Tin v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-08-14|Before: Hill J, Katz JJ, Sackville J

THE PROCEEDINGS 1 This is an application pursuant to s 476 of the Migration Act 1958 (Cth) ("Migration Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 10 April 2000. The Tribunal affirmed a decision by a delegate of the respondent ("the Minister") not to grant the applicant a protection visa. 2 The only ground of review relied on by the applicant is that specified in s 476(1)(a) of the Migration Act 1958 (Cth) ("Migration Act"). Section 476(1)(a) provides that an application may be made for review by the Federal Court of a "judicially-reviewable decision" on the ground: "(a) that procedures that were required by this Act or the Regulations to be observed in connection with the making of the decision were not observed." The Tribunal's decision is a "judicially-reviewable decision": s 475(1)(b). 3 The applicant's case that the Tribunal failed to observe the statutorily required procedures has been put on two alternative bases: · first, the Tribunal failed to advise the applicant before or at the hearing that the credibility of her claim to have suffered domestic violence in Myanmar (Burma) was in dispute, thereby breaching ss 424A and 425 of the Migration Act; and · secondly, the Tribunal failed to comply with s 430(1)(c) of the Migration Act, in that it did not set out its finding on a material question of fact, namely a claim by the applicant that a Burmese friend had warned her by telephone, after her arrival in Australia, that the Burmese authorities were looking for her. It is not in dispute that a breach of any of ss 424A, 425 or 430 would give rise to a ground of review under s 476(1)(a) of the Migration Act: Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908 (Hill J), at [58] (s 424A); Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315, at 323, per Tamberlin and Katz JJ; at 330, per Sackville J (s 425 in its earlier form); Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 845 (FC) (s 430(1)).

The Legislation 4 Section 424A and 425 of the Migration Act were introduced, in their present form, by the Migration Legislation Amendment Act (No 1) 1998 (Cth), the relevant parts of which came into force on 1 June 1999. The provisions apply to the Tribunal's review of the delegate's decision: Sch 3, Pt 2, Item 20(2). 5 Section 424A 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 invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention. (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) …". 6 Subsections 441A(1) and (2) provides that a document specified in s 441A(3) is taken to be duly given to an applicant for review if the document is sent or given in a specified manner. Section 441A(3) specifies certain documents for the purposes of subsections (1) and (2). The documents so specified include an invitation under s 424A. 7 Section 425 of the Migration Act is as follows: "(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review." (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) …". Section 425A provides that if the applicant is invited to appear before the Tribunal, the Tribunal must give notice of the time and place for the appearance. 8 Section 430(1) of the Migration Act is in the following terms: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepared a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based."

BACKGROUND 9 The applicant was born in Burma in 1958. Her parents were both born in China and migrated to Burma in 1917. The applicant became a naturalised Burmese citizen in 1979. In 1986, she married a Captain in the Burmese Army. 10 The applicant has a variety of tertiary qualifications. She completed a degree in Chemistry in 1978. She has a Bachelor's degree in Education completed in 1982, and a Master's degree in Education completed in 1989. She also holds Diplomas in Accounting (completed part-time from 1980 to 1982) and in Computer Science (also completed part-time, from 1994 to 1996). The applicant worked as a teacher from 1979 to 1987. From 1989 to 1992 she was a high school teacher in Rangoon and in 1992 she was promoted to University lecturer at the Rangoon Institute of Education. She was promoted to assistant lecturer in September 1996 and resigned from that position in March 1997. 11 The applicant claimed that she separated from her husband in 1992, although she said there had been difficulties for some years prior to that. Her husband resigned from the Burmese Military in January 1997, after having attained the rank of Major. According to the applicant, her husband (from whom she was then separated) was forced to resign because of her anti-government activities. 12 The applicant arrived in Australia on 22 June 1997, holding a visitor's visa. On 6 August 1997, she lodged an application for a protection visa. That application was rejected by the delegate on 23 December 1997 and the delegate's decision was subsequently affirmed by the Tribunal. 13 The applicant prepared a detailed written statement in support of her application for a protection visa. At that stage, she was represented by a migration agent who, according to her evidence to the Tribunal, drafted the statement. (In a statement to the Tribunal she described the author of the earlier document as "a lawyer", but I was told that her representative was in fact a non-legally qualified migration agent.) The applicant later prepared a further lengthy written statement to the Tribunal. This document was prepared in English, apparently without the assistance of a migration agent or a solicitor. 14 On 30 September 1999, the Tribunal advised the applicant in writing that it was not prepared to make a favourable decision on the papers alone. The letter invited the applicant to come to a hearing of the Tribunal to give oral evidence and present arguments in support of her claims. In the event she appeared unrepresented at a hearing of the Tribunal held on 19 November 1999.

