Htay v Minister for Immigration & Multicultural Affairs [2000] FCA 1881

FEDERAL COURT OF AUSTRALIA

Htay v Minister for Immigration & Multicultural Affairs [2000] FCA 1881

MIGRATION - review of RRT decision - whether the RRT failed to set out the reasons for its decision - where the RRT did not refer to particular pieces of evidence when making a credibility finding adverse to the applicant - whether the RRT failed to make, or set out, findings in relation to a material fact - whether the fact was material - where that fact was not raised in submissions by the applicant but was referred to in a piece of evidence

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 cited Omar v Minister for Immigration and Multicultural Affairs [2000] FCA 1430 distinguished Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 distinguished Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 162 ALR 407 cited THAN HTAY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N1509 of 1999 TAMBERLIN J SYDNEY 21 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1509 OF 1999

BETWEEN: THAN HTAY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 21 DECEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application is dismissed with costs. 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 1509 OF 1999

BETWEEN: THAN HTAY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 21 DECEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the RRT") made under the Migration Act 1958 (Cth) ("the Act") affirming a decision not to grant a protection visa to the applicant pursuant to a claim that he was a refugee. 2 The factual background and statutory framework are set out in the RRT decision and I will not repeat it here. 3 The applicant's claim was that he could not return to Burma because he would be arrested and persecuted on the grounds of his anti-government activities both in Burma and in Australia. 4 In rejecting his claim for refugee status on the ground of political opinion the RRT concluded: "I accept that the applicant has participated in several demonstrations outside the Burmese Embassy in Canberra since arriving in Australia, as evidenced by the photographs and letters submitted to the Tribunal at the hearing. However, according to recent advice from the Australian Embassy in Rangoon, questioning of returning Burmese by the authorities is not uncommon. While normal members of the community in Australia protesting outside the Burmese embassy on two or three occasions would most likely come to the attention of the authorities, there is no evidence to suggest they would face adverse consequences unless they continued to commit further anti-government activities within the country on their return. (DFAT Cable RA610, 19 February 1998, CX28959), According to the Australian Embassy in Rangoon, there is an ongoing amnesty for those who wished to return and reapply for Burmese citizenship, including those who may have applied for refugee status. Furthermore, an increasing number of Burmese citizens, now resident in Australia, (including a number of Burmese students who found themselves displaced in Thailand and who were accepted in Australia), were still travelling on their Burmese passports and had been able to return to Burma for visits without any difficulties. (DFAT Cables RA7682, 23 June 1994, CX9489; and RA7682, 23 June 1995, CX9489) I accept that the applicant does not wish to return to Burma. I accept that Burma does not have a good record in the area of human rights and democracy. However, because of my problems with the applicant's credibility, I am not satisfied that he has a well-founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he returns to Burma." 5 In earlier paragraphs under the heading of "Findings and Reasons" the RRT refused to accept claims that the applicant was discriminated against in his government employment; that he was in gaol during the period February-August 1991; that he was of adverse interest to the authorities or that he was being kept under close surveillance as of October 1995. These claims were seen to be inconsistent with, inter alia, the applicant being issued with a passport on two occasions. It was accepted that the applicant may have paid a bribe to facilitate obtaining his passport, however the RRT also found passport applications were closely scrutinised. The RRT rejected the applicant's claim that his home was raided or that he was kept under surveillance after October 1995 as he had claimed in his protection visa application. Reference was made to the independent country information. The RRT did not accept that because of his political opinions the applicant had come to the adverse attention of the authorities in Burma. The RRT pointed out that contrary to the claim in his adviser's submission of 17 February 1998 the applicant stated at the hearing that he was politically inactive in the period 1974 to 1988. It was not accepted that the applicant played a key role in organising a students' union in August 1988. The RRT described some of the evidence as implausible and referred to difficulties with the credibility of the applicant. Having regard to these considerations and the conclusions expressed in the above quotation, the RRT was not satisfied that the applicant was a refugee. 6 Counsel for the applicant made two substantial submissions at the hearing. The first was that the RRT had failed to comply with s 430 by not referring to certain evidence that the applicant had been political active in demonstrations in Burma. Under the heading "Claims and Evidence" the RRT referred to a number of letters authored by Burmese human rights or democracy organisations and associates of the applicant that supported the applicant's claim that he had been politically active in Burma. As noted above the RRT made adverse credibility findings against the applicant, but in doing so did not refer to this evidence in support of the applicant's case. Counsel referred to Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at 480-481 where the majority said: "46. There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made. That is the view endorsed by the decisions referred to in [12] above, and in our view it is consistent with the language of that section. The decision of the Full Court in Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 1726 provides another illustration of this approach. There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached. The endorsed view is subject to the important qualification that if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process: see Durairajasingham (supra)." 7 It is apparent from the detailed findings on credibility made by the RRT that it considered that the inconsistencies and improbabilities in the evidence of the applicant when weighed against the independent country information, persuaded it that the applicant had not made out a sufficient case. In other words, the RRT was clearly not satisfied that the supporting evidence, including the itemised letters referred to in the RRT decision, outweighed the countervailing considerations as to credibility. Consistently with the judgment of the Full Court in Singh it was not necessary for the decision-maker to separately evaluate each individual letter or series of documents produced. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 162 ALR 407 at 412-423 1 McHugh J said: "… the obligation to set out the 'reasons for the decision' (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that it is contrary to findings of material fact made by the tribunal …." 8 In the present case the view of the RRT as to the relative importance of the letters was not a reason for the decision of the RRT. What is clear from the reasons is that the RRT made its decision because it did not believe the applicant. The RRT set out its findings as to credibility and the basis of those findings. No doubt the RRT considered that the weight to be given to the letters was not sufficient to overcome the strong findings of lack of credibility demonstrated by the other evidence referred to it. However given that the basis of the credibility finding was set out, the RRT was not obliged to set out why it rejected the letters. For this reason the first submission is not accepted. 9 The second submission for the applicant raised is that: "The Tribunal failed to consider the material issue whether, in the light of the applicant's accepted history of demonstration participation in Australia, he would continue his activism upon return and be subjected to Convention persecution as a result." 10 In support of this argument Counsel for the applicant referred to a statement in DFAT cable RA610 to which the RRT referred. The critical finding made by the RRT was that there was no evidence to suggest that normal members of the Burmese community in Australia, protesting outside the Burmese Embassy on two or three occasions, would face adverse consequences unless they continued to commit further anti-government activities on their return to Burma. In substance Counsel for the applicant submitted that in referring to and accepting that evidence the RRT raised a material issue and made a finding adverse to the applicant on the ultimate question of whether he was a refugee without considering a material question, namely whether there was a real chance that if returned to Burma the applicant would engage in further anti-government activities. 11 Counsel for the applicant again referred to the Full Federal Court decision in Singh at 480 where, in relation to the provisions of s 430(1) of the Act, the majority said: "If the statement is said not to comply with s 430(1) because it fails to set out findings on a question of fact which a court holds to be material (but which the RRT did not), then the decision could be set aside under s 476(1)(a) for want of procedural compliance." 12 Counsel for the applicant submits that it is clear that in appropriate circumstances an applicant's prospective conduct upon return can be a material issue on which the RRT is bound to consider and make findings: Omar v Minister for Immigration and Multicultural Affairs [2000] FCA 1430; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599. He contends that in this case the RRT itself raised and relied upon a particular DFAT cable, which brought the issue of future conduct into materiality. Having done this, it is submitted, the RRT was obliged to consider and determine the issue and failure to do so was a procedural error enlivening s 476(1)(a). 13 Counsel for the respondent says that the question as to future conduct of the applicant was not raised as an issue or relied on by the applicant by way of submission before the RRT. The DFAT cable, so it is said, was part of the evidence which was accepted by the AAT but it did not raise a new material question of fact. The gravamen of the applicant's case before the RRT was that because of his past activities in Burma, coupled with his participation in events in Australia, he would be persecuted for his political opinions if returned. The respondent says that unlike the decisions in Omar and Wang there was no reference before the RRT as to the applicant's future conduct in Burma. The evidence does not suggest that if the applicant is returned to Burma he will engage in anti-governmental activities in that country. Accordingly, it is submitted that this is not a case where the RRT did not address a material fact or issue. 14 The question as to what is a material question of fact was considered by the Full Court in Singh. At pp 481 ff, the majority said: "47. The qualification … concerns s 430(1)(c), insofar as it requires the RRT to set out its findings 'on any material' questions of fact. Ordinarily, materiality is an objective concept. If the RRT fails to make a finding on a fact which is in truth, as a court subsequently determines a material fact, then s 430(1)(c) will not have been complied with, even thought the RRT has recorded its findings in relation to the facts before it, that it regarded as material. 48. The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. It must make findings on questions of fact that are central to the case raised by the material and evidence before it, In this respect s 430 sets out a standard of decision making the RRT is required to observe. … 54. We do not accept that the material facts referred to in s 430(1)(c) are confined to the facts the statute requires to be decided. Obviously they include those facts, but whether a question of fact is otherwise material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision." 15 In the present case the evidence and submissions before the RRT did not raise the question as to whether the applicant might engage in activity if returned to Burma. The fact that the DFAT cable refers generally to activist conduct on return does not mean that the question is raised in relation to the issue. Nor was there any suggestion in the other evidence before the RRT that the applicant might engage in such conduct if he returned. This case is to be distinguished from the decision in Omar where the applicant had written to the Department of Immigration and Multicultural Affairs claiming that he was the type of person who was likely to come to the attention of the authorities because his 'speaking out' against the segregation of North West Somalia" was entirely foreseeable. The underlying suggestion is that the depth of his convictions was such that he would express his views overtly and thereby come to attention. That is an example of a situation where the question was squarely raised before the RRT. Another example is the decision of the Full Court in Wang. The reasoning in that case proceeds on the basis that the claims were founded on past persecution and future conduct, mainly his intended practice of his religion at an unofficial church after his return to China. 16 In the circumstances of the present case, in my view, there was no obligation on the RRT to institute a general inquiry into whether an applicant who had not made a claim in respect of his future conduct if returned to Burma would in fact be at risk because of that conduct. In my view, the reference to the DFAT cable did not create such an obligation and the matter was not raised by the applicant. Considering the way the case was run before the RRT, whether the applicant would engage in political conduct on his return to Burma was not a material fact about which s 430(1)(c) required a finding. 17 It was also submitted that it could be inferred that the RRT failed to make a finding on a material question of fact namely as to the conduct of the applicant if returned. This point is really a repetition of the matters discussed above. The material and the arguments advanced did not raise any requirement for the question of such conduct to be determined. Accordingly, there was no failure to make such a finding because no issue was raised. 18 For the above reasons, the application is dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.