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Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946

Publisher Australia: Federal Court
Publication Date 9 July 1999
Citation / Document Symbol FCA 946
Cite as Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946 , FCA 946 , Australia: Federal Court, 9 July 1999, available at: http://www.refworld.org/docid/3ae6b6df0.html [accessed 19 December 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

MIGRATION - appeal from decision at first instance allowing application for review of decision of Refugee Review Tribunal ("the RRT") - where RRT refused application for protection visa - opportunity to appear and give evidence - grounds of review limited by the Migration Act 1958 (Cth) ("the Act") - procedural fairness excluded from consideration - substantial unfairness not a ground of review under the Act - error of law - whether sufficient material before RRT to draw inference of fact which it did

WORDS and PHRASES - "opportunity to appear and give evidence", "procedural fairness", "substantial unfairness"

1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol

Article 1A(2)

Migration Act 1958 (Cth) ss 57, 415, 420(1), 423, 424(1), 425(1), 426 and 476

Federal Proceedings (Costs) Act 1981 (Cth) s 6

Migration Legislation Amendment Act (No 1) 1998 (Cth), Sch 3

Mobil Oil Australia Pty Limited v Commissioner of Taxation (1963) 113 CLR 475, cited

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, followed

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324, followed

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, cited

Budiyal v Minister for Immigration and Multicultural Affairs [1998] FCA 243, distinguished

Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612, distinguished

Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 288, cited

Abebe v Commonwealth of Australia (1999) 162 ALR 1, cited

Reeve v Fowler [1965] NSWR 110, cited

Australian Tax Commission v Underwood Exports (1997) 49 ALD 426, cited

Main v Main (1949) 78 CLR 693, cited

Pasini v Boland [1999] FCA 188, followed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543, cited

Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193, cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v

THIN THIN CHO

N 62 of 1999

TAMBERLIN, SACKVILLE AND KATZ JJ

9 JULY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 62 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant

AND:

THIN THIN CHO Respondent

JUDGES: TAMBERLIN, SACKVILLE AND KATZ JJ

DATE OF ORDERS: 9 JULY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1.  The appeal is allowed with costs.

2.  The orders of Madgwick J are set aside.

3.  The application for review of the RRT decision is dismissed with costs.

4.  The respondent is granted a costs certificate stating that, in the opinion of the Court, it is appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981, (Cth) in respect of the costs referred to in s 6(3)(a) and (b) of that Act.

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 62 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant

AND:

THIN THIN CHO Respondent

JUDGES: TAMBERLIN, SACKVILLE AND KATZ JJ

DATE: 9 JULY 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

TAMBERLIN and KATZ JJ:

1. This is an appeal from the decision of Madgwick J at first instance granting an application for review of a decision of the Refugee Review Tribunal ("the RRT"), which refused the respondent's application for a protection visa. His Honour ordered that the matter be remitted to the RRT for determination in accordance with law.

2. The respondent, Ms Cho, is a Burmese national of Chinese ethnicity now aged 31 years. She claims to be a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (which are together referred to as "the Convention").

3. Article 1A(2) of the Convention defines a refugee as any person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ..."

4. Ms Cho arrived in Australia on 8 January 1996 and on 7 June 1996 she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 18 March 1997, a delegate of the Minister refused to grant a protection visa, and on 1 April 1997 Ms Cho sought review of that decision in the RRT pursuant to the Migration Act 1958 (Cth) ("the Act").

5. The application was heard by a member of the RRT on 10 December 1997 and a decision was made on 14 April 1998 affirming the decision not to grant a protection visa.

6. Ms Cho then made an application for review to the Federal Court and the matter was heard by Madgwick J on 22 August 1998. On 22 December 1998 his Honour made orders remitting the matter to the RRT for determination according to law.

Background

7. Ms Cho was born in Rangoon. She had five siblings. With the exception of one sibling, her family live in Burma. Despite difficulties and disadvantages arising from her Chinese ethnicity she was able to pursue her education and in 1986 completed her studies to what is known as the "tenth standard". In early 1988, while she was in second year of college, student demonstrations began. On 16 March 1988, she says that a group of students decided to march to the Rangoon Institute of Technology and she was part of the group. The group shouted slogans against the Government. Ms Cho says that the road was blocked with police forces and barbed wire, and whilst she was trying to escape a policeman caught up with her and began to beat her. She fainted and was then taken away for interrogation. The police wanted to know who had organised the demonstration, who was the leader and why she was demonstrating against the government. She says that she was severely beaten and tortured on a daily basis. She was in prison for about one month and then returned to her family.

8. In July, she took part in more demonstrations and disturbances and was arrested again on 9 August 1988. She was hit by one of the soldiers on that occasion and dragged to a prison van. She was interrogated and then placed in a cell for about ten days. She was then hospitalised as a result of the ill treatment for two months. She says that on return to her house the military authorities came to visit. They searched the house and took away papers relating to her hospital discharge. The military authorities told her parents they would have to look after her and ensure that she did not partake in further activities, and that if they failed to control her involvement, action would be taken against them. They had to sign an undertaking and she had to report to a police station once a month. Her parents organised health treatment and after two months she was able to speak a little. Her health slowly improved.

9. Between 1988 and 1991 the schools were closed and Ms Cho continued to take treatment at the hospital. She remained at home but says she knew there were intelligence people posted outside the house to watch her movements. In 1991 the universities were reopened and only after submitting to authorities that she would not partake in any activities in the future was she allowed to participate in classes again. This requirement was imposed because the authorities apparently knew of her earlier arrest. Ms Cho says that on occasions she tried to organise students to wear black clothes to commemorate the death of a leader known as the "Phone Maw". She was warned by some of the teachers against participation in such activities. She was able to finish her degree in August 1993, but says that she was told by relatives that she should leave the country as there was no future for her in Burma and she would not be able to find employment because of her political record. She said that she constantly feared arrest by the authorities. Eventually she was able to bribe an official to obtain a national registration card and was sponsored to come to Australia. She applied for a visa, saying she was going to visit a cousin in Australia.

10. Ms Cho says that since her arrival she has joined a political group and has been involved in political activities and demonstrations. She says that the Burmese authorities found out about her activities in Australia and came to the house of her parents once after she had left because she failed to report. She says that her father was taken away and interrogated and that he was forced to sign an undertaking that he would inform the authorities if she returned to Burma. She says this information was received through her cousin. She has had no direct contact with her family since she left Burma.

Relevant legislation

11. The relevant provisions of the Act are as follows:

"420(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical , informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

...

423(1) An applicant for review by the Tribunal may give the Registrar:

(a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

(b) written arguments relating to the issues arising in relation to the decision under review

(2) The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review.

424(1) If, after considering the material contained in the documents given to the Registrar under sections 417 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make the decision or recommendation without taking oral evidence.

...

425(1) Where section 424 does not apply, the Tribunal:

(a) must give the applicant an opportunity to appear before it to give evidence; and

(b) may obtain such other evidence as it considers necessary.

(2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.

...

Application for review

476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

(2) The following grounds are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power."

Tribunal hearing and decision

12. At the commencement of the RRT hearing, the decision-maker made some preliminary remarks which included the following:

"The Refugee Review Tribunal is an independent body that has been set up to review determinations by the Department of Immigration and Multicultural Affairs in relation to Protection Visas. It is inquisitorial in nature, and what that means is that, not only do I look at information you're providing, and your adviser has supplied, I may also have information from independent sources.

If I have anything which is adverse to anything which you say, or which causes me some concern I will tell you about it and give you an opportunity to be heard. The hearing will start shortly and what will happen is, I will ask questions and you will be able to respond and give me the answers. And at the end of the hearing both yourself and your adviser will be given an opportunity to make any comment or further submissions you might wish to." (Emphasis added)

An interpreter and an adviser, Ms O'Neil, were present at the RRT hearing.

13. There was then a brief exchange of questions and answers which takes up about four pages of the review papers. At the conclusion of this process the decision-maker invited Ms Cho to say anything else which she would like to say in conclusion or summary. In response Ms Cho said that she had no trust in the present Burmese government and believed that if she went back they would arrest her.

14. Ms O'Neil was also asked if she had any further comments. Ms O'Neil responded by referring to the status in Burma of ethnic Chinese, namely that they do not have all the rights of a Burmese national with their "guest" citizenship. The decision-maker then said that he accepted what was shown on the video relating to a demonstration in Canberra. The adviser stated that the video, which had been tendered, was shown on the television news and this would bring Ms Cho into "some further profile". The decision-maker then reserved his decision.

RRT decision

15. The RRT decision of 14 April 1998 referred to the legislation and some case law by way of introduction. There was then reference to written submissions to the Department and to the RRT and to oral evidence given to the RRT on 10 December 1997. The RRT then set out some county information and referred to the contents of that information by way of summary. In addition to these reports, the decision-maker stated that other reports had been considered and summarised their effect. The RRT set out Ms Cho's claim in some detail and referred to the Canberra video showing a pro-democracy demonstration.

16. When setting out findings and reasons in relation to credibility, the decision-maker accepted that Ms Cho had given evidence in a manner consistent with prior claims and evidence, and noted that she was visibly upset during the hearing when recalling her claims of being detained and tortured. The RRT considered, however, that Ms Cho exaggerated her history and that she had not been truthful in the hope of advancing her claims.

17. The decision-maker rejected as implausible Ms Cho's claims of being an activist in Burma during 1988, with a subsequent high adverse profile in the eyes of the authorities. In so doing, the decision-maker relied on the general country information available for the period 1992 through 1994. The decision-maker found that the evidence indicated that Ms Cho was unlikely to have been an activist with a high profile. He noted that she did not claim to have been a leader, though she did claim that she had spoken at rallies; he concluded that she was a "mere" participant. He said that even if she was involved in the 1988 riots she was of no further adverse concern to the authorities after that date. The decision-maker also rejected the claims of torture and detention. In reaching this conclusion he relied on Ms Cho's subsequent history including her education, and her ability to work and to leave the country. This was not considered to be consistent with the position of a person who had been tortured and interrogated and who continued to have a high profile.

18. The RRT expressed concern about documents submitted by Ms Cho to the Australian Embassy in Rangoon. Ms Cho claimed that all the documents were false and that they had been "doctored" by a cousin. The documents indicated that Ms Cho was married and that she had a drapery business and paid large amounts of money in tax. The detail was considered to be very elaborate. The decision-maker did not accept Ms Cho's claim that the documents were false and found that in important respects the documents submitted to the Embassy were true. The RRT found that the applicant was in fact married and had business interests in Burma.

19. Reliance was placed on the ability of the applicant to obtain a passport to leave Burma in forming an adverse view of her claims because the RRT considered it unlikely that a person with a security risk profile would be able to obtain a passport.

20. The ethnic background of Ms Cho was then considered by the decision-maker. The claim was that, being of Chinese ethnicity, she had been subjected to disadvantageous treatment and discrimination. The decision-maker noted, however, that Ms Cho had been able to complete her education, attend university and secure a degree. The RRT did not accept that she was a foreign registration card holder, and found that the information indicated that she had been able to change her status most probably to that of an associate citizen. The RRT considered that the evidence indicated there may be a restrictive form of citizenship held by Ms Cho, but that this did not evidence persecution because she had been able to pursue normal activities in life. Accordingly, the RRT found that Ms Cho had not suffered serious harm amounting to persecution because of her Chinese background.

21. The attention of the decision-maker then focused on Ms Cho's claims relating to political activity in Australia. Whilst accepting her claims of involvement in Australia, the decision-maker saw this as consistent with her having a "low profile".

22. The RRT concluded that it was not satisfied the applicant was a refugee.

Judgment of Madgwick J

23. Madgwick J granted the application for review and remitted the matter to the RRT for consideration in accordance with law. Essentially there were two bases on which his Honour reached this conclusion. The first basis accepted by his Honour was that when considering a visa application the Minister was obliged by s 57 to disclose "relevant information" to visa applicants and invite comments. By reason of s 415 of the Act, (which empowers the RRT on a review application to exercise all the powers and discretions conferred by the Act on the person who made the decision) his Honour considered that the Act implicitly required, in certain situations, the RRT to provide relevant information to the applicant. This requirement was said to arise where there might otherwise be a serious risk of substantial unfairness or of a wrong decision being made. In the present case his Honour considered that there was such a risk. Accordingly, in his Honour's view, the implicit requirement was enlivened and there had been a failure by the RRT to comply. On appeal no reliance was placed by the respondent on this line of reasoning and it is therefore unnecessary for us to consider it.

24. The second basis for his Honour's decision was that there had been an error in the application of the law to the facts found within the meaning of s 476(1)(e) of the Act. This was because the adverse finding, rejecting Ms Cho's claims of torture and imprisonment, was based on an impermissible inference from the evidence. His Honour considered it could not follow that because Ms Cho did not continue to be of interest to the Burmese authorities after the 1988 demonstrations, and was able to continue with her normal life whilst a high profile activist, the claims of torture and imprisonment were not "plausible".

25. The principal submissions on the appeal concerned the effect of s 425 of the Act.

Section 425 - opportunity to appear and give evidence

26. The relevant ground of appeal is in these terms:

"His Honour erred in holding that the procedures required under the Migration Act 1958 include a requirement that applicants whose claims are disbelieved be informed that their claims are seriously doubted, and why."

27. This ground raises an issue as to the meaning and extent of the obligation in s 425(1) of the Act to give an applicant an opportunity to appear before it to give evidence.

28. A useful approach as to the content of the obligation to afford an opportunity to be heard can be found in the remarks of Kitto J in Mobil Oil Australia Pty Limited v Commissioner of Taxation (1963) 113 CLR 475, speaking of the requirements of natural justice, at 503-504:

" ... the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity [to be heard] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject matter ..." (Emphasis added)

29. In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation. The present case is not one where a question as to the extent of the requirements of the audi alteram partem rule is in issue. Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an "opportunity to give evidence". The exercise for the Court in this matter is to give content to the language of s 425 in its statutory context.

30. It is necessary in so doing, of course, for the RRT to bear in mind that s 420 of the Act requires it to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. As the cases point out, these considerations are to some extent in tension but nevertheless they must be considered by the RRT when it is performing its functions. Sub-section 420(2) frees the RRT from technicalities, legal forms or the rules of evidence, as is appropriate in the case of an administrative tribunal, and it directs the RRT to proceed according to substantial justice and the merits of the case.

31. On behalf of Ms Cho it is submitted that the effect of s 425 is to require the RRT to afford a "genuine" opportunity to appear before the RRT to give evidence. Such an opportunity it is said calls for a questioning by the decision-maker and the disclosure of material and views which the decision-maker may consider to be adverse to the applicant. The authority cited in support of the requirement for a "genuine" opportunity is the High Court decision in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21. In that case the Court decided that s 476(2) of the Act made clear the intention of the legislature to exclude, as a ground of review by the Federal Court, a breach of the rules of natural justice, and that, when read in context, s 420 does not provide a foundation on which to overcome the effect of that exclusion. The Court also decided that the provisions of s 420 describe objectives to be pursued and do not establish a procedure under the Act of the kind referred to in s 476(1)(a) of the Act.

32. In Eshetu, four Judges of the Court, Gleeson CJ and McHugh J (at par 49), Gummow J (at par 109) and Callinan J (at par 178), refer with approval to the observations of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324; rev (1997) 81 FCR 71, where he said at 59-60:

"There is another argument based on [s] 476(2)(a) that leads to the same result. The general law notion of natural justice comprises the `impartial tribunal' requirement (the `bias rule') and the `fair hearing requirement' (the `hearing rule').... While [s] 476(2)(a) makes clear that these requirements do not provide the basis of a ground of review, [s] 476(1)(f) provides that actual bias is such a ground, while [s] 476(1)(a) and [s] 425(1)(a), taken together, have the effect that a failure to give genuine opportunity to appear before the [Tribunal] to give evidence, is also such a ground. This suggest that the legislature turned its mind to the twin requirements of natural justice and intended that [s] 476(1)(f) and [s] 425(1)(a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that the expression in [s] 426(2)(a), `the rules of natural justice', is to be read down in some way so that it refers to those rules only in so far as they depend

on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules." (Emphasis added)

33. We do not consider that there is any special significance in the reference to the word "genuine" which would expand the content of s 425 beyond the ordinary and natural meaning of the language used. According to its terms the section simply requires that an opportunity be given to the applicant to appear and give evidence. Obviously if there is no real opportunity given then the section has not been complied with. This could arise, for example, where relevant evidence is not admitted or misleading statements are made by the decision-maker which discourage an applicant from calling or proceeding with a particular line of evidence. It should also be noted that the above quoted observations of Lindgren J support the proposition that a failure to comply with s 425(1)(a) may amount to a failure to observe a "procedure" within the meaning of s 476(1)(a) of the Act, although the objectives expressed in s 420 do not.

34. The meaning and operation of the opportunity provided for in s 425(1)(a) has been considered in a number of recent decisions.

35. In Budiyal v Minister for Immigration and Multicultural Affairs [1998] FCA 243, Tamberlin J held that where insufficient and misleading notice of an RRT hearing had been given an applicant was deprived of the opportunity to appear and give evidence to which he was entitled by s 42 5(1)(a). Accordingly, because the RRT review had been dealt with solely on the papers in the absence of the applicant and without any hearing, his Honour held that there had been a failure to follow a procedure required by the Act.

36. Budiyal was followed by Moore J (with whom Burchett J agreed) in Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612 at 624, 628. In that matter, the notice to the applicant failed to inform her that she was required to give written notice as to witnesses within a seven day period. The letter in question wrongly identified fourteen days as the time in which such notice had to be given by the applicant. The Court also held that there had a been a failure to comply with s 425(1)(a) because the applicant was only informed of the hearing on the evening before the hearing date. In addition, the Court found that there had been a failure to comply with s 426(1)(b) of the Act which imposed procedural requirements as to notice. Accordingly, the Court held that the RRT had not complied with the procedures prescribed by the Act.

37. Recent authorities in relation to the right to be heard indicate that the content and extent of the statutory opportunity to give an applicant an opportunity to appear and give evidence is narrower than the general law principles of natural justice would normally require. In Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 288, par 38, the Full Court said:

"It is not the function of the Tribunal to `lead' a visa applicant to assert a Convention-related fear of persecution when, without that direction, the visa applicant has been given the opportunity to explain the reasons for the fear of persecution without being led to a particular answer."

38. In that case, the Court noted that the RRT had sought to elicit further information to identify the causes of the persecutory conduct, directed the appellant's attention to the ultimate issues to be addressed and had given the appellant an opportunity to respond to those issues.

39. In their joint reasons for judgment in Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 51, Gummow and Hayne JJ, in considering the extent of the obligation of an RRT decision-maker hearing an application for review under the Act to afford an opportunity to give evidence, said:

"[187] The want of procedural fairness was said to lie in the tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the tribunal are adversarial rather than inquisitorial or that in some way the tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made would be wrong. The proceedings before the tribunal are inquisitorial and the tribunal is not the position of a contradictor. It is for the applicant to advance whatever evidence or arguments she wishes to advance in support of her contention that she had a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out." (Emphasis added)

40. In that case the RRT decision was attacked on grounds of a breach of procedural fairness. This claim was rejected. If the general requirements of procedural fairness did not require the decision-maker to raise the above matters with the applicant then it might be said that a fortiori neither do the more limited requirements presented by s 425.

41. In the present case, counsel for Ms Cho emphasises the statement by the RRT that if it had anything which was adverse to anything which Ms Cho said or which caused it some concern it would tell her about it and would give her an opportunity to be heard. It is pointed out that the hearing was a brief one and that the RRT generally did not raise matters with Ms Cho. It was not suggested to Ms Cho that her documentation was false or that her account of political activities in Burma in 1988 was not accepted. Nor was any challenge made to the respondent's evidence concerning detention, torture and consequent injury in 1988. Nevertheless, brief though it was, the decision-maker did in one instance question the reasons why the respondent became involved again in protests if in fact she had been arrested and tortured as claimed. Ms Cho's response was that she believed that the whole country was rising up against the government and it made her want to join in again. At the conclusion of the hearing both the adviser and Ms Cho were invited to say anything further they wished and they both took the opportunity, although their additional comments were brief.

42. Section 425 is set in a statutory context where, before a matter comes to the RRT, the applicant is on notice of the decision of the Department together with detailed written reasons for that decision. Ms Cho did not come to the RRT without knowledge that her evidence and submissions were disputed. The decision under review in this case concluded that Ms Cho's claims of detention and torture were not a true account of her experiences. Ms Cho was also on notice from the reasons that the delegate had found that she was not considered to be the subject of continuing adverse interest by authorities in Burma arising from her involvement in 1988. Further, there was a finding against her in those reasons that she was not of adverse security interest to the authorities at the time of her departure from Burma. The fact that Ms Cho was given an opportunity to appear before the RRT to give evidence indicates that the RRT was not prepared to make a decision "on the papers": see s 424 of the Act.

43. Finally, in the course of presenting her case to the Department and the RRT, Ms Cho had the benefit of carefully formulated written legal submissions and a detailed statutory declaration, and she was assisted in the course of the hearing by an adviser. She was not in any way prevented from presenting evidence and there is no indication in the transcript of any information specific to her situation being withheld. At the conclusion of the hearing, as has been pointed out, both she and her adviser were given a final opportunity to add anything further as they saw fit.

44. In our view, the requirements of s 425 were satisfied in this case. The evidence does not support a conclusion that the opportunity was not given to present evidence. Nor is there any indication that the decision-maker undertook the task in anything other than a bona fide way. Ms Cho was given an opportunity to appear. She took advantage of that opportunity and she gave evidence without constraint or discouragement. Section 425(1)(a) does not require that all evidence on which the RRT relies or considers must be presented to an applicant. The rights given are carefully delineated. There is no provision in the section for cross-examination by an applicant with respect to any evidence obtained by the RRT, and this aspect of what is accepted as procedural fairness is therefore excluded from consideration by s 476(2)(a). Again, the manner in which addresses are to be presented is regulated by s 425(2) which gives the RRT a discretion as to whether it will allow a person to address it orally about the issues arising in relation to the decision under review. There is no limitation on the extent of written submissions. In the present case, Ms Cho provided a statutory declaration for consideration by the RRT and presented written arguments relating to the issues: see s 423 of the Act. She was on notice these were not sufficient to warrant a decision in her favour.

45. Accordingly, we consider that the requirements of s 425 have been satisfied.

46. This conclusion does not necessarily mean that Ms Cho is precluded from any remedy in relation to the RRT determination. She may wish to contend that in view of the undertaking given at the outset of the hearing by the decision-maker, and of the way in which the brief hearing was conducted, a challenge is open on the basis that procedural fairness was not accorded. But that is a question with respect to which this Court has no jurisdiction, as the High Court pointed out in Eshetu: see Eshetu [1999] HCA 21 par 47.

Section 476(1)(e) - error of law

47. The second basis for Madgwick J's decision to allow Ms Cho's application for review, was that the RRT erred in drawing an inference from the evidence which was not reasonably open to it on the facts. His Honour found that this inference amounted to an error of law. The inference in question is said to be that Ms Cho's claim to have been detained and tortured in 1988 was implausible. It is submitted by counsel for Ms Cho that there was no evidence before the RRT to suggest that only "high profile" activists were detained and tortured at the time of the 1988 uprising.

48. It is apparent from the RRT reasons that it considered the evidence placed before it. The general country information provided some support for the view that Ms Cho was unlikely to have been an activist with a "high profile" and also that even if (contrary to the RRT finding) she was involved in the 1988 riots she was of no further adverse concern to the authorities. This country information refers to the problems faced by "high profile" activists. The RRT concluded that Ms Cho's evidence was not plausible as to torture and imprisonment. In reaching this conclusion the RRT took into account the subsequent history of Ms Cho after 1988 and found this inconsistent with suggestions of severe torture and interrogation which she claimed had occurred in 1988. There was significant evidence before the RRT which put the credibility of Ms Cho in question and on which the RRT was entitled to act. In particular, concern was expressed by it about the documents submitted to the Australian Embassy in Rangoon which Ms Cho claimed were false. Whilst the RRT did not accept that all the documents were in fact true, it found that the documents submitted to the Embassy in important respects were true, particularly as to her marital status and business interests in Burma. In addition, the RRT gave weight to the evidence that Ms Cho was able to obtain a passport to leave Burma and considered this fact in the light of country information which indicated that there could be some difficulty in obtaining a passport to leave Burma in the case of a person with a high adverse profile. Furthermore, the RRT gave no significant weight to Ms Cho's claim that she had an involvement in pro-democracy political activities in Canberra, and that as a result of such involvement the Burmese would have an adverse opinion of her.

49. Clearly a question as to whether an applicant maintained a sufficiently "high profile" in her activities after 1988 either in Burma or in Australia to attract adverse attention is one of fact and degree. In this case, in our view, there was sufficient material before the RRT to enable it to draw the inference that Ms Cho's importance in the eyes of the Burmese authorities was not of such a degree as to justify a conclusion that she had a "high profile" sufficient to attract official attention. Accordingly we find that it was open to the RRT to reach its conclusion.

