FEDERAL COURT OF AUSTRALIA WAJH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 935 MIGRATION – protection visa – two brothers had review applications separately pending before the Refugee Review Tribunal – at applicant's hearing Tribunal told him that it would look at his brother's files and if it found any problem would write to him, let him know and give him a chance to respond – subsequently at the brother's hearing applicant gave evidence of an association on both his and his brother's part with a known dissident – Tribunal decided applicant's review before his brother's – Tribunal did not give applicant opportunity to expand on his own association with the known dissident – in its reasons Tribunal assessed applicant's association with known dissident as not being as direct as that of his brother – subsequently Tribunal determined that the brother's association with the known dissident gave rise to a well-founded fear of persecution – whether denial of procedural fairness of sufficient extent as to give rise to jurisdictional error – whether decision made under Migration Act. Migration Act 1958 (Cth), ss 65, 424, 474 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 applied Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 applied Muin v Refugee Review Tribunal [2002] HCA 30 applied Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 applied Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 applied WAJH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W320 OF 2002 CARR J 5 SEPTEMBER 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W320 OF 2002 BETWEEN: WAJH Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: CARR J DATE OF ORDER: 5 SEPTEMBER 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal, made on 25 October 2002, is quashed. 2. The applicant's application for a protection visa be remitted to the Tribunal for determination according to law. 3. The respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W320 OF 2002 BETWEEN: WAJH Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: CARR J DATE: 5 SEPTEMBER 2003 PLACE: PERTH REASONS FOR JUDGMENT introduction 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for an order of certiorari to quash a decision of the Refugee Review Tribunal, made on 25 October 2002. The Tribunal decided to affirm the decision of a delegate of the respondent, made on 23 August 2001, to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) ("the Act"). The applicant also seeks an order that his application be remitted to the Tribunal for re-hearing. factual background 2 The applicant, who is now 34 years of age, is a citizen of Myanmar, a country to which I shall refer as "Burma". He arrived in Australia on 4 December 1999 on a visitor's visa. He had previously come to Australia in 1991 for a period of four months. On 22 December 1999, the applicant lodged an application for a protection visa. 3 In that application the applicant claimed that: · in 1988, when he was in the third year of his university studies in Burma, he took part, together with other university friends, in anti-government demonstrations, distributing anti-government leaflets and posters and making speeches; · he joined the National League for Democracy supporting Aung San Suu Kyi and, as a volunteer, was part of the youth group in her compound; · he also took part in student demonstrations in 1996; · in 1997 he managed to find some employment, but was intimidated by the military intelligence organisation because his elder brother was involved with pro-democracy groups in Perth; · to escape this intimidation he asked his cousins to assist him to leave Burma. It took him six months to get his passport for which he had to pay his agent 70,000 kyats; and · he then left Burma for Western Australia. 4 On 23 August 2001, the respondent's delegate refused the application for a protection visa. On 11 September 2001, the applicant applied to the Tribunal for review. With that application he provided extensive references to and copies of material concerning human rights violations by the Burmese Government. 5 The applicant attended an oral hearing before the Tribunal which took place on 19 June 2002. He was not represented. 6 The applicant's claims before the Tribunal were as follows. There were economic motives for him to seek to live in Australia. What he earned in Burma was not enough to live on. However, another reason for coming to Australia was that he was not allowed to be involved in politics in Burma. He gave further evidence about his part in the demonstration in August 1988. In 1991 he went back to university to finish his studies. He repeated his claim that he had been a member of the National League for Democracy since 1988. He had not applied for a protection visa during his visit to Australia in 1991 because his relatives told him that, if he did so, they feared that they would not be allowed to go back to Burma for a visit, nor would they be able to get other family members to come for visits. They discouraged him from staying and making an application. He had applied for lots of jobs in Burma, but could not get a job in a government department because of his political activities. He did on one occasion get a job in a government department, but it only lasted two months. When his employer found out about his political activities, he was asked to leave. He had not undertaken political activities between 1992 and 1995 as the security situation was "too tight". 7 The applicant also made sur place claims before the Tribunal. He said that he had joined an organisation in Perth called Tribal Refugee Welfare. He had demonstrated on anniversaries and went to the monthly food fair which raised funds for refugees on the Thai-Burma border. He had also joined the Karen Youth Organisation. This evidence was corroborated by a witness called by the applicant. The witness also said that joining Tribal Refugee Welfare was a serious matter as it was involved in anti-Burmese Government activities. There were spies who would tell the Burmese Government about who was doing what. 8 The applicant was given leave to make a post-hearing submission. He did so in writing. 9 In that submission the applicant repeated his previous claims and referred to a symposium which he had attended in March 1988 to discuss how the student body at Yangon University could assist in changing Burma from a socialist to a democratic country. He said that when the riots took place in August 1988 he saw the deaths of many innocent people, some of whom were his friends and colleagues. He elaborated on his connection with and support for Aung San Suu Kyi. The applicant said that in 1998 his brother came to Australia and became heavily involved in Tribal Refugee Welfare. The combination of his brother's dealings with Tribal Refugee Welfare and his own "large involvement" with Aung San Suu Kyi (including photographs of him working with her which fell into the hands of Burmese intelligence officers) resulted in his interrogation on several occasions by members of that organisation who came to his place of employment to interrogate him and warn his employer. That led to his dismissal from his employment. When he did obtain another job it was on condition that he would receive lesser pay than other workers as his employers were risking their lives and their businesses to employ him. He claimed that such jobs were not on a permanent basis. The applicant's claims to refugee status were based mainly upon the Convention ground of political opinion by reason of his political activity and profile, but also on the grounds of religion (the applicant is a Catholic) and race (the applicant is Anglo-Burmese). The Tribunal's Decision 10 The Tribunal took into account, as what it described as "an important element", the fact that the applicant had arrived in Australia on 23 February 1991 and departed on 28 June 1991. It accepted, nonetheless, that this was for a family visit to relatives in this country who were not keen on him making an application to remain in Australia as a refugee. The Tribunal noted that although that was understandable, the fact that he was not so fearful as to insist on trying to stay had to be relevant to the question of his claimed later fears when he did make such an application. 11 After reviewing the evidence about events after the 1988 demonstration, including the departure from Burma of many hundreds of students who had taken part in political activities, the Tribunal said that it was not satisfied that family pressure would have been sufficient for the applicant to have refrained from expressing a well-founded fear of persecution in 1991, had he held such a fear. 12 The Tribunal accepted that the applicant had a subjective fear of persecution. It then turned to consider whether that fear was objectively well-founded. 13 The Tribunal rejected the applicant's evidence of the extent of his participation in the demonstration and other political activities in August 1988. It did not accept that he had been anything more than an occasional and temporary participant in those events. Its reasons for that conclusion included the following: · his claimed activities made it highly implausible that he would not be well-known to the authorities and yet, on his own evidence, he was not detained or arrested; · his story of his own participation appeared to grow in the telling; · despite his claims to have been at the centre of the activities of Aung San Suu Kyi, his knowledge of events did not go beyond the level of common knowledge; · there were some troubling contradictions in his evidence, given at different times. He had told the Tribunal at the hearing that he did not know anyone who was killed in the August 1988 demonstrations. However, in his post-hearing submission he stated that people who were his friends and colleagues had died in the demonstration. The Tribunal observed that this was not the sort of minor detail which could be forgotten on one occasion and remembered on another; and · he was re-admitted to university without significant hindrance and had left Burma legally and returned in 1991 without being detained. 14 The Tribunal concluded that all these matters indicated that the applicant did not play anything like a major role and that he was not even known by the authorities to have played a minor one. 15 The Tribunal then turned to the applicant's claimed difficulties in obtaining employment. It rejected his claim that he could not get a government job because of his political profile. The Tribunal found that this was not supported by other evidence which indicated that the Burmese authorities did not assess him as a political risk. It noted that there were large numbers of people dismissed from government jobs by reasons of suspicion of whether they were loyal to the Burmese Government. It acknowledged that the fact that the applicant's father had been dismissed for letting staff attend the August 1988 demonstration might have been held against the applicant, although his mother continued to hold her government job. The Tribunal said that it made no finding as to why the applicant did not get government employment or why he was dismissed, as he claimed at one time, after only three months (the period earlier referred to by the Tribunal was two months, but the difference is immaterial). It said that it was satisfied however that this was "… not linked to persecution of the Applicant." He was able to get employment in the private sector. The information provided by him in both his application for a visa to visit Australia and his application for a protection visa included a statement that he had been in that employment for about two years until just before he came to Australia. [The applicant's evidence was that his employer had given him leave without pay so that he could visit family in Australia.] At the hearing, the applicant had never claimed to have been dismissed from private employment for reasons of his political opinion. The Tribunal commented that the fact that this claim appeared for the first time in his post-hearing submission raised serious doubts as to its authenticity. The Tribunal found that there had been no discrimination amounting to persecution in employment for reasons of the applicant's religion, his ethnicity or his political opinion. 16 For reasons which are set out at pp 16-17 of its reasons for decision, the Tribunal did not accept what it described as his "very late claims" that he was interrogated "with the intensity and frequency described in his post-hearing submission" in 1996 and also after his brother had come to Australia in 1998. Nor, for the reasons summarised above, did the Tribunal accept that the applicant had lost his job as a result of security interference. 17 The Tribunal reviewed the evidence concerning the applicant's sur place claims including the likelihood that the Burmese authorities would assume, on his return, that he had applied for refugee status. It found that, although the applicant had joined a Burmese dissident organisation in Australia, he had not taken any leading office nor been a noted speaker or promoter. It made an assessment that he had not acquired a serious dissident profile while in Perth. 18 The applicant had also claimed that not only his own activities, but those of his brother would bring him to the adverse attention of the authorities. The Tribunal accepted that the applicant's brother had a higher political profile. It referred to its finding that the applicant had not suffered persecution for reasons of his brother's activities prior to December 1999 and that there had been no serious change in his circumstances such as to make him vulnerable to persecution by reason of his brother's activities in Australia should he now return to Burma. The Tribunal found that the applicant did not face a real chance of persecution for reasons of political opinion, imputed political opinion, religion or ethnicity. the grounds of the application 19 The applicant relied upon three grounds of review. 20 It will assist in understanding the first ground if I refer first to some procedural and factual background. 21 The hearing before the Tribunal of the application for review took place on 19 June 2002. During the course of that hearing the Tribunal member asked the applicant for information about his siblings. In the course of that questioning the applicant told the Tribunal that his brother (the brother whose activities have been referred to above, to whom I will refer as "James", which is not his real name) had applied for refugee status, had been successful in Court, and had an application before the Tribunal. 22 At the very end of the hearing before the Tribunal there was the following exchange between the Tribunal member and the applicant: 'TRIBUNAL: Okay. Now, what I intend to do – I do want to go away and look at your brother's files because that will help me to see a bit more about your family situation. Do you have any trouble – do you have any problem with me doing that? --- No, I don't. Just let me check his name is [name deleted]? --- [name deleted], yeah. Alright. I'll have a look at that. What happens then is if I find any problem, I write to you and let you know and give you a chance to respond. Now, it usually takes me about a month to go away, look at all your material again, think about it and then make a decision.' 23 It transpired that James's application for refugee status had progressed as far as a decision of a Full Court of this Court in his favour with an order that the matter be remitted to the Tribunal for further hearing. That hearing (i.e. James's application for review) came before the Tribunal for hearing about a month after the conclusion of the hearing of the applicant's case before the Tribunal, but before the Tribunal decided the applicant's application. James's application was heard by the same member who heard the applicant's application. James's hearing took place on 11 July and 10 September 2002. 24 At the Tribunal hearing of James's case the applicant submitted a statement in support of James's claims. He also gave evidence before the Tribunal. Part of the applicant's written submission was summarised by the Tribunal in its reasons for decision in James's case, in the following terms: 'He [the applicant in this matter] claimed that since his arrival in Australia he had joined his brother [James], the Applicant in participating in TRW activities. His brother had also introduced him to other Burmese pro-democracy organisations in Perth and he had formed an acquaintance also with Aung Aung who was a former high level dissident.' 25 Aung Aung also submitted a statement to the Tribunal which heard James's application for review. 26 The Tribunal rejected James's claims, other than his sur place claim. James's sur place claim was based on much the same sort of evidence that the applicant had put before the Tribunal in this matter, except that neither before or at the hearing in this matter had the applicant made specific sur place claims of a well-founded fear of persecution based on any association with Aung Aung. 27 It was James's association with Aung Aung which caused the Tribunal to be satisfied that he (James) was a refugee. The relevant portion of the Tribunal's reasons for decision in James's case was in the following terms: 'The Applicant's situation is that he has associated with one of the best-known support groups for Burmese, Tribal Refugee Welfare, and has been present at a number of activities in support of Aung San Suu Kyi and against the policies of his government. Most significantly he has formed a close friendship with Mr Aung Aung, a person recognised by UNHCR as a refugee and admitted into Australia. Mr Aung gave both written and verbal evidence to the Tribunal. He affirmed that he had known the Applicant for almost four years and that they worked together, discussed political (sic) and helped each other. He described their relationship as that of close friends. One of the reasons for the development of the friendship was that the Applicant could drive and so he had assisted this witness to go to the various meetings held to protest Burmese government activities. The Tribunal found the evidence of both men on this matter to be convincing. It accepts that the association of the Applicant with the witness would raise the former's profile making him more recognisable to the Burmese authorities. It therefore has considered the effect of the Applicant's close friendship with a known dissident and finds that a real chance of persecution for this reason has developed.' [The Tribunal went on to refer to other factors which accumulated around "the matter of the close friendship with a known dissident"]. 28 As mentioned above, the Tribunal gave its decision in the applicant's case on 25 October 2002. 29 It gave its decision in James's case nearly two months later, on 19 December 2002. 30 I return to that part of the Tribunal's reasons for decision in which it dealt with the applicant's sur place claims: '… Although he has joined a Burmese dissident organisation in Australia, he has not taken any leading office nor been a noted speaker or promoter. It assesses that he has not acquired a serious dissident profile while in Perth. The Applicant also has claimed that it is not only his own activities but those of his brother which will bring him, the Applicant, to the adverse attention of the authorities. The Tribunal accepts that the brother has a higher political profile, largely acquired through his association with a known active opponent of the government. The Applicant's own association with that known dissident is not so direct. Therefore the Tribunal has paid close attention to whether the presence of his brother in Perth has raised the stakes for him vis-ŕ-vis Burmese authorities.' 31 In his first ground of review, the applicant contended that the Tribunal had erred in law in the following respects: · by failing to invite the applicant, pursuant to s 424 of the Act to comment upon his own association with the known dissident Aung Aung after hearing the evidence in James's case and before handing down its decision in this case; · there was no evidence upon which the Tribunal could properly make the finding that the applicant's own association with Aung Aung "is not so direct" since the applicant was asked no questions about this relationship; · the Tribunal ought to have asked itself the additional question whether the applicant's own association with the well-known dissident Aung Aung would make the applicant vulnerable to persecution; and · the Tribunal had told the applicant that it was going to look at his brother's file and that if it found any problem it would write to the applicant, let him know and give him a chance to respond. This gave rise to a legitimate expectation on the applicant's part that he would be given such an opportunity. The Tribunal had denied him this opportunity. the respondent's submissions in relation to ground 1 32 In summary, the respondent's position was as follows. The applicant had not made any claims of association with the dissident Aung Aung, whether direct or otherwise. He had claimed fear of persecution by reason of his brother's political activity and profile. There was no error of law on the Tribunal's part in failing to make enquiries into a basis for a claim which the applicant had not put forward. When the Tribunal referred to the applicant's association with Aung Aung being "not so direct", a fair reading of the reasons showed that the Tribunal was considering whether the applicant's claims of association with his brother would give rise to a real chance of persecution. That was not, so it was put in oral argument, a finding about the applicant's association with Aung Aung. The Tribunal had not failed to honour the undertaking which gave rise to the claimed legitimate expectation. The Tribunal, so it was submitted by the respondent, had not identified a problem in the brother's case "going back to the applicant's claim of association with his brother." It had simply found that his brother's case had an element to it which the applicant had never raised and which took his brother "over the line", whereas the applicant did not get over the line. my reasoning 33 This is a most unusual set of circumstances. In my view, two matters arise out of the undertaking given by the Tribunal at its hearing. First, the Tribunal made it clear that it was likely to treat information obtained by it upon examination of James's application for refugee status, as information relevant to its determination in the applicant's case. In a sense, it can be seen to have foreshadowed the incorporation by reference of any such relevant material on James's files as part of the material relevant to the applicant's matter. Secondly, it gave an undertaking that if it found any information which it obtained in the course of reviewing the information in James's case which might present "a problem" in the applicant's case it would let the applicant know and give him a chance to respond. 34 In my opinion, the question of the association between Aung Aung and both James and the applicant thus became largely a question common to both applications which were pending simultaneously before the same Tribunal member. 35 When, in its reasons in this matter, the Tribunal said that "the Applicant's own association with that known dissident is not so direct" it was, in my view, making a finding of fact and excluding a possible basis upon which it could find that the applicant was a refugee. The applicant's sur place claim, in broad terms, was that by association with dissident groups in Australia, he would receive adverse attention upon return to Burma. It is true that he did not specifically name Aung Aung, but information subsequently came to the Tribunal's notice that Aung Aung was one of the persons with whom the applicant had an association. 36 It is possible that when the Tribunal came to write its reasons on the applicant's sur place claim, it had forgotten about its undertaking to come back to the applicant if it found any problems in his case. 37 I reject the respondent's submission that what transpired was not "a problem". In my view, the Tribunal had obtained information that there was an association between the applicant and a well-known sur place dissident, Aung Aung. Its assessment was that the applicant's association was "not so direct" as that of his brother. That was obviously, in my opinion, a significant factor which led to an outcome in the applicant's case which was different to the outcome in James's case. But the Tribunal used that information without giving the applicant an opportunity to make submissions about his association with Aung Aung. 38 There is uncontested evidence before the Court from the applicant that if he had been given the opportunity to make further submissions, he would have put before the Court evidence that his association with Aung Aung was substantially the same as that of his brother James. For example they each spent much the same amount of time with Aung Aung and alternated in providing the services of driving Aung Aung from place to place in the course of his activities. 39 I am not satisfied that that further evidence could have made no difference to the outcome of the review before the Tribunal in this matter. 40 In summary, I consider that the Tribunal, most probably by inadvertence, denied the applicant procedural fairness in what might be regarded as two different ways but which had a common manifestation. It did not honour the reasonable expectation which it had raised in the applicant's mind which, if honoured, would have resulted in further submissions of the type to which I have referred above. Furthermore, it made an assessment adverse to the applicant on the basis of evidence obtained after the hearing before it, again without giving the applicant an opportunity to comment upon that evidence and to put evidence and submissions in response. 41 In my view, the breach of procedural fairness in this matter has been such as to amount to jurisdictional error to the extent that its decision cannot be said to have been made under the Act. Accordingly it was not a privative clause decision within the meaning of s 474. The relevant principles to be applied are explained by the High Court of Australia in cases such as Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 and Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6. 42 In those circumstances, it is not necessary to consider the other grounds of the application. Conclusion 43 For the foregoing reasons the application will be allowed. The Tribunal's decision will be quashed and the matter will be remitted to it for further consideration in accordance with the law. The respondent should pay the applicant's costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. Associate: Dated: 5 September 2003 Counsel for the Applicant: Mr R E Lindsay Solicitor for the Applicant: Messrs Wojtowicz Kelly Counsel for the Respondent: Mr J D Allanson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 May 2003 Date of Judgment: 5 September 2003