Win v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-02-09|Before: Sackville JJ

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of a Judge of the Court, dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT"). The RRT had affirmed a decision of a delegate of the respondent ("the Minister") refusing to grant the appellant, a citizen of Myanmar, a protection visa. 2 The appellant's principal contention is that the RRT was not entitled to take into account the contents of a letter described by the RRT and the primary Judge as the "dob-in letter". That letter contained material which, if accepted, cast doubt on the credibility of the appellant's account of events given in support of his claim to satisfy the definition of "refugee" in Article 1A(2) of the Convention Relating to the Status of Refugees ("the Convention").

THE LEGISLATION 3 The provisions primarily relied by Ms Winfield, who appeared for the appellant, appear in Part 7, Div 4 of the Migration Act 1958 (Cth) ("Migration Act"). Those provisions are as follows: "Tribunal may seek additional information 424(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review (2)Without limiting subsection (1), the Tribunal may invite a person to give additional information. … Applicant must be given certain information 424A(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. … (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information. Invitation to give … comments 424B(1) If a person is: (a) … ; (b) invited under section 424A to comment on information; the invitation is to specify the way in which … the comments may be given, being the way the Tribunal considers is appropriate in the circumstances. (2) If the invitation is to give … comments otherwise than at an interview, the … comments are to be given within a period specified in the invitation…. (3) If the invitation is to give … comments at an interview, the interview is to take place: (a) at the place specified in the invitation; and (b) at a time specified in the invitation… Tribunal must invite applicant to appear 425(1) The Tribunal must 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".

The proceedings before the RRT 4 The appellant, then aged about 26, arrived in Australia on 11 March 1996. His claim to a protection visa was based on an asserted fear of persecution in Myanmar for reasons of his political opinion. On 28 November 1997, the Minister's delegate refused to grant the appellant a protection visa and on 16 December 1997, he applied to the RRT for review of the delegate's decision. 5 For some unexplained reason, the RRT did not hold a hearing in respect of the appellant's application for nearly two years. Ultimately, on 12 November 1999, a hearing was held at which the appellant gave evidence. In the course of that hearing, the appellant was questioned about his claims to have been an active opponent of the regime in Myanmar and to have participated in demonstrations against the regime in Australia. The appellant said, among other things, that he had been among fifty protestors who had entered the grounds of the Myanmar Embassy in Canberra on 9 September 1999. 6 On 29 November 1999, in purported compliance with the requirements of ss 424A(1) and 424B of the Migration Act, the RRT wrote to the appellant in the following terms: "The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection Visa. The information is as follows: The Tribunal has received a letter from a person who claims to know you. The person has told us the following: a) that you have no "political background and movements", but that you have dishonestly made "very systematic plans" b) that you participated in the Canberra demonstration of 9.9.99 solely in order to enhance your application for a protection visa c) that your sister is a medical doctor, and she fabricated the letter you have submitted in evidence about your mother's depression d) that you are not married, and that you have arranged for a girlfriend to be sponsored to Australia with the assistance of an Australian person This information is relevant because this information casts serious doubt on your credibility. In particular it casts doubt on the plausibility of your claims to have been politically active in Myanmar and to have suffered as a result. It also casts doubt on the extent of your involvement in political activities in Australia. This is relevant to the review because it may suggest the chance of your being persecuted in Myanmar, because of your political opinion, is remote. You are invited to comment on this information. Your comments are to be given in writing from within Australia. You have 21 days from the date of this letter to provide your comments." The dob-in letter was not in evidence before the primary judge. The RRT stated, however, that the letter (which was signed, but did not give the address of the author) had been addressed to the Department of Immigration and Multicultural Affairs. Presumably, therefore, the dob-in letter had been transmitted by the Department to the RRT. The RRT did not pass on the dob-in letter in its entirety to the appellant, but summarised its contents. 7 The appellant responded to the RRT's invitation by letter dated 2 December 1999. In his response, the appellant commented in some detail on the "negative and malicious information which has been sent to you behind my back". He also stated that he would be: "prepared to appear in person for any further interview you would wish to make in order to clarify to you beyond doubt the extent of my political involvement". 8 In its reasons, the RRT rejected virtually all the claims made by the appellant concerning the involvement in political activities in Myanmar. It also rejected his claim to have entered the grounds of the Myanmar Embassy in Canberra in September 1999, although it accepted that he had participated in some demonstrations in Canberra. The RRT's reasons are lengthy and set out in some detail the reasons for rejecting the appellant's claims. The RRT expressed strong doubts as to the appellant's credibility and characterised many of his assertions as "implausible". 9 The only reference in the RRT's reasons to the dob-in letter was made in the course of explaining the rejection of the appellant's claim to have been actively involved in political campaigning in Myanmar 1988-1991. The RRT found "implausible" the appellant's claim to have played a leading or prominent political role during this period. The RRT noted that this conclusion: "is broadly consistent with the assertion made about the "dob-in" letter to DIMA (29 November 1999) that he had no "political background". That assertion was made by a person who appears to know something of Mr Win's background. While the author's motivation for making the assertion to the Department is unknown, and I therefore do not propose to place great weight on it, I am not prepared to wholly disregard it". 10 In the result, the RRT was not satisfied that the appellant would be subjected to persecution in Myanmar by reason of any actual or imputed political opinion.

THE PRIMARY JUDGMENT 11 On the application for review to the primary Judge, the appellant made four complaints about the reasons of the RRT: · First, that the contents of the dob-in letter did not constitute "information" within the meaning of ss 424(1) or 424A(1) of the Migration Act and that the RRT had therefore been unable to take the letter into account in making its findings. · Secondly, that the RRT, having received the dob-in letter, came under a duty to invite the appellant to appear before it to give further evidence, as contemplated by s 425(1) of the Migration Act. · Thirdly, that the RRT's decision was effected by actual bias. · Fourthly, that the RRT, in dealing with one of the factual claims by the appellant, had misapplied the notion of "persecution" within the meaning of the Convention. 12 The primary Judge rejected each of the appellant's contentions. He specifically noted that there had been no basis upon which the claim of actual bias could properly have been put forward. Accordingly, his Honour dismissed the application.

THE SUBMISSIONS ON APPEAL 13 The appellant, in his submissions to this Court, relied on the following contentions: · First, that the dob-in letter was not "information" within the meaning of s 424(1) of the Migration Act and that, therefore, the RRT was not entitled to take its contents into account. This was said to have constituted an error of law and thus enliven the ground of review in s 476(1)(e) of the Migration Act. · Secondly, the RRT was not entitled to take the contents of the dob-in letter into account unless it invited the appellant to appear before it again in person, in conformity with s 425(1) of the Migration Act. Although Ms Winfield did not specifically identify the ground of review relied on, it was presumably s 476(1)(a) (a failure to observe the procedures laid down by the Migration Act). · Thirdly, the RRT had erred in its interpretation of the concept of "being persecuted" in Art 1A(2) of the Convention by holding, at least by implication, that persecution cannot occur unless "accompanied by serious ill-treatment of some kind".

THE FIRST CONTENTION 14 The appellant's first contention appeared to assume that the dob-in letter had come into the hands of the RRT in consequence of the purported exercise of its powers under s 424(1) of the Migration Act. It also appeared to assume that if the RRT was not entitled to give consideration to the dob-in letter pursuant to the powers conferred by s 424(1) of the Migration Act, it could not do so at all. 15 Neither assumption would seem to be correct. Section 424(1) is primarily an enabling provision. It empowers the RRT "to get any information that it considers relevant" (although the sub-section also requires the RRT to have regard to the information so obtained). Section 424(1) appears to be directed to enabling the RRT to take the initiative in obtaining material it considers relevant. It does not exhaust the circumstances in which the RRT can receive and consider material relevant to the issues it has to decide. In particular, s 424(1) has nothing to say about a case like the present, where the RRT simply receives unsolicited material from another source such as the Department or a third party informant. Whether the RRT can take such material into account does not depend on the operation of s 424(1), but on the legislative scheme as a whole: see, for example, ss 414(1); 415(1), (2); 420(2). 16 It follows that it is difficult to see what bearing s 424(1) of the Migration Act has on the present case. The RRT is entitled to receive and consider material provided to it by the Department or other sources, subject to specific procedural requirements imposed by provisions such as ss 424A, regardless of whether the material constitutes "information" for the purposes of s 424(1). The weight the RRT attributes to such material is another question. 17 For these reasons, it may not strictly be necessary to consider the meaning of the word "information" as used in s 424(1) of the Migration Act. Nonetheless, we should record our view that the construction advanced by the appellant is too narrow. 18 The Macquarie Dictionary includes these definitions of the word "information": "1. Knowledge communicated or received concerning some fact or circumstance; news. 2. Knowledge in various subjects, however acquired". The Oxford English Dictionary (2nd ed, 1989) includes among its definitions of "information": "3.a. Knowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told". (Emphasis added). As these definitions show, "information" is capable of different shades of meaning, depending on the context. 19 The appellant's contention, as we understand it, is that "information" in s 424(1) is confined to material that is reliable or has a sound factual basis. The only qualification expressed in s 424(1) as to the nature of "any information" that the RRT can get is that the RRT itself considered the information relevant. Moreover, the RRT cannot know whether material it obtains is sound until the material is assessed and findings are made. Some material will prove to be reliable in whole or in part; some will be unreliable or even fabricated. 20 The point is reinforced by reference to s 424A(1). The obligations imposed by that provision apply when the RRT has "information", regardless of its source, that it considers would be the reason, or a part of the reason, for affirming the decision. Permitting an applicant to comment on such information provides him or her with an opportunity to demonstrate that the information should not be relied on by the RRT: cf Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548, at 562-563, per Hill J. It follows that an applicant may be able to show that particular "information" in the possession of the RRT is completely worthless. It is hardly likely that the word "information" is used in s 424A(1) in a sense different from its meaning in s 424(1). Indeed, Ms Winfield conceded as much. 21 Similarly, the Migration Act provides that an applicant may be invited to supply "additional information" to the RRT: see ss 424(2); 424B(1), (2); 424C(1). The additional information provided in response to such an invitation may or may not have any factual basis and may or may not rise above the level of assertion. It is an everyday occurrence for the RRT to reject as fabricated "information" provided by applicants. 22 It is not necessary for the purposes of the present case to explore the outer limits of the word "information" as used in ss 424(1) and 424A(1). In our view, it includes assertions made by a person (whether identified or not) that particular aspects of an applicant's account of events are untrue. It includes the assertions made in this case by the informant, each of which addressed and (as the RRT said) cast doubt on an aspect of the applicant's account of events. 23 In substance, the appellant's complaint is that the RRT should not have taken into account untested assertions made by an informant, even if the RRT referred to the dob-in letter only in relation to one particular factual claim and, even then, only to reinforce a finding independently reached. But this is to attack the RRT's fact finding, a course which is not permissible under Part 8 of the Migration Act.

the second contention 24 The appellant had been invited by the RRT on 14 October 1999 to attend the hearing that took place on 12 November 1999. That invitation satisfied the requirements of s 425(1) of the Migration Act: see Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315, at 331, per Sackville J; De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364, at 367-368. 25 The appellant contended that the RRT was obliged to give the appellant a further opportunity to appear to give evidence. According to Ms Winfield, the dob-in letter raised fresh issues that had not been addressed at the hearing held on 12 November 1999. It followed, so it was argued, that the appellant had not been given an adequate opportunity to give evidence "relating to the issues arising in relation to the decision under review". 26 This submission overlooks the fact that Div 4 of Part 7 of the Migration Act sets out detailed procedures to be followed where the RRT, as in this case, has information that it considers would be the reason or part of the reason for affirming the decision under review. Section 424A(1)(c) obliges the RRT to invite the applicant to comment on the information. Section 424B(1)(b) provides that any such invitation must "specify the way in which the…comments may be given, being the way [the RRT] considers is appropriate in the circumstances." Section 424(2) makes it clear that the invitation to make comments may specify a means of commenting otherwise than at an interview. Where the invitation does so, the comments are to be given within the period specified in the invitation. There is nothing to indicate that the statutory procedures do not apply to information received by the RRT after it has held a hearing. 27 In the present case, the RRT determined that it was appropriate for the appellant to provide written comments on the dob-in letter. Accordingly, the RRT's letter of 29 November invited the appellant to comment in writing within twenty-one days. The RRT therefore followed the relevant statutory procedures. Those procedures did not contemplate that the appellant would be entitled to attend a further hearing. 28 In our view, the detailed statutory procedure set out in Div 4 of Part 7 tells against the submission that the receipt of the dob-in letter imposed a fresh obligation on the RRT to provide a hearing in accordance with s 425(1). In any event, we do not accept that the dob-in letter raised new issues beyond those canvassed at the hearing of 12 November 1999. The first two claims in the dob-in letter concerned factual questions at the heart of the appellant's case. The last two (not ultimately relied on by the RRT) went to the appellant's credibility. It is clear from the RRT's reasons that the appellant's credibility was very much in issue at the hearing before the RRT. 29 This contention must be rejected.

the third contention 30 One of the appellant's claims before the RRT was that, in consequence of a car accident in which a friend had been killed, he had been forced to report to a police station every fifteen days until he left the country. He asserted that his difficulties arose because the driver of the car was the son of a military officer. 31 The RRT found that any difficulties the appellant experienced as a result of the accident were unrelated to his political opinions. It added this observation "Further, even if he were reporting to the police station every 15 days until he left the country, such treatment (if, as in this case, it is not accompanied by serious ill-treatment of some kind) was not of sufficient seriousness to amount to persecution." Ms Winfield criticised the reference to "serious ill-treatment of some kind" as betraying misunderstanding of the notion of "persecution" as used in the Convention. 32 The primary Judge held that the RRT had not misunderstood the correct test for determining whether an applicant fears "being persecuted". His Honour also held that, even if the RRT had misunderstood the test, the error was immaterial. We agree with and adopt his Honour's reasons for so holding.

conclusion 33 The appeal must be dismissed, with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Tamberlin & Sackville JJ.

Solicitor for the Respondent: Mr A Markus appeared on behalf of the Australian Government Solicitor

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