FEDERAL COURT OF AUSTRALIA Win v Minister for Immigration & Multicultural Affairs [2000] FCA 1457 MIGRATION – review of decision by Refugee Review Tribunal – whether well-founded fear of persecution for reasons of political opinion – extent to which Tribunal relied on "dob-in" letter – whether Tribunal entitled to treat letter as "information" within meaning of s 424A(1) – whether Tribunal had duty to invite applicant to appear before it again by reason of s 425(1) – whether Tribunal's decision affected by actual bias – notion of "being persecuted". WORDS & PHRASES – "information". Migration Act 1958 (Cth), ss 424A(1), 424B(1) & (2), 425(1), 476(1)(f) Bilgin v Minister for Immigration & Multicultural Affairs (1997) 149 ALR 281 referred to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 discussed Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 discussed ZAW NAING WIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 229 of 2000 KATZ J 18 OCTOBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 229 of 2000 BETWEEN: ZAW NAING WIN APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE OF ORDER: 18 OCTOBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 229 of 2000 BETWEEN: ZAW NAING WIN APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE: 18 OCTOBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 17 February 2000. By that decision, the Tribunal affirmed a decision which had earlier been made by a delegate of the Minister for Immigration & Multicultural Affairs ("the delegate" and "the Minister" respectively). The delegate's decision had been to refuse to grant a protection visa which had been sought by Mr Zaw Naing Win, a Burmese national. In seeking that visa, Mr Win had claimed (as he did again before the Tribunal) that, owing to a well-founded fear of being persecuted for reasons of political opinion, he was both outside Burma and unwilling to avail himself of that country's protection. 2 As ultimately relied on before me, Mr Win's allegations of judicially-reviewable error on the part of the Tribunal in the making of its decision were three in number. Two of those alleged errors were said to have resulted from the Tribunal's treatment of what was described, both in the Tribunal's statement of findings and reasons and before me, as "the 'dob-in' letter". It will be convenient first to set out certain facts concerning that letter. 3 On 12 November 1999, Mr Win had appeared by invitation before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the delegate's decision. Then, on 29 November 1999, the Tribunal wrote to Mr Win regarding a letter which, as it stated in its statement of findings and reasons, had come into its possession after Mr Win's appearance before it. The Tribunal's letter said: "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. That 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 on 9.9.99 solely in order to enhance your application for the 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 in writing from within Australia. You have 21 days from the date of this letter to provide your comments." 4 (Although the Tribunal did not say so in its letter to Mr Win which I have just quoted, it did later state in its statement of findings and reasons that the author of the dob-in letter had given his or her name in that letter.) 5 On 2 December 1999, Mr Win wrote to the Tribunal, making comments on the matters conveyed to him by the Tribunal's letter of 29 November 1999, as he had been invited to do. He also said in his letter, "I am also 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". However, Mr Win did not, contrary to a submission to that effect which he made before me, request in his letter that any interview be held, whether on the matter of the extent of his political involvement or on any of the other matters referred to in the Tribunal's letter to him of 29 November 1999. 6 It is apparent from the Tribunal's statement of findings and reasons that it relied to some extent in making its decision on the contents of the dob-in letter. When dealing with claims made before it by Mr Win of his having engaged in political activities in Burma between October 1988 and May 1991, the Tribunal, for reasons which it gave, stated that it "consider[ed] his claim implausible to have played a leading or prominent role in any political group before his return to university in 1991". The Tribunal then continued, "That is broadly consistent with the assertion made about him in the 'dob-in' letter … 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 this assertion … is unknown, and I therefore do not propose to place great weight on it, I am not prepared to wholly disregard it." It thus appears that the Tribunal treated a particular assertion which had been made in the dob-in letter as being corroborative to a slight extent of the conclusion which it had already reached of the unreliability of Mr Win's claim to have played a prominent political role in Burma before his return to university there in 1991. 7 As I have already mentioned, Mr Win made two separate complaints before me about the Tribunal's treatment of the dob-in letter. 8 Before, however, dealing with those two complaints, I should set out certain provisions of the Migration Act 1958 (Cth) ("the Act") which are relevant to my consideration of the first of those two complaints: "Applicant must be given certain information 424A(1) … 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. … 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. …" 9 Mr Win's first complaint about the Tribunal's treatment of the dob-in letter was that it had not been open to the Tribunal to treat the contents of that letter as "information" within the meaning of subs 424A(1) of the Act, as it manifestly did, and then to invite Mr Win to comment in writing on that "information", as it did. Further, because the contents of the dob-in letter were not "information" within the meaning of subs 424A(1) of the Act, it therefore followed, Mr Win submitted, that once the Tribunal became seized of those contents and considered that, subject to any comments which Mr Win might make on them, they would be at least part of the reason for affirming the delegate's decision, the Tribunal then came under a duty, by reason of subs 425(1) of the Act, to extend to Mr Win an invitation to appear before it again to give further evidence and present further arguments relating to the issues arising in relation to the delegate's decision. 10 I am unable to accept Mr Win's submission that the contents of the dob-in letter could not constitute "information" within the meaning of subs 424A(1) of the Act, so that the Tribunal had been unable lawfully to proceed with respect to that letter as is contemplated by subss 424B(1) and (2) of the Act. 11 Mr Win relied on no authorities in support of his submission that the contents of the dob-in letter were incapable of constituting "information" within the meaning of subs 424A(1) of the Act, nor did he offer any acceptable explanation as to why his submission was correct. I am unable to discern one myself. To my mind, "information" is simply that of which one is informed. That of which one is informed may be reliable; it may be unreliable; in either event, it is still information in the ordinary usage of the word and, so far as I am concerned, is "information" within the meaning of subs 424A(1) of the Act. 12 (Of course, that is not to say that one would be unable successfully to allege judicially-reviewable error on the Tribunal's part in considering that certain "information" within the meaning of subs 424A(1) of the Act would, subject to any comments which a protection visa applicant might make on it, be at least part of the reason for affirming a delegate's decision refusing that protection visa applicant's application for a protection visa. However, assuming that one could make such an allegation, that was not what Mr Win did in the present case, nor is it apparent to me that, if he had done, such allegation would have succeeded.) 13 Mr Win's second complaint about the Tribunal's treatment of the dob-in letter related to the letter which the Tribunal wrote to Mr Win on 29 November 1999 putting to him the contents of the dob-in letter. 14 One of the grounds of review of the Tribunal's decision available in this Court is that that decision "was induced or affected … by actual bias": see par 476(1)(f) of the Act. Mr Win submitted before me that that ground had been made out in the present case. However, the only evidence on which he relied in order to found that submission was the Tribunal's letter to him of 29 November 1999 putting to him the contents of the dob-in letter, the terms of which former letter I have already set out in [3] above. 15 In his submissions before me in response to those of Mr Win, the Minister drew attention to the lament of Finkelstein J in Bilgin v Minister for Immigration & Multicultural Affairs (1997) 149 ALR 281 at 282, in the context of an allegation of actual bias against the Tribunal, that, "It is not uncommon these days to find serious but unjustified allegations being made against administrative decision-makers by persons dissatisfied with the outcome of their claim". The Minister invited me to conclude that the present case was an instance of such unsatisfactory conduct and I accept that invitation. 16 I am quite unable to understand how it could responsibly have been submitted that the Tribunal's letter to Mr Win was sufficient of itself to establish actual bias on the Tribunal's part, since, in its terms, the letter bespoke the existence of an open mind on the questions which the Tribunal was required to decide. 17 I should record that Mr Win made an attempt to deflect the Minister's criticism of his actual bias submission by insisting that he was not submitting that the Tribunal's actual bias had been intentional, but I must say that I regard that attempt as incomprehensible. I say so because, given the Tribunal's letter's terms, it appears to me that a conclusion that the Tribunal had actually been biased against Mr Win would only have been open if it had been established by some evidence other than that letter itself that the Tribunal had been lying in it, something which would hardly have betokened unintentional bias on the Tribunal's part. 18 The only other complaint about the Tribunal's decision which Mr Win ultimately pressed before me related to its treatment of a particular claim made by him before it. As recorded by it in its statement of findings and reasons, his relevant claim in his submissions to the Minister's Department in support of his protection visa application had been as follows: "In March 1994 a student friend of his was killed in a road accident. The driver was the son of Major General Kyaw Win. Mr Win went to the hospital but was taken aside by police who asked why he was there. He was accused of causing trouble. The police came to his home that night, pulled his hair, warned him he was under observation and told him to report every 15 days to the police station." 19 Then, when Mr Win had appeared before the Tribunal, that claim, according to the Tribunal's statement of findings and reasons, had been the subject of discussion as follows: "I [that is, the Tribunal] asked him [that is, Mr Win] to explain his claim to have been observed by 'military agents' after he left university. He responded that he meant that after 1994 he had had to report every 15 days to the authorities in Rangoon after his friend was killed in the car accident. I asked him why the police had taken any notice of him at the hospital after the accident, as they did not know him. He responded that the police knew nothing of his history at the time. However, they knew he was a student, and that his student friend had been killed by the son of a Major General. For this reason they were apprehensive that there might be another uprising such as that which led to the 'Phone Maw incident'. Another friend of the victim was at the hospital, and later had the same problems as Mr Win. Mr Win claimed that that night the police mentioned his 1988 political activities, and beat him up. He claimed that he abided by the reporting conditions until he left Burma." 20 Finally, in that part of the Tribunal's statement of findings and reasons headed "FINDINGS AND REASONS", the Tribunal had stated the following (emphasis added): "The 1994 car accident I accept that Mr Win may have had a student friend who was killed in a car accident by a relative of a SLORC military officer, and that the police may have wanted to deter Mr Win from causing any unrest in relation to the incident. However, he claimed that even in 1991 the police did not know the extent of his political activities, and I have in any case found implausible his claim to have been involved to any significant level in political activities in Burma. There is no apparent reason why the police would have referred in 1994 to his political activities in 1988, when they were not on his records in 1991. It follows that any difficulties he may have had with the police after the car accident were not motivated by perceptions about his political opinions. 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." 21 Mr Win made no complaint before me about the way in which the Tribunal had summarised his relevant claim before it or, indeed, about the way in which the Tribunal had dealt with that claim, save in one respect only. According to him, the parenthetical words to which I have added emphasis in the passage which I have just quoted from the Tribunal's statement of findings and reasons demonstrated that the Tribunal had misunderstood the notion of "being persecuted" within the meaning of the Refugees Convention ("the Convention"), believing that, unless conduct amounted to "serious ill-treatment of some kind", it could not qualify as persecution. According to Mr Win, that approach was contrary to the approach to the notion of persecution which had been taken by Mason CJ in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 388, where his Honour had referred to persecution within the meaning of the Convention as involving "some serious punishment or penalty or some significant detriment or disadvantage". 22 In the same way that it is not uncommon these days to find persons dissatisfied with the outcome of their protection visa applications making in this Court unjustified allegations against the Tribunal of actual bias, it is not uncommon to find them focusing in this Court on what may be looseness in the language used by the Tribunal in a statement of findings and reasons or on what may be unhappy phrasing of that statement and then inviting this Court to construe that statement minutely and finely with an eye keenly attuned to the perception of error. That second type of attack on the Tribunal's decisions is no more appropriate than is the first, as was pointed out, for instance, by the High Court of Australia (Brennan CJ and Toohey, McHugh and Gummow JJ) in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 23 After pointing out that matter in Wu, the Court then added (footnote omitted) that, "… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status [or, as it now is, a decision upon a protection visa application] must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." 24 To my mind, Mr Win's attack on the Tribunal's decision because of its use of the parenthetical words which I have earlier quoted with emphasis added falls into that category of attack on the Tribunal's statement of findings and reasons which was deprecated by the High Court of Australia in Wu. 25 It should be noted that the very reference made by Mason CJ in Chan to the notion of "being persecuted" within the meaning of the Convention as involving "some serious punishment or penalty or some significant detriment or disadvantage", to which approach the Tribunal was alleged to be acting contrary by its use in its statement of findings and reasons of the parenthetical words, had earlier been quoted by the Tribunal itself in that statement with obvious acceptance. I consider it highly unlikely in those circumstances that the Tribunal was intending by what it said in its statement of findings and reasons to contradict something to which it had expressly drawn attention in an approving way a few pages earlier. 26 No doubt, one reason why the Tribunal referred in a shorthand way in the passage from its statement of findings and reasons which I have quoted at [20] above to "serious ill-treatment of some kind" is because the Tribunal was concerned in that passage, not to attempt to offer any precise definition of the notion of "being persecuted" within the meaning of the Convention, but rather to express its conclusions on two other matters: first, that the reporting requirement actually described by Mr Win did not itself amount to persecution within the meaning of the Convention; and, secondly, that even if it had, it would not have amounted in the circumstances to persecution "for reasons of … political opinion" within the meaning of the Convention. It appears to me that each of those conclusions was open to the Tribunal on the evidentiary material before it, nor, as he ultimately presented his case before me, did Mr Win submit to the contrary. 27 (It follows, incidentally, from the acknowledged impregnability of those two conclusions of the Tribunal that, even if it had, by its parenthetical remark, betrayed a misunderstanding of what might constitute persecution within the meaning of the Convention, such misunderstanding would have amounted only to an immaterial error.) 28 In all the circumstances, Mr Win's application for review of the Tribunal's decision must be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Date: 18 October 2000 Counsel for the Applicant: Ms R Winfield Solicitor for the Applicant: Ong & Co Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 July 2000 Date of Judgment: 18 October 2000