"X" v Minister for Immigration & Multicultural Affairs

(6) A person appearing before the Tribunal to give evidence is not entitled:

(a) to be represented before the Tribunal by any other person; or

(b) to examine or cross-examine any other person appearing before the Tribunal to give evidence.

(7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.

428(1) The power of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation for the purpose of a review may be exercised by the Tribunal or on behalf of the Tribunal by:

(a) a person appointed or engaged under the Public Service Act 1999; or (b) another person approved in writing by the Minister for the purposes of this section; who is authorised in writing by the Tribunal. (2) The power of the Tribunal may be exercised under subsection (1): (a) inside or outside Australia; and (b) subject to such limitations (if any) as are specified by the Tribunal. (3) If a person other than the Tribunal is authorised under subsection (1) to take evidence for the purpose of a review: (a) the person has, for the purpose of taking that evidence: (i) all the powers of the Tribunal under subsection 427(1); and (ii) the power to administer an oath or affirmation to a person appearing before the first-mentioned person to give evidence; and (b) for the purpose of the exercise of those powers by that person, this Part has effect (except where the context otherwise requires) as if a reference to the Tribunal included a reference to that person.

(4) If a person (other than the Tribunal as constituted for the purpose of the review) exercises the power of the Tribunal to take evidence on oath or affirmation for the purpose of a review, the person must cause a written record of the evidence taken to be made and sent to the Tribunal. (5) If the Tribunal receives, under subsection (4), a record of evidence given by the applicant, the Tribunal, for the purposes of section 425, is taken to have given the applicant an opportunity to appear before it to give evidence." 12 In December 1999 the applicant was given notice by the Tribunal that on 22 February 2000 the applicant may attend the Tribunal and give evidence. The applicant was also advised in that notice: "If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send are to be in English, or translated into English by an accredited translator." 13 The instruction in respect of the obligation to produce translated documents was directory, designed to provide an efficient method of operation for the Tribunal. As can be seen from the relevant provisions of the Act set out above, it was not a requirement or limitation imposed on the applicant by the Act. It may be assumed that an applicant in "immigration detention" would not have access to an "accredited" translator. 14 On 22 February 2000, the Tribunal put questions to the applicant and received responses thereto through an interpreter. 15 In March 2000, pursuant to s 424A of the Act, the Tribunal invited the applicant to comment on further information the Tribunal had obtained. The applicant was asked to provide comments in writing and in English. The applicant provided comments as requested and, in addition, further informed the Tribunal that he had obtained his "old diary from Burma regarding my involvement with NLD" and stated that the document was enclosed to "support [the] application for review". The diary, written in Burmese, was said to be a record of daily events compiled by the applicant in 1988. 16 Plainly, the original document had to be forwarded to the Tribunal for the Tribunal to assess its authenticity and determine whether regard could be given to it. The Tribunal did not address the authenticity of the document and in the absence of a translation of the content thereof ignored it. 17 On 26 April 2000, the Tribunal decided that the grant of a protection visa be refused and pursuant to s 430 of the Act provided reasons therefor. 18 The substance of the applicant's claim of entitlement to a visa was recorded as follows in the reasons for decision of the Tribunal: "The applicant participated in the 1988 democracy movement. On a date left blank, he became a member of the National League for Democracy (NLD). During the 1996 student demonstrations he joined the demonstrations with his friends. He was arrested by military intelligence and taken to prison where he was beaten. He was detained there for a few months for distributing anti-government pamphlets. When he was released he was discharged from his employment. The applicant is fearful that if he returned to Burma he would be detained, tortured and imprisoned. He has joined the pro-democracy groups in Australia who are fighting for freedom, peace and democracy in Burma. The applicant forwarded to the Department photographs that indicated his involvement in a Burmese group in Australia. …before leaving Burma he performed voluntary work for Aung San Suu Kyi's party such as processing memberships, taking photographs and filling in forms." 19 The country information material before the Tribunal recorded that in the 1988 pro-democracy uprising more than 3,000 people were killed by military forces. It appeared to be accepted by the Tribunal that as a result of the 1988 demonstration the applicant had been required to report to police thereafter every day for a few months, however, after that period and until 1996, he had no further contact with Burmese authorities responsible for maintaining order or security. 20 In its reasons the Tribunal set out the following information on internal affairs in Burma provided by the Department of Foreign Affairs and Trade (DFAT): "Many thousands of Burmese took part in [sic] 1988 pro-democracy movement. The vast majority haveexperienced no harassment since. Persons who took part in protest marches or in hunger strikes, or who had shown support for the demonstrators by providing food or money were not usually imprisoned or subsequently harassed unless they had participated in more serious activities such as giving anti-government speeches or making contact with illegal organisations. Many people were interrogated and presumably are on file with the intelligence agencies, but this has rarely been the basis for further harassment unless the person continues to participate in anti-government activities (you will be aware that the definition of anti-government activities can be very broad). Records appear to be kept in case further evidence against the person in question arises… …the effect on Burmese citizens who have participated in such demonstrations would be similar, and depend on the level of participation. The government's attitude seems to fluctuate, but has generally become much more willing to accept the return of such people over the last couple of years. For instance, there are many Burmese students who had participated actively in 1988 demonstrations and left for Thailand then or in 1990, and subsequently been active and even prominent in anti-SLORC organisations. On application, they have been permitted to return (returned to the legal fold) without suffering harassment as long as they abstain from political activity. We have on occasion monitored the treatment of such persons and verified that there has been no harassment, although we assume the state keeps an eye on them. Similarly, Burmese citizens working for the BBCS Burmese programme, which is a strong critic of the Burmese government, have been allowed to visit Burma without problems. (DFAT, cable RA1782, 1 February 1994; see also DFAT, RA6398, 20 June 1994). More recently DFAT Human Rights Update, 28 January 2000, Cisnet CX39784 states: Activists from the period of the 1988 pro-democracy uprising would be treated no differently from the broader population nor face persecution or discrimination today unless (underline one) [sic] they have continued to be and are known to be still actively working in opposition to the government. Even then, the level of activity would be taken into account." 21 The DFAT information referred to by the Tribunal also included the following passage not recorded in the Tribunal's reasons: "In the past, many members of the NLD, even at a low-level, experienced some harassment. Some were imprisoned. Such harassment is no longer common unless the person is an active dissident. The NLD currently keeps a low profile and does not encourage dissident activity. The whereabouts of Burmese citizens who have political or criminal records are closely monitored by the local authorities. By law, they must give advance notice of any intention to travel, in the same way as the FRC holders. Many political activists who were released from prison or interrogation had to sign an undertaking at the local administrative offices, or, if they were students, at their institution, that they would not get involved in future anti-government activities. Those who were or are low level NLD members do not appear to be harassed at present'…" 22 The decision of the Tribunal was grounded upon the following findings of fact set out in the reasons for decision as follows: "The Tribunal finds that the applicant was not a leader during the 1988 demonstrations and that he participated at a low level and was not an organiser. As he himself stated in evidence to the Tribunal he was not arrested. The Tribunal finds that the applicant had no difficulties with the authorities in Burma prior to 1996. Based on the country information cited above the Tribunal finds that there is no real chance that the applicant will be persecuted if he returns to Burma for his involvement in the 1988 protests. The Tribunal does not accept that the applicant was a member of the NLD. He could not elaborate or explain what his activities were with that organisation. He was vague when asked to explain the extent of his involvement." 23 With regard to the contents of the diary, the reasons of the Tribunal recorded the following: "The Tribunal refers to the diary that the applicant recently forwarded to the Tribunal. As it is not translated the Tribunal cannot take its contents into account however, even if it was translated, it appears to only cover a period of some months in 1988 and the Tribunal has already found that the applicant would not be at risk for his involvement in political activities in 1988. It does not support a claim of continued involvement in the NLD after 1988." 24 In substance, counsel for the applicant submitted that grounds for review of the Tribunal's decision arose under s 476(1)(a) of the Act, in that the Tribunal failed to deal with, and make findings upon, entries in the applicant's diary which, counsel submitted, were material to the applicant's case and, further, in that the Tribunal failed to deal with, and make findings upon, evidence before the Tribunal that the applicant's activities in Australia in opposing the Burmese regime had made the applicant a refugee sur place. 25 The submissions in respect of the diary raised two issues. First, did the Tribunal, by failing to have regard to the contents of the diary, fail to observe a procedure required by the Act to be observed by the Tribunal in connection with the making of the decision. Second, if so, may the Tribunal have made a decision favourable to the applicant if the Tribunal had followed the procedure required by the Act to be observed by the Tribunal. 26 Under the heading "Division 3 - Exercise of Refugee Review Tribunal's Powers", s 420 of the Act states that in carrying out its functions under the Act, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. Although s 420 operates as a facultative provision only, and is not a procedure prescribed by the Act breach whereof provides ground for review under s 476(1)(a) of the Act (see: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611), the section does confirm that the proper construction of the provisions of the Act relating to the conduct of a review by the Tribunal is that a purported review that is conducted arbitrarily or capriciously will not be a proceeding that engages the "jurisdiction" to make a decision vested in the Tribunal by the Act. Ground for review of such a purported decision will arise either under s 476(1)(b) - (lack of jurisdiction to make the decision); 476(1)(c) - (the decision was not authorised by the Act); or 476(1)(e) - (the decision involved an error or law). (See: Eshetu per Gummow J at [145], [154]; Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 at [27]) 27 Can it be said that the Tribunal made a decision authorised by the Act if it refused to consider material submitted by the applicant on a material question of fact, basing that refusal on the absence of an "accredited translation" of the submitted document? 28 It does not appear to be in issue that the question whether the applicant was, at any material time, a member of the NLD was a material question of fact in the making of the decision, namely, whether the applicant had a well-founded fear of persecution if returned to Burma. The Tribunal determined that material question of fact by drawing inferences adverse to the applicant from the material before it, being material that did not include the diary. It may be accepted that if the contents of the diary could cause the Tribunal to conclude that the applicant was a member of the NLD during the 1988 pro-democracy demonstration, the Tribunal may have reached a different conclusion on the role of the applicant in those demonstrations and how his role may have been perceived by Burmese authorities, and on his claim that he was arrested and beaten in 1996 for political activity. 29 Where material submitted by an applicant is said to be relevant to a question of fact material to the decision to be made by the Tribunal in carrying out a review, the Tribunal must have regard to that material at least to determine its relevance and the weight, if any, to be given to it. (See: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [52]) In the present case, consonant with the duties imposed on the Tribunal by the Act, the Tribunal should have taken steps to have the applicant identify the entries in the diary on which the applicant relied in respect of the question of his membership of the NLD, and have had those parts of the document translated. Just as the Tribunal cannot be said to have heard an applicant who is unable to speak English unless the Tribunal provides an interpreter (see: s 427(7)), similarly the Tribunal would be expected to have documents claimed to be relevant tendered to it by such an applicant translated, or read to the Tribunal by an interpreter. At the time the diary was received by the Tribunal, the Tribunal had not completed its function of review. On its face, the diary was capable of supporting the applicant's case and the Tribunal was obliged to have regard to it. (See: Inderjit Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73 per Merkel J at [49] - [51]) The failure of the Tribunal to duly conduct the review proceeding resulted in a decision not authorised by the Act. 30 Notwithstanding that a ground for review of the Tribunal's decision may be demonstrated, the Court has a discretion, however, to refuse to grant relief if the applicant for review is unable to show there would be any utility in an order directing that the Tribunal carry out the review proceeding again. (See: Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Toohey and Gaudron JJ at 384.) Therefore, it is necessary to ascertain whether, in fact, the material relied upon by the applicant raised a possibility that the Tribunal may have found that the applicant was, or had been at material times, a member of the NLD. 31 Counsel submitted that the following diary entries, as translated, supported a conclusion that the applicant was involved in organising opposition to the Burmese regime and that he worked closely with pro-democracy group leaders in circumstances of personal danger: "18-9-88 Today, Saw Maung took over and declared Martial Law. That night, at 8.45 p.m., we formed the 'Black Panther Group'. There was a group of 25 Hard Core personnel. The whole night they were firing from the Aung San Stadium. We also returned fire by throwing Molotov Cocktails. At that moment we did not know whether to be happy or to be sad. They were now using heavier weapons and were firing at us with 79mm guns. There were a lot of noise and shells around us and it looked like a real battlefield. … 21-9-88 Last night the Trade Godown No. 1 was broken into and entered. People from outside were engaged in looting and stealing. On inspection in the afternoon we found a lot of bloodstains and slippers. The slippers were crudely made thongs. It is heard that the soldiers that came to buy Duya cigarettes were holding wads of Ten Kyat Notes in their hands. It is also heard that another group of soldiers were also asking any women that they found to remove their jackets, and the men were asked to take off their longyis (sarongs), before sending them on their way. It was heard that the soldiers had threatened all those in the Pha-Sa-Pa-La, Kandawgalay and BengaliSu Area, that once they get the orders, they were not going to show any mercy on us. … 21-11-88 They called a meeting at about 2.15 p.m. in the afternoon. The main point of the meting [sic] was that they wanted three men to carry out organisational work in the field. They were to be attached to Aung Su Tin's group and were to form a youths [sic] group in the field. We were told that if our names come up tomorrow, we would have to leave for the field. … -11-88 Today is the day when we arrived at Aung San Suu Kyi's house exactly one month ago. It also happened to be the day when Aunty Suu was to give a speech for National Day. She explained about U Aung Gyi leaving the Party President's post. She said that U Aung Gyi had requested that the Communists within the Party should all be removed, and that according to all the members, it was stated that if he had sufficient proof and grounds to make such allegations, then the people concerned would all resign, but if he could not show sufficient proof, then he, himself, should resign. The proposal was put to vote by secret ballot, it was found that the people that he had alleged obtained 28 votes whereas he himself got only 13 votes. Therefore, U Aung Gyi resigned and vacated his seat as the Party President. Daw Aung San Suu Kyi went on further to state that U Aung Gyi had left with great dignity and that this decision should be noted as a victory for democracy. Because the President tells a person to resign, he has not resigned but since it was put to the vote of the majority and that he has had to resign it must be regarded as a First Democratic Victory. Later on, we heard that U Aung Gyi had formed another Party." 32 Counsel submitted that the foregoing contents of the diary bore upon the conclusion formed by the Tribunal that the applicant was involved at a "low level" in the 1988 uprising which coloured its later conclusions that the applicant lacked veracity and that his claim that he participated in the 1996 student demonstrations, and was arrested and beaten, should not be accepted. The Tribunal accepted that the applicant did participate in the "1988 pro-democracy uprising", but was not satisfied that he was an "organiser" of the student demonstrations or a member of the NLD and, therefore, for that reason the Tribunal determined that he faced no real risk of persecution by reason of his participation in that political event. Whilst the diary entries, if accepted, give further credence to the applicant's account of events in Burma in 1988, they do not in themselves point to the existence of a fact inconsistent with the findings of fact made by the Tribunal. The material therein does not establish the possibility that had the Tribunal considered that material it may have made a finding of fact favourable to the applicant on a material issue. 33 Accordingly, the first ground of appeal relied upon cannot succeed. 34 With regard to the second ground of appeal, counsel submitted that the material before the Tribunal showed that the applicant had participated in political protests carried out in Australia against the Burmese regime and was involved in the activities of Burmese pro-democracy groups situated in Perth. The Tribunal accepted that Burmese authorities monitored the activities of Burmese people in Australia and would be aware of the activities of the organisations in which the applicant has become involved and would maintain surveillance of those organisations. 35 The Tribunal made the following finding in respect of the applicant's activities in Australia and the possible consequences thereof if the applicant returned to Burma: "The Tribunal accepts that the applicant has been involved in low-level activities with the Burmese organisation, such as participating in their functions and attending 4-5 meetings since his arrival in Australia. The applicant's involvement in political activities in Australia are of a minor level. He has not given speeches at rallies or held any sort of political profile. The material supplied by the applicant only refers to activities in and after the year of his arrival which indicates he did not become involved for some time after he arrived in Australia, which is consistent with his lack of political involvement in the past." 36 The Tribunal accepted that affairs in Burma were as set out in the "Country Reports on Human Rights Practices for 1998 - Burma" prepared by the US Department of State 1999, namely, that the ruling regime operated an oppressive system of surveillance under the control of a directorate of military intelligence involving harassment of political activists, intimidation, arbitrary arrests, detention and physical abuse. However, the Tribunal also had regard to the following extract from a Country Information Report prepared by the Department of Foreign Affairs and Trade (8 February 2000): "Burmese involved in demonstrations in Australia, whilst often known to the authorities are generally of little concern, even if they return to Burma. There would be a couple of exceptions: those who are repetitive demonstrators; active and high profile members of the ABSDF or the NCGUB and those ringleaders of the more violent attack on the embassy in Canberra in September 1999. Other than these exceptions, any Burmese returning to Burma after a lengthy period in Australia (or elsewhere for that matter) would come to the attention of their local township authorities and their movements may be monitored for an initial period." 37 The Tribunal then set out the following reasons for determining that it was not satisfied that the applicant had a well-founded fear of persecution by reason of conduct he had engaged in in Australia proclaiming opposition to the Burmese regime: "The Tribunal accepts that the Burmese authorities monitor the activities of their nationals in Australia. However, the material quoted above indicates the authorities are concerned about people who are involved with political activities over a period of time not with low level participation. The Tribunal finds that although the Burmese authorities would be concerned with people who were involved in high level political activities it would not be concerned about the applicant's level of involvement. The applicant has only been involved in low level activities of the organisation and the Tribunal finds based on the country information quoted above that he would not experience difficulties for his low level involvement in social functions and fund raising if he returned to Burma. The Tribunal has found that the applicant was not involved in politics in Burma to any high level and therefore rejects any assertion that his involvement in Australia would be viewed more seriously by the Burmese Authorities, or that he would be at risk because he has breached an undertaking with the authorities not to be involved in politics." 38 Counsel submitted that to describe the applicant's activities in Australia as "low-level activities" was wholly inadequate. In effect, counsel submitted that if the Tribunal had given more weight to photographs that recorded the applicant's participation in protest events in Australia, the Tribunal would have concluded the applicant was in the class of persons likely to be harassed by authorities if returned to Burma. 39 That argument goes no further than stating that the material before the Tribunal provided sufficient evidence for a decision to be made favourable to the applicant. So much may be accepted, but the failure to make that decision does not in itself bespeak an error of law by the Tribunal. In particular it cannot be said that the Tribunal commits an error of law by failing to follow a procedure prescribed by the Act for the conduct of the review if, in the reasons for decision provided by the Tribunal, the Tribunal does not give express attention to every element of the material relevant to a material question of fact determined by the Tribunal. As long as the Tribunal has set out its finding of fact on a material question, given its reasons therefor and has referred to the evidence on which the finding was based, the Tribunal will have complied with the requirements of the Act for the conduct of the review. It follows that where other material capable of supporting a finding of fact other than that found by the Tribunal is not regarded by the Tribunal as sufficiently persuasive to cause the Tribunal to make that finding, it will not be necessary for the Tribunal to refer to that further material and explain why the Tribunal has not been so persuaded. (See: Minister for Immigration and Multicultural Affairs v Singh at [55]-[56]) Of course, if the reasons of the Tribunal do not deal with cogent material supporting the applicant's case, an inference may be drawn that the Tribunal did not give genuine consideration to the material before it and in doing so conducted a review that was arbitrary or capricious, contrary to the duty imposed on the Tribunal by the Act. 40 The reasons provided by the Tribunal suggest that the Tribunal took a robust approach to the material it was required to consider and did not contemplate that there was any risk that the applicant may suffer persecution if returned to Burma. It has not been shown, however, that the review procedure carried out by the Tribunal was arbitrary or capricious, or that the decision of the Tribunal was based upon conclusions that were unsupported by probative material or involved a reasoning process that was patently illogical. (See: Eshetu per Gummow J at [145], [154]) 41 It follows that the second ground for review relied upon has not been established and the application must be dismissed. I certify that the preceding forty one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate: Dated: Counsel for the Applicant: Mr R. Lindsay

Solicitor for the Respondent: Australian Government Solicitor