WAKK v MIMIA & Anor [2006] HCATrans 260 (19 May 2006)

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WAKK v MIMIA & Anor [2006] HCATrans 260 (19 May 2006)

Last Updated: 30 May 2006

[2006] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P59 of 2005

B e t w e e n -

WAKK

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 MAY 2006, AT 2.32 PM

Copyright in the High Court of Australia

MR R.E. LINDSAY: May it please the Court, I appear for the applicant. (instructed by Wojtowicz Kelly)

MR J. ALLANSON: May it please the Court, I appear for the first respondent. (instructed by Australian Government Solicitor)

HAYNE J: The second respondent has, I think, submitted. Yes, Mr Lindsay.

MR LINDSAY: Thank you, your Honour. Your Honour, the application in this case essentially arises out of a letter and its translation; a letter of demand which is at pages 39 to 40 of the applicant’s booklet of materials and the treatment which the Tribunal and the Full Court gave to that letter. The special leave points which the applicant submits - questions are this: where a Tribunal acts on an incorrect basis of fact and the decision is conditional upon ministerial satisfaction as to the state of those facts, in whole or in part, can this amount to jurisdictional error? Two other questions arise, too. Was there an obligation upon the Tribunal to put to the applicant its reasons for not placing weight upon the letter of 21 September 2000 and was there an obligation upon the Tribunal to consider the documentary evidence in assessing the credibility to be given to the applicant’s evidence, especially in the light of what was said in S20/2002.

Your Honours, the comments of the Tribunal in relation to the letter are in the application book, page 24, at lines 15 through to 35. Essentially three points are made by the Tribunal in regard to this letter, or notice as it is there described, of September 2000. First point made is that it was said that it seems odd that his mother’s will could overbear that of the security authorities in Burma. That was a misunderstanding of what in fact had been said by the applicant in his Tribunal hearing and that was accepted to be at the least a misdescription by both the primary judge and the Full Court, though they did not consider that it amounted to jurisdictional error.

The second comment made there was that the Tribunal notes that the applicant had not been called for interrogation or questioning by the authorities throughout his time in Burma. He had never been questioned. He had never been detained. In our submission, that is factually incorrect. At the book of materials there is a portion of a transcript from a delegate and at page 8, lines 6 to 24 there is a clear indication that he said that he was questioned on a number of occasions by the authorities in Burma. That, indeed, also was a misconception which the Full Court itself laboured under and if your Honours go to page 91 of the application book at paragraph 70 the Full Court of the Federal Court there states at line 30, your Honours see, until line 36:

The Tribunal considered the letter and the other evidence in the context of whether the appellant would suffer persecution on the ground of his political opinions if he was to return to Burma. The Tribunal considered the letter in light of the oral evidence given by the appellant and found an incongruity between the assertion in the letter that he was required to report to the police without fail and the oral evidence that he was never called in or questioned by the police whilst he was in Burma.

As I say, at booklet of materials at page 8 and page 3 it is evident that he said that he was questioned by the military intelligence in Burma in regard to those matters.

The third comment made by the Tribunal, your Honour will see going back again to page 24 of the application book, was that the Tribunal had doubts about this document but even if it is a genuine request for him to report to the authorities there is nothing to indicate that they wish him to report because of political activities. It could well be because he stayed outside of Burma far longer than he had intended when he left Burma that they wished to question him again. In our submission, that is quite inconsistent with the terms of the translation of the letter itself which talks about he “who has been required to sign in on a monthly basis”. In other words, it is indicating that whilst he was in Burma he was required to sign in.

Also, there is a reference there in accordance with the Emergency Provision Ordinance country information, Article 5. There was no evidence before the Tribunal in relation to Article 5 though there was an affidavit adduced on appeal from the applicant before the primary judge which annexed various country information which indicated that Article 5 is a provision concerned with penalisation of political dissident conduct. The view of the primary judge and the Full Court that there was not an obligation upon the Tribunal to inquire about that, but at the very least the applicant submits in regard to that that certainly the surmise which the Tribunal gives, that it could well be explained that there is nothing that would indicate that they wished him to report because of political activities could well be because he stayed out of Burma for too long, is not something which was consistent with the terms of the letter itself.

Your Honours, in our submission, this is a matter which is of great significance so far as the applicant’s case is concerned because if it is accepted that the letter is genuine and that it does relate to political activity then, in our submission, that letter was a very telling factor and the Tribunal might well have concluded, had it so concluded in relation to the letter, that the other things which the applicant said, namely that he was under continuing surveillance, that he had engaged in political activities, that he had been involved with a dissident KDA army and that when he came to Australia his accepted involvement in.....pro-democracy activities were genuine and not for the purpose of strengthening his refugee claim.

So our submission in regard to that is that those matters were important and might well have influenced the ultimate conclusion had there not been those factual errors. So far as the status of those factual errors are concerned it is our submission that they may properly amount to jurisdictional error. There was in the Federal Full Court case of WACO which again is in the booklet of materials. At page 348 of that booklet there is reference to a passage of Lord Wilberforce in a case of Tameside and his Honour says there:

‘If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must enquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirement are not met, then the exercise of judgment, however bona fide it may be, it becomes capable of challenge ...’

That.....Eshutu’s was not the formulation adopted by his Honour Justice Gummow but, in our submission, it is an open question and it is an important point of law to resolve in these kinds of circumstances if this properly amounts to jurisdictional error and, in my submission, on the Lord Wilberforce test it would. The other aspect - - -

CRENNAN J: Is not the complaint really about, or suggesting that the letter as corroborative evidence was not given sufficient weight, which would not normally lead to any jurisdictional error?

MR LINDSAY: Certainly, it is also the submission that the Tribunal erred in really treating the letter quite separately and distinctly from the evidence of the applicant himself. If your Honours go back to pages 21 and 22 of the application book, there the Tribunal comments on some of the evidence of the applicant and then concludes at the top of page 22:

For these reasons the Tribunal does not accept that the applicant was under surveillance or required to report after he returned to Mandalay.

Then it would appear to deal with the letters your Honours see subsequently at page 24 but not establishing a linkage between the two. What the Full Court said about that is, well, this is a situation somewhat similar to S20/2002 where the Tribunal has found in relation to credibility issues against the applicant and the well is so polluted, effectively, that there is no redemption and therefore no exceptions can be placed upon the corroborative evidence of the letter.

Our submission to that is S20/2002 is quite different. There the Tribunal had said in very categorical terms that not only had the applicant lied but he had misled the Tribunal and in those sorts of circumstances it was open, though some members of this Court did not necessarily construe the comments of the Tribunal as not having treated the other corroborative evidence as that, but at any rate it was different in that the evidence of the applicant in that case was totally discredited whereas, in this case, there are aspects of the applicant’s evidence which are not accepted but there are many aspects which are. For example, it is accepted that he did have a degree of involvement with the KDA, that his elder brother was tortured and after three months when he came out he had lost his mind, effectively, and, subsequently, that the applicant may have had some minor involvement in distributing leaflets and so forth.

There was some acceptance of some aspects of the applicant’s evidence and it was put up by the Full Court, well, the letter need not necessarily be accepted because there were these credibility findings – adverse credibility findings – but when one actually analyses those findings, for example, the first one in relation to the conclusion reached that he was not required to report to the station - at page 20 of the application book, line 30. It is said there:

The Tribunal also does not accept that his family was under surveillance because of his sister’s involvement in a demonstration in 1997. This reason was only put forward after the Tribunal indicated it did not accept the family would be under surveillance from 1988 until 1999 for his brother’s activities.

Again, when one looks at the transcript which is in the booklet of materials at page 25, lines 10 to 25 that is incorrect. He did actually volunteer that he thought, and he was being asked to explain the motivation as to why he had to report but he did actually say there, “My brother is one reason but the other is my sister because my sister was involved in demonstrations”. So, there was that. Then one goes to the next credibility adverse finding which is on the same page, on page 20, where it says:

The applicant’s initial claims were that in 1994 he was forced to flee to the border area. However, when asked to explain this further at the hearing, he stated he went to the border area because of the financial difficulties his family was facing . . . and that his reason for going to the border was to earn money. It was not to escape any ill treatment –

But, in fact, his evidence was, well, look, yes, he went to the border for trading purposes and because of financial difficulties but those financial difficulties arose out of the fact that his brother, who had been the sole breadwinner for the family, could no longer be the sole breadwinner for the family because he had been tortured by the military. So the ill-treatment was part of his explanation there.

When one goes to the next page, for example, and you say you cannot accept that he was a bodyguard, he might have had some involvement with this person in the KDA, well, they then go on and say:

The applicant . . . had no military training –

and has concerns because he claimed to be close to this particular person. In fact, he explained that he certainly had known this person a short time but he also explained at page 19 that because this other person was Burmese and the other people Kachin, he was intimate with them.

Then, in regard to the difference related in regard to the KDA that there was a difference there in what he ascribed the motivation as to why he might have had to report, which should be difficult for anyone to answer in any event, that his view of the KDA’s closeness to government had changed. What is not said there and what is again in the booklet of material at page 25, lines 1 to 4 is that in fact the KDA – he had learned from his sister on a telephone call after he had spoken to the delegate that in fact the KDA was now very close to government and this is what made him surmise that perhaps all along it had not been so much his association with the KDA which made them want to keep an eye on him, but more the fact that he had left the KDA.

Essentially, those were the credibility issues which were found against the applicant and upon which it was then said, well, in the light of those it is clear enough not to place any credence upon the letter either if one treats the letter as standing on its own or as corroborative of other material. The other aspect to it is, so far as what was put to the applicant about the letter, no more was put to him than it seems odd that his name should appear – it appears my time is up, your Honour.

HAYNE J: No, you have a minute or two left. That is the yellow light, not the red light. Yes.

MR LINDSAY: Thank you, your Honour. I can make the points very briefly, but in regard to that, all the Tribunal really put to him was it seems
odd that your English name should appear on the.....because Burmese do not approve of English names and the answer he gave was then misunderstood by the Tribunal. That is the extent of the evidence in relation to that matter. Those are my submissions.

HAYNE J: Thank you very much, Mr Lindsay. We need not trouble you, Mr Allanson.

An appeal, in our opinion, would enjoy insufficient prospects of success to warrant a grant of special leave in this matter. Accordingly, special leave to appeal is refused. It must be refused with costs.

AT 2.50 PM THE MATTER WAS CONCLUDED