NAIH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

INTRODUCTION 1 The applicants invoke the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) to seek judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 18 April 2002. By its decision the Tribunal affirmed a decision of a delegate of the respondent not to grant the applicants protection visas (s 36 of the Migration Act 1958 (Cth) ("the Act")). 2 The only ground of the application to the Court is as follows: "The Refugee review Tribunal ("the MRT") failed to exercise its jurisdiction under the Migration Act 1958 (Cth) ("the Act") Particulars: i. The Refugee Review Tribunal's power to make a valid decision is subject to the pre-condition that it complies with the inviolable natural justices rights expressly enacted by Parliament in the form of s 424A of the Migration Act 1958 (Cth). ii. Section 424A compels the Tribunal, before it makes any decision, to give an applicant particulars of any information that would be the reason or part of the reason for affirming the decision that is under review. iii. In the present case, the Tribunal's decision was based primarily upon its adverse credibility findings. iv. Part of the reason for its adverse credibility findings were that there was no compatibility in certain respects between the First Applicant's statements to the Tribunal and earlier statements provided to the department. v. The Tribunal did not comply with the requirements of s 424A in relation to this part of its reasons. It did not provided the applicants with particulars of the non-compatibility, nor give him an opportunity to comment upon it after the period of time specified in the Act. vi. Information given by an applicant for the purpose the protection visa application, as opposed the application for review, is not excluded from the requirement of s 424A by s 424A(3)(b): Minister for Immigration & Multicultural Affairs v AI Shamry [2001] FCA 919, Ryan and Conti JJ at [18]‑[20]; Merkel J at [35]." 3 Section 424A of the Act provides as follows: "(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) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (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." 4 In Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 ("Al Shamry") the Full Court concluded that the reference in s 424A(3)(b) to information "that the applicant gave for the purposes of the application" extends only to information given by the applicant for review to the Tribunal itself. Although it is doubtful that this conclusion forms part of the ratio decidendi of Al Shamry, the parties acknowledge that it would be appropriate for me to proceed on the basis that I am bound by it. The contention of the applicants that statements provided by them to the Department of Immigration & Multicultural Affairs do not fall within the exception created by s 424(3)(b) is therefore to be accepted. 5 Nonetheless, the ground reproduced in [2] above prima facie raises interesting questions of law on which authoritative guidance is not presently available. The first is whether, having regard particularly to the terms of the privative provisions now contained in s 474 of the Act, s 424A can be understood to disclose a legislative purpose to invalidate a decision made where the requirements of the section are not complied with (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355). The second, which flows form the construction of s 424A adopted in Al Shamry, is the intended meaning in the context of s 424A of the Act of the term "information". 6 It was apparently conceded in Al Shamry that a report of what an individual, who later applied for a protection visa, purportedly said during an airport interview is "information" within the meaning of s 424A. This concession was presumably made on the basis that the report will tell those who read it what was allegedly said by the interviewee. In my view, it is less clear that the total content of, and the general impression created by, a formal written statement prepared by an applicant in support of his or her claim to be entitled to a protection visa is "information" within the meaning of s 424A. 7 Section 424 of the Act authorises the Tribunal to "get any information that it considers relevant". It would seem to be open to argument that the primary purpose of s 424A is to ensure procedural fairness to an applicant before the Tribunal in respect of information obtained by the Tribunal in reliance on s 424. Any formal statement made by an applicant in support of his or her initial claim to be entitled to a protection visa might be expected to be given to the Tribunal by the Secretary of the Department pursuant to s 418 of the Act. This section imposes an obligation on the Secretary to give to the Registrar of the Tribunal documents relevant to the review to be conducted by the Tribunal. This does not necessarily mean that material provided to the Tribunal by the Secretary could never constitute "information" within the meaning of s 424A. It may be, for example, that if an issue arose before the Tribunal as to whether the applicant had ever made a written statement in support of his or her application, the fact that the Secretary had given the Tribunal such a statement could be "information" in the hands of the Tribunal. It might also be that the Tribunal could become apprised of a matter of fact by reading a statement made by an applicant in support of his or her claim to be entitled to a protection visa. The knowledge thus derived by the Tribunal from the statement might be "information" within the meaning of s 424A. However, it seems unlikely, in my view, that the legislature intended that the procedure provided for by s 424A of the Act should be followed in every case in which the Tribunal proposes, in determining to affirm the decision under review, to place weight on material provided by the applicant to the Department. 8 I am inclined to doubt that an intention can be discerned in s 424A that the totality of the claims and assertions in a statement or statements made by an applicant in support of his or her initial application, whether believed by the Tribunal or not, and the general impression, whether of coherence or otherwise, created by those claims and assertions, is "information" received by the Tribunal when the Tribunal is given a copy or record of the statement or statements. If such an intention is to be discerned from the section, the consequences would seem to be that, before the Tribunal can place weight on any inconsistency or incompatibility between claims and assertions made to the Department and the evidence given by the applicant to the Tribunal, the requirements of s 424A would have to be met. As Merkel J pointed out in Al Shamry at [30], the requirements of s 424A are unlikely to be able to be met during the course of the hearing before the Tribunal. It may be that the invitation to comment could be given by hand to the applicant at the hearing pursuant to s 441A(2) although Merkel J seems to have doubted this. However, even if the invitation were able to be given to an applicant during the course of a hearing, the effect of s 424B is that the time within which the comments could be given would be unlikely to expire until well after the completion of the hearing. Consequently, in virtually every case in which the Tribunal considered that a reason or part of the reason for affirming the decision under review would be inconsistency or incompatibility between a statement made by the applicant to the Department and the applicant's evidence to the Tribunal, the review process would have to be extended to allow the invitation required by s 424A of the Act to be issued and the applicant given an opportunity to respond. 9 However, as is mentioned above, I do not consider that this case calls for the determination of these interesting questions. The ground of review here relied upon, in my view, fails at an earlier stage. My reasons for so concluding are set out below. 10 The applicants are husband and wife. They are citizens of Burma (Myanmar). They have made independent claims to be entitled to protection visas. On 6 March 1998 a delegate of the respondent refused to grant either of them a protection visa. The Tribunal initially affirmed the decision of the delegate on 16 February 2000. Following remittal of the matter to the Tribunal by order of this Court, the Tribunal by a decision made on 25 March 2002, which was handed down on 18 April 2002, again affirmed the decision not to grant protection visas to the applicants. 11 The ground upon which relief is sought in this Court makes it necessary to quote extensively from the written reasons for the decision of the Tribunal made on 25 March 2002. The critical passage from the reasons for decision is the following: "The Tribunal has come to the conclusions in this matter for the reasons set out below that the Applicants have not experienced persecution, are not genuinely in fear of persecution nor that there is a real chance they will face persecution on return to Burma. The Tribunal does not accept that the Applicants have been candid with the Tribunal about the reasons underpinning their decision to leave their country. The Tribunal finds that the accounts given by the Applicants of their need for Australian Government protection to be most implausible. The Tribunal is not satisfied that the Applicants are credible in respect of certain key aspects of their claims for protection. Not being satisfied in respect of these matters, the Tribunal is led to conclude that they are not in genuine fear of persecution nor that there is a real chance that they will suffer persecution on return to Burma. At the Tribunal hearing of their claims the Applicants did not impress the Tribunal as credible witnesses in their demeanour and responses in giving evidence on several key elements of their claims and did not convince the Tribunal that they had to leave Burma in the circumstances they have described. In particular, the Applicant husband was constantly evasive and thoroughly unconvincing in virtually every aspect of his evidence … of his claim to need protection from the Australian Government. He showed no confidence in his testimony before the Tribunal, appearing to be manufacturing answers during delays in replying to Tribunal questions and hesitating unduly on matters in respect of which he should not have had difficulty. There was also no consistency in his evidence on key issues nor compatibility in certain respects with earlier statements provided to the previously constituted Tribunal or the department. In assessing the Applicants' claim for protection, the Tribunal is not satisfied that it has been told the truth about why they left Burma and what they fear about returning there. Despite detailed, written statements from the Applicants of their claims giving the appearance of a cohesive account of political activities over a protracted period of time, there was no ring of truth at all to the claims put forward by the Applicants in their testimony before the Tribunal. The Applicant husband was unconvincing and evasive in his evidence … regarding his claimed detentions by Burmese authorities for political activities and provided an inconsistent account of the length of claimed detentions. For example, he testified he had not been detained prior to his 1988 detention for any reason. Yet he subsequently testified he had been detained on other occasions for up to two or three days only. He could not remember the details of these detentions when pressed by the Tribunal. He stated he had been detained as a high school student for one or two days and then released. His claims of his arrests by the police and his early dissident activities … were thoroughly unconvincing and inconsistent and the Tribunal does not accept that he was a student political activist against the Burmese authorities. The Applicant husband's evidence … was not convincing nor consistent on why he was detained for a year in 1991/1992. He initially told the Tribunal that the reason he was in gaol was that the authorities knew he was trying to contact politicians abroad and that his departure documents were not genuine, although he believed the authorities did not have any convincing proof. However, when pressed by the Tribunal for details of the charges that were levelled against him, he stated … that he was involved in the 1988 movement and then stated that he distributed letters and pamphlets on 9 September 1999, which he clarified after some confusion to 1998 and then to 1989. He told the Tribunal … that he was detained from the end of 1991 for a year and that he was in gaol for the whole of 1992. He agreed, when it was put to him, that he had told the previously constituted Tribunal that he had been detained until March 1993. The Applicant husband's evidence was also most unsatisfactory on the reason for his claimed release from detention. When the Tribunal put it to him … that he had told the previously constituted Tribunal that he had been released because of a general amnesty in 1993, he stated that he did not know if an amnesty had been declared in 1993. The Tribunal does not accept, on the Applicant husband's evidence of his claimed detentions, that he was detained in Burma at any time for reason of political opinion or political activities. The Tribunal was not impressed with the Applicant husband's testimony … on the claimed ease of acquisition of his Burmese business passport while having the claimed, adverse political profile. In addition, the Tribunal does not accept, having regard to the country information above, that the strict regulation of Burmese society that followed the military takeover in 1988 would permit the issue of business passports to, and the free movement in and out of the country of, known Burmese political dissidents. Equally, the Tribunal was not impressed with the Applicant wife's evidence on this issue … as she claimed in evidence that she was under constant harassment from the authorities and was often warned that if she did not stop her democracy activities, she would die in gaol. The Tribunal considers it highly implausible that the Applicant wife could have been under such close supervision from the authorities and yet be able to conduct the type of anti‑government activities claimed. This picture of active dissidence against the Burmese authorities, constant harassment and the threat of arrest and imprisonment of the Applicant wife at any time does not sit well with the Applicant husband's evidence … that he could not get the Applicant wife to safety in Thailand as passports are not issued to Burmese women. Their account is especially unconvincing as they were able to get a genuine passport on the strength of the Applicant husband's business passport and also as they claim to have been in the business of forging Burmese passports. Nor is this claim consistent with the Applicant husband's testimony that he had nothing to fear returning to Rangoon in the years leading up to their departure, save for his last trip there on 27 April 1996, when he learnt that the Burmese authorities had recently started looking for him and his wife. In addition, the latter circumstance convinces the Tribunal that the Applicants' claims are not genuine when regard is had to the fact that the Applicant wife's passport was issued on 1 March 1996, nearly two months prior to the Applicant husband's final trip to Burma. The Applicant husband was also not frank with the Tribunal … about the important issue of his wife being able to obtain a passport and leave Burma. Initially, he stated Burmese women cannot obtain passports but later conceded, under questioning, that his wife was actually able to obtain a business passport on the same basis as he had obtained one. The Tribunal does not accept that the Applicant husband was in the business of forging false Burmese passports or photo‑substituting them because, if he had been so employed, he could have easily forged or photo‑substituted for his wife one of the many Burmese passports he claimed to have at his disposal to facilitate her departure from Burma. The Tribunal is not convinced by the translated correspondence produced to the Tribunal that the Applicant husband has been engaged in a passport forgery business. These documents and the other supporting correspondence are largely self serving and do not, in the Tribunal's view, assist to any great extent the Applicants' claims that they were working against the Burmese Government. In the light of its adverse credibility findings against the Applicants, the Tribunal gives no weight to this material. The Applicant husband and Applicant wife were evasive and unsatisfactory in their testimony … about why he had sought and obtained US visitor visas for himself only in 1995 and 1996, while living in Bangkok, and then failed to use the visas. He initially explained that he helped the wife and son of a friend to get US visas and he just decided to get one for himself at the same time. He also suggested his wife could not get a passport but conceded later that she could and did get a business passport without difficulty when she applied for one. The Applicant husband added, as a clear afterthought and somewhat lamely, that the Applicant wife had political work to do in Rangoon and so could not leave at that time. He also stated he could not leave Bangkok as he was advised by colleagues that there was work to do in Bangkok. The Tribunal rejects the Applicants' explanations of the reasons the Applicant husband obtained but failed to use a US visa and considered his explanation for not using the second US visa, that his wife was already in Australia, to be extremely weak and most unconvincing, especially as he arrived in Australia with his wife. The Applicants' explanations … of how he managed to live in Bangkok for several years and conduct the passport forgery business, without any real income, and fly frequently between Bangkok and Rangoon leaving the Applicant wife and two sons to fend for themselves with some family assistance, is most unconvincing. In particular, his testimony … that he did not think about how his wife and children existed for the years he was in Bangkok but that 'political motivation' was his focus is most implausible and is rejected. The Tribunal would have expected that, had the Applicants had the association that they claimed with an enterprise such as Soe Soe Enterprises, and had they helped the wife and son of a well‑known political refugee now resident in the US, and had the authorities been actively inquiring into the Applicants' whereabouts and activities in relation to these matters, the Applicant husband would have been arrested at Rangoon Airport when he returned and then left Burma for the last time. The Applicants' earlier, lawful departure from Rangoon Airport on 17 April 1996 on officially issued Burmese business passports also suggest strongly to the Tribunal that the Applicants were not of interest to the Burmese authorities. Had the Applicants had the political profile they claimed the Tribunal would have expected the Applicants to have been detained and prevented from leaving the country. Yet they left without impediment. The Tribunal rejects the Applicants' claims that they had an adverse political profile with the Burmese authorities on their departure from Burma in April 1996. The Tribunal is not satisfied about the Applicants' explanations in respect of the Applicant husband not lodging his application for a protection visa until September 1996. If they were genuinely in fear of persecution in Burma and feared being returned there, the Tribunal does not accept that they would contemplate the Applicant husband returning to Thailand to return the tools of a claimed passport forgery business, which could have been mailed without the risks associated with such a visit. The Tribunal does not accept that the Applicants have or had any adverse political profile stemming from activities before, during the 1988 democracy movement or subsequently. The Applicants stated in their signed letter dated 27 October 1999 to the Department that 'the military government always check the person who have political background and present political movements' and if 'some one breaks these laws in the pass or present, he or she must be arrested in jail'. The country information available suggests that this statement, that the government is very repressive towards political dissent, is correct but it does not support the Applicants' account of their capacity to engage for a considerable time in Rangoon and in Bangkok in the production of false passports and the dissemination of political literature or to enter or depart the country without arrest. In the circumstances, the Tribunal has concluded that the Applicants were not genuinely politically active against the Burmese Government and do not have a record of political dissent in Burma. The Tribunal is not satisfied that the Applicants were politically active against the military government in any of the several ways they have claimed. As to the Applicants' claim that they face persecution in Burma because 'We do not have the right to speak freely, the right to writing freedom and the right to living freedom', the Tribunal is not convinced that they have genuinely, personally suffered the denial of these basic freedoms nor that such limitations that they may have experienced in respect of these basic freedoms amounts, in their case, to persecution under the Convention. The Tribunal is not satisfied, on the evidence, that the severe limitations imposed generally on Burmese citizens for the expression and enjoyment of these rights constitutes persecution for these particular Applicants. The Tribunal has concluded, on all the evidence of their activities in Burma and the Applicant husband's capacity to live in Bangkok and to move freely in and out of Burma at will, that they were not personally affected in their lives or aspirations to the extent that they suffered persecution under the Convention. Had this been the case, the Tribunal would have expected them to have left the country, as a family, sooner than they chose to, and as they appear to have been able so to do. The Tribunal was particularly unconvinced with the Applicant husband's claim to be suffering a deprivation of basic freedoms and to fear arrest for political activity when he testified … that, armed with his business passport and a US visa he could choose when to leave Thailand and seek and obtain refugee status in the US, especially in 1995, a time when, according to his evidence, neither he nor his wife were under any threat from the Burmese authorities. The Tribunal is also not satisfied that the Applicants will be persecuted in respect of these rights, particularly the right to free political speech, if they return to Burma as they are not, in the Tribunal's assessment, persons who have in the past, nor would they in the future, publicly express political opinions nor are they persons who would be persecuted by the very denial to them of the right to free political expression." (emphasis added) 12 In my view, consideration of the above passage reveals that it is carefully constructed. It moves from the conclusions contained in the opening paragraph, to general statements concerning the applicants' credibility and then on to the identification of the particular aspects of the applicant husband's evidence upon which the Tribunal based its general statements as to his credibility. 13 The "information" of which the applicants contended that they should have been provided particulars by the Tribunal is, it would appear, those aspects of the applicants' earlier statements to the Department which the Tribunal found to be incompatible with the applicant husband's evidence to the Tribunal. As discussed in [6] - [7] above, I am inclined to doubt that the applicants' contention reflects a proper understanding of the intended operation of s 424A of the Act. Nonetheless, I proceed on the assumption that the contention is a proper one. 14 The incompatibility which it seems to me that the Tribunal identified between the applicants' earlier statements provided to the Department and the applicant husband's oral evidence to the Tribunal is that identified by the Tribunal in the very paragraph in which it refers to the incompatibility. The Tribunal there states that: "[d]espite detailed, written statements from the Applicants of their claims giving the appearance of a cohesive account of political activities over a protracted period of time, there was no ring of truth at all to the claims put forward by the Applicants in their testimony before the Tribunal." That is, as I understand the reasons for decision of the Tribunal, the incompatibility identified by the Tribunal was that while the relevant written statements contained a cohesive account of political activities over a protracted period of time, the applicants' oral evidence had "no ring of truth at all". 15 The paragraphs from the Tribunal's reasons for decision which follow that which contain the reference to the incompatibility are, in my view, to be understood as identifying the bases of the Tribunal's conclusion that the applicant husband's evidence had "no ring of truth at all". Those bases apparently include that: (a) the applicant husband was "unconvincing and evasive in his evidence"; (b) the applicant husband was not "convincing nor consistent on why he was detained for a year in 1991/1992"; (c) [t]he Tribunal was not impressed with the Applicant husband's testimony … on the claimed ease of acquisition of his Burmese business passport while having the claimed, adverse political profile"; (d) the applicants' account of how they were able to get a genuine passport for the applicant wife was "unconvincing"; (e) the applicant husband lacked frankness on "the important issue of his wife being able to obtain a passport and leave Burma"; (f) the applicants gave "evasive and unsatisfactory" evidence about the husband's US visitor visa; (g) the applicant husband gave an "unconvincing" explanation of how he managed to live in Bangkok for several years conducting a passport forgery business without any real income and flying frequently between Bangkok and Rangoon; (h) the applicants gave unsatisfactory explanations concerning the husband's failure to apply for a protection visa until September 1996; and (i) the asserted capacity of the applicants to engage for a considerable time in Rangoon and in Bangkok in the production of false passports and the dissemination of political literature, and to enter and depart Burma without arrest, was not supported by the applicants' statement, which was confirmed by country information, that the government was repressive towards political dissent. 16 Having regard to the above, I am not satisfied that the Tribunal considered that there were particular instances of incompatibility between the applicant husband's earlier statement to the Department and the applicant husband's oral evidence to the Tribunal which would be a reason, or part of the reason, for affirming the decision that was under review. It seems to me that the incompatibility to which the Tribunal referred was the incompatibility, in the sense of the unexplained contrast, between the persuasive nature of the cohesive account of the applicants' claims given by the written statements and the unconvincing nature of the applicant husband's oral evidence. So understood, it was not any information as such derived from the written statements that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review but rather the unconvincing nature of the applicant husband's oral evidence. 17 However, even if the Tribunal did consider that there were particular instances of incompatibility between the applicants' written statements and the applicant husband's oral evidence to the Tribunal, I am satisfied that, had the applicants been given an opportunity to comment on those particular instances of incompatibility, no different view would have been taken by the Tribunal of their credibility. The Tribunal's conclusion as to the applicant husband's credibility was, as [15] above reveals, overwhelmingly based on the impression created by the applicant husband when he gave evidence before the Tribunal. In my view, the reference by the Tribunal to the earlier written statements is, when seen in the context of the Tribunal's reasons for decision as a whole, little more than an incidental comment or an aside. 18 The critical conclusions of the Tribunal that the applicants are not genuinely in fear of persecution and that there is no real chance that they will face persecution on return to Burma were firmly based on its assessment of the applicants' credibility. I am therefore confident that even if the Tribunal had given the applicants the opportunity to comment on particular instances of incompatibility between their earlier statements and the applicant husband's evidence to the Tribunal, the outcome of the review would have been the same. 19 For the above reason, even if it be assumed that s 424A expresses "inviolable natural justice rights" (see [2] above), it would not be appropriate to set aside the decision of the Tribunal. As McHugh said in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 at [140]: "[n]ot every departure from the rules of natural justice automatically invalidates a decision adverse to the party affected by the breach. Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident the breach could not have affected the outcome of the case." See also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, 204 CLR 82 at [3] -[4], [80], [131] and [211]; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.