FEDERAL COURT OF AUSTRALIA

WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131

WALN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

WAD 392 OF 2005

RYAN, TAMBERLIN AND MIDDLETON JJ

18 AUGUST 2006

PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, such costs to be taxed in default of agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

RYAN J:

1                     This is an appeal from orders made by Nicholson J, on 28 November 2005, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), handed down on 22 November 2004. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), to refuse to grant a protection visa class XA to the appellant.

2                     The appellant is a national of Myanmar, which was previously Burma. He arrived in Australia on 23 June 1997 on a student visa, valid until 3 August 1998. He was issued with further student visas on 30 July 1998, 1 July 1999, and 17 July 2000. His last visa was due to expire on 30 July 2003. On that date he applied for a protection visa under the Migration Act 1958 (Cth) (“the Act”). He was granted a bridging visa for the period during which his claim was to be assessed.

3                     The appellant was born on 26 December 1972. Between 1978 and 1991 he attended various schools and between June 1992 and June 1996 he attended the University of Yangon, which was then Rangoon. Both of the appellant’s parents reside in Myanmar and his sister resides in the United States of America as a refugee.

4                     The appellant claimed that he was 16 years old when he took part, on 8 August 1988, in demonstrations against the ruling government of Burma. He claimed that he was afraid to voice his opinions about the ruling government and could not stay in that country, or live like that, so his parents sent him away for further education. He claimed to fear that, if he were returned to Myanmar, he would be questioned by the intelligence agency about the people with whom he had associated in Australia. He said that he had participated in demonstrations in Australia organised by refugee welfare and support groups. He also asserted that Myanmar military intelligence was present in Australia and reported back to Myanmar. The appellant claimed that his association with pro-democracy groups would hurt his parents and that, if he returned to Myanmar, the State Peace and Development Council would authorise his interrogation. He further claimed that he would not be adequately protected in Myanmar as the government would not afford protection to its ideological opponents.

5                     Before the Tribunal, the appellant claimed that, since the Tabayin killings of 30 May 2003, his parents had contacted him through others and advised him not to return. He testified that, since his school days, he and his parents and sister had opposed the military regime. They had remained silent, however, for fear of the military intelligence. The appellant also claimed that he had sent his passport to the Myanmar Embassy in Canberra in July 2001 but that it had not been returned and he had received no communication from the Embassy. In support of these claims, the appellant furnished the Tribunal with a number of documents including a report of 15 January 2004 by the Burma Action Group on the Tabayin killings of members and supporters of the National League for Democracy (“the NLD”) and a document prepared by Amnesty International, released on 30 July 2003, which expressed concern over the Tabayin attack and the arrest of NLD members and supporters since 30 May 2003. The applicant also provided photographs of his participation in street demonstrations on 19 June 2004 in Australia.

6                     The Tribunal accepted that the appellant had been born in Myanmar and that he had thirteen years of schooling before attending Yangon University. It also accepted that he may have been involved in student demonstrations in 1988 and that he ran away when the military broke up those demonstrations. However, the Tribunal found that the appellant did not take part in any political activities in Myanmar and that there was no reason for the appellant to have attracted adverse interest from the authorities in 1988 or at any time thereafter. The Tribunal found that the appellant did not attempt to leave Myanmar until he came to Australia in 1997 and that he did not claim protection in Australia in the six years during which he had resided here. It considered that, had the appellant really been concerned for his life, he would have sought to leave Myanmar sooner and would have claimed asylum on arrival in Australia or shortly afterwards.

7                     The appellant also asserted that he had a well-founded fear of persecution by reason of events which had occurred in Australia since his arrival. The Tribunal accepted that the appellant may have taken part in various pro-democracy demonstrations and events whilst in Australia. Nevertheless, it considered that independent country information established that Myanmar authorities, although monitoring activities outside Myanmar, would only be interested in high profile members of particular organisations. It accepted that the appellant may be subject to some questioning on his return to Myanmar, but it held that this would not constitute persecution within the meaning of s 91R of the Act.

8                     The Tribunal concluded that there was no evidence before it to suggest that the appellant had been anything more than a low level supporter of anti-government groups and a general enthusiast for the overthrow of the present regime in Myanmar. Since he was not an active and high-profile member of any significant anti-government organisation, the Tribunal, therefore, did not accept that the appellant had been put on a black list by the Myanmar military regime because of his political activities. The Tribunal found that the appellant’s activities did not give rise to a real chance of his being persecuted on return to Myanmar. Nor did it find that he had left Myanmar because he could not express his political opinions.

9                     Having considered all of the appellant’s claims cumulatively, the Tribunal was not satisfied that he faced a real chance of persecution on return to Myanmar now or in the reasonably foreseeable future because of his political opinion or for any other Convention reason. It did not regard his fear of persecution as well-founded. Consequently, it did not consider that there was any obligation on Australia to grant him a protection visa.

10                  On application to this Court for review of the Tribunal’s decision, the appellant contended that the Tribunal had failed to determine the relevant question arising from his claims, namely, whether, as an active supporter of the NLD and other pro-democracy groups in Australia, he had a well-founded fear of persecution on return to Myanmar in the aftermath of the Tabayin killings of NLD supporters on 30 May 2003.

11                  In particular, the appellant contended that the Tribunal had incorrectly informed itself about his history of student visa applications. It had failed to consider country information related to the attitude of the Myanmar government to the NLD after May 2003 and to pro-democracy supporters within Myanmar and who were returning to it. Conversely, it was contended that the Tribunal had considered irrelevant and outdated country information, the most recent of which was dated 19 June 2002. The appellant further contended that the Tribunal was obliged to comply with s 424A of the Act in relation to “selected adverse country information” on which it had relied. Its failure to give the appellant particulars in writing of the country information which the Tribunal considered would be part of the reason for affirming the delegate’s decision, was said to be a breach of a mandatory requirement for a valid decision.

12                  The appellant also contended that the Tribunal had failed to accord him procedural fairness in that he had been unrepresented and that, during the hearing, the Tribunal had confronted him, for the first time and for his immediate comment, with selected adverse country information, which was then relied upon by the Tribunal to make findings adverse to him. It was submitted that the opportunity to comment had been inadequate in the circumstances, which included the failure of an interpreter effectively to convey to the appellant the Tribunal’s invitation to comment. Finally, the appellant contended that the Tribunal proceeding had been vitiated by errors made in translation by the same interpreter.

The reasoning of first instance

13                  In relation to the first ground of appeal, his Honour held that it was open to the Tribunal on the material before it to reach the conclusions that it did. He considered that the argument invoking s 424A could not avail the appellant as the exclusion in subs 3(a) of that section applied in relation to “select adverse country information”, relied upon by the Tribunal. As to the alleged failure to accord procedural fairness, his Honour referred to s 422 of the Act, which provided that Div 4 is to be taken as an exhaustive statement of the requirements of natural justice in relation to the matters with which it deals.

14                  His Honour also considered that, given the limited extent of the country information that had been put to the appellant, he had been afforded, in the circumstances, a reasonable opportunity to comment even allowing for the fact that he had no legal representation. If the opportunity to comment had been misstated by the interpreter, the misstatement, in his Honour’s view, was not material and could not amount to a denial of procedural fairness. Further, it had not effectively precluded the appellant from giving his evidence and having his case comprehended; see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6. His Honour accordingly concluded that none of the claims raised by the appellant had been established and that the Tribunal’s decision was free from jurisdictional error.

15                  By notice of appeal, filed on 16 December 2005, the appellant repeated the assertions, which he had made before Nicholson J, that the Tribunal had failed to determine the relevant question arising from his claims and had failed to consider country information relating to the attitude of the Myanmar government to the NLD and pro-democracy supporters after 30 May 2003. He also maintained the contention that the Tribunal had considered irrelevant and outdated country information. As well, he reiterated that the Tribunal had been obliged to comply with s 424A, had failed to accord procedural fairness to the appellant and the Tribunal proceedings had been vitiated by errors in translation.

Submissions in support of the appeal

16                  In support of the appeal, Ms Price of Counsel for the appellant contended that there were several indications in the Tribunal’s reasons that it had asked itself a wrong question, or had failed to take into account a relevant consideration. One such indication was the failure to make specific reference to the appellant’s membership of the pro-democracy NLD. That membership, it was submitted, should have been assessed in the light of the Tabayin attack, the country information provided by the appellant and the aftermath of the attack affecting NLD and pro-democracy supporters as set out in a report from Amnesty International and another report from the U.S. State Department.

17                  The Tribunal, was criticised as not having assessed the likelihood that the appellant would be persecuted as an active NLD and pro-democracy supporter. Rather, it was said, the Tribunal had relied on country information to assess the appellant as a low-profile supporter of the pro-democracy movement. The Tribunal’s omission of any reference to more recent country information was characterised as a failure to accord procedural fairness, to conduct the review and exercise its jurisdiction: see eg, Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. That failure was not explained by the Tribunal as based on an assessment that there was no more recent relevant information and no inference should be drawn that the Tribunal had made such an assessment.

18                  In a related way, Ms Price contended on behalf of the appellant that the Tribunal had failed to take account of relevant material constituted by:

(1) the material provided by the appellant in relation to the position of pro-democracy supporters in Burma about 30 May 2003, namely the Amnesty International Summary of 30 July 2003;

(2) the report of the Burma Action Group, SA Inc, on the Tabayin attack on NLD supporters on 30 May 2003; and

(3) the United States Department of State Country Report on Human Rights Practices 2003, dated 25 February 2004, in particular the statements therein about the worsening situation for NLD and pro-democracy political activity.

19                  It was said that the mere citation of those documents in the Tribunal’s reasons did not signify that account had been taken of their contents. Ms Price repeated the contention which had been advanced before the learned primary Judge that whether country information is excluded from the reach of s 424A by subs 3(a) of that section remains a live issue in light of the judgments of the High Court in SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 215 ALR 162 and of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex Parte A (2002) 185 ALR 489 (at [42]).

20                  The specific contention was also advanced that the way in which the Tribunal had “confronted” the appellant with the country information on which it eventually relied, had been oppressive and unreasonable to the extent that he had been denied procedural fairness in a way not made unavailable on a strict interpretation of ss 422 and 424A of the Act. Ms Price renewed the appellant’s attack on the alleged errors in translation in aid of which she relied on the affidavit of Ms Myint. Particular reference was made to those exchanges between the Tribunal and the appellant about the attempts by the appellant to contact the Burmese Embassy about his passport.

21                  Confusion in translation was said to have resulted in the Tribunal’s conclusions that the appellant had given conflicting evidence about the number of times he had contacted the Embassy and had speculated about the reason for its omission to renew his passport. Similar errors in translation were said to have infected reception of the appellant’s evidence about the extent of his involvement in the pro-democracy movement in Australia. It was said that the Tribunal had been led to conclude, erroneously, that the applicant’s participation in those activities had largely been confined to assistance with catering.

22                  As well, the interpreter was accused of misrepresenting the reason for the appellant's having reduced his involvement in similar activities while pursuing his studies in Yangon and the explanation for his delay in leaving Myanmar. In particular, it was said that translation errors had prevented the appellant from conveying to the Tribunal his perception that things had got worse in that country in 2003. Another specific complaint about defects in translation was that, instead of conveying the Tribunal’s invitation to comment on certain country information, the interpreter had merely asked the appellant, “Do you want to comment on any of that?” The interpreter was also accused of misrepresenting the appellant’s evidence about what he feared in the event of his return to Myanmar, which went, not merely to interrogation, but to constant surveillance, curtailment of employment opportunities and restrictions on his movements. That was said to have precluded the Tribunal from assessing whether the claimed fear amounted to persecution in the Convention sense.

Disposition of the appeal

Did the Tribunal fail to determine relevant questions?

23                  In my view, the learned primary Judge correctly identified that the appellant’s case before the Tribunal was not specifically related to the Tabayin killings, or his membership of any particular social group, including the NLD or any other democracy group. The Tribunal was, therefore, not required to embark on a detailed assessment of the country information about the killings, or the NLD generally. There is much force, I consider, in the submissions of Mr Tsaknis of Counsel for the respondent that the Tribunal was only required to examine those killings as part of the changed circumstances since 2003 on which the appellant’s case rested.

24                  The appellant’s claim has always been that he would be detained by the authorities in Myanmar upon his return because of their knowledge of his involvement in activities in Australia which were inimical to the present regime in Myanmar. At [24]-[25] of his reasons the learned primary Judge held;

‘The Tribunal did not ignore the Tabayin killings in its reasons. It referred to the applicant's claims regarding the Tabayin killings in the material he had supplied in support of his application. It quoted from the US Department of State Report speaking of the Tabayin killings.

