Aung, Ex parte - Re Refugee ReviewTribunal & Anor S127/2001 [2001] HCATrans 454 (25 September 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S127 of 2001

In the matter of -

An application for Writs of Certiorari and Mandamus against the REFUGEE REVIEW TRIBUNAL

First Respondent

PHILIP RUDDOCK, in his capacity as Minister for Immigration and Multicultural Affairs

Second Respondent

Ex parte -

NYI NYI AUNG

Applicant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 25 SEPTEMBER 2001, AT 10.28 AM

Copyright in the High Court of Australia

MR B.M. ZIPSER: I appear for the applicant/prosecutor. (instructed by Ong & Co)

MR N.J. WILLIAMS: I appear with MS M.N. ALLARS for the respondent, your Honour. (instructed by the Australian Government Solicitor)

HER HONOUR: I have a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the first respondent that that respondent does not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.

Yes, Mr Zipser. I have read the papers. I think it is your task to establish a prima facie case that there is jurisdictional error in this matter. Prima facie, it does not seem so to me.

MR ZIPSER: Yes, your Honour. First, attached to the submissions for the prosecutor/applicant there is an amended draft order nisi.

HER HONOUR: Yes.

MR ZIPSER: The applicant/prosecutor relies on that document in these proceedings.

HER HONOUR: Well, moves on that, I suppose, yes.

MR ZIPSER: In relation to the first ground that is put in the draft order nisi and the submissions, the applicant made a claim at page 12 of the decision of the Refugee Review Tribunal that the authorities did not know that he was involved in an incident in which he claimed to be involved in December 1996 until after he had left the country.

The applicant's case is that there can be a distinction between noting a matter or noting evidence and taking it into account in findings. In this case the Tribunal could have dealt with the matter by finding that it did not believe the applicant's claim that he was involved in the December 1996 incident or, alternatively, it could have dealt with the matter by finding that it is unlikely that the authorities would not have started looking for the applicant until June 1997. However, the Tribunal did not deal with that piece of evidence in either way in its decision. It appears to have ignored it in the passage which is pointed to in my written submissions, and that is the basis for the claim.

HER HONOUR: Yes. Now, what is this jurisdictional error though that you say occurred? What makes that a jurisdictional error?

MR ZIPSER: The Tribunal, in order to exercise its jurisdiction, is to take into account all the relevant materials in reaching its decision as to whether it is satisfied that a protection visa should or should not be granted. In this case, there was material which was recorded at page 12 of the decision of the Refugee Review Tribunal and that material should have been but was not taken into account by the Tribunal in making - in one aspect of its decision, an important aspect of its decision, at the top of page 22 of the Tribunal's decision.

The Tribunal is required as an aspect of its jurisdiction to decide whether it is satisfied that the applicant for a visa has, among other things, a fear of persecution which is well-founded, and the Tribunal - - -

HER HONOUR: And considered that question and found against your client.

MR ZIPSER: Yes, it did. However, in the course of finding against my client, a jurisdictional error may arise if, in the course of making that finding, the Tribunal ignores material - - -

HER HONOUR: Have you authority for that proposition?

MR ZIPSER: The authority which I rely on is The Minister v Yusuf which is referred to in my written submissions. My submission is that the relevant passage which I note in my written submissions is consistent with the proposition that if a tribunal makes a finding that it is satisfied of a certain matter but in the course of making that finding it ignores material which it is required to take into account, then that gives rise to a jurisdictional error.

HER HONOUR: It says, "in such a way as affects the exercise of its power", the passage you refer to.

MR ZIPSER: Yes, your Honour. It may be the case that the Tribunal has made a finding which disposes of the matter in another way and the case of Yusuf itself is a good example where, although the Tribunal may have erred in not taking into account the applicant's claim as to a certain matter which the applicant claimed had occurred, the Tribunal was able to dispose of the matter on the basis of another finding and the High Court could see no error on that second finding and, hence, any error that was claimed in Yusuf would not affect the decision of the Tribunal.

The present case is different in the following way. The Tribunal makes its ultimate finding in two places. First at page 20 of its decision at about point 5 where it says:

I am not satisfied, for the reasons given below, that the applicant's past activities would -

I think the next word should be deleted -

give rise to an adverse political profile such that he would have a well-founded fear of persecution -

and the Tribunal repeats that general finding at the conclusion.

HER HONOUR: Well, the Tribunal goes on and explains it though:

I do not accept the applicant's claim that he was a high profile leader and that he was jailed -

it does not accept that.

MR ZIPSER: However, if - - -

HER HONOUR: Or that he was arrested when he left school.

MR ZIPSER: The way in which the Tribunal deals with the matter is that it each paragraph or in most paragraphs it notes certain claims of the applicant and it rejects those claims and it gives reasons for rejecting those claims. However, the applicant's proposition is that if the Tribunal, in the course of arriving at its ultimate finding, ignores relevant material which it is required to take into account and that would affect the exercise of its power or affect the decision, then that constitutes jurisdictional error.

In this case, a critical claim of the applicant was that he was involved in a certain event in December 1996. He was assisting and participating in a demonstration, he claims. The Tribunal did not reject that claim. Instead, it dealt with the matter in a paragraph at the top of page 22 where it said that it did "not accept the applicant's claim he went into hiding after December 1996", and therefore, on that basis, did "not accept his claim that he might be arrested" on his return.

The Tribunal then sets out three reasons for making that finding. However, my submission is that the applicant's evidence or the material put before the Tribunal at page 12 that even though he was in hiding, the authorities did not know that he was involved in or assisting with the demonstration in 1996, that evidence or material is relevant to the way in which the Tribunal dealt with the applicant's claim at page 22, and a reading of the relevant paragraph indicates that the Tribunal has not taken that material into account when it should have. Those are the applicant's submissions on the first ground.

HER HONOUR: Yes, thank you.

MR ZIPSER: The second ground deals with the same paragraph. At page 22, in the first full paragraph, at the eighth line, one of the reasons or one of the findings that the Tribunal makes in the course of arriving at its ultimate finding that any fear that the applicant had on his return was not well-founded is set out where the Tribunal says that being in hiding from December 1996, until his departure, is also not consistent with certain matters. My submission is that there is no evidence to support that finding.

HER HONOUR: Well, is it a finding? It is a conclusion, is it not?

MR ZIPSER: The Tribunal makes what, in my submission, is a finding. It could also be called a conclusion that a claim by the applicant is not consistent with objective evidence and it uses that finding as a basis for its ultimate conclusion that any fear that the applicant might have on his return to Burma is not well-founded.

There is a passage in The Minister v Eshetu in the judgment of Justice Gummow at page 657 where his Honour suggests that review should be permitted of decisions of decision-makers under this legislative scheme:

where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.

HER HONOUR: His Honour was talking there in the context of review proceedings in the Federal Court, I take it.

MR ZIPSER: My submission is that that proposition is also relevant to the issue of jurisdictional error. That an aspect of the Tribunal's jurisdiction in order to give it power is that its decisions or its satisfaction must be arrived at reasonably and if its satisfaction as to the existence of facts which give it power was not arrived at reasonably, then that gives rise to jurisdictional error. In my submission, in relation to the finding at page 22, the finding is not supported by probative material.

The applicant claimed that he was in hiding, however, there was no evidence before the Tribunal and also there was no claim by the applicant that the authorities were looking for him at the time. He merely claimed that he was hiding. In light of his claim and in light of the absence of any evidence or claims by the applicant that the authorities were looking for him, there is no probative material to support the finding that was made of inconsistency upon which the Tribunal then based its ultimate decision to reject the applicant's claim. Those are the applicant's grounds.

HER HONOUR: Yes. Thank you, Mr Zipser. Mr Williams, I take it the application is opposed.

MR WILLIAMS: Yes, your Honour.

HER HONOUR: What do you say about the submission as to jurisdictional error?

MR WILLIAMS: We say there is no basis on which either of the suggested errors could be classified with any recognised ground of jurisdictional error. The application fails on a factual basis. First, there is no evidence to suggest that the Tribunal did ignore the claim and, secondly, the claim is not one which is of a nature that the Tribunal was bound to take into account in a Peko-Wallsend sense. As to the first, the Tribunal did set the claim out at page 12 of the reasons and there is no basis for inferring from the fact that it only set it out once that it did not take it into account in reaching its conclusions.

Secondly, the claim is one which of its nature the Tribunal was not obliged to take into account. Your Honour will recall from having been taken to page 12 that the claim is one which was made in response to the Tribunal pointing out an obvious inconsistency in the applicant's story. When the Tribunal then came to deal with his claim that he was in hiding after December 1996, it concluded on three independent bases that it was not satisfied that he was in hiding. First, that the surveillance capacity of the authorities was such that they could find anyone they wanted, a matter which, one presumes, was generally known in Burma. Secondly, that the applicant went to the Australian Embassy twice during the period although he did not have to. The Tribunal was entitled to conclude from those two facts alone that the applicant was not, in fact, in hiding as claimed. But the Tribunal then went on to say, being in hiding from December 1996 until his departure in May 1997, is also not consistent with the fact that he was issued with a passport.

The observation in question is not a finding of fact, as your Honour points out, but merely a peripheral observation, not a link in a chain nor even a central strand in a rope of reasoning. It therefore has no possible connection to any recognised ground of jurisdictional error in the sense that it is an error, if it be one, that leads nowhere. It has no central function in the Tribunal's reasoning process and it bears no connection to any recognised ground of error. The applicant's case must be that any factual observation which is erroneously made, whether critical to the reasoning or not, goes to the jurisdiction of the Tribunal and that has no support in the authorities to which he refers. Those are our submissions.

HER HONOUR: Thank you, Mr Williams.

MR ZIPSER: Nothing in reply.

HER HONOUR: In this matter, I am not satisfied that there is an arguable case of jurisdictional error on the part of the Tribunal. Accordingly, I dismiss the application for an order nisi.

I would not be minded to make an order as to costs.

MR WILLIAMS: My instructions are to seek them, your Honour, but I have no submissions.

HER HONOUR: Yes, but, I mean, in the normal course these things could be dealt with ex parte and it is really a matter for the Department. The Department is notified, really, as a matter of courtesy. I think, in the circumstances, I will dismiss the application but there will be no order as to costs.

AT 10.50 AM THE MATTER WAS CONCLUDED