THE APPLICANT'S CLAIMS 15 The applicant's statement to the Department and her written submissions to the Tribunal covered similar ground, although there were some differences. In her first statement, the applicant claimed to fear that if she were returned to Burma she would be arrested, tortured and possibly raped by reason of her political opposition to the military regime. She also expressed a fear that she would be persecuted on the ground of race, that is by reason of her Chinese ethnicity. 16 Among other claims, the applicant's statement to the Department recounted at considerable length violent demonstrations and other events that occurred in 1988 in Burma and in which the applicant allegedly participated. The statement also claimed that the applicant's marriage had deteriorated because she had refused her husband's request to make speeches in favour of the State Law and Order Restoration Council (SLORC). Indeed, the applicant claimed that her husband had been forced to resign from the army due to her political activities "resulting in our marriage breakdown and separation". No suggestion appears to have been made in the first statement that the applicant feared persecution by reason of membership of a particular social group. 17 The second statement repeated and to some extent developed the claims made in the first. The second statement also contained a heading "claims based on the grounds of particular social group". Under this heading, the applicant stated that she feared persecution because of her membership of a particular social group "namely Chinese women who get married [sic] a Burmese military officer." 18 It is difficult to follow what the applicant may have had in mind in making the last claim, although the claim appears to assume, without elaboration, that a Chinese woman who is married to a Burmese army officer and who is a victim of "spousal domestic violence" can be said to fear persecution because she belongs to a particular social group. It is possible that the applicant was prompted to make the claim because the delegate had interpreted her first statement as making a claim that she feared that she would suffer persecution simply because she was a woman. The delegate drew this inference from the applicant's expressed fear that she would be a victim of domestic violence or would be sexually assaulted in prison. The delegate noted that, although there had been reports of some women being raped in detention, independent reports suggested that there was no violence directed against women as such in Burma and that the authorities generally treated women in detention better than men. The delegate found that women in Burma do not constitute a "cognisable group" subject, by reason of their gender, to discrimination of such seriousness as to amount to persecution. 19 Reading the two statements together, the applicant seems to have put forward three grounds for her claim to have a well-founded fear of persecution for Convention reasons. 20 First, she claimed that she had been politically active in Burma and that she feared persecution by reason of those political activities. In particular, the applicant claimed to have taken part in demonstrations against the Military Government of Burma on several occasions in 1988 (including a violent demonstration in which a student called Phone Maw was killed) and to have organised a hunger strike by students in September 1988. The applicant claimed to have made an anti-government speech during a one month teacher training course held in 1992 at an Army Training College. 21 According to the applicant, she was reprimanded in both 1992 and 1993 because she had publicly expressed her political opinions. The second warning related to her criticism of government loyalty tests and to answers she gave in one such test which were critical of the government. The applicant also claimed that, in December 1996, she had participated in a student anti-government demonstration at the campus of Rangoon University. This resulted in a third warning and a requirement that the applicant sign a document acknowledging her participation in the demonstration. She was forced to resign from her position as assistant lecturer. 22 The applicant further claimed that, after her arrival in Australia, she had participated in demonstrations outside the Burmese Embassy. She had also participated in a small group under the name of the "Free Burma Action Committee". As the applicant explained to the Tribunal, her political activities in Australia had been limited, because she feared that the Burmese authorities might detain members of her family in Burma by reason of her anti-government stance. Nonetheless, she said that she feared persecution by reason of her activities in Australia. 23 Secondly, the applicant claimed that she had been a victim of violence at the hands of her husband since her participation in the 1988 demonstrations. The applicant did not specify in detail the nature of the domestic violence she had experienced, although she said that her husband had threatened to place her in the hands of the military because of her political activities. 24 The applicant said that she and her husband had separated in 1992, but that she had been required to visit her husband after that date because the separation was not recognised under Burmese law. In 1994, she had attempted to obtain a divorce on the ground of spousal violence. Her claim did not succeed because (according to the applicant), no one was prepared to testify on her behalf. The applicant claimed that she lived with a student for a short time, but that her husband had traced her and "dragged [her] back into his hands". She also claimed to have entered religious life as a Buddhist nun in February 1997, but she was refused permission to continue in that life because her husband objected. The applicant said that, at about that time, her husband had threatened her with a pistol, giving as a reason her anti-government activities. She said that her husband had been forced to resign from the military in early 1997 because of her political activities. 25 The Tribunal did not explain the significance of the applicant's claims to have suffered and to fear domestic violence. Mr Lowe, who appeared on behalf of the applicant, said that the primary significance was to reinforce the applicant's claimed fear of persecution for reasons of political opinion. He said that the claims of domestic violence were also relevant to the applicant's contention that she feared persecution by reason of her membership of a particular social group. Mr Lowe was not able to explain, however, how Chinese women who marry Burmese military officers could constitute a "particular social group" for the purposes of the Convention nor how it was open to the Tribunal to find that they did: cf Islam v Secretary of State for the Home Department [1999] 2 AC 629; Khawar v Minister for Immigration & Multicultural Affairs (1999) 168 ALR 190 (Branson J). 26 Thirdly, the applicant claimed to fear persecution on the ground of her ethnicity. Her written submissions referred to anti-Chinese communal violence directed against her parents. She also claimed that she had suffered discrimination in education and employment because of her Chinese background. Her citizenship status was said to be that of a "Guest Citizen", with limited citizenship rights, by reason of her Chinese background.

TRIBUNAL'S REASONING 27 The Tribunal said that it could not be satisfied with the applicant's credibility. It regarded her claims as implausible, internally inconsistent and inconsistent with the independent evidence outlined in the reasons. The Tribunal was not satisfied that the applicant had been truthful about her claims, nor that she had any fear of Convention-related harm in Burma. In particular, the Tribunal was not satisfied that the applicant: · had ever been involved in any political activities; · had ever been a victim of spousal/domestic violence; or · had ever been discriminated against in education or employment, or harmed or discriminated against by reason of her ethnicity. 28 The Tribunal rejected the applicant's claims to fear harm for reasons of her political opinion as "completely lacking credibility". The Tribunal found that the substantial sections of the applicant's written claims to the Department had been plagiarised from a book by Bertil Litner, entitled "Outrage: Burma's Struggle for Democracy" (1990). The Tribunal found the applicant's explanations for the plagiarism to be unacceptable. Moreover, the applicant's evidence about her own alleged involvement and demonstrations had been vague. That evidence, according to the Tribunal, undermined her claim to have been an active political dissident. 29 The Tribunal noted the applicant's claim to have been politically active and outspoken during the time 1988 to 1992. Having regard to the independent evidence as to the repressive nature of the Burmese regime, the Tribunal found that, had the applicant engaged in the political activities as she had claimed, she would have been treated much more harshly than simply being given warnings. She would also have been dismissed from her employment, rather than given the option of resigning. Furthermore, the evidence had indicated that the reason given by the applicant for her resignation was her mother's ill-health. The Tribunal regarded this as the true reason for her resignation. 30 The Tribunal also rejected the applicant's claim to have given a speech in 1992 critical of the government. In particular, the Tribunal found it implausible that the applicant could have been an outspoken critic of the government and yet receive only a warning. Indeed, after the incident she had continued to work at a tertiary institution and had been promoted in 1996. The Tribunal found that she had fabricated her claims of political involvement and speech making after 1988. The Tribunal concluded that the applicant's claims to have been politically active in Burma completely lacked credibility and were to be given no weight. 31 The Tribunal rejected the applicant's claim to have a well-founded fear of persecution by reason of her participation in political activities in Australia. The Tribunal found that, although the Burmese authorities monitored opposition activities outside Burma, they were not generally interested in Burmese citizens involved in demonstrations in Australia. There were exceptions, such as repeat demonstrators, active and high profile members of particular groups and ringleaders responsible for a violent attack on the Burmese Embassy in Canberra in September 1999. The applicant did not fall within any of these groups. The Tribunal therefore could not be satisfied that the applicant had a well-founded fear of persecution arising from her extremely limited activities in Australia. 32 The Tribunal also rejected the applicant's claims regarding her husband's alleged domestic violence. The Tribunal considered that, as the applicant had fabricated her claims to have been politically active in Burma, it could not accept her claim that her political activities had led to domestic violence. Furthermore, the applicant's evidence relating to the claims of her husband and domestic violence were "contradictory and implausible". The Tribunal gave a number of examples supporting this conclusion: · The applicant had claimed in evidence that she and her husband had separated in 1992 and did not have any contact after that date. She later gave inconsistent evidence to the effect that the domestic violence had continued until her departure for Australia in 1997. · The applicant had claimed that she was able to stay in Rangoon only because of her husband's influence. The Tribunal pointed out that, according to her evidence, they had separated in 1992 and yet she had continued to work in Rangoon until 1997. The Tribunal considered it implausible that the applicant's husband would continue to use his influence to keep her in Rangoon while at the same time (as the applicant had claimed) being angry and vengeful towards her. · The Tribunal considered that the applicant's claim that she had separated voluntarily from her husband in 1992 was inconsistent with her claim that she continued to visit him thereafter. · The applicant had claimed that her husband's career in the army had been affected by her political activities, yet her evidence was that he had been promoted from Captain to Major in 1994. · The applicant had linked the commencement of the domestic violence to her own expression of political opinion. Yet, on her evidence, she had known her husband since childhood. The Tribunal considered that he would therefore have been well aware of any political leanings on her part. It rejected as "unreasonable" her explanation that she did not have a chance to voice her opinions and that she held strong views only after 1988. 33 The Tribunal reached the following conclusion: "There are numerous aspects of the applicant's claim in relation to her husband and her claims of being a victim of domestic violence that are implausible and inconsistent. In light of these many implausibilities and inconsistencies and the applicant's inability to explain them in any meaningful manner, the Tribunal cannot be satisfied that the applicant's claims regarding her husband and being [a] victim of domestic violence are credible." 34 Finally, the Tribunal rejected the applicant's claim that she had been discriminated against in education and employment because of her Chinese ethnicity. The Tribunal found that her tertiary qualifications told against this claim. Moreover, her employment history suggested that she had enjoyed continuous employment almost until the time she had left Burma and had risen through the ranks in her chosen field.

THE CREDIT ISSUE 35 The applicant contended that the transcript of the Tribunal hearing demonstrated that the credibility of the applicant's claim to be a victim of domestic violence was never in dispute. According to Mr Lowe, the finding that the applicant's claim lacked credibility was "sprung on the applicant" for the first time when the Tribunal handed down its decision. 36 Mr Lowe submitted that the failure of the Tribunal to alert the applicant to the possibility that her claims to have suffered domestic violence would not be accepted constituted a breach of the Tribunal's obligation under s 425(1) of the Migration Act to "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review". Mr Lowe argued that s 425(1) should be construed as requiring the Tribunal to identify the issues arising in relation to the decision, at least where the Tribunal had formed the view that the applicant's account of events was not necessarily to be believed. 37 Alternatively, Mr Lowe submitted that the Tribunal's failure to alert the applicant to its doubts about her claim to have suffered domestic violence involved a contravention of s 424A(1). He contended that the Tribunal had "information" that it considered would be the reason or a part of the reason for affirming the Tribunal's decision. The expression "information" was broad enough to include any knowledge of some fact or circumstance possessed by the Tribunal and not the applicant. In the present case the knowledge was the Tribunal's belief that the applicant had fabricated her claims to have been a victim of domestic violence.

FAILURE TO SET OUT FINDINGS 38 Mr Lowe submitted that the Tribunal had failed to set out its findings on a material question of fact and had therefore contravened s 430(1)(c) of the Migration Act. The material question of fact was said to be the claim made by the applicant, in her written statement to the Tribunal, that she had been telephoned by a friend in Burma who had warned that the Burmese authorities were actively seeking her. According to Mr Lowe, the existence of the telephone call was a material fact because it provided the only evidence of a specific threat made against the applicant by the Burmese authorities.

the factual question 39 The applicant must overcome a number of hurdles before she can establish a contravention of either ss 424A(1) or 425(1) of the Migration Act such that a ground of review is available to her under s 476(1)(a). The first is that she must make good the proposition that the Tribunal failed to alert her to the fact that it did not necessarily accept her claim that she had been a victim of domestic violence. In my opinion, the applicant cannot surmount the first hurdle. 40 The starting point is the decision of the delegate of the Minister. The delegate found that certain key claims made by the applicant lacked credibility. The claims rejected by the delegate included the following: · the applicant's claim that she participated in the so-called "Phone Maw" events of March 1988, which was rejected in large measure because the applicant had plagiarised her account of these events from a published source; · the applicant's claim that she had come to the adverse attention of the Burmese authorities by reason of her political activities; and · the applicant's claim that her husband had been forced to resign by reason of her political activities. 41 It is true that the delegate did not reject all the applicant's claims. In particular, the delegate considered it possible (without making a finding in her favour) that the applicant may have had some involvement in political activities in Burma. However, the delegate found that, if the applicant's plausible claims were taken at their highest, her involvement in political activities was minor and was not such as to give rise to a well-founded fear of persecution in Burma. 42 It must be remembered that the applicant's claim to have suffered domestic violence was inextricably linked to her assertion that she had engaged in political activities and had clashed with the Burmese authorities. In view of the delegate's rejection of the key elements of the applicant's claims, it could hardly be in doubt that the Tribunal would not necessarily accept her account of events insofar as they were said to give rise to a well-founded fear of persecution. In this respect the case is similar to Abebe v Commonwealth (1999) 197 CLR 510: see at 576-577, per Gummow and Hayne JJ. 43 The transcript of the proceedings before the Tribunal was in evidence, although there were gaps in the record because of difficulties with the quality of the recording. An examination of the transcript makes it clear that the Tribunal was exploring and, in important respects, challenging the accuracy of the applicant's claims, including her assertion that her husband had abused her by reason of her political beliefs and activities. 44 The Tribunal put to the applicant that she had plagiarised substantial sections of her original application. The applicant attempted to overcome this obvious difficulty by asserting that she had signed the document without reading it (notwithstanding that she said she had prepared a later detailed submission herself with assistance from her brother, an Australian resident). That the Tribunal was concerned about the reliability of the claims made in the statement is shown by this passage: "[Delegate]: So it was more important to you to get the work permit than to…an application that was true and correct. [Applicant]: At that time, I was newly arrived here and did know anything. I was advised by my solicitor at that time to lodge it within 45 days. I did not write this statement, he wrote it. [Delegate]: So you are saying that everything in that statement is not correct? Maybe I'll put it another way. Is anything in that statement correct? [Applicant]: There are some facts that I did not tell him to state at all which have been written in there, so I don't know if that is regarded as true or untrue. [Delegate]: But you signed this statement? [Applicant]: Yes I did because that was my last day, the 45th day in fact, and it was a Wednesday, the day that the Immigration Office is closed early. And at that time I really trusted and believed my solicitor." (Emphasis added.) 45 After challenging the applicant's claim to have participated in the events of March 1988, the Tribunal member asked a series of questions plainly designed to test the applicant's knowledge of other events in which she said she had participated. The applicant was also asked why she had not mentioned to the Department her claim to have participated in a hunger strike in August 1988. Moreover, the Tribunal specifically advised the applicant that it found implausible her claim that she had publicly criticised the regime at a training seminar, bearing in mind that (on her account) she had merely received a warning for what in Burma would have been regarded as a serious transgression. The Tribunal's questioning can only be understood as a test of the credibility of the applicant's account. 46 The Tribunal's detailed questioning of the applicant continued in relation to the circumstances of her separation from her husband. The Tribunal drew to the applicant's attention what it considered to be contradictory statements made by her as to whether the separation had been amicable. It asked her why, if she had known her husband for years prior to the marriage, he would not have been aware of her political opinions. The Tribunal also put to the applicant that, if her husband had been forced to resign because of her political activities (as she claimed) he would have found it difficult to obtain employment outside the Army, let alone contracting work with the Government (as the applicant also claimed). The Tribunal asked the applicant why the authorities did not simply dismiss her husband instead of making him resign. 47 It is impossible to read the transcript without concluding that any reasonable observer must have realised that the applicant's account of events, including her account of the circumstances in which her husband inflicted domestic violence on her, would not necessarily be accepted by the Tribunal. There was no evidence in these proceedings as to what the applicant believed at the end of the Tribunal hearing (an assertion was made from the bar table, but that is not evidence). Whatever the applicant's subjective belief, it is simply not the case that the first time the Tribunal challenged the applicant's account of the circumstances in which she suffered domestic violence was in the Tribunal's reasons. 48 Mr Lowe argued that the Tribunal had never specifically warned the applicant that it might find that she had never been subject to domestic violence. In my view, the Tribunal's questioning was such as to demonstrate to the applicant and to any reasonable observer that it did not necessarily accept any of the key elements of the applicant's claims. In any event, the applicant's claim before the Tribunal was that she had suffered domestic violence in consequence of her political beliefs and activities. It was this claim that the Tribunal probed and ultimately rejected.

