WAKK v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 The applicant came to Australia from Burma on a visitor's visa in November 1999. In December 1999 he applied for a protection visa. His application was refused by an officer of the Department of Immigration and Multicultural and Indigenous Affairs in November 2001. The applicant sought review by the Refugee Review Tribunal (the Tribunal) of the delegate's decision. On 24 September 2003, the Tribunal affirmed the decision to refuse a protection visa. The applicant now seeks judicial review of the Tribunal's decision. He does so on the basis of a number of factual errors by the Tribunal. None of these errors, nor associated complaints of failure of procedural fairness, discloses any jurisdictional error on the part of the Tribunal. For the reasons set out below the application will be dismissed with costs. Factual and Procedural History 2 The applicant is a citizen of Burma, who was born on 8 August 1974 in Mandalay. He came to Australia on a visitor's visa arriving at Perth on 13 November 1999. On 21 December 1999, he lodged an application for a protection visa. In a statement in answer to question number 36 on the application form 'Why did you leave that country?', the applicant said that his elder brother, who was an artist, had been involved in political demonstrations in Mandalay in 1988. After a coup on 18 September 1988 his brother had been arrested by military intelligence and detained for several weeks. Although eventually released he was unable to paint or communicate or remember what had happened to him. Since that time, according to the applicant's answer, he and his mother and grandmother and two sisters had been harassed by military intelligence officers visiting them at home at night and demanding a list of persons in the household. 3 The applicant said that because of his antipathy to the military regime in Burma, he fled to the Chinese border in December 1994 but was detained at a border post. When released he fled into the jungle and joined the Kachin Development Army (KDA) which was based at the Chinese/Burmese border. Following a ceasefire between the government and the KDA he returned to Mandalay and found employment. However, in Mandalay the harassment continued. He decided he could no longer stay in Burma. If he were returned military intelligence would again harass and arrest him, not just for his past involvement with the Kachins but also because of his involvement in Perth with refugees from the Burma-Thai border. He would be considered an enemy of the State of Burma for applying for a protection visa. He claimed that there are agents of the Burmese military regime in Western Australia. 4 It appeared from his application that the applicant had applied for a Special Assistance Category visa in 1994. That application was sponsored by his uncle who lives in Western Australia. It was unsuccessful. 5 In support of his protection visa application, the applicant supplied additional material to the Department. This included a list of his political activities in Perth. It covered the period from January 2000 to 27 May 2001. He was interviewed by a departmental officer on 21 June 2001. 6 On 28 November 2001, the applicant was informed by letter that his protection visa application had been refused. This was just short of two years after the lodgement of that application. His claims were identified by the delegate as claims that if he returned to Burma he would be harassed and detained because of his political opinions and would experience persecution because of his Anglo-Burmese ethnicity. In written reasons for decision the delegate indicated that the application in 1994 had been made under the Refugee Special Humanitarian Program. He had been given an opportunity to present his claims, in support of that visa application, at interview in June 1994. The decision-maker had then determined that the claims presented at interview were marginal and did not amount to substantial discrimination. 7 The delegate's reasons for decision recorded that at interview on 21 June 2001, the applicant said that his difficulties at the Chinese border occurred when Burmese authorities checked his imported goods and wanted to impose what was in his view an excessive tax on them. The Burmese authorities took his identification card and, to avoid arrest, he and two friends ran away. He remained in the jungle with the KDA until November 1995 in order to avoid arrest. The delegate found it implausible that the applicant would remain in hiding with the KDA just to avoid obtaining a replacement ID and to avoid the payment of tax on imported goods. The delegate noted that, despite his claim of subsequent persecution by Burmese authorities and his claim that he was a wanted person, the applicant was able to obtain a passport in July 1999 which was valid until July 2002. The fact that the applicant was legally able to depart Burma raised serious questions about whether he was of any interest to authorities at the time of his departure. 8 The delegate was not satisfied that the applicant had experienced persecution at the hands of Burmese authorities. Nor was the delegate satisfied that his involvement with pro-democracy activities in Australia had been other than intended to strengthen his claims to be a refugee. The delegate nevertheless took into account the claimed political activity in Australia and relevant country information. He accepted that the applicant had had some involvement in pro-democracy activities in Perth but found that his role had been a minor one. The delegate was satisfied that the applicant did not fall within the profile of a person who would be subject to difficulties upon return to Burma. The delegate was satisfied that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention. 9 On 12 December 2001, the applicant lodged an application with the Tribunal for review of the delegate's decision. His application was supported by a typed statement in which he said, inter alia, that because of his brother's involvement in mass demonstrations in 1988 his whole family had been under the watch of the military intelligence. His brother had not been able to work permanently and earned some money by painting pictures. He and his family members could not practice their religion as freely as they could in Australia. He was forced to discard his rightful name and to take on a Burmese Buddhist name. There is no human rights protection in Burma. Many people including some of his friends had been arrested for distributing pro-democracy leaflets. He referred to an Amnesty International report of March 2001. 10 The applicant said that passports were obtainable as long as one could pay money to a travel agent who was usually connected to one of the Generals' friends or relatives. The applicant was involved with pro-democracy groups in Perth because only democracy could free the people of Burma. He was a new arrival in Western Australia and he couldn't claim to be a high profile person or take on a leadership role so as to strengthen his claim. When he first applied in 1994 to resettle in Australia he based his claim of persecution upon his ethnicity, he did not want to raise a claim based on his political opinions as he did not trust the local staff in the Australian Embassy. He said that he feared that if returned to Burma he would be arrested, detained and tortured by authorities who would not provide him with protection. 11 A 43 page typed submission was lodged on behalf of the applicant by the SCALES Community Legal Centre. This was lodged on 10 July 2003 in response to the invitation issued by the Tribunal for the applicant to attend an oral hearing on 16 July 2003. SCALES also enclosed with its submission a 37 paragraph statutory declaration from the applicant and recent US Department of State and Human Rights Watch reports in relation to Burma. Factual material in the submission relating to the applicant's claim was cross-referenced to paragraphs in the statutory declaration. 12 The written submission from SCALES and the statutory declaration set out the applicant's claims and their background in more detail than before. The applicant said that he had participated in the 1988 demonstrations by distributing pamphlets for the demonstrating student union and that he continued those activities until 1993. In 1993 he found he could not afford to continue his education and could not sit for his final exams. The military had confiscated his identification card in 1994 and threatened to arrest him when he was returning from the Chinese border to Mandalay with some purchases. He escaped arrest by fleeing across the border. As a result of these experiences he decided to join the KDA to help fight against the Burmese government. The KDA wanted to form a Kachin autonomous government. Most of its members were Kachin or Chinese rather than Burmese. He was accepted as a member and given a KDA identification card. He was the assistant to a senior officer in the KDA and became a leader of a subgroup in Area 12. His role was to generate funding for fighting and help to support the soldiers. However in 1994 the Burmese government made an agreement with the KDA which brought an end to the fighting. The KDA was formally recognised by the Burmese government and a KDA headquarters opened in Mandalay. On the applicant's return to Mandalay he continued to be harassed by State authorities and forced to check into the local police station weekly and to sign out if he intended to leave Mandalay. He was also harassed by military officers visiting and searching his home because of his perceived relationship with the senior KDA officer to whom he had been an assistant. He said in his statutory declaration that other soldiers and fighters in the KDA had similar experiences. 13 The submissions and the declaration referred to the 1994 visa application. In 1995 the applicant had secured employment in a shopping centre in Mandalay but was terminated after two days when the employer discovered that he had to register at the police station. With the help of a friend he obtained employment in an Indian pharmaceutical company called Pritsons that imported medical products. He continued in that employment until 1999. 14 When the applicant came to Australia in 1999 he did not sign out of Mandalay as required. Reference was made in the submissions to an official letter dated 21 September 2000 from the Burmese police which had been given to the applicant by his uncle on his return from a visit to Burma in 2000. The letter noted that the applicant had failed to register for ten months and was required to report to the police station immediately without fail. 15 The applicant claimed, in his statutory declaration, that he continued his political activities after working with the KDA. He had worked with members of student unions and the All Burma Student Democratic Front and helped to distribute anti-government information. He also participated in protests. 16 After his arrival in Australia, the applicant had become a member of Tribal Refugee Welfare and had been prominent in his involvement with it. He had been on the executive committee and had made a public speech about human rights in Burma. He had also been involved in a group called 'Free Burma' for which he had attended meetings and organised the establishment of a library and high profile demonstrations in Perth. There was a confirming statement from a witness prominent in pro-democracy activities in the Burmese community in Perth, that the applicant had been very active politically while resident in Australia. 17 The witness confirmed in his statement that the applicant had been closely associated with him as a result of his political activities in Australia. The witness had been a very prominent activist in Burma and had been targeted by the regime as a result. He had been found to be a refugee on account of the persecution that he faced at the hands of Burmese authorities. The witness had widely and publicly opposed the military regime since arriving in Australia and made regular high profile appearances and speeches. The witness said that the applicant was the person with whom he was seen most often. The applicant assisted him and attended all the functions in which the witness was involved. The two men had been photographed together at events. The witness believed that the applicant would be associated with him by the Burmese regime and would be persecuted on that basis if he were returned. 18 In the SCALES submissions it was said that the applicant's ethnicity and religion made him a target for persecution and ongoing harassment by the Burmese government. The applicant is a Christian of Anglo-Burmese descent and was said to have suffered persecution and to be at risk of continued persecution on that basis. Christianity and Anglo-Burmese ethnicity were viewed as related by the military junta in Burma because Christianity had been brought into Burma by Westerners. Authorities viewed Christianity as a 'white man's colonial' religion. Reference was made to country information in support of the proposition that persecution on Convention grounds of ethnicity and religion in Burma was inter-related. 19 The applicant's statutory declaration, which was dated 30 December 2002, attached a translation of the letter of 21 September 2000 given to him by his uncle on his return to Australia in December 2000. The text of the letter, omitting identifying references, was as follows: 'Subject: Notification to report to the police station. This is to notify [the applicant] who has been required to sign in on a monthly basis, in accordance with Emergency Provision Ordinance section 5-(nya), to report at the police station. As he has been absent for nearly 10 months, he is hereby required to attend without fail.' The original of the letter was purportedly signed by a superintendent at a police station in Mandalay. 20 The hearing before the Tribunal proceeded on 16 July 2003. On that day a statement was tendered from the applicant's witness. The applicant gave evidence at the hearing as did the witness. After the hearing the Tribunal received a further submission from the applicant's advisors on 20 August 2003. 21 On 24 September 2003, the Tribunal affirmed the decision not to grant a protection visa. The Tribunal's Reasons for Decision 22 In its reasons for decision the Tribunal reviewed the evidence and claims advanced by the applicant. In the 'Findings and Reasons' section of its reasons for decision it referred first to his claim that he feared persecution because of his Anglo-Burmese Christian ethnicity and religion. The Tribunal found that the applicant had not been persecuted in the past by reason of his Anglo-Burmese Christian background. It accepted that he had suffered some low level discrimination on that account, but found that the instances of such discrimination did not involve serious harm amounting to persecution within the meaning of the Refugees Convention. The Tribunal was satisfied that there was no real chance that the applicant would be persecuted in the reasonably foreseeable future for reasons of his Anglo-Burmese Christian background and that his fear of persecution was not well-founded. 23 The Tribunal then considered the claims of fear of persecution by reason of imputed political opinion. The imputation was said to arise from the applicant's brother's anti-government activities. The Tribunal accepted that the applicant's brother had been arrested and detained but this was at a time in 1988 when thousands of people were arrested and detained. It found that the brother was ill treated while in detention and that the ill treatment had a continuing effect upon him. It also found that after his release the family was placed under surveillance. The applicant's evidence had been that the surveillance had ceased seven to eight months after the brother's release from custody. The brother was no longer involved in pro-democracy activity. The Tribunal did not accept that the applicant's family would still be under surveillance as a result of his brother's activities in 1988 particularly given that the brother was no longer involved in political activities and given that, in his condition, he would no longer be a threat to the military regime. The Tribunal found that the applicant had not been persecuted in the past as a result of his brother's political opinions, that he was not regarded as holding anti-government political opinions because of his brother's activities and that there was no real chance that he would be persecuted in the reasonably foreseeable future on account of his brother's activities. The Tribunal also rejected a submission that the applicant's family was under surveillance because of his sister's involvement in a demonstration in 1997. That reason had only been put forward after the Tribunal indicated it did not accept that the family would have been under surveillance from 1988 until 1999 for his brother's activities. The Tribunal did accept however that Burmese citizens are generally subject to the pervasive security apparatus in their country. 24 The Tribunal found that the applicant had been involved in a dispute with customs officials at the China-Burma border over the payment of tariffs in 1994. It expressed 'some concerns' in relation to the applicant's evidence of his involvement with the KDA. It did not accept that the leader of a division of the KDA would have a person who was untrained and unknown to him as a bodyguard. The applicant, in oral evidence, said that the leader actually had another bodyguard and that he was more like an assistant. The Tribunal did not accept that he acted as a bodyguard for a KDA leader at all. It was prepared to accept that he may have sheltered for a period of time with the KDA while they were negotiating a ceasefire with the government. 25 The Tribunal referred to inconsistencies in the applicant's evidence about his involvement with the KDA and government reactions to it. It focussed on his evidence about continuing surveillance following his return to Mandalay. Initially he had claimed that he was under surveillance because of his association with the KDA. But at the hearing he said that the KDA had become affiliated with government authorities and that he was under surveillance because he had left the KDA. That surveillance had commenced two weeks after he left. Persons that remained in the KDA had no problems because they were now part of the government. When asked to explain the discrepancy he said that since being interviewed he had had time to reflect on the situation and had come to realise that his evidence was wrong. 26 The Tribunal found, that if he were involved with the KDA and if he were targeted by the authorities in Mandalay because of his association with the KDA, the applicant would not have got it so wrong at the earlier stage. The Tribunal did not accept his explanation as to his further reflection. It did not accept that he was under surveillance or required to report after his return to Mandalay. It did not accept that he was required to report because of his involvement in the KDA. 27 As to his ongoing involvement in pro-democracy activities, the Tribunal again detected inconsistencies in the evidence and observed that overall the applicant displayed little knowledge of political issues in the country. The Tribunal did not accept that he was involved in pro-democracy activities as claimed. 28 In relation to his political activities within Australia, the Tribunal referred to the applicant's claim that he was involved in organising a political forum at a university in June 2000. He had been unable to explain what it was all about except 'in very general terms'. On being pressed he said his involvement was to decorate a function hall and to sing songs with two of his friends. The Tribunal said that the applicant had submitted information regarding the Karen Liberation Army (KLA) and the 'Karen Aid Organisation'. Asked about them at the hearing he did not know who they were, where they operated from, or what their activities were. The Tribunal found that it would expect that someone involved with the TRW or in pro-democracy activities in Australia would be aware of those organisations. 29 The Tribunal found that the applicant had attended demonstrations along with many other people in Australia. It referred to the evidence of his witness, which was that the applicant sometimes accompanied him when he gave speeches and that he distributed information and typed material. The Tribunal accepted that the applicant had some association with the witness but did not accept that it was a close association. The Tribunal found that the applicant's involvement with the witness was at a minor level. The applicant did not have the profile of a ringleader or an organiser and was not involved with groups of particular interest to the Burmese authorities. Although he had attended more than one demonstration he would not be regarded as a repetitive activist. His involvement was not such that it would bring him to the attention of the authorities in Burma. The Tribunal found no real chance that the applicant would be persecuted in the reasonably foreseeable future by reason of his low level involvement in pro-democracy groups in Australia. 30 The Tribunal referred to the applicant's claim that in September 2000 a notice was brought to his home demanding that he report to police on his return to Burma. The Tribunal observed that the notice referred to him by his English name. According to the Tribunal, the applicant said, in evidence, that his mother had insisted that his English name be placed on the document. The Tribunal said: 'It seems odd that his mother's will could overbear that of the security authorities in Burma.' 31 The Tribunal noted that the applicant had not been called for interrogation or questioning by the authorities throughout his time in Burma. He had never been questioned or detained. It therefore had doubts about the document but even if it were a genuine request for him to report to authorities, there was nothing to indicate that they wished him to report because of political activities. The Tribunal did not accept that the document meant that the applicant had a real chance of persecution in the reasonably foreseeable future if he were to return to Burma. The Grounds of the Application for Review 32 On 21 November 2003, the applicant lodged an application pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking to review the decision of the Tribunal. On 24 May 2004, an amended application was filed and the hearing proceeded on the basis of the amended application as filed save for ground 4 in that application which was abandoned. Leave is given to amend the application in terms of the amended application filed on 24 May 2004. 33 The grounds of the amended application are as follows: '1.1 The Applicant claimed that after he returned to Mandalay in 1995, having been involved with the Kachin Development Army ("KDA"), he was required to report to the police and that this continued until 1999 when he came to Australia. In support of his claim the Applicant presented a document "Notification to report to the police station" dated 21 September 2000 in Burmese with an English translation of the text … 1.2 In regard to this evidence of notification the Tribunal said: (a) that the Tribunal has "doubts" about the genuineness of this document because the Applicant said the authorities would not let him use his English name so it "seems strange that they would use his English name in an official document. It seems odd that his mother's will could overbear that of the security authorities in Burma" …; (b) since the Applicant had never been questioned or detained in Burma it is "odd" that the authorities would at this stage be calling him to report to the local authorities if it was in any way connected with political activities …; (c) even if the document is genuine "it could well be because he has stayed outside Burma … that they wish to question him" and not because they wish him to report because of political activities …; (d) accordingly the Tribunal does not accept that this document means that the Applicant faces a real chance of persecution in the reasonably foreseeable future …; (e) the Tribunal did not accept the Applicant was required to report after he returned to Mandalay in 1995... 1.3 The Tribunal erred in its findings and reasons referred to in 1.2: (a) as to 1.2(a) the Tribunal misconstrued the explanation give (sic) by the Applicant at the oral hearing which was that his mother had told the police that he was in Australia and that the police officer asked her to send the letter to the Applicant. His mother requested the police to put the English name on the letter because the Burmese name was unknown in Australia …. The Tribunal was mistaken in believing therefore that the explanation necessitated in any way the will of the mother overbearing that of the security authorities;: (b) as to 1.2(b) the Tribunal accepted that the Applicant had been "sheltered for a period of time with the KDA whilst they were negotiating a ceasefire with the government" …,and, therefore, it was not "odd" that the Applicant might be required to report shortly thereafter at the police station in Mandalay in connection with political activities; (c) as to 1.2(c) it was not open to the Tribunal to contend that, on the assumption the document was genuine, the document could be explained because the Applicant has been outside Burma longer than he intended because the document itself states the Applicant "has been required to sign in on a monthly basis… in accordance with Emergency Powers Ordinance Section 5 - (nya) to report at the police station" … which provision was not referable to prolonged absence from Burma but penalised criticism of the government. 1.4 The errors referred to in 1.3 constituted jurisdictional errors in that: (a) although the findings and reasons of the Tribunal, referred to in paragraph 1.2, formed part of the basis for determining that the Applicant did not qualify as a refugee, the Tribunal did not invite the Applicant at the hearing to comment on the genuineness of the said document, merely asking him why the police would use his English name on an official document …, and therefore the Tribunal breached the rules of natural justice; (b) the Tribunal did not invite the Applicant under s 424A of the Act to comment on the authenticity of the said document; (c) the Tribunal ignored relevant material referred to in 1.3(a), (b) and (c) and/or in regard to 1.3(a) and 1.3(c) relied upon irrelevant material; (d) the Tribunal failed to ask itself the correct questions in determining whether or not the document was genuine and whether the document was evidence indicative of the Applicant's fear being well founded. 2.1 The Tribunal made a series of important errors, misconceiving the relevant evidence in respect of critical findings, and the reasons advanced for those findings, being: (a) The finding that the notes of 20th September 2000 from the police station may not be genuine which finding misconstrued the Applicant's evidence as contended above in 1.2(a) and 1.3(a); (b) the assertion by the Tribunal that "on his own evidence the Applicant was not involved in any political activities between 1999 and 1995" (sic) … In fact the Applicant's evidence was that he distributed anti-government pamphlets but, once he started work for Pritsons (from 1996 to 1999), he was not caught by the authorities because "I was very much quiet and trying to avoid the anti-government activities" …; (c) the finding by the Tribunal that when it asked the Applicant about the KLA and the Karen Aid Organization he did not know who they were and where they operated from … The Tribunal asked him if he had contact with "the KAL or Karen Aid" to which he said "what is KAL?" … There is indeed no KAL or Karen Aid Organization. 2.2 In making the factual errors in paragraph 2.1 in regard to important issues being relevant to: (a) the readiness of security forces to interrogate the Applicant on his return to Burma; (b) the Applicant's involvement in anti-government activities in the years immediately preceding departure from Burma; (c) the nature and degree of the Applicant's association with a high profile dissident (the subject of ground 3); the Tribunal committed jurisdictional error so that the decision cannot be properly regarded as a "decision … made under this act" (sic) and therefore was not a "privative clause decision" as defined in ss 474(2) and (3) of the Act. 3.1 The applicant claimed that his association with a high profile dissident, [name deleted], put him at risk of persecution if he returns to Burma. 3.2 The Tribunal stated: (a) it accepts that [name deleted] has a profile as to pro democracy activist in Australia, particularly in relation to the situation of the Karen people…; (b) it accepts that the applicant has "some association" with [name deleted], but does not accept that it is a close association such that would lead to the Burmese authorities identifying the Applicant with [name deleted] …; (c) if the Applicant was closely associated with [name deleted] the Tribunal would have expected him to know something about Karen groups and their activities, which he did not know …; (d) that the Applicant does not have the profile of a ringleader or organiser or repetitive activist and there is no real chance that he will be persecuted for his low-level involvement in pro-democracy groups in Australia … 3.3 As to 3.2(b) the Tribunal erred in that it ignored relevant material presented to it by [name deleted] as to his association with the Applicant. In particular: (a) that the Applicant was his right hand man in Perth and that they had been very close …; (b) that the Applicant would be associated with him and others by the regime and persecuted if returned to Burma…; (c) notwithstanding many requests by Asylum seekers this is the first time he has agreed to give evidence… 3.4 As to 3.2(c) the Tribunal erred in concluding that the association was not very close since it expected the Applicant to know about organizations called Karen Aid and the KLA when there are no such organizations (…) of that name - only a newssheet "Karen Aid News"… In coming to this conclusion the Tribunal made a finding based on no evidence. 3.5 As to 3.2(d) the Applicant did not claim he was a high profile activist or leader in the pro-democracy movement, but by reason of his association with [name deleted] (as well as persons such as his cousin Peggy Wemyss who was granted refugee status) the Applicant contended he is at risk if returned. The Tribunal had a duty to recognise that a claim of such associations, rather than any high profile, might give rise to a real chance of persecution. Further, the Tribunal ignored recent cases where low profile dissidents have qualified as refugees through their association with high profile dissidents. 3.6 The Tribunal further erred in not inviting the Applicant pursuant to s 424A of the Act, to do more than comment on his association with [name deleted] and did not put to him (or to [name deleted]) the Tribunal's belief that deficient knowledge of Karen activities might point to a more distant association than that claimed by both the Applicant and [name deleted]. 3.7 By reason of the errors referred to in paragraphs 3.3 and 3.4 the decision of the Tribunal constituted jurisdictional error so that the decision cannot be properly described as "a decision … made under this Act" and is therefore not a "privative clause decision" as defined in ss 474(2) and (3) of the Act.' Error of Fact and Judicial Error in the Tribunal 34 The matters raised in the amended application largely go to errors of fact said to have been committed by the Tribunal. The approach to be taken by this Court in dealing with alleged errors of fact was recently discussed by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [53]-[54]. As the Court there said, the circumstances in which factual error will amount to, or evidence jurisdictional error, are likely to be quite limited. I also refer to the following passage from the judgment of that Court (at [63]): 'It is plain enough, in the light of [Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389], that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be 'subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected' - [Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630] (at 641 [47]).' Ground 1 - The Police Letter of 21 September 2000 35 The outline of the argument in support of the first ground of appeal is apparent from its terms. Counsel submitted that the alleged police letter of 21 September 2000 requiring the applicant to report to police was of great significance having regard to the Tribunal's refusal to accept that he had been required to report at all. If the document had been accepted as genuine it would have been strongly supportive of the applicant's contention that he was required to report to police as a person of interest to the authorities from at least 1994 and up until 1999. 36 Counsel pointed out that the Tribunal's doubts about the document rested upon the fact that it used the applicant's English name. The Tribunal said: 'The applicant explained that his mother had insisted that his English name be placed on this document. It seems odd that his mother's will could overbear that of the security authorities in Burma.' 37 A transcript of the evidence before the Tribunal indicates that the following exchange occurred at the hearing: 'Q. Why, when your English name is not recognised at all in Burma do they include your English name in the document? A. When I was admitted to the school, my name was in English but they asked me to change it into Burmese, then only they will accept my admission. That's why I had to change Burmese name. Q. I understand that, but I don't understand why they would use your English name on an official document when it is not recognised at all? A. Which document do you mean? Q. The document asking you to report to the police station. A. Because when the police asked my mother, she explained that "he has left for foreign country". When I had to sign, they only knew my Burmese name. When the police officer asked my mother why I wasn't coming to the station to sign, she told the police that I was in Australia. I left Burma and "he was in a foreign country". At the time one of my uncles went to Burma on a tourist visa and the police officer asked my mother to send the letter to me. So my mother request the police station to put my English name there because my Burmese name was not known in Australia. The letter was sent through my uncle.' So it was said that the Tribunal's rejection of the applicant's evidence was based upon a misapprehension of what he said in evidence. 38 I accept that the Tribunal misdescribed the applicant's evidence in this respect. But given his evidence that State authorities had forced him to use a Burmese Buddhist name, it was open to the Tribunal to raise a question about the use of his English name in the letter. It was also open to the Tribunal not to accept the evidence he gave about his mother's suggestion to police that they use his English name because he was in Australia. The mischaracterisation of his evidence about the mother's request was careless but, in my opinion, did not go to vitiate the Tribunal's decision. 39 The Tribunal made no positive finding about the letter. It had 'some doubts about this document'. But even if it were genuine, there was nothing to indicate that police wanted the applicant to report on account of his political activities. In the end, the letter did not, in the Tribunal's view, support any inference favourable to the applicant. In my opinion no jurisdictional error was disclosed in its reasoning, albeit there was an error of fact in the mischaracterisation of one aspect of the applicant's evidence. I should add that the factual error disclosed in this case did not, in my opinion, affect the outcome of the case. The Tribunal erroneously rejected testimony which it appears the applicant never gave, but its rejection was limited to the question of the applicant's alleged involvement with KAL. The findings relating to his involvement with Karenaid were based upon his evidence about that organisation. He had submitted material concerning it to the Tribunal. 40 There was no failure of procedural fairness arising out of the absence of any notification from the Tribunal of its doubts about the document. It put questions to the applicant at the hearing about the use of his English name. It did not find the document to be a forgery. 41 I should add that experience in a number of cases has shown that the tender of post-departure summonses or letters requiring attendance by the applicant for a protection visa upon authorities in the country which he or she has departed is not unusual. Nor is it unusual for the veracity of such documents to be questioned. Experience with a large number of cases in the Tribunal and the courts has shown that those relying upon such documents would be well advised to seek some corroborating evidence of their authenticity. In this case the applicant did rely, in these proceedings, upon an affidavit of his uncle who had brought the letter out from Burma. However the corroborative evidence of the uncle was not evidence before the Tribunal. In my opinion, for these reasons, ground 1 fails. Ground 2 - Errors of Fact 42 Ground 2 raises three factual errors said to have been made by the Tribunal. The first of those relates to the letter of 21 September 2000 and has already been dealt with. 43 The second aspect of ground 2 relates to a passage in the Tribunal's reasons in which it said: 'On his own evidence the applicant was not involved in any political activity between 1999 and 1995.' (sic) In the applicant's statutory declaration, at par 25, he said: 'After returning from the jungle [I interpolate that this was in 1995] I continued some political activities. I met with other students and university members of student unions and the ABSDF … and helped to distribute anti-government information. I obtained these pamphlets from a student leader … who was very active during the 88 riots and was subsequently imprisoned for 3 years. He was a member of the ABSDF whom I met through a student friend. I also participated in protests at the university every 3 or 5 months. Usually the army would arrive at such protests to disperse the crowds. Some students, usually the speakers, were caught and gaoled.' 44 Counsel for the Minister submitted that the reference in the Tribunal's reasons to 'between 1999 and 1995' was clearly a misprint and made the points: '(a) The reference to those years was made as a comment on the applicant's claims to have been involved in sustained political activities between 1988 and 1993. (b) The Tribunal noted in its reasons the applicant's evidence that he was not involved in anti-government activities between 1990 and 1994. (c) The Tribunal, immediately above the paragraph referred to, set out the applicant's evidence of his activities between 1995 and 1999.' I accept the submissions for the Minister on this point. That conclusion is supported by the apparent inversion of the order of the years referred to in the Tribunal's reasons. In my opinion there was no jurisdictional error disclosed. This was simply a case of a misprint. 45 The third factual error raised in ground 2.1 concerned a reference by the Tribunal to organisations which it called 'KAL' and "Karen Aid'. The Tribunal said in its reasons relating to the applicant's political activities in Perth: 'The applicant had submitted some information regarding the KLA and the Karen Aid Organization. When asked about these two organizations at the hearing, he did not know who they were; he did not know where they operated from or what their activities were. The Tribunal would expect that someone who is involved with the TRW or in pro-democracy activities in Australia would be aware of their activities.' 46 At p 19 of the transcript of the hearing, the following exchange occurred: 'Q. Do you have any contact with the Karen people? A. Which people? Q. The KAL or Karen Aid? A. What is KAL? Q. Do you have any contact with Karen Aid Organisation? Its called "Karen Aid"? A. I used to go to their functions with [the Perth based pro-democracy activist]. Q. No, I meant in Australia, have you had any involvement with the Karen Aid Organisation? A. Yes, I do. Q. What's your involvement? A. TRW was also Karen Organisation so I used to take part in all the activities from them. …' The interpreter then said that the applicant had said that the object of the organisation was also to 'restore democracy in Burma'. 47 Counsel submitted that the Tribunal misapprehended the applicant's evidence in this respect and drew a conclusion adverse to him based on the misapprehension. Counsel for the Minister pointed out that the applicant had sent an article about an organisation called 'Karenaid' to the Tribunal. One of the documents submitted with the application to the Tribunal was called 'Karenaid News' dated September 2001. When asked, the applicant said he had an involvement with Karenaid but showed no knowledge of its activities. I accept, by reference to the transcript, that it was open to the Tribunal to conclude that the applicant did not appear to be able to speak about Karenaid except in the broadest of generalisations about restoring democracy in Burma. 48 In my opinion, while there was an error on the part of the Tribunal in its reference to KAL, it was open to it to make the finding it did about the applicant's knowledge of the Karenaid Organisation. The error that it did make is of a factual character, not going to jurisdiction. Ground 3 - The Applicant's Association with a Leading Burmese Pro-democracy Activist in Perth 49 This ground essentially takes issue with Tribunal findings of fact. The error in respect of the organisation called KAL was also agitated in ground 2 and does not constitute jurisdictional error. The Tribunal was not obliged to accept that the applicant's association with his witness, the pro-democracy activist in Perth, was close. It found that the applicant's involvement with that person 'was at a minor level'. In any event, as counsel for the Minister pointed out, the applicant's conduct in Perth was found by the Tribunal to have been engaged in for the purpose of strengthening his claim for refugee status rather than because of his pro-democracy convictions - see s 91R, Migration Act 1958 (Cth). Ground 3 in my opinion also fails. Conclusion 50 For the preceding reasons the applicant has failed to disclose any jurisdictional error on the part of the Tribunal and the application must be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.