The Tribunal's finding that the applicant had done no more than carry on a role as a low-level supporter and general enthusiast supported its finding that the applicant would not face a real chance of persecution on return to Myanmar. Consequently, I do not accept the submission for the applicant that the Tribunal failed to take into account relevant material, or relied on irrelevant material so as to affect the exercise of its statutory power and cause it to exceed those powers, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at [82] and[83].’

25                  In my view, it involved no error of law for the Tribunal to focus its attention on the case presented by the appellant. I refer in this context to what Callinan J said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at 672 [192]. The learned primary Judge considered that, in relying on country information about conditions in Myanmar between 2000 and 2002, the Tribunal did so in circumstances where there was nothing to suggest that the information had been superseded or was out of date or otherwise inaccurate. His Honour also noted that the Tribunal had quoted from the US State Department Report of 25 February 2004 in relation to the Tabayin killings. In my view, the primary Judge correctly discerned that the use made by the Tribunal of the country information to which it referred did not amount to an error of law.

The complaint of failure to give the appellant written notice under s 424A.

26                  The reasons at first instance set out, at [31], the items arising out of country information which was said to have been put unfairly or oppressively to the appellant. The information was not specifically about the appellant, but about two classes of persons of which the appellant was a member, namely, those who had participated in the 1988 pro-democracy movement and had not engaged in political activities since then, and Burmese nationals involved in demonstrations in Australia against the Myanmar government.

27                  The obligation to provide particulars imposed by s 424A(1) of the Act did not apply to that information by reason of s 424(3)(a). I am not persuaded that the conclusion reached by another Full Court of this Court in VAAC v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 129 FCR 168, that the exception is inapplicable to country information, was clearly wrong. It follows that, in accordance with established principle, that authority should continue to be applied, at least by this Court. Accordingly, the learned primary Judge’s conclusion, that there was nothing in the character of the selected country information to make s 424A(3)(a) of the Act inapplicable should not be disturbed.

Procedural fairness

28                  The learned primary Judge, correctly, in my view, stated at [32] of his reasons that s 422 of the Act, which provides that Div 4, in which it appears and in which subs 424A(3)(a) also appears, is taken to be an exhaustive statement of the requirements of natural justice in relation to the matters with which it deals. Even if, as Ms Price contended, there is an underlying residuum of procedural fairness to which an applicant in the circumstances of the present appellant is entitled, I am not persuaded that the Tribunal infringed the appellant’s right to have his application processed in accordance with any such residual principle.

The alleged errors in translation.

29                  To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry; see Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, at [18]. Those authorities were applied in Appellant P119 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230 and WACO Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, at [63]-[68].

30                  The learned primary Judge concluded, at [41] of his reasons, that such errors in translation as had occurred did not effectively prevent the appellant from giving evidence, and having his evidence comprehended and did not cause his evidence to become unresponsive or incoherent. His Honour also considered that the alleged errors were not material to the matters decided adversely to the appellant. One such matter that was canvassed in the course of oral argument this morning was an answer to the Tribunal’s enquiry as to why the appellant had applied for a protection visa in 2003. The appellant’s actual answer included the sentence, “But things got worse in 2003.” That was mistranslated as, “Because the situation was becoming worse after 2000.” I do not consider that the Tribunal was materially misled by that error, because the answer, as translated, did not exclude reliance by the applicant on the events of 2003. In my view, having examined for myself the instances of errors in translation advanced by Ms Myint in her affidavit, it was eminently open to the learned primary Judge to find that the alleged errors were not material to the matters decided adversely to the appellant. Accordingly, I have not been persuaded that his Honour’s finding to that effect should be disturbed.

Conclusion

31                  As none of the attacks made by the appellant on the decision of the Tribunal or on the reasoning of the learned primary Judge has been sustained, it follows that the appeal must be dismissed with costs.

Associate:

Dated: 25^th August 2006

REASONS FOR JUDGMENT

TAMBERLIN J;

32                  I agree with the reasons and the orders proposed by his Honour the presiding Judge.

Associate:

Dated: 25^th August 2006

REASONS FOR JUDGMENT

MIDDLETON J:

33                  I agree with the reasons and the orders proposed by his Honour the presiding Judge.

Associate:

Dated: 25^th August 2006