SZGOC v Minister for Immigration [2005] FMCA 1189

This is an application for review of a decision of the Refugee Review Tribunal that was made on 27 September 2000 and handed down on 17 October 2000. The Tribunal affirmed a decision of the Delegate of the Minister not to grant a Protection Visa to the Applicant.

The Applicant is a citizen of Burma, which is also known as Myanmar.

He arrived in Australia on 9 May 1997 on a Visitor Visa. On 15 July of that year, he lodged an application for a Protection Visa.

On 29 May 1998, the Delegate of the Minister refused to grant that visa to the Applicant. Not long afterwards, on 4 June of that year, the Applicant sought a review of that decision by the Refugee Review Tribunal.

The Tribunal indicated to the Applicant that it was not able to make a decision in his favour on the information that had been provided to the Tribunal, so the Tribunal invited the Applicant to a hearing where he could give evidence and present arguments to support his claim.

That hearing took place on 8 August 2000, and the Applicant attended the hearing and gave evidence.

The substance of the Applicant's claim is that he has a well-founded fear of persecution for a Convention reason; namely, his involvement in political activities in his home country. His evidence is that he was involved in political activities from 1988 through to 1996. In 1988 he said that he was attacked by a soldier who had a rifle with a bayonet fixed to it and was slashed across the chest and he says that he has a scar on the chest as a result of that injury.

He indicated that he had been involved in other activities including attending a demonstration of students in Rangoon in December 1996, when the authorities fired tear gas at the demonstrators and began beating them. He paid a bribe of a considerable sum of money in order to obtain a passport and a visa to travel to Australia.

The Applicant has been involved in demonstrations in Australia aimed at securing democracy in his home country and he says that he fears further persecution if he were to return as a result of his political activities here. He attended the Tribunal hearing, but was unsuccessful. The delay between publication of the decision of the Tribunal and the commencement of these proceedings is partly explained by the Applicant's involvement in a class action in the High Court of Australia.

That action was commenced on a representative basis. That application was eventually dismissed on 20 February 2004 in the Federal Court by Emmett J. His Honour's Judgment in that is Applicant S1174 of 2002 v Refugee Review Tribunal [2204] FCA 289.

The delay in commencing the proceedings has only partly been explained. There is no explanation given for the delay by the Applicant between 20 February 2004 and the date when he commenced these proceedings, which was 20 June 2005. He had been living in the community, but was taken into Immigration detention a couple of months ago. The Applicant has had the benefit of legal advice and has filed an amended application which sets out his claims in greater detail.

He claims that there are four grounds upon which the Court should grant relief. First, that the Tribunal failed to take account of relevant material. Second, that the Tribunal failed to carry out its statutory duty to review the application. Third, that the Tribunal denied the Applicant a procedural fairness, and fourth, the Tribunal applied the wrong test.

Dealing first of all with the ground that the Tribunal failed into account relevant material, the particulars are that the Tribunal failed to take into account two matters; (1) that the Applicant had paid a bribe to obtain a passport and annexed permit; (2) that he had a scar on his chest which was evidence of his claim of persecution.

In his submission on behalf of the respondent Minister today,

Mr Markus, solicitor, put to the Court that failure to take account of relevant material does not necessarily equate to failure to take account of a relevant consideration. He said that the particulars alleged are not necessarily established as a matter of fact.

From my reading of the Tribunal decision, it is clear that the Tribunal did take note of the fact that the applicant had paid a bribe to obtain his passport and that this is apparently a common practice in that country. The applicant told the Court that a political activist who wishes to leave the country may do so, the authorities would not normally stop that person. The applicant also said today that he had suffered this scar in a demonstration as he set out, but this was not taken into account by the Tribunal.

As far as the scar on the chest is concerned, it is clear that the delegate took this matter into account in the delegate's summary of the applicant's claims in page 54 in the Court Book. The fact that the Tribunal did not specifically refer to that matter is not evidence of itself of a jurisdictional error. In the respondent's written submissions, the respondent sets out, correctly in my view, that the Tribunal was not obliged to deal in its reasons with every item of evidence or interpretation of the evidence contrary to its finding of fact.

See Re: Minister for Immigration & Multicultural Affairs Ex parte Durairajasingham (2000) 160 ALR 407 at 65. Nor does it follow that because the Tribunal did not mention a matter in its reasons, it has failed to consider it. Steed v The Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621. In my view, this is a correct summary of the law.

Ground 2 was that the Tribunal failed to carry out its statutory duty to review the application. The particulars of this are that the applicant says the Tribunal found that he was not a ringleader, but failed to inquire as to whether persecution would be inflicted on a person who was an "Information collector and assembler." The particular relied on here is not, to my mind, sufficient to establish that the Tribunal failed to carry out its statutory duty.

The Tribunal had referred to independent country information which was relevant to the issue of demonstrators who could expect persecution and it was that evidence, together with the evidence of the Applicant, that allowed the Tribunal to form the view that the Applicant did not fit the profile of a person who would be persecuted on his return to his home country.

