FEDERAL COURT OF AUSTRALIA

Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988

IMMIGRATION – Refugee Review Tribunal – whether decision affected by actual bias – whether approach to analysis of evidence and facts by Tribunal justifies inference of actual bias.

Migration Act 1958 (Cth), ss 36, 65, 476.

Convention Relating to the Status of Refugees.

Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885, followed.

Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, followed.

Jia v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556, cited.

Li v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 125, cited.

TIN SHWE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 499 of 2000

SACKVILLE J

27 JULY 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed. 

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

THE PROCEEDINGS

1                     The applicant is a citizen of Burma who arrived in Australia on 26 March 1996.  On 11 June 1996, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs.  On 25 November 1997, a delegate of the respondent (“the Minister”) refused to grant a protection visa.  On 28 November 1997, the applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 5 April 2000, the Tribunal affirmed the delegate’s decision not to grant a protection visa.  The applicant now seeks an order of review of that decision in this Court.

2                     The amended application identified a number of grounds upon which the applicant sought relief in this Court.  Ms Winfield, who appeared on behalf of the applicant, relied at the hearing on only two grounds of review available under the Migration Act 1958 (Cth) (“Migration Act”):

·        First, she contended that the decision of the Tribunal involved an error of law (s 476(1)(e)), in that the Tribunal misconceived the nature of the claim made by the applicant; and

·        Secondly, the decision of the Tribunal was affected by actual bias (s 476(1)(f)).

3                     In so far as the applicant’s case rests on actual bias, it raises issues similar to those dealt with in a judgment delivered by me today: Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885.  Much of what is said in that judgment applies to the present case.

THE LEGISLATION

4                     Under s 65(1) of the Migration Act 1958 (Cth) (“Migration Act”), a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied.  Section 36(2) of the Migration Act provides that a criterion for a protection visa, including a protection (class XA) visa, is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“Convention”). 

5                     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…”.

THE APPLICANT’S CLAIMS

6                     The applicant claimed to have been a member of an anti-government student movement at Rangoon University from late 1985 until 1988.  He said that he was arrested on 13 March 1988, in the course of a demonstration at the University, and was taken to Insein Jail.  He said that he had been held in the jail for almost two and a half years.  He claimed that he had been routinely tortured and interrogated during this time.  He obtained his release in September 1990 by signing a declaration in which he undertook not to take part in any further political action. 

7                     The applicant said that, after his release, he continued to be involved in political activities, in particular on behalf of the National League for Democracy (“NLD”), an anti-government party.  He said that he returned to Arakan, his home state, in January 1991.  He continued to be subject to police surveillance and interrogation.

8                     According to the applicant, he returned to Rangoon in May 1992 and resumed his studies at the University.  He was able to do this by signing a statement that he was no longer involved in political activities.

9                     The applicant said that he spent 1993 working on a voluntary basis with the NLD.  In that year he paid a bribe to obtain a passport.  He subsequently flew to Bangkok with a view to securing sponsorship from an uncle already in Australia to enable him to come to this country.  When he learned that the application for a visa had to be lodged from Burma, he returned home. 

10                  In late 1993, discouraged by poor finances and the lack of employment in Rangoon, he again returned to Arakan.  He continued to attend secret meetings with students and was subjected to police threats and surveillance.  On 14 March 1994, he was detained by the police and held for questioning for a period of two days.  Late in 1994 he returned to Rangoon and stayed with friends, continuing his activities on behalf of the NLD.

11                  Between August 1995 and his departure from Burma in March 1996, the applicant said that he refrained from all involvement in political activity.  He did this because he feared that he would otherwise be stopped from travelling abroad.  With the support of his uncle he travelled to Australia.

12                  The applicant claimed that, following his departure, the Burmese authorities became aware of his unauthorised absence from the country.  His relatives had been ordered to report his return to Burma immediately.  He said that he feared that he would be detained at the airport or shortly after returning home by reason of his political activities.  He also feared punishment, as very severe sentences had been handed down to those accused of anti-government activities.

13                  The applicant also claimed that he would come to the attention of the authorities in Burma because of his association with anti-Burmese groups in Australia.  He expressed a fear that he might be accused of being part of a sabotage team were he to return to Burma.  He would also be interrogated, since the Burmese embassy would have photographic evidence of his active support for the removal for the military regime in Burma. 

THE TRIBUNAL’S FINDINGS

14                  The Tribunal noted that the government of Burma has a “shocking record of human rights abuses”.  This record was a matter of grave concern and it was necessary to consider the applicant’s claims in the context of human rights abuses in that country.

15                  The Tribunal was satisfied that, if the applicant had been involved in politics as a student, his involvement was at such a low level that he was of no interest to the Burmese authorities.  The Tribunal made this finding because the applicant had obtained his passport and travel documents without significant difficulty.  Moreover, in 1995 he had returned to Burma, after spending three months in Thailand, without any difficulty.  The applicant had been aware that Thailand offered a form of protection to Burmese refugees, but he made no attempt to avail himself of that protection.  Accordingly, the Tribunal was satisfied that the applicant did not have a well-founded fear of persecution at the time he returned from Thailand.

16                  The Tribunal was also satisfied that, at the time the applicant departed Burma for Australia in 1996, he had not been of adverse interest to the authorities for a Convention related reason, or indeed for any other reason.  Had he been of interest to the authorities, he would have encountered difficulty in departing the country.  While the Tribunal was satisfied that the applicant may have paid a bribe to authorities in order to facilitate his departure, it was satisfied that bribery was endemic in Burma and that the applicant had been treated no differently than any other university educated Burmese citizen seeking to depart the country. 

17                  The Tribunal found that the applicant had played no significant part in politics in Burma.  The Tribunal was satisfied that the applicant had not been in Insein Jail for over two years, as he had claimed.  The Tribunal made this finding because the applicant had demonstrated limited knowledge of prison conditions and procedure: 

“I am satisfied that had he been detained in Insein for such a substantial period his evidence would be consistent with that of Amnesty International and [All Burma Student’s Democratic Front] that I put to him at hearing….  Both groups interviewed many prisoners who were in Insein at that time.  The applicant would have known about the clothing of MI [Military Intelligence] and prison officers who he claimed interviewed him regularly, the whereabouts of death row, conditions for visits and other significant details of the prison.  In any event, I note he encountered no difficulty returning to University to complete his studies and graduating.”

18                  The Tribunal found that, although the applicant claimed to have been involved in politics in Arakan state, his knowledge of Arakan politics was quite limited.  The Tribunal noted that the applicant did not appear to object to the forced removal of and abuse of the human rights of the Muslim Rohingya minority from his state of Arakan.  According to the Tribunal, his lack of understanding of human rights issues was made clear when he indicated at the hearing that soldiers who slaughtered Rohingya Muslims were just doing their duty, and that it was fair to take action against the Muslim minority.  The Tribunal was satisfied that, if the applicant had been involved in the NLD, bearing in mind that its struggle was intimately connected with the development of human rights in Burma, his involvement had been at such a low level that he would be of no significant interest to authorities.  Moreover, on the basis of the applicant’s limited knowledge of political and human rights issues in Arakan, and his lack of commitment to human rights issues, the Tribunal found that he was not seriously involved in politics in Arakan.  This conclusion was supported by evidence that the applicant had travelled to and from Arakan without difficulty and that he had applied for a position with Burmese Immigration.

19                  The Tribunal rejected the applicant’s claim to be a refugee sur place as the result of his activities in Australia.  His claim was founded mainly on his role as a radio announcer in the local Burmese community.  The Tribunal considered that someone who made no contribution to the material being read over the radio and who had not played a readership role in the organisation was not at risk of persecution upon his return to Burma.  The other activities in which the applicant claimed to be involved did not suggest that he was a leader of the local community, nor that he had a high profile within the community.  The Tribunal was therefore satisfied that the applicant would suffer no adverse consequences if he were to return to Burma.

20                  On the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia had obligations under the Convention.  Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection visa.

error of law

21                  Ms Winfield did not dispute that the Tribunal’s reasons had correctly stated the test laid down by Art 1A(2) of the Convention, as interpreted by the Australian authorities.  She nonetheless contended that the Tribunal had misapplied the test.

22                  Ms Winfield’s argument was founded on the fact that the Tribunal had questioned the applicant about whether he had done anything to help the Muslims in Arakan State and whether he had views about the slaughter of Rohingya Muslims in that State.  The Tribunal took into account the applicant’s answers in finding that the applicant’s involvement in the NLD and other political activities had been at such a low level that he would be of no interest to authorities.

23                  The submission, as I understood it, was that the Tribunal had failed to address the applicant’s contention that he had a well-founded fear of being persecuted for reasons of political opinion.  Rather, it had taken into account religious considerations and thus misconceived the issue presented to it for determination.

24                  In my opinion, the submission fails to take account of the purpose underlying the Tribunal’s questioning of the applicant, as disclosed in its reasoning.  The Tribunal was testing the applicant’s knowledge and understanding of Arakan politics.  It took the view that the applicant’s apparent lack of concern with human rights questions in Arakan State cast doubt on his alleged political involvement with the NLD.  The Tribunal was merely testing the veracity of the applicant’s claims to have expressed or given effect to political opinions that were likely to make him of interest to the Burmese authorities.

25                  The Tribunal’s reasoning on the factual question may or may not strike an observer as convincing.  But there is nothing in the reasoning which suggests that the Tribunal misapprehended the nature of the applicant’s claim or the test that was to be applied.  This ground fails.

ACTUAL BIAS

26                  Ms Winfield submitted that the Tribunal’s approach to the evidence and analysis of the facts were such as to justify an inference of actual bias.  The matters relied on by the applicant were the following:

(a)                The Tribunal’s questioning of the applicant on his attitude to the persecution of the Muslim minority in Arakan State.

(b)               The Tribunal had misstated the effect of the independent evidence concerning the layout and conditions in Insein Jail.  According to Ms Winfield, the evidence actually supported the applicant’s account of Insein Jail on issues such as the location of his cell, and of death row, the uniforms worn by Military Intelligence (MI) and the conditions governing visits by family members and friends.

27                  In Yit v Minister, I discussed the principal authorities dealing with the scope of the “actual bias” ground specified in s 476(1)(f) of the Migration Act: see Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (FC), at 126-127, per Burchett J, at 134-136, per North J; Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556, at 566, per Spender J, at 598 per R D Nicholson J; Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125, at 133-134, per Drummond J.  It is not necessary to repeat that discussion here.  For present purposes, it is enough to note that the test of actual bias is whether the decision-maker has exhibited a closed mind to the issues raised by the application, or has prejudged the case in some respect such that he or she is unable or unwilling to decide the case impartially.  Actual bias can be unintentional or subconscious, provided it is “real”.  In an appropriate case, actual bias may be inferred by the facts and circumstances, for example, a series of extremely adverse findings based on the flimsiest of grounds.  Caution should be exercised, however, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the decision-maker.

28                  As in Yit v Minister, I think that the applicant in the present case has fallen a long way short of establishing that the Tribunal’s decision was affected by actual bias.  Some of the factual findings criticised by Ms Winfield were clearly open to the Tribunal.  For example, there was independent evidence to support the Tribunal’s finding that the applicant was wrong when he said that MI personnel wore the same uniform as prison staff.  Similarly, there was evidence to support the Tribunal’s finding that the applicant did not know where death row was located within Insein Jail.  It is true that the applicant ultimately said that death row was in the solitary confinement area, a statement consistent with information in a report prepared by the All Burma Student’s Democratic Front in 1996.  But the applicant advanced that suggestion only after giving other answers which did not accord with the independent evidence.  It was for the Tribunal to assess the significance of the applicant’s apparent uncertainty on the issue.  The fact that it made a finding adverse to the applicant on this issue does not suggest that the Tribunal member came to his task with a closed mind or on the basis of an irreversible pre-judgment of the factual question.

29                  The other criticisms amount to little more than quarrels with the way the Tribunal has presented its findings.  Ms Winfield was probably correct to submit that the applicant answered questions accurately enough at the hearing about the entitlement of political prisoners in Insein Jail to receive visitors.  But he had previously asserted in a statutory declaration that his parents had not visited him because they were not allowed to do so.  This evidence was not consistent with independent reports and seems to have been contradicted by the applicant’s own oral evidence.  There were other significant inconsistencies in his evidence, such as whether his uncle was aware that he had been imprisoned.

30                  The Tribunal’s reasoning might have been improved had specific reference been made to the statutory declaration and to the other inconsistencies in the applicant’s evidence.  Whether or not this be the case, the Tribunal’s brief reference to the applicant’s lack of knowledge of conditions for visits is hardly evidence of a closed mind or irreversible prejudgment on the part of the Tribunal member.

31                  Ms Winfield also criticised the Tribunal’s questioning of the applicant concerning the number of cells in the block in which he claimed to have been imprisoned.  The most that can be said of the exchange is that it is possible that the Tribunal member and the applicant were at cross-purposes.  Insofar as the Tribunal’s reasons imply that the applicant was wrong about the number of cells in the relevant block, the implied finding was open on the evidence.  The finding cannot be indicative of actual bias.

32                  Finally, I see nothing in the Tribunal’s questioning of the applicant on the latter’s attitude towards the persecution of Muslims in Arakan State that suggests actual bias by the Tribunal.  Whether the Tribunal member was right to give weight to the applicant’s answers was a matter within the decision-maker’s province.

33                  In summary, none of the matters referred to by Ms Winfield, either individually or collectively, makes out the submission that the Tribunal’s decision was affected by actual bias.

CONCLUSION

34                  The application must be dismissed.  The applicant must pay the Minister’s costs.

Associate:

Dated:              27 July 2000