Costs

50. The respondent has indicated that, if unsuccessful, she seeks a costs order pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) ("the Costs Act"). Although the section offers a wide discretion, it is not sufficient simply to establish that the appellant succeeded on a question of law: see Reeve v Fowler [1965] NSWR 110, Australian Tax Commission v Underwood Exports (1997) 49 ALD 426 at 428. It is necessary to show some ground for the Court to exercise its discretion: see Main v Main (1949) 78 CLR 693 at 643. In this case, the appeal raised questions of legal principle which travelled beyond the specific circumstances of the case. The law could not be said to be "settled" in relation to the questions considered. The Court has been given considerable assistance from Counsel in its consideration of these questions in the light of recent High Court authority. Accordingly, a costs certificate should be granted to the respondent, pursuant to s 6(1) and (3) of the Costs Act, stating that the Court is of the opinion that it is appropriate for the Attorney-General to authorise payment to the respondent in respect of the costs falling within s 6(3)(a) and (b) of the Costs Act.

Conclusion

51. The appropriate orders are that the appeal is allowed with costs. The orders of Madgwick J are set aside. The application for review of the Refugee Review Tribunal decision is dismissed with costs. The Court grants a costs certificate to the respondent stating that, in the opinion of the Court, it is appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs referred to in s 6(3)(a) and (b) of that Act.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin and Katz

Associate:

Dated: 9 July 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 62 OF 1999

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant

AND:

THIN THIN CHO Respondent

JUDGES: TAMBERLIN, SACKVILLE AND KATZ JJ

DATE: 9 JULY 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

SACKVILLE J:

52. Tamberlin and Katz JJ have set out the facts and explained the reasoning of the Refugee Review Tribunal ("RRT") and of the learned primary Judge. I agree with their Honours that the appeal must be allowed.

53. Mr Jordan, in his carefully reasoned submissions on behalf of the respondent, in effect conceded that his Honour's reliance on s 57 of the Migration Act 1958 (Cth) ("Migration Act 1998 ") could not be supported. The primary Judge held that, in certain circumstances at least, s 57(2) (which requires the Minister give "relevant information" to an applicant) applies to the RRT. As Merkel J observed in Pasini v Boland [1999] FCA 188, at [38], s 57 only applies to information which is to be given by the Minister, or his or her delegate, at the first decision-making stage under the Migration Act. It has no application to the RRT on its review of the application. Section 415 does not alter this position.

54. Nor did the respondent, subject to one exception, attempt to support other aspects of the primary Judge's reasons. The exception was the contention that his Honour had correctly applied the principle that a finding of fact, unsupported by any evidence, is capable of constituting an error of law, and is reviewable pursuant to s 476(1)(e) of the Migration Act: cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 356-357, per Mason CJ; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC), at 552-553. I agree with Tamberlin and Katz JJ that there was clearly some material that supported the critical findings of fact made by the RRT in the present case. With respect, his Honour fell into error in concluding otherwise.

55. Mr Jordan recognised that the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, prevented the respondent relying on any alleged breach of s 420 of the Migration Act as a ground of review under s 476(1)(a). To overcome this obstacle he relied on the endorsement in Eshetu of the following passage from the judgment of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324:

"There is another argument based on [s]476(2)(a) that leads to the same result. The general law notion of natural justice comprises the `impartial tribunal' requirement (the `bias rule') and the `fair hearing requirement' (the `hearing rule'). While [s] 476(2)(a) makes clear that these requirements do not provide the basis of a ground of review, [s] 476(1)(f) provides that actual bias is such a ground, while [s] 476(1)(a) and [s] 425(1)(a), taken together, have the effect that a failure to give a genuine opportunity to appear before the [Tribunal] to give evidence, is also such a ground. This suggests that the legislature turned its mind to the twin requirements of natural justice and intended that [s] 476(1)(f) and [s] 425(1)(a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that I do not agree that the expression in [s] 476(2)(a), `the rules of natural justice', is to be read down in some way so that it refers to those rules only in so far as they depend on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules."

See Eshetu, at [49], per Gleeson CJ and McHugh J (with whom Hayne J agreed); at [108]-[109], per Gummow J; at [176]-[179], per Callinan J.

56. Section 425(1)(a) of the Migration Act provides that, where s 424 (which allows for "review on the papers") does not apply, the RRT

"must give the applicant an opportunity to appear before it to give evidence."

Section 425 has been repealed and re-enacted in a different form by Schedule 3 to the Migration Legislation Amendment Act (No 1) (Cth), which took effect from 1 June 1999. However, the present appeal is governed by s 425 in its unamended form.

57. The first step in the respondent's submissions, based on the passage from Sun Zhan Qui, is that s 425(1)(a) of the Migration Act imposes an obligation on the RRT to provide an applicant with "a genuine opportunity to be heard". Mr Jordan argued that the variety and extent of the powers conferred on the RRT showed that it is obliged to follow procedures which are appropriate to achieve a fair and just review in the particular case. While accepting that s 420 does not lay down "procedures required by ... [the Migration Act] ... to be observed" for the purposes of s 476(1)(a), Mr Jordan contended that the aspirations expressed in s 420 supported a broad approach to the construction of s 425(1).

58. The second step in the argument is that the RRT had failed to inform the respondent that it had serious reservations about her credibility and, for that reason, was considering rejecting critical aspects of her claims. In particular, the RRT had failed to inform the respondent that it had serious reservations about her claim to have been imprisoned and tortured in 1988 and her evidence that the documents she had submitted to the Australian Embassy in Rangoon were elaborate forgeries, and thus did not accurately record her history. According to Mr Jordan, the failure to raise those concerns and to identify the crucial issues undermined her right to a genuine hearing.

59. Part 8 of the Migration Act, the constitutional validity of which was upheld in Abebe v Commonwealth of Australia (1999) 162 ALR 1, has created what Gummow J has described as a "procedural bifurcation": Eshetu at [153]. The jurisdiction of the Federal Court to review the legality of decisions of the RRT is considerably narrower than that of the High Court to grant prerogative relief under s 75(v) of the Constitution. But this does not mean that the RRT is free to disregard the rules of natural justice or procedural fairness. As Gaudron and Kirby JJ said in Eshetu at [64]:

"The effect of s 476(2) is not to relieve the Tribunal from observance of the rules of natural justice or to authorise the making of unreasonable decisions. Rather, it is to forbid the Federal Court from reviewing a decision on those grounds. A person who wishes to rely on those grounds can do so only in proceedings under s 75(v) of the Constitution which confers jurisdiction in this Court in all matters `in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'. The validity of the scheme of judicial review thus mandated was upheld by this Court in Abebe v The Commonwealth."

60. The second step in the respondent's argument proceeded on the basis that the RRT's failure to notify the respondent of its reservations about her credibility constituted, in orthodox administrative law terms, a denial of procedural fairness. If this is correct, the breach of the rules of procedural fairness would be remediable by the High Court in the exercise of its constitutionally protected jurisdiction under s 75(v) of the Constitution. The respondent's argument is that the breach is also remediable in this Court, because it constituted a contravention of the requirements laid down by s 425(1)(a) and thus provided a ground of review under s 476(1)(a).

61 It is not necessary, on the view I take of the appeal, to determine whether the RRT breached the rules of procedural fairness. It is enough for present purposes to say that, in the light of observations made by the High Court in Abebe, the respondent faces difficulties in establishing her contention. In Abebe, Gummow and Hayne JJ, with whom Gaudron and Kirby JJ relevantly agreed, rejected similar claims made on an application for prerogative relief (at [187]-[188]):

"The want of procedural fairness was said to lie in the tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the tribunal are adversarial rather than inquisitorial or that in some way the tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out.

In this case the applicant knew that her claims about her detention and rape might not be accepted. The primary decision-maker, the delegate of the minister, said in the reasons for her decision that `...I do not find the applicant to be a reliable witness, and have grave doubts about her credibility, as in South Africa and at the airport, the applicant did not mention that she had been raped or imprisoned in Ethiopia'. After that, there could be no doubt that her story of detention and rape while in detention might not be accepted."

62. In the present case, the Minister's delegate specifically rejected the respondent's claims of detention and torture, on the ground that they had been fabricated by her to support her claims. Other factual claims made by her were also rejected by the delegate. In these circumstances, the respondent knew that her claims might not be accepted by the RRT. It may therefore not be easy to distinguish the case from Abebe. The introductory remarks made by the RRT member at the hearing, on which the respondent relied, appear to have been addressed to the possibility that the RRT might obtain information adverse to the respondent from independent sources, rather than to any doubts the RRT might have had about the respondent's credibility.

63. The question that arises in this case is whether the RRT contravened the requirement in s 425(1)(a) of the Migration Act, that it "give the applicant an opportunity to appear before it to give evidence".

64. Mr Jordan's argument, at least at some points, appeared to assume that s 476(1)(f) (providing a ground of review in cases of actual bias) and s 425(1)(a), when read in combination with s 476(1)(a), cover very near all of the ground occupied by the rules of procedural fairness. This, however, is not a correct reading of Lindgren J's comments in Sun Zhan Qui. When his Honour said that those provisions were intended to "occupy the field that would otherwise be occupied by the rules of natural justice", he was not implying that s 425(1)(a) was to be read as substantially co-extensive with the rules of procedural fairness, except for the rule against bias dealt with in s 476(1)(f). His Honour was merely pointing out that the requirements specified in the Migration Act, so far as the grounds of review available to the Federal Court are concerned, replace the more extensive requirements of the general law. The more extensive rules of procedural fairness continue to apply to the RRT, but breaches of those rules can found a claim for relief only in the High Court, unless they also contravene a specific requirement laid down by the Migration Act or the Migration Regulations. In the latter case, the Federal Court has power to grant relief, since a ground of review is available under s 476(1)(a).

65. In considering the scope of s 425(1)(a), it is necessary to pay careful attention both to the wording of the provision and the context in which it appears. Section 424(1) provides that, if after considering the material contained in documents given to the Registrar by the Secretary and the applicant, the RRT is prepared to make the decision on the review that is most favourable to the applicant, the RRT may make that decision without taking oral evidence. When s 424(1) does not apply (that is, when the RRT is not prepared to make a decision favourable to the applicant "on the papers"), s 425(1) requires the RRT to give the applicant an opportunity to appear before it to give evidence. The RRT is also obliged to notify the applicant that he or she is entitled to appear before it to give evidence: s 426(1)(a). Where such notice is given, the RRT is nonetheless entitled to obtain such other evidence as it considers necessary (s 425(1)(b)) and is not obliged to allow any person to address it orally on the issues arising in relation to the decision under review (s 425(2)). The applicant may give the RRT written notice that he or she wants the RRT to obtain oral evidence from a named person: s 426(2). The RRT must have regard to the applicant's wishes, but is not required to obtain evidence from the named person: s 426(3).

66. Section 425(1)(a), as its language and context make clear, is directed to ensuring that the applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers. It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence. Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act. As Tamberlin and Katz JJ have pointed out, the procedural entitlements of an applicant appearing before the RRT are carefully delineated by the Migration Act. They plainly do not include the full panoply of procedural protections that may be available in other forums.

67. This is not to minimise the significance of the statutory right conferred by s 425(1)(a). In Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193, a Full Court described the legislative direction in s 425(1)(a) as a "central feature of a fair system of administrative merits review": at [31]. As Tamberlin J pointed out in Budiyal v Minister for Immigration and Multicultural Affairs [1998] FCA 243, at 9, an oral hearing may be of considerable importance to an applicant. It gives him or her an opportunity to create a favourable impression and to counter concerns held by the RRT, foreshadowed by its refusal to make a decision "on the papers" alone.

68. The authorities are consistent with the comment of Lindgren J in Sun Zhan Qui that the opportunity afforded to the applicant must be "genuine". Thus, in Budiyal, an unreasonably short period of notice of a hearing date was held to have deprived the applicant of the opportunity to appear before the RRT to give evidence. In Capitly, the Court held that an applicant who had been sick on the appointed day and could not attend the hearing had not been given the requisite opportunity. Their Honours said this (at [34]):

"In the present context an opportunity to give evidence is not given once and for all by the notification to an applicant of a hearing date in the future. The opportunity must be a continuing opportunity and take account of the circumstances which from time to time exist, up until the opportunity is either availed of or not. For example, if an applicant who had received a letter such as that sent to Mr Capitly on 8 July 1997 had been severely injured in a car accident so that he could not attend the hearing on the day on which it was scheduled, he could hardly have then relevantly been given an opportunity to appear before the Tribunal to give evidence. That opportunity is one which must exist throughout the period until review, including the date on which it occurs."

If the RRT gives inadequate notice to the applicant of the proposed hearing, it may contravene s 425(1)(a) (as well as s 426(1)(a)), even though the applicant attends the hearing and gives evidence. For example, Moore J has taken the view that an applicant is entitled to sufficient time to reflect on the evidence he or she is to give: Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612 (FC), at 624-626.

69. These cases illustrate that s 425(1)(a) is primarily directed to the requirement that the RRT ensures that the applicant not only knows of his or her entitlement to give evidence (see s 426(1)(a)), but receives adequate notice of the hearing and is not unfairly impeded by the RRT from taking advantage of the statutory entitlement. Ordinarily, the RRT complies with s 425(1)(a) if the applicant receives timely notification of his or her statutory entitlement and of the hearing at which that entitlement may be exercised. If the applicant does not appear, otherwise than through reasons beyond his or her control and of which the RRT is aware, there will generally be no breach of s 425(1)(a). If the applicant does appear in response to the timely notification, and gives evidence before the RRT, there will likewise generally be no breach of s 425(1)(a).

70. It does not necessarily follow that the effect of s 425(1)(a) is exhausted once the RRT actually commences to hear the applicant's evidence, adequate notice of the hearing having been given. There may be circumstances - although I think that they are likely to be rare - where the RRT conducts the hearing itself in a manner which denies the applicant the genuine opportunity contemplated by s 425(1)(a). To take a hypothetical example, the RRT, having given the applicant timely notification of the statutory entitlement and the hearing, might inform the applicant at the hearing itself that he or she will not be permitted to give evidence on a particular claim within the applicant's own knowledge. If the RRT were to reject the application on the ground that it had not been satisfied of the particular claim, it would not be difficult to conclude that the applicant had been denied the opportunity contemplated by s 425(1)(a). The applicant, although permitted to appear before the RRT and to give evidence, would have been denied the opportunity to appear and give evidence on an issue the RRT itself considered to be critical to the outcome of the case.

71. While there may be limited circumstances in which conduct at an RRT hearing will constitute a contravention of s 425(1)(a), the present is not such a case. Nothing happened at the hearing to curtail the applicant's opportunity to appear before the RRT to give evidence. The applicant received timely notification of her statutory entitlement. She took advantage of that opportunity and gave evidence before the RRT. She was accompanied by her solicitor at the hearing. The RRT member told the applicant at the outset that, at the end of the hearing, she and her adviser would be given an opportunity to make further comments or submissions. That opportunity was in fact afforded, although the applicant and her solicitor chose to make only brief additional observations. She was in no way impeded from giving evidence before the RRT. In these circumstances, if the hearing were attended by any procedural deficiencies, they did not include a contravention of s 425(1)(a) of the Migration Act.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 9 July 1999

Counsel for the Appellant: R Henderson

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: D Jordan

Solicitor for the Respondent:  Chan & Co

Date of Hearing: 26 May 1999

Date of Judgment: 9 July 1999

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