Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Protection visa - RRT found the claims totally fabricated - whether failure to warn - requirements of procedural fairness - erroneous finding that contradictory evidence given - whether jurisdictional error.

SZDQR v Minister for Immigration [2004] FMCA 599 (21 September 2004)

SZDQR v Minister for Immigration [2004] FMCA 599 (21 September 2004)
Last Updated: 20 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDQR v MINISTER FOR IMMIGRATION
[2004] FMCA 599



MIGRATION - Protection visa - RRT found the claims totally fabricated - whether failure to warn - requirements of procedural fairness - erroneous finding that contradictory evidence given - whether jurisdictional error.



Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.483A, Part 8, 474(2), 474(1), 425(1), 422B, 422B(1)

Browne v Dunn (1893) 6 R 67

Haberfield v Department of Veterans' Affairs as Delegate for Comcare (2002) 121 FCR 233

Lidono Pty Ltd v Commissioner of Taxation (2002) 191 ALR 328

Minister for Immigration v Yusuf (2001) 206 CLR 323

NAEQ v Minister for Immigration [2003] FMCA 482

NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441

Re Minister for Immigration and Multicultural Affairs, ex parte Applicant S154/2002 [2003] HCA 60, 201 ALR 437

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82

Somaghi v Minister for Immigration (1991) 31 FCR 100

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171

Applicant:
SZDQR



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1559 of 2004



Delivered on:


21 September 2004



Delivered at:


Sydney



Hearing date:


10 September 2004



Judgment of:


Smith FM



REPRESENTATION

Solicitor for the Applicant:


Mr Michael Jones



Counsel for the Respondent:


Mr Dean Jordan



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Direct that any consent orders as to costs be filed, or any request for a listing for argument on cost be made, within 14 days.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1559 of 2004

SZDQR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) and challenging a decision of the Refugee Review Tribunal made on 30 April 2004 which affirmed the refusal of a protection visa to the applicant. A previous Tribunal had reached the same decision on 24 October 2002, but its decision was set aside by this Court on 14 November 2003 (see NAEQ v Minister for Immigration [2003] FMCA 482). The applicant is currently held in detention.

2. Section 483A gives the Court "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". The relevant jurisdiction of the Federal Court is its general judicial review jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act.

3. A judicial review jurisdiction can provide a remedy to an aggrieved person only where a legal defect can be identified in the administrative action under challenge, and it is axiomatic that it does not extend to correcting an error which is merely an error of fact or of assessment of the merits.

4. Significant limitations on the Federal Court's general judicial review jurisdiction are imposed by Part 8 of the Migration Act on any application to a court which is "in respect of a privative clause decision" as defined in s.474(2). For such applications, which include applications for review of decisions of the Refugee Review Tribunal, the simple language of s.474(1) appears to prevent the Court from giving any remedy for a defect of any kind. The simple language is subject to implied Constitutional qualifications, but these would still leave the Court with reduced power to intervene in relation to a Tribunal decision if it answers the definition of `a privative clause decision' in s.474.

5. I need not address the Constitutional qualifications further in this case, since the present applicant presented his challenge on the basis that he must establish that the decision of the Refugee Review Tribunal is not a "privative clause decision" according to the interpretation of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases. In these cases the High Court has held that limitations under Part 8 of the Migration Act on generally available judicial review remedies do not apply to a challenge to a decision which is in law a nullity because it was vitiated by jurisdictional error. In such a case, where there has been an actual or constructive failure to exercise a power of decision governed by provisions of the Migration Act, this Court can declare void or quash or set aside a purported but legally ineffective decision, and can order that the decision-maker perform or complete its duty to determine the case according to law.

6. In the present case, the applicant's "further amended application" filed on 7 September 2004 presents what I was told were two distinct grounds:

1. The Tribunal failed to exercise its jurisdiction by denying the applicant natural justice, or in the alternative failing to comply with s 425 of the Act.

Particulars

The Tribunal formed the view that a person whom the applicant had said was arrested shortly before he left his country was a figment of the applicant's imagination and did not exist. At no time did the Tribunal put to the applicant that it might take this view, denying him the opportunity to look for and present further evidence that the person did exist.

By failing to alert the applicant to this issue the Tribunal did not comply with s 425 which requires it to invite the applicant to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review (see NAQF v Minister for Immigration [2003] FCA 781).

2. The Tribunal failed to exercise its jurisdiction by addressing a wrong issue, which was its belief that the applicant had contradicted himself in claiming on the one hand that he "had not encountered any problems and did not have any fear at all&quo;
t; until the arrest of his colleague two days before the his departure, and on the other hand that the had been in hiding for one month before departure.

Particulars

The applicant did not claim that he had had no problems or fear until two days before departure. On the contrary, he claimed that his organisation had been ordered to disperse and keep a low profile following arrests of other activists in another part of the city (see RD 190-192, 2nd transcript pp 15-16).

7. The applicant was born in Burma in 1976 and arrived in Australia on a two year student visa in March 2001. In November 2001 he was given notice of an intention to cancel his visa, and shortly before this occurred he made application for a protection visa. His claims to refugee status are set out in extensive documentation which was before the Tribunal, but can be sufficiently understood from the following summary at the end of a lengthy submission which was presented on his behalf by the Refugee Advice and Casework Service (Australia) Inc "RACS":

We submit that the applicant had a political profile in Burma, and there is a real chance that he will come to the adverse attention of the authorities in Burma, and be questioned, arrested and detained for his political activities. The applicant has provided evidence and the Tribunal has thus far recognised that the applicant was active in 1996 student demonstrations in Pyay. The applicant was involved in organising the demonstrations and came to the adverse attention of the authorities on an occasion where a group of student residing at the school hostel accommodation were warned by members of the Burmese military. Following his move to Rangoon the applicant began his three year involvement in the ABSDF. This group operates as an underground organisation with strict procedures in order to preserve the secrecy of its member identities. The applicant has previously provided evidence that ABSDF members of the same rank would not have knowledge of the true identity of others of the same rank. Members of the same group of a superior rank would have knowledge of those of an inferior rank. The applicant was a member of the North Dagon township group of the ABSDF. His colleague, Phyo Maung Maung was initially a member of the South [sic: North] Dagon township group, but later moved to the North [sic: South] Dagon township group where he held the same rank as the applicant. In nether position would he have known the applicant's true identity, and indeed the applicant expressly gave evidence that his true identity was not known to Phyo Maung Maung.

Thus the only two ways for the authorities to become aware of the applicant's true identity and his anti-government activities were:

* if those within his group of superior rank were captured and informed the authorities about the applicant;

* if Phyo Maung Maung was captured and informed the authorities which together with the information available from school records identified the applicant.

During the time the applicant was in Burma, the applicant's superiors from the North Dagon group avoided capture. Other members of the group were captured but they had no information that could lead the authorities to the applicant. It was only once Phyo Maung Maung was captured that the applicant could be tracked down by the authorities. However by this time he had already obtained a passport and other documents that enable him to leave the country. The applicant departed within two days of Phyo Maung Maung's arrest, and just a short time before the military authorities arrived at the applicant's home to arrest him.

The applicant has provided evidence that the military intelligence attended his home, informed his parents that they intended to arrest the applicant for his political activities. The applicant was informed of this by his parents once he had arrived in Australia. His parents also informed him he was in grave danger. It is of considerable significance that shortly after Phyo Maung Maung's arrest the authorities had in fact managed to trace the applicant and went to his house to arrest him demonstrating the link between Phyo Maung Maung's arrest and the danger faced by the applicant. The short time frame between the two events demonstrate that the arrest of the applicant was a high priority for the military.

The visit by military intelligence to the applicant's house is quite significant as it is military intelligence who are concerned with political activities. Usual household checks would be undertaken by Ward and Township Peace and Development Council members (ie WPDC, TPDC), not the military. The applicant has been informed by his parents that the military has visited his parent's house a number of times since then.