The third ground was that the Tribunal denied the Applicant procedural fairness. The particulars of this are that the Tribunal had no probative evidence upon which to base certain findings and the Tribunal relied on a report at page 233 of the Court Book without making that report available to the Applicant. In his oral submissions to the Court, Mr Markus pointed out that evidence did not support the proposition that the Applicant was denied procedural fairness.

The Tribunal had observed the Applicant giving evidence at the hearing and would be, therefore, in a position to make the findings that it did. As far as the report at page 233 of the Court Book is concerned, the written submission on behalf of the respondent sets out, correctly in my view, the principles that generally apply to common law procedural fairness which do not support the existence of any obligation to release the particular report, headed "Human Rights Update".

Reference there is to the decision of the Full Court of the Federal Court in The Commissioner for ACT Revenue v Alpha One Pty Ltd [1994] FCA 1074; [1994] 49 FCR 576 at 591-592. A relevant section of the Judgment has been cited in the respondent's submissions and I believe it is helpful for me to repeat that part of the Judgment. It is a decision of the Full Federal Court and of course it is binding upon me in the Federal Magistrates Court. Their Honours said:

Where the exercise of a statutory power attracts a requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome which supports his or her interests. That entitlement extends to the right to rebut or qualify by further information and comment by way of submission upon adverse material from other sources which is put before the decision maker.

It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications, however, a decision maker is not obliged to expose his or her mental processes or provision of views to comment before making the decision in question.

With respect, their Honours have set out the principles which the Court should follow and I do not seek to add anything further.

The fourth ground relied upon is that the Tribunal applied the wrong test. The particulars of that are, first, that an applicant needed to be a ringleader of a demonstration before that application could be considered to be subject to persecution, and second, that the Tribunal failed to inquire what level of persecution the general public experienced in a country renowned for its breach of human rights.

The test that had to be applied was whether or not the Applicant had a well-founded fear of persecution. It is not an accurate description of the Tribunal's findings to say that the Tribunal applied a test to the effect that the Applicant needed to be a ringleader of a demonstration before that person could be the subject of persecution. That is not what the Tribunal found.

The Tribunal considered country information about demonstrators and considered the Applicant's evidence as a whole, noting that the Applicant's role in demonstrations was relatively minor. In my view, it was open to the Tribunal to make a conclusion on the totality of the evidence that the Applicant would not be subject to persecution upon return to his native country.

It may be that another fact-finding Tribunal may consider that evidence another way, may place greater emphasis on some parts of the Applicant's case, to arrive at a conclusion that the Applicant would have a well-founded fear of persecution. It is not the function of the Court in conducting a judicial review to substitute its own view of the facts. As long as there is evidence upon which the decision maker could reasonably arrive at the conclusion that he did, there is no jurisdictional error.

The second particular is:

The Tribunal failed to inquire what level of persecution, the general public experienced in a country renowned for its breach of human rights.

It is conceded by Mr Markus for the Minister that Burma, or Myanmar, is known to be a country that has an authoritarian regime and it is open to the Court to take judicial notice of the fact that in that country human rights are not a high priority for the government generally.

But again, the test that the Tribunal had to apply was whether this applicant, on the evidence available to the Tribunal, had a well-founded fear of persecution for a Convention reason.

It is not helpful to make an inquiry as to what level of persecution was experienced by the general public in Burma or to arrive at some conclusion as to whether the Applicant had a well-founded fear of persecution. It is in fact both unhelpful and confusing to inquire about the general level of persecution experienced by the general public in Burma, even if such information were available. It would be of no assistance to the decision maker, in my view. That is not the test that the Tribunal should apply.

It is necessary, I think, to make it clear that the Court does not re-hear these applications on their facts. It is the Tribunal which is the

fact-finder. The Court's duty, when conducting a judicial review, is to ascertain whether or not there has been a jurisdictional error. It may well be that a particular factual finding by a decision maker would be regarded by the Court as a relatively hard decision or an unsympathetic one.

It may well be that the Court would form a positive view of a particular applicant, but that does not permit the Court to re-hear the matter on the facts and arrive at its own conclusions. So long as the evidence is there that would allow the decision maker to arrive at the findings that he or she has made, as long as there is no jurisdictional error that is shown in the way that these findings are reached, then the decision is a privative clause decision and it is not subject to review by this Court.

The finding that I make is that there is no jurisdictional error. There is no reviewable error, which means that the application must be dismissed.

The solicitors for the First Respondent seek an order that the Applicant should pay their client's costs which they assess on a party to party basis as $4000. I would comment that the amount sought is within the range set out in Schedule 1 to the Federal Magistrates Court Rules. The Applicant is in Immigration detention and has been for the last couple of months.

The Applicant has now been released from detention after a couple of months in detention, on a Bridging Visa. He was released a couple of weeks ago. He points out to the Court that he has no right to work so he has therefore no funds behind him. He does not have the ability in the near future to obtain funds. This is not a ground for the Court to decline to make an order for costs. The Applicant's case has been unsuccessful, and in this jurisdiction, costs normally apply to the event.

The fact that an unsuccessful applicant is impecunious does not affect that, although it will support the exercise of the Court's discretion to allow time to pay. It is not uncommon for the Courts to allow time to pay.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM