because the delegate had done so. 24 As I understood it, the basis of that submission was that the collection of documents prepared by the Minister and filed in Court for the purpose of the present proceeding as the relevant ones in relation to Mr Aung's present application for review had not contained a copy of any document of the sort described by the RRT in the passage from its statement of findings and reasons which I have quoted in [21] above. I was therefore invited to infer that the RRT had not had any such document before it when making its decision and had therefore found that such document, making the relevant statement, had existed only because the delegate had done so. 25 I reject that submission. 26 Among the difficulties with such a process of reasoning is that it is apparent that the delegate had made the statement which I have quoted in [22] above on the basis of her knowledge of the contents of the Minister's Department's file relating to Mr Aung, which file she had expressly stated in the record of her decision she had used in making her decision. It is further apparent from the RRT's statement of findings and reasons that it had also had access to the same file for the purpose of making its decision; indeed, the RRT expressly stated in its statement of findings and reasons that it had the Minister's Department's file before it. In those circumstances, I am not prepared to infer, merely because the Minister did not see fit to include the particular document in the collection of relevant documents filed in Court, that the particular document had not been before the RRT for the purpose of its review of the delegate's decision and that the RRT had therefore made the finding presently under discussion simply because the delegate had done so. 27 I note further that, even if I were wrong in concluding that the RRT had had the particular document before it for the purpose of making its decision, the fact is that Mr Aung had himself had acknowledged before the RRT the existence of that document. In the course of a written statement to the RRT and obviously for the purpose of persuading the RRT not to act on the document in the way in which the delegate had, Mr Aung had said, "I also submitted some false documents to the Australian Embassy when I applied for my visitor's visa. I was told that you had to show that you had property in Burma. I paid 150 kyats for the household list for the house that I had bought in Dagon Myo Thit. This was a false document as I own the house but did not live there. I have a friend who worked in the Dagon Myo Thit Township office and he prepared the document for me." Then, when he had appeared before the RRT, the following exchange had occurred between the RRT and Mr Aung (via an interpreter), "Why would you send a document to the Embassy stating that during this period you were living in Dangong … township if you were working as a forced labourer? Although I was detained or kept at the Mingo police station during that period, my address, my permanent residential address was still at that particular place. So that is why I wrote that down. So you own a house in Dangong … township? Yes. So why didn't you just say to the Embassy, I own the house but I wasn't living there? When a person applies for a visa at the Embassy in Rangoon they have to show ownership of a property and although I was actually staying in my father's house, because I didn't own that house I couldn't give that address, I had to give the … address instead because that is the property I owned. But you weren't living at your father's address either from what you have said today? As I stated earlier, although I was yes, at the police station, my permanent address or I should say my household of the family listing was still showing at Dangong Ubit. So that is why I put down Dangong Ubit as my address. That is the house that you own, is that right? Yes. So the family listing, the household registration listed you as living in the house that you owned, is that correct? Dangong Ubit? Yes, because that is the property that I owned so my household listing is for Dangong Ubit. So the document you submitted to the Embassy was a genuine document? Well, it would appear as if I had two household, family listings. You submitted a document saying that you lived at the house that you owned in Dangong Ubit? Yes. So was that document a genuine document? Genuine document. So it was? Yes. It was a genuine document because I had to submit that together with documents stating my ownership of that property. But you say that this was a false document in your statement sent into the Tribunal. You said that this was a false document. You said that you had a friend who prepared the document for you? Well, no, I suppose you can't really say it is a false one. You see at that time my name was in two household lists. One at South Oklava where I was living and the other at Dangong Ubit and because that was the property I owned my friend helped me put in that household list for the Dangong property." 28 In the light of what Mr Aung had asserted to the RRT, both in writing and orally, it would certainly have been open to the RRT, even if it had not had before it a copy of the document presently under discussion, to conclude, as it did, that it had been stated in a document which Mr Aung had submitted to the Australian Embassy that he was resident at his home in the period he claimed to have been undergoing forced labour. 29 As well as the three specific statements in the RRT's statement of findings and reasons with which I have dealt above, there was one further matter relied on by Mr Aung before me as demonstrating that the RRT had misconceived the significance of the delegate's decision for the performance by it of its review function. That matter was submitted to be the RRT's failure critically to examine the various findings of fact made by the delegate in reaching her decision. 30 It will be apparent from what I have already said above that that submission was itself based on a misconception as to the significance of the delegate's decision for the performance by the RRT of its review function. It was no part of the RRT's function critically to examine the various findings of fact made by the delegate in reaching her decision; rather, its function was to find all of the material facts for itself, irrespective of any findings made on them by the delegate. 31 I said at the outset of these reasons that Mr Aung had placed at the forefront of his submissions as ultimately presented before me a submission that the RRT had misconceived the significance of the delegate's decision for the performance by the RRT of its review function. However, in addition to that submission, Mr Aung also made three other submissions of judicially reviewable error by the RRT. 32 First, he focused on the following statement by the RRT in that part of its statement of findings and reasons headed "Findings and Reasons" (the words in brackets are the RRT's): "The applicant claimed to have joined the NLD in October 1988. The applicant has provided no independent evidence to support this claim [such as a membership card], and this claim is nothing but an unsupported allegation. The Tribunal therefore cannot be satisfied that the applicant was ever a member of the NLD." That particular finding should, it appears to me, be read in light of that finding of the RRT's by which it opened that part of its statement of findings and reasons headed "Findings and Reasons", a finding relating to the applicant's credibility. The RRT stated, "Given the range of inconsistencies between the applicant's claims to the Department of Immigration and his claims and evidence to the Tribunal regarding events in Burma, inconsistencies and implausibilities that arose in the course of the hearing, as well as the inconsistencies between the applicant's claims and independent evidence, the Tribunal cannot be satisfied that the applicant has been truthful or that he has any claim to have a well founded fear of persecution for a Convention reason. The Tribunal cannot be satisfied that the applicant was involved in pro-democracy activities in Burma, and it cannot be satisfied that the applicant was ever arrested or was ever of interest to the Burmese authorities." 33 Mr Aung drew attention to the fact that, when he had appeared before the RRT, he had told it that he "couldn't bring out any evidence, written evidence from Burma" establishing that he had joined the NLD in October 1988. He submitted before me that the RRT had committed judicially reviewable error by not referring in its statement of findings and reasons to that evidence of his before it. 34 I do not accept that the RRT had been under any duty in its statement of findings and reasons to refer to that evidence given by Mr Aung before the RRT. First, Mr Aung's assertion that there existed written evidence of his having joined the NLD in October 1988, which evidence he had been unable to bring out of Burma with him, was, in substance, dealt with by the RRT by its finding as to his credibility. Secondly and in any event, as was said by Black CJ and Sundberg and Hely JJ and I in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at 482, [56], "… a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with…." 35 The second of Mr Aung's three submissions of judicially reviewable error by the RRT other than his submission that the RRT had misconceived the significance of the delegate's decision for the performance by the RRT of its review function related to the 1995 Water Festival. The submission (which necessarily presupposed the failure of his submission that the RRT had only found that the NLD had not participated in the 1995 Water Festival because the delegate had done so) was that it had not been open to the RRT on the evidentiary material before it to find that the NLD had not participated in the 1995 Water Festival. 36 That submission faces a number of insuperable obstacles. 37 First, as I have already said (see [20] above), in my view, the RRT made no finding on the question whether the NLD had participated in the 1995 Water Festival. 38 Secondly, even if it had, it would have been necessary for Mr Aung, in order to succeed on the submission presently under discussion, to bring himself within pars 476(1)(g) and 476(4)(b) of the Act. That he could not do, for a reason with which I most recently dealt in N258/00A v Minister for Immigration & Multicultural Affairs [2000] FCA 993 (26 July 2000, unreported). I do not accept that pars 476(1)(g) and 476(4)(b) of the Act apply to a finding of the non-existence of a fact. 39 Finally, even if the RRT had found that the NLD had not participated in the 1995 Water Festival and even if pars 476(1)(g) and 476(4)(b) of the Act did apply to a finding of the non-existence of a fact, I consider that the dpa dispatch (see [17] above) did amount to some evidentiary material in support of a finding that the NLD had not participated in the 1995 Water Festival, in substance for the reason given by the delegate (see [18] above) when she relied on the dpa dispatch to find that the NLD had not participated in the 1995 Water Festival. That being the case, Mr Aung could not establish the ground set out in par 476(1)(g) of the Act 40 The third of Mr Aung's three submissions of judicially reviewable error by the RRT other than his submission that the RRT had misconceived the significance of the delegate's decision for the performance by the RRT of its review function related to the document submitted by him to the Australian Embassy in Rangoon in support of his application for a visa to visit Australia. The submission was that the RRT had committed judicially reviewable error in concluding that the assertion in that document was inconsistent with Mr Aung's assertion of having been in detention at the time. 41 Reliance was placed in making that submission on what Lord Scarman, speaking for the House of Lords, had said in R v Barnet LBC, Ex p Shah [1983] 2 AC 309. His Lordship had there said (at 343) that, ordinarily, the notion in legislation of being "ordinarily resident" "refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration". His Lordship had then (at 344) referred to (relevantly) one respect, "… in which the mind of the 'propositus' is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is." Ignoring the provisional way in which Lord Scarman had expressed the matter and the fact that his Lordship was discussing the notion of "ordinary" residence, Mr Aung submitted before me that, when one applied Lord Scarman's approach to the statement as to Mr Aung's residence in the document submitted to the Embassy, it could be seen that the RRT had erred in treating that statement as inconsistent with Mr Aung's assertion to have been in detention at the time. 42 The difficulty with that submission is that the RRT was not engaged, as Lord Scarman had been in Shah, in construing English legislation; it had instead been engaged in construing what had said in a Burmese document which Mr Aung had submitted in support of a visitor visa application which he had made. I am unable to see why it had not been open to the RRT to take the view that the author of that document had not necessarily used the notion of residence in the document in the same way as that in which the British Parliament would ordinarily use the notion of ordinary residence in legislation and to construe what had been said in that document as having been intended to convey to the reader that at the relevant time Mr Aung had been physically present on a regular basis at the address referred to in the document. 43 I add that, in any event, the RRT's relevant finding for present purposes had been that Mr Aung had not been detained, as he had claimed. In making that finding, the RRT had relied on three separate matters, its finding on Mr Aung's credibility in relation to his participation in the 1995 Water Festival, the inconsistencies between Mr Aung's claims and the independent evidence regarding Insein Jail and the inconsistencies in his claims regarding his whereabouts when he claimed to have been in detention (see [21] above). Even if the RRT should not have construed the statement about Mr Aung's residence in the way in which it did, that would not detract from the force of the other two matters on which it relied in making its finding or, indeed, from the force of the inconsistency between Mr Aung's claims before the RRT as to the genuineness of the relevant document. In those circumstances, it is difficult to see the materiality of the RRT's alleged error in construing the Burmese document.