the questions of construction 49 Since the factual foundation for this aspect of the applicant's case is lacking, there is no need to consider the construction of s 424A(1) or s 425(1) of the Migration Act. I should indicate, however, that even if the applicant had established that the Tribunal had not indicated that it wished to probe her account of events, she would face further formidable hurdles. 50 So far as s 425(1) is concerned, the applicant's submissions contradict observations of the Full Court in De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765. In that case, a submission was made that s 425(1) is not restricted to inviting the applicant, prior to the date of the hearing, to attend the hearing in order that he or she may give evidence and present arguments. It was contended that s 425(1) has a continuing operation during the hearing obliging the Tribunal to identify issues and draw them to the applicant's attention. The Full Court rejected the argument (at [8]-[9]): We do not accept this construction of the provision. The governing word in s 425(1) is "invite". The purpose of the invitation is to enable an applicant to attend the hearing so that he or she can give evidence and present arguments relating to the issues in the case. On the plain words of the sub‑section the obligation is to invite the applicant to appear. It does not impose on the Tribunal an obligation to identify issues and draw them to an applicant's attention. That s 425 does not bear the construction placed upon it by the appellant is confirmed by s 424A, which was inserted into the Act at the same time as s 425 was amended. … The existence of an express provision imposing obligations on the Tribunal to assist an applicant in relation to matters that may be important to the outcome of the case shows that s 425(1) does not impose obligations of the type asserted by the appellant. … [The] purpose [of s 425(1)]is to ensure that the applicant has an opportunity to appear before the Tribunal to give evidence and present arguments in cases where the Tribunal cannot decide in favour of the applicant "on the papers". The section is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear and give evidence and present arguments." In the light of this analysis, any failure by the Tribunal at the hearing to alert the applicant to the possibility that her account might not be accepted would not constitute an infringement of s 425(1) of the Migration Act. 51 Section 424A(1) obliges the Tribunal to give an applicant particulars of "information" it considers to be the reason, or a part of the reason, for affirming the decision under review. As I followed Mr Lowe's argument, he contended that the word "information" encompasses the Tribunal's own view that the applicant's claims are not, or might not be, credible. Accordingly, the Tribunal is bound to give the applicant particulars of its concerns about her credit. If this argument is correct, it would give s 424A a wider operation than the general law requirements of natural justice or procedural fairness: Abebe v Commonwealth, at 576, per Gummow and Hayne JJ; at 608, per Callinan J. The question is whether Parliament intended the provision to have such a broad scope. 52 In Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908, Hill J said (at [58]-[59]) that s 424A: "is enlivened when the Tribunal forms the view that there is information that is relevant to the review and the information is or may be adverse to the applicant…. One can infer that the legislative purpose of the enactment of s 424A (particularly where the failure to give natural justice is not a ground of judicial review in an application to this Court) was to ensure that an applicant could be apprised of such particulars of the information which the Tribunal has become aware of so that the applicant can have the opportunity of meeting whatever adverse consequence the information might have on the outcome of the review, whether by calling, if that course is desired, evidence to rebut it, or by commenting on it. Thus, the question of what is required by way of particulars will fall to be resolved by reference to the nature of the information the Tribunal has received. See also Naing v Minister for Immigration & Multicultural Affairs [2000] FCA 344 (Hill J), at [31]. 53 Hill J's observations suggest that s 424A(1) applies when the Tribunal becomes aware of some fact or circumstance that appears to be adverse to the applicant on an issue relevant to the applicant's case. It is not concerned with the subjective thought processes of a Tribunal member. This view of s 424A(1) is reinforced by the dictionary definition of "information". The Macquarie Dictionary gives as the first definition: "knowledge communicated or received concerning some fact or circumstance". That s 424A(1) is concerned with knowledge of a fact or circumstance communicated to or received by the Tribunal receives further support from the statutory context. Section 424(1), for example, empowers the Tribunal to "get any information that it considers relevant". The word "information" in s 424(1) is used, clearly enough, to refer to knowledge of relevant facts or circumstances communicated to or received by the Tribunal. In my opinion, the same word is used in the same sense in s 424A(1). 54 It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s 424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s 424A(1).

SECTION 430: REASONING 55 According to the applicant, the material question of fact upon which the Tribunal failed to make a finding was her claim that she had received a telephone call from a friend in Burma warning her that the authorities were looking for her. There was no independent evidence corroborating the telephone call. 56 In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, the majority judgment pointed out (at [46]) that: "[t]here is no specific requirement in s 430 for the [Tribunal] to give reasons for rejecting, or attaching no weight to evidence or other material which would tend to undermine any finding it made." Their Honours noted the important qualification that if one of the reasons which actually induced the Tribunal to come to its decision was that it decided to reject or place no weight on particular material, s 430(1)(b) would require disclosure of that element of the actual reasoning process. Mr Lowe placed no reliance on s 430(1)(b) and did not suggest that the Tribunal had actually been induced to come to its decision by deciding to reject the applicant's account of the telephone conversation. 57 The majority judgment in Singh also addressed the question of what constitutes a "material fact" for the purposes of s 430(1)(c) (at [55]-[56]): "The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it. Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them. As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691, in the context of s 43 of the AAT Act:

"Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons expose the logic of its decision, and contain findings on matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with a requirement to include 'findings on material questions of fact'."

Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But 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." 58 The existence of the alleged conversation was not a material fact. It was merely an uncorroborated piece of evidence put forward by the applicant to support her claim to fear persecution by reason of her political opinions. The probative force of the evidence depended on the Tribunal's assessment of the applicant's credibility. The Tribunal gave its reasons for rejecting the applicant's claims to have engaged in political activities and to have suffered domestic violence in consequence. It was not incumbent on it to state explicitly that it did not accept the applicant's account of the telephone call. There was no contravention of the requirements of s 430(1)(c) of the Migration Act.

conclusion 59 The application must be dismissed. The applicant must pay the Minister's costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate: Dated: 14 August 2000 Counsel for the Applicant: Mr D Lowe

Solicitor for the Respondent: Australian Government Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)