FEDERAL COURT OF AUSTRALIA

Tan v Minister for Immigration & Multicultural Affairs [2000] FCA 1333

SAN SAN WIN TAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 42 OF 2000

SAN SAN MYINT TAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 43 OF 2000

JUDGE:                         BEAUMONT J

DATE OF ORDER:      30 AUGUST 2000

PLACE:                          SYDNEY

THE COURT ORDERS THAT:

The applications in both matters be dismissed with costs.

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

REASONS FOR JUDGMENT

BEAUMONT J:

1                     This matter is listed with a related matter and I will deal with both together.  I will deal only in form with matter N 43 of 2000.  The applicants in each of these matters are sisters and the matters were argued before me on the footing, which upon examination is correct, that the facts are, for all relevant purposes, identical.  Therefore, my reasons will address only matter N 43 of 2000 but on the basis that those reasons are to be taken to be applicable also in matter N 42 of 2000.

2                     Before the Court is an application for an order of judicial review, seeking review of a decision to refuse the applicant a protection visa.  The proceedings were commenced by the applicant in person but the applicant subsequently had the benefit of legal advice and representation. 

3                     The short history of the matter is that the applicant, who is a citizen of Burma (now Myanmar), arrived in Australia on 25 April 1996.  On 22 August 1996 she lodged an application for a protection visa.  On 11 February 1996 the delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refused to grant the visa.  On 6 March 1998 the applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”) and on 21 December 1999 the Tribunal affirmed the decision not to grant a protection visa.  The matter therefore, for present purposes, depends upon the question of whether the applicant can make a case for judicial review of the Tribunal’s decision.

4                     It is necessary therefore, in the first instance, to look at the Tribunal’s decision.  The Tribunal commenced its reasons with a statement of the well-known and well-settled legal principles in this area.  It then turned to the claims and evidence in support of the application, being some written submissions made to the Department;  the terms of an interview with an officer of the Department;  written submissions made to the Tribunal itself;  and oral evidence given to the Tribunal at the hearing before it.

5                     The Tribunal outlined those claims and that evidence as follows.

6                     The applicant is a twenty-nine year old citizen of Burma.  Her father, mother and three siblings reside in Burma.  A fourth sibling, as previously mentioned, is also an applicant before the Tribunal.  The applicant is ethnically Chinese, although born in Rangoon, and took up Burmese citizenship in January 1982.  She underwent primary and secondary education and then attended three years of college and three years of university, completing an honours degree in science in 1994.  She worked as a marketing assistant in 1994 and 1995.  She has always lived at an address in Rangoon.  She departed Burma in April 1996 on a Burmese passport issued by that government on 10 October 1995.

7                     In her written application to the Department she stated that she left Burma –

“… due to my immediate and well-founded fear of arrest, sexual assault, rape and torture, and of long-term imprisonment with hard labour, in terrifying and harsh conditions, if I continued to remain in Burma.”

8                     She then stated that she had been born stateless in Burma, of Chinese parents, on 1 January 1970 and that she had only been granted Burmese citizenship in January 1982, after many unsuccessful applications.  She stated that citizenship in Burma is not automatic and does not depend on whether one was born in Burma;  many persons born in Burma had been refused citizenship and forced to register themselves as foreigners, holding merely a foreigner’s registration certificate (“FRC”).

9                     She stated to the Department that:

“We suffer fear and intimidation daily, even by just walking down the street or going to the markets.  All our lives we have suffered harassment, abuse and violence, from the authorities, and to a much lesser extent from the public.  We are always told how grateful we should be, for being permitted to reside in Burma - when the question of our basic rights or our equal rights are merely mentioned.  We daily face persecution on the basis of our race and ethnic origin.  The 1947 Citizen Law has ensured that we do not have equal rights in Burma.”

10                  She went on to state to the Department that “we have always feared the Burmese authorities” and that she had a well-founded fear that if she is forced to return to Burma she will suffer greater punishment than a local Burmese citizen “because I am an ethnic Chinese”, even on trumped up charges.  She said that as a “guest” citizen she would be taught a lesson for being disrespectful and ungrateful to one’s “hosts”.  She said “I will without doubt be interrogated, beaten and tortured and sentenced to 20 years in prison with hard labour”.  She went on to say that “[d]eath by ill treatment, starvation, disease and sickness is common in all slave labour camps, and a daily occurrence”. 

11                  She said that she had herself suffered gross discrimination in Burma for being Chinese from the time she was a young child.  She said that she was picked on by the students at school for being Chinese and experienced discrimination from her teachers.  She said that she worked very hard to secure a place at university and to work in a profession after her graduation.  She went on to say that after her early school days she was picked on, humiliated, abused, harassed and assaulted by other children and adults for being Chinese. 

12                  She said that in 1987 many students joined the “rice riots” that were caused by a general shortage of rice, the staple food of the nation.  She said these riots turned into anti-Chinese riots, resulting in many Chinese in the city being killed by rioters under the supervision of the military.  She said that at the time her parents were terrified and feared that their home would be burned down and that they would be killed by the roving mobs. 

13                  She referred to a story reported in the Far Eastern Economic Review in December 1994 that recent visitors to Burma had reported that Chinese traders roam freely as far south as Mandalay, which is growing rapidly on account of illegal immigration from China, and that a Singapore analyst has warned of the “invasion”, so that “there is a possibility that a social time bomb could explode at any time, especially in Mandalay”.

14                  The applicant went on to inform the Department that after graduation she applied for employment in the public service but all her applications were rejected without any proper explanation and she believed this was due to her being Chinese.  She said she left Burma for the following reasons:  first, to escape sexual harassment, sexual assault and abuse and rape by Burmese soldiers who have demanded forceful cohabitation under threats of arrest for anti-government activities;  and secondly, to escape persecution and arrest for anti-government activities which would lead to torture, rape and execution in prison for refusing to become a concubine.

15                  She went on to say that in 1988 a bloody uprising erupted due to decades of suppression and human rights abuses by the military.  She was then at university and her sister was at high school.  A significant number of demonstrators, soon after the making of the threats to kill them if they did not leave, decided to heed the warning and leave before it was too late.  On that occasion the applicant and her sister joined those who were leaving and walked home.  The applicant said they had attended demonstrations at the main university campus but at that time, apart from the current march from their main campus, they had refrained from marching in the streets of Rangoon.  They feared severe retaliation against them.  Hundreds of wounded demonstrators poured into the Rangoon General Hospital and the hospital was soon overflowing with thousands of seriously injured and dying people.

16                  On that day, she said, her parents were working in their small plastics factory in a suburb of Rangoon.  As there was no public transport for them to return home they decided to spend the night in the factory.  That night, she said, a wounded female university student, who had taken part in the demonstrations, regained consciousness after blacking out from her wounds.  She managed to drag herself from among the dead bodies of her fellow students and escape into the darkness.  When she was passing the applicant’s parents’ factory, the applicant said, she collapsed and bumped on the door.  Her parents heard the bang and saw her lying on the ground.  They opened the door and carried her inside the factory and applied some treatment to her.  The applicant said that the wounded student regained consciousness and expressed gratitude to her parents for saving her life.  However, the applicant said, just as this wounded student had started to tell her parents about what had happened during the night, persons who identified themselves as soldiers came into the factory.  She said they forced her parents at gunpoint to squat in a corner of the factory and then proceeded to gang rape the female student in full view of her parents.  The soldiers then checked her parents identity cards and threatened her parents with arrest and gaol, and vowed to torture and kill them if they revealed to anyone what the soldiers had done that night. 

17                  The applicant said that some months later there was a fire in the factory at night and the factory was burned to the ground.  No investigations were made as no one professed to know anything about the fire and the authorities were not interested.  Her parents believed that the soldiers had burned the factory down.  The factory was not insured and they lost everything in the fire. 

18                  In July 1995 the applicant said two of these soldiers came to their home and threatened to cause more harm to her parents for harbouring an anti-government insurgent in their factory in 1988, unless they were given money.  The applicant said that when the soldiers saw her and one of her sisters they wanted them to be their concubines, or at least to spend a few nights sleeping with them.  Her parents, she said, were shocked by this suggestion and begged them to spare their daughters, promising to give them the money they demanded.  They demanded 60,000 kyats in three days time, or they would report all of them for taking part in anti-government activity.  The family, the applicant said, borrowed money again from relatives and gave the solciers the money within the three days.  The applicant said that there was nobody to whom they could report the situation, especially being Chinese, and not having any paid contacts in the military.

19                  The applicant said that one week later they came back and asked for more money.  This time, she said, they threatened to jail her whole family for anti-government activities if their demands were not met.  The applicant said that the family begged the soldiers to give them one month to raise the money and the family then wrote to an uncle in Sydney and asked for help.  That uncle sent money for the purpose of rescuing the applicant and her sister from the soldiers and sponsored the applicant, her sister and her grandmother to Australia.

20                  The Tribunal’s reasons then proceeded to note some details of the interview with the Department.  The Tribunal noted that at the interview the applicant had admitted that her statement previously given did not accurately reflect her own personal experience.  The Tribunal gave an illustration of the quotations from a magazine where the applicant was unable to say, of her own knowledge, whether what had been reported in the magazine was accurate.  The Tribunal said that a similar lack of knowledge “was displayed in relation to other material quoted in her statement”.  No details were given except that the Tribunal did go on to say that the applicant “did adhere to her claim in relation to the attempted extortion of her parents by soldiers”. 

21                  The Tribunal then went on to note, at some length, the claims made by the applicant at the Tribunal hearing.  The Tribunal’s reasons are lengthy and it will not be practicable to attempt to summarise all that the Tribunal has here stated.  Some of it, especially the background matters, have already been mentioned, in particular, her education and background.

22                  The Tribunal noted that at the hearing the applicant proceeded to develop her claims that she had been persecuted in education and employment.  She reiterated that she did not get the education that she wanted and nor did she get a government job as she had wanted.  The Tribunal said that it had pointed out to the applicant at the hearing that there was independent evidence that unemployment is a serious problem in Burma and that that fact suggested that she was not disadvantaged.  The Tribunal put to the applicant the circumstance that independent evidence suggested that Myanmar is “plagued by 60 per cent inflation … and a grossly overvalued currency”.  The Tribunal also put to the applicant the text of a report in an article by Reuters News Service to the effect that in a country where a degree does not necessarily lead to a vocation, where tour guides have, for instance, degrees in physics, and where jobs are hard to come by, many former students had decided to hold on to their jobs rather than risk unemployment at the end of their schooling.

23                  The Tribunal noted that the applicant had responded that if she had been able to do professional studies she could have found the job she wanted.  She repeated her claims of discrimination.  The Tribunal went on to note that it had asked the applicant about her political activities and in particular her involvement in opposition demonstrations.  The applicant stated, the Tribunal noted, that she had attended two or three demonstrations in late July or early August 1988 and shouted slogans but that this was the only time she was involved in political activities.

24                  The Tribunal then turned to the 1988 incident involving her parents and, in essence, the Tribunal noted that the applicant repeated her previous claims.  The Tribunal then turned to the incident in July 1995.  Again, the Tribunal noted that the applicant had repeated before it the essence of her previous claim.  The Tribunal noted that it put to the applicant that some aspects of her claims “seemed implausible”.  The Tribunal further noted that the applicant stated before it that “she was in hiding from July 1995 - April 1996”.  The Tribunal said that it had asked the applicant why she had not mentioned being in hiding before and the applicant stated that she had forgotten this.

25                  The Tribunal went on to say that it had pointed out to the applicant that if she was in imminent danger, as she had stated earlier, this raised the question why the soldiers did not harm her in the ten months between July 1995 and April 1996 when she left Burma.  The Tribunal said that the applicant responded that they wanted the opportunity to have a long-term income.

26                  The Tribunal then went on to note a body of independent evidence including reports from the US Department of State, a report written for the United Nations Human Rights Commission, a report of the Australian Department of Foreign Affairs and Trade (“DFAT”) dealing with abuses of human rights and treatment of dissidents in Burma, together with information as to unemployment in Burma and the position of ethnic Chinese.

27                  According to a DFAT cable, the Tribunal noted there are many people of Chinese ethnicity who officially hold Burmese citizenship and that FRC holders are not entitled to Burmese passports.  The Tribunal noted a cable from DFAT to the effect that FRC holders are not eligible for professional tertiary education courses. 

28                  The Tribunal then turned to express its findings and reasons.  It first dealt with the applicant’s credibility and stated that it was not satisfied with the applicant’s credibility;  and that the applicant had made a number of claims to the Department and to the Tribunal, none of which the Tribunal found to be credible.

29                  In particular, the Tribunal rejected the claim of discrimination in education and employment and rejected the claim that the applicant feared persecution from the 1988 and 1995 incidents.  The Tribunal said that the claims and evidence –

 “… apart from being far-fetched, do not accord with the independent evidence.  The Tribunal finds the applicant to be an unreliable witness, who has fabricated her claims with a view to promoting her claim for refugee status.  The Tribunal cannot give weight to the applicant's claims or evidence.”

30                  The Tribunal then turned to the details of the applicant’s claim for education and employment.  This matter was dealt with at some length and it is not practicable to summarise it here.  In the ultimate sentence of this section of its reasons the Tribunal said:

“In light of the vagueