Naing v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-03-31|Before: Hill J

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.

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. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate: Dated: 31 March 2000 Counsel for the Applicant: D Godwin

Solicitor for the Respondent: Australian Government Solicitor

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

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