We note that prior to capture of Phyo Maung Maung, the military did not have knowledge of the applicant due to extensive measures ABSDF members undertook to maintain the operation of ABSDF as a covert underground organisation, and to maintain the secrecy of its members identities.

The applicant's fears amount to serious harm and persecution. The applicant fears that if he is forced to return to Burma, he will be questioned detained, arrested. He fears that interrogation will be accompanied by beatings and torture, and that he will be killed by the state.

8. The Tribunal conducted two hearings at which the applicant attended and was extensively questioned on his claims. On the day of the first hearing he presented "some new information" in support of his fear of persecution, by claiming that he had been told in recent telephone conversations that two member of ABSDF whom he had recruited to his North Dagon unit had been arrested and sentenced to imprisonment on political charges. He was also extensively questioned on this.

9. The Tribunal gave lengthy reasons for affirming the decision not to grant the visa. At the start of its "findings and reasons" it summarised its reasoning:

I find that the Applicant's evidence to this Tribunal relating to such critical issues as: (1) his activities with and on behalf of ABSDF; (2) the "record of names" of his "reserve members"; (3) Phyo Phyo Maung; (4) his place of residence; (5) visits by MI to his family; and (6) his delay in his application for a protection visa to be riddled with inconsistencies, contradictions and implausabilities. As a consequence, I am satisfied that the Applicant was never a member of ABSDF in Burma (Myanmar). I am also satisfied that the Applicant did not have "reserve members" underneath him in rank; that the person purportedly called Phyo Maung Maung is a figment of the Applicant's imagination, and therefore was not arrested two days before the Applicant's departure for Australia; that MI never visited the Applicant's family and told them that they wanted to arrest the Applicant because of his membership of ABSDF; and that the only reason for the Applicant's delay in the lodgement of his primary visa application is that he did not have a genuine fear of persecution in Burama (Myanmar) because of his political opinions.

10. The Tribunal then examined the evidence relating to each of these "issues". Relevantly to the first Ground in the present proceedings, it concluded its discussion of the applicant's evidence concerning "Phyo Maung Maung" with the following conclusion:

In the light of the above inconsistencies and implausabilities in the Applicant's evidence, both in relation to Phyo Maung Maung's real name and his place of residence, I am satisfied that all of the Applicants evidence in relation to "Phyo Maung Maung" is a complete fabrication.

11. Relevantly to the second Ground in the present proceedings, the Tribunal's discussion of the applicant's evidence concerning his places of residence in Burma was:

In his primary visa application, the Applicant stated that he lived at various addresses in Yangon from 01/98 till 03/01.

At the Tribunal hearing held on 23/02/04, the Tribunal asked the Applicant when Phyo Maung Maung allegedly had gone to the South Dagon Township Group. The Applicant said about June 2000 (but the applicant said (1) he was not "in hiding" until a month before he left Burma (Myanmar) on 09/03/01 but (2) went into hiding after arrests had occurred of South Dagon ABSDF members.

At the tribunal hearing held on 23/02/04, the tribunal reminded the applicant that at the last Tribunal hearing (on 5 February 2994) he had given the Tribunal a different address as his last place of residence from that recorded by him in his primary visa application, and when this was queried by the Tribunal, he had told the Tribunal that during the month before his departure, he had moved around from place to place and had stayed at several addresses at that time because he was "in hiding". The tribunal asked the Applicant to now tell the Tribunal why he was "in hiding" for the months before he left Burma (Myanmar). The Applicant replied it was because of security reason and that by being in hiding, he felt more secure.

The Tribunal reminded the Applicant that he had earlier said that until he heard of Phyo Phyo Maung arrested he had not encountered any problems and did not have fear at all. The Applicant replied that it would not have been sensible to have waited to go into hiding until he was in fear of being arrested. The Tribunal reminded the Applicant that at the time he allegedly heard of Phyo Phyo Maung's arrest, he held a legally obtained Burmese passport; he had a student visa to go to Australia' and was due to depart Burma (Myanmar) in 2 days time. Moreover as he had previously told the Tribunal that he had never been arrested, had never been investigated by MI, and as he had previously stated that it was only on learning of Phyo Phyo Maung's arrest that he had developed a fear, there appeared to be no credible reason why he would have been " in hiding" for the month before his departure.

In light of the foregoing, I am satisfied that the Applicant was never "in hiding" just prior to his departure from Burma (Myanmar), or at any other time. (my emphasis)

12. At the end of its reasons, the Tribunal summarised its findings and expressed its conclusion:

In essence, I found that the Applicant's answers to many critical questions were evasive, equivocal, obfuscatory, inconsistent, implausible and sometimes contradictory. Most questions had to be repeated to him several times as he frequently did not answer the particular question asked of him, but instead launched into a discourse on unrelated matters and I formed the opinion that this did not reflect on a lack of understanding of the question, as the Applicant presented as an intelligent, well-educated, and linguistically gifted person. Whilst I note that his migration agent's post-hearing submission to this Tribunal stated, inter alia, that the Applicant made many and consistent accounts of the circumstances leading to his departure from Burma (Myanmar), and that any short hesitation in response to questions in the stressful environment of a hearing should not be the subject of a adverse credit findings, I am unable to agree with the Applicant's migration agent submission on this matter. I am satisfied that the Applicant's many hesitations and obfuscations are merely evidence of his untruthfulness and his overall lack of credibility.

In light of my findings (as above) in relation to significant inconsistencies, obfuscations, contradictions and implausabilities in the Applicant's evidence to this Tribunal, I am satisfied that the Applicant was never a member of the ABSDF in Burma, and that he has woven a complex web of fabricated evidence to support his claim that he has a well-founded fear of persecution in Burma because of his membership of this anti-government political group. I am therefore satisfied that MI did not ever visit his family home and state its intention to arrest him because of his political opinions; and that his delay in lodging his application for a protection visa is additional evidence of his lack of a genuine fear of persecution in Burma.

I find that the Applicant has never suffered (or claimed to have suffered) persecution in Burma (Myanmar) because of his political opinions, and I am satisfied that he does not have a well-founded fear of suffering persecution in Burma (Myanmar) for a Convention-related reason.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

Ground 1: "natural justice and section 425"

13. Counsel for the applicant contended that the Tribunal had denied the applicant procedural fairness when it made the finding "all of the Applicant's evidence in relation to "Phyo Maung Maung" is a complete fabrication" without this having been foreshadowed by the Tribunal. In effect, it was submitted that this should have been "put" to the applicant in the course of the Tribunal's questioning at the hearing or subsequently before it handed down its decision.

14. It was contended before me, and the applicant swore an affidavit on the day of the hearing before me, that "at no time was I led to believe that there was doubt about the existence of Phyo Maung Maung as a person. Had I thought that was the case I would have attempted to find evidence of his existence from my contacts in Burma." I note that it was not contended that the applicant was told that the Tribunal had no doubt "about the existence of Phyo Maung Maung as a person" nor that he was mislead into thinking this. I also note that no attempt was made to show what evidence would or could have been "found" to establish the "existence" of "Phyo Maung Maung". I have some difficulty in imagining how this could have been done, in view of the applicant's statements that this name was a pseudonym, that he never knew the "real" name of this person, and that this person never knew the applicant's own "real" name.

15. Counsel for the respondent conceded that the Tribunal did not in terms say or "put" to the applicant that it might doubt the existence of "Phyo Maung Maung". However, he contended that no denial of procedural fairness occurred because:

a) The applicant has seized upon the phrase "complete fabrication" which the Tribunal used only to emphasise its ultimate conclusion, in effect, that it refused to believe the applicant's narrative.

b) The need to persuade the Tribunal of the applicant's credibility generally was well understood and acknowledged in the submissions presented by RACS on behalf of the applicant. Its pre-hearing submissions invited the Tribunal to find that the applicant is "a credible witness of his experiences in Burma" and that "the applicant is a credible witness". The Tribunal had recalled the applicant for a second day of questioning which was framed in sceptical language and which ranged over the whole of his narrative.

c) After that hearing, the RACS presented a post-hearing submission which recognised in its conclusion that "the assessment of the applicant's credibility" was central to the case, and made general submissions on this topic.

d) In cross-examination before me the applicant, after some evasion, admitted that he knew that the Tribunal had doubts about what he had said and might not believe what he said. He said he had known that it was important to put everything forward to help the Tribunal to believe him, and said that he had tried to do this.

16. I accept the respondent's submissions that there was no denial of procedural fairness, and do not accept the submissions of the applicant's counsel that the situation fell within the "gloss" described by Jenkinson J in Somaghi v Minister for Immigration (1991) 31 FCR 100 at 108.

17. In Somaghi, Jenkinson J described the general rule that "an administrative decision-maker's evaluative conclusions on the material before him do not have to be communicated to an applicant so that considerations influencing the decision-maker's mind adversely to the applicant's interest may be reviewed before the decision is made in the light of any submission or evidentiary material the applicant may desire to tender in response to the communication." His Honour then described as a "gloss", the "requirement that the applicant have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it", and included within this a requirement that "an unfavourable animadversion ...should be disclosed to the applicant so that he may respond, if the animadversion is not an obviously natural response to the circumstances which have evoked it."

18. There is some obscurity of the intended ambit of this second test, but when applied in the context of Somaghi, it is apparent that Jenkinson J was referring to an adverse conclusion drawn from a communication from a claimant which had not clearly been presented as being intended to raise a new ground of recognition as a refugee, but was being treated so by the decision-makers. The reasoning of Jenkinson J at 31 FCR 100 at 109 and of Gummow J at 120 suggests that the decision-makers should have clarified the intent of the communication before drawing any adverse conclusions from it. The basis of the majority decision is, in my opinion, that the decision-makers made adverse findings on an issue which might not have been reasonably anticipated by the applicant, and that the applicant may have been mislead as to what issues would be decided.

19. I consider that the "circumstances" of the present Tribunal's reasoning and conclusions on the applicant's narrative about Phyo Maung Maung do not fall within Jenkinson J's "gloss", and that they fall squarely within the "general rule". The rejection either in whole or in part of the applicant's narrative about what he claimed had happened in Burma was all very much within the range of "obvious natural responses" which he could reasonably anticipate when presenting his case to the Tribunal in support of his claim to refugee status. I do not consider that the conclusion expressed by the Tribunal involved a denial of procedural fairness.

20. In argument, I suggested to counsel that the situation might be tested against authorities which have applied what is referred to as "the rule in Browne v Dunn" as an aspect of procedural fairness applicable to administrative tribunals (c.f. Haberfield v Department of Veterans' Affairs as Delegate for Comcare (2002) 121 FCR 233 at [58-62], and Lidono Pty Ltd v Commissioner of Taxation (2002) 191 ALR 328 at [17-21] and cases cited therein). These cases have accepted that a Tribunal may make a finding rejecting evidence given by an applicant without its particular conclusions having been "put" to the applicant in the course of a hearing, if it must have been apparent from the nature of the proceedings that the credibility of the applicant's evidence was in issue in all respects.

21. Although one case cited by counsel for the Minister referred to this aspect of the rule in Browne v Dunn (WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171, 77 ALD at [52]), counsel submitted that the rule is inapplicable in relation to the proceedings of immigration tribunals. He referred me to statements in High Court cases which emphasise the inquisitorial nature of the proceedings and absolve a Tribunal from the need to warn about the possibility of adverse findings which is inherent in such proceedings (c.f. Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [187], and Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 per Gaudron and Gummow JJ at [76] and Callinan J at [208]). Subsequent to the hearing he drew my attention to the unequivocal statement of Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs, ex parte Applicant S154/2002 [2003] HCA 60, 201 ALR 437 at [56-58] that "the rule in Browne v Dunn has no application to proceedings in the Tribunal" (and c.f. Kirby J at [81-88]). In response to these submissions, it is enough for me to say that I consider that my conclusion in the present case is consistent with what has been said in the High Court authorities as to the content of procedural fairness in refugee cases.

22. The applicant's counsel did not develop his submission that the Tribunal's finding that "Phyo Maung Maung" was a complete fabrication was also a breach of a right of procedural fairness implied in s.425(1) of the Migration Act. This provision requires the Tribunal to "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." As I understood counsel, he accepted that any such implication would not give greater rights relevant to the present ground of judicial review than would be implied in the absence of s.425. Rather, he sought to rely on this provision and the interpretation given to a similar provision by Lindgren J in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 at [85-87] in order to overcome the injunction in s.422B(1) that "this Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with."

23. Since I have rejected this ground of appeal on the assumption that ordinary principles of procedural fairness could be applied in relation to proceedings of the Refugee Review Tribunal, I have no need to examine the possible limiting effects of ss.422B and 425, nor to explore the authorities on these provisions which were cited to me by counsel for both parties.

Ground 2: "failure to consider, or wrong question"

24. I had some difficulty understanding this ground, which I have set out above and to which counsel gave the above heading. He focused my attention on the statement in the passage in the Tribunal's reasoning in relation to the applicant's places of residence in Burma which I have highlighted at [11] above. He took me to the transcript of the second day at which, indeed, the Tribunal did assert to the applicant "But you said you had no fear at all of the security forces until Phyo Maung Maung was arrested two days before you left Burma." On the transcript, the applicant does not appear to respond to the implicit invitation to accept or reject this proposition, and to explain its contradiction with his claim that he had been in hiding for a month. However, his counsel invited me to find that at no stage in any of the evidence had the applicant in fact said that his fear commenced on the arrest of Phyo Maung Maung, and that the Tribunal therefore erred by making an implicit finding that he had said this. Counsel submitted that, as a result of the erroneous finding, the Tribunal had mistakenly concluded that the applicant had given inconsistent evidence as to when his fears of persecution commenced. Counsel then submitted that this error as to the effect of the applicant's evidence amounted to jurisdictional error by the Tribunal. The error was "either taking into account an irrelevant consideration" or "asking itself a wrong question". Minister for Immigration v Yusuf (2001) 206 CLR 323 was cited in support without any particular passages in the judgments in that case being identified.

25. Counsel for the respondent submitted that, read fairly and in the context of the whole proceedings before the Tribunal, there was no significant factual error. He pointed out that the gist of the overall evidence of the applicant was that his fear "crystallised" only when he learned of the arrest of Phyo Maung Maung two days before his departure from Burma, and (somewhat forensically) counsel pointed out that even in the applicant's recent affidavit he states that his claim to be a refugee "is based on a fear that my political activities have come to the attention of the Burmese government following the arrest of a colleague and fellow-activist known to me as Phyo Maung Maung."

26. I need to resolve whether or not there was evidence on which the Tribunal could find that the applicant had given inconsistent statements, since I cannot accept that, even if the Tribunal made one or more factual errors such as counsel for the applicant attempted to identify, they could amount to jurisdictional error of law. In my view, counsel's submissions amounted to no more than an invitation that I should explore relatively minor factual findings by the Tribunal made in the course of a damning and detailed rejection of the credibility of the applicant's narrative. That rejection depended on much more than its reasoning about the applicant's evidence about his places of residence in Burma and the onset of his claimed fear of persecution.

27. In my view even if an error of reasoning or fact-finding can be detected in the passage set out above, it is incapable of being characterised as amounting to jurisdictional error which vitiated the Tribunal's final decision.

28. I reject both grounds for review which were argued, and dismiss the application. The parties may agree upon an order for costs which I can make in chambers, or request that the matter be re-listed before me for argument on that topic.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 21 September 2004

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1559 of 2004

SZDQR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


CORRIGENDUM TO REASONS FOR JUDGMENT
Delivered on 21 September 2004 as [2004] FMCA 599

The above reasons are corrected by adding the words "do not" before "need" at the commencement of paragraph [26].

Associate: Iliya Marovich-Old

Date: 28 September 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia