Thein v Minister for Immigration & Multicultural Affairs [1999] FCA 246

FEDERAL COURT OF AUSTRALIA

Thein v Minister for Immigration & Multicultural Affairs [1999] FCA 246 IMMIGRATION - Refugee Review Tribunal - did not believe applicant would attract adverse attention of Burmese authority - alleged failure to give reasons - requirement that reasons for all crucial facts be set out - Tribunal's reasoning clear - findings of fact not crucial - Tribunal attributed no weight to testimony of applicant's relative - no doubts as to veracity raised at hearing - Tribunal's discretion to invite applicant's comment on Tribunal's reasons for refusing to grant a visa may be implicitly required by the Migration Act if a serious risk of substantial unfairness - no such risk basis of Tribunal's reasoning logically plausible - case of unfair procedural dealing not made out Migration Act 1958 (Cth): ss 56, 57, 415(2)(c), 420(2)(b), 430, 476(1)(a), 476(2)(b) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, referred to Cho v Minister for Immigration and Multicultural Affairs [1998] FCA 1663, applied Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, referred to Eshetu v Minister for Immigration and Multicultural Affairs (1998) 71 FCR 300, applied Fry v McGufficke [1998] FCA 1499, referred to Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193, applied Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543, referred to Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402, referred to Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, referred to Sun v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71, applied THEIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 411 of 1998

MADGWICK 19 MARCH 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 411 of 1998

BETWEEN: AUNG THEIN

First Applicant

YIN WAI THINN

Second Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MADGWICK

DATE: 19 MARCH 1999

PLACE: SYDNEY

THE COURT ORDERS THAT: 1. The application for review will be dismissed. 2. The applicants are to pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 411 of 1998

BETWEEN: AUNG THEIN

First Applicant

YIN WAI THINN

Second Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MADGWICK

DATE: 19 MARCH 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for review by a married couple of a decision, made by the Refugee Review Tribunal ("the Tribunal") to decline to intervene in a decision by a delegate of the Minister for Immigration and Multicultural Affairs that determined, in effect, that the applicants are not refugees and as such are not entitled to protection visas. 2 The applicants acknowledge that if the husband ("the applicant") does not succeed with this application, the wife must also fail. If he obtains a protection visa then, as his spouse, so must she. It will therefore be sufficient to consider his case. Factual background 3 The following account of matters was factually accepted by the Tribunal. As a university student in Rangoon the applicant became involved in the student protest movement after two incidents: the killing of a student Phone Maw apparently by police, and; a demonstration at the 'White Bridge', when students were attacked by police. Following the White Bridge incident the applicant along with a lot of other students was arrested at a student rally. He was briefly questioned and beaten. He was detained in custody for one week. 4 The applicant's activities in the protest movement apparently did not go beyond attending rallies and distributing leaflets advertising a nationwide demonstration which occurred in August 1988. He continued such activity until on 18 September 1988 there was a military coup. That event was accompanied by some confrontation between students and soldiers. 5 About 3 days after the coup, the applicant, fearing arrest, left Rangoon to 'go underground; in an effort to reach the Thai border area. His bus was intercepted by the Army and the applicant and his companions were taken back to a Rangoon prison. He was in gaol for 28 days. There he was brutally interrogated, beaten and tortured. Eventually the authorities contacted his parents who paid money to an officer to have him released. 6 Thereafter, the applicant attended a commemoration in 1989 of the White Bridge incident and, with friends, set up a tea shop for students; which was intended to improve the morale of politically concerned students. He worked at the shop for about a year. 7 In June 1991 University classes (which had been suspended) resumed. He was required to undertake to pursue his studies 'peacefully'. The students were closely watched and spied upon. As an act of political defiance, a minority of students, of whom the applicant was one, wore black items of clothing on the anniversaries of significant political events in recent Burmese history. On such occasions he was arrested, interrogated and released on the same day. The Tribunal did not accept his claim that he was beaten on these occasions. 8 The applicant completed his University course (in science) in August 1993. Soon after, he began to think seriously of leaving Burma. The couple married in January 1994. 9 He came to Australia in September 1994 by reason of his wife having obtained, with the aid of bribes and a friend in the passport office, appropriate travel documents. The wife had a student visa and their understanding was that, as long as they paid some 'school fees' in Australia, they could stay here. 10 In Australia, the applicant attended a demonstration outside the Myanmar (Burmese) Embassy in August 1995 and occasionally participated in functions to raise funds for Burmese people in 'border camps'. 11 The applicant says that, if returned to Burma, he fears: (a) detention and interrogation on account of his political history and what the authorities would perceive as a bad record; and (b) discrimination in employment with the government because he first needs a government 'clearance' (declaring his non-participation in politics). In relation to private employment in a firm with five or more workers, the government provides lists of 'candidates' to prospective employers. His perceived 'bad record' would mean that he would not be placed on such a list. 12 The Tribunal Member rejected these claims on the following bases: (i) his political activity in Australia was not such as to raise a real chance of persecution; (ii) his troubles in Burma were remote in time and any fear of any serious harm now coming to him as a result of his previous activities was not now well-founded; (iii) his political profile was not such as would now tell against him in employment and he did not claim to have actually suffered any such discrimination. Overall, as to the cumulative effect of his claims, the Tribunal member determined that there was less than a real chance that the applicant would attract the adverse attention of the Burmese authorities on his return. The applicants' case (1) failure to give reasons 13 The applicant asserted two errors of law as grounds of the application for review. The first was that the Tribunal did not observe the procedure, required by s 430 of the Migration Act 1958 (Cth) ("the Act") (to be read in conjunction with s 476(1)(a)) to prepare a written statement that sets out "the reasons for the decision", "the findings on any material questions of fact" and "refers to the evidence or any other material on which the findings of fact were based". 14 The matters referred to under this ground suggested a failure to give reasons, for various findings. Such findings included that, the applicants departed from Burma legally on passports in their own names, and that the applicant's graduation from University, departure from Burma and subsequent easy renewal of his passport, were all inconsistent with his now being of interest to the authorities for his past political activities. The point pursued by the applicant was that other findings were available on the evidence and it had not been made clear by the Tribunal why those other findings had been rejected. Yet, in each matter instanced by the applicant there appears to have been material before the Tribunal, to which it referred in the reasons for decision and which could support the findings and conclusions. 15 Section 430 does not expressly require that reasons for the findings on material questions of fact be set out. The express requirement is limited to reference being made to the evidentiary material on which those findings are made. Whilst it is true that the courts have explained that the requirement that "the reasons for the decision" be set out necessitates the setting out of the reasons for crucial findings of disputed facts – see for example Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193 and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 - that requirement is in aid of the notion underlying the section that people should be able to understand why a decision about them has been made. 16 Assuming the facts instanced by the applicant to be crucial, the inference from the reasons given is that the Tribunal made its factual findings because it simply preferred the material that supported its findings to that which did not. The process of reasoning is clear enough. The detailed exposition of that process was not, in my opinion, necessary. 17 In any case, I think that none of the instanced findings was of crucial importance, nor were they collectively so - see Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 and generally Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402 and Fry v McGufficke [1998] FCA 1499. The Tribunal's crucial finding of fact was that the applicant's entire political profile would not now put him at risk. Reasons, including subsidiary findings, were set out. (2) failure to act with substantial justice 18 The second ground was that the Tribunal "was not fair and did not act in accordance with substantial justice and the merits of the case, as required by s 420". The substance of the matter complained of is, at first sight, somewhat troubling. Oral and documentary evidence

from a Mr Donald Beech was put before the Tribunal. Mr Beech stood in the position, in Burmese culture, of uncle-by-marriage to the female applicant. He is an international technical consultant and has visited Burma in a professional and personal capacity on many occasions over many years. He gave what, on the face of it, is impressive testimony about the oppressive nature of the regime in Burma. In particular, he provided opinions and a degree of supporting evidence that strongly supported the (male) applicant's claim that, given his record, he would be denied, by the authorities, the chance of obtaining skilled work. There was other material that, in part, tended to corroborate his evidence. 19 Neither when Mr Beech was questioned nor at any other time during the Tribunal's hearing was the slightest suggestion made by the Tribunal that any of the substance of his evidence might be doubted. Further, at the end of the hearing the Tribunal member mentioned some "weaknesses" that he saw in the applicant's case (although it was made clear that such matters were "certainly not exclusive" of other weaknesses). The only issue raised by the Tribunal about employment was "whether [government-induced] inability to obtain government employment would amount to prosecution in terms of the Convention". This course of conduct might, despite the Tribunal member's disclaimer, have induced some degree of confidence in the applicant that weight would be given to what Mr Beech had to say. However, in his reasons, the Tribunal member appears, for all practical purposes, to have discarded Mr Beech's evidence, saying "that the Tribunal gives limited weight to the statement of … Mr Beech in view of the closeness of the relationship with the Applicants", and acting as if no weight were given to it at all. 20 It is nevertheless true that the nature of some of the questions put to the applicant tended to suggest that the Tribunal member had some difficulty accepting that, on account of his earlier activities inside Burma, he could not find work. The Tribunal suggested that there must be thousands of people with a similar background. 21 In Cho v Minister for Immigration and Multicultural Affairs [1998] FCA 1663 I gave my views, and some reasons for them, that: (a) "procedures … required by" the Act, within the meaning of s 476(1)(a) might be implicitly as well as explicitly so required; (b) in particular, in certain circumstances, the Act would implicitly require that certain powers and discretions made available to the Tribunal by the Act be exercised; (c) such powers include the powers of the primary decision-maker, s 415(2)(c). Such powers of the primary decision-maker include the ability to seek relevant information (from any quarter thought fit): s 56 (d) the power of the primary decision-maker also include the power to ensure that the applicant understands why relevant information, which would be a part of (or wholly) the reason for refusing to grant a visa, is relevant to consideration of the application, and to invite the applicant to comment on such information: s 57; (e) the circumstances in which implications of those kinds would be made are strictly limited. A serious risk of substantial unfairness to an applicant and/or such a risk of a wrong decision being made, if the procedure in question was not followed, would need to be shown. I am fortified in those views by the nature of the reasoning in Sellamuthu and the cases referred to therein. 22 The question, accordingly, is whether a serious risk of substantial unfairness to the applicant or of ultimate error was involved in the course taken by the Tribunal. In my opinion there was no such risk. Suppose the Tribunal had raised with the applicant's solicitor, as a perceived "weakness" in the applicant's case, the possible unreliability of Mr Beech's testimony because of his familial connection. Practically speaking, there was nothing the solicitor could reasonably do, except to argue the point, which was an exceedingly simple one. In particular, he could not suggest with any prospect of success that such a tentative view on the part of the Tribunal was so irrational as to amount to an error of law, if persisted in. 23 In Cho, I also outlined my view that · as a matter of law, it is not open to the Tribunal "utterly to reject sworn evidence without the existence of some evidentiary material or other factor which could furnish a rational basis for so doing"; · many things could constitute such "material or other factor"; · there is a distinction between a decision (or a vital finding of fact) which might be vitiated as wholly irrational (a logical question) and, because of the legislative intention manifested by s 476(2)(b), one which, although unreasonable as a matter of

qualitative assessment, indeed even so unreasonable that no reasonable person could make it, is not legally reviewable. 24 Such an approach is in accordance with the distinction drawn by the common law between an inference being "reasonably open", which is legally objectionable, and the mere drawing of that inference as a result of illogical reasoning, which is not: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 and Minister for immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 at 552. 25 There was, it seems to me, a logically possible basis for rejection of Mr Beech's evidence, namely that his familial connections would render his expressed opinions and judgments so suspect as to be quite unreliable. What might be thought of such a rejection, as a matter of qualitative assessment, is beside the point. 26 There is, accordingly, no reason to think that anything the applicant's solicitor might have said, if he had been privy to the Tribunal member's concerns about Mr Beech's status, would have made any difference. It is to be remembered that the basic reason for the Tribunal's decision was a lack of acceptance that there was a real chance that the authorities would, because of either his earlier activities in Burma or his later and fairly minor Australian activity, or both, evince any active interest in the applicant. There was material that could logically support such a stance and, again, its reasonableness as a matter of assessment is not germane to judicial review under the Act. If there was any risk of ultimate error, it stemmed from the adoption by the Tribunal of such a view, and not the possibly undue rejection of Mr Beech's evidence. 27 Likewise, if the reasoning in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 be applied, in my opinion a case of operatively unfair procedural dealing with the applicant's case has not been made out. Nor was the Tribunal's conduct such as could fairly be termed "misleading conduct" so as to infringe the requirement under s 420(2)(b) to "act according to substantial justice" (compare with Sun v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 at 117 per Wilcox J).

Conclusion 28 For these reasons the application for review will be dismissed and costs will follow the event. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 19 March 1999 Counsel for the Applicant: C Colborne

Solicitor for the Applicant: Legal Aid Commission

Counsel for the Respondent: R Beech-Jones

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 8 September 1998

Date of Judgment: 19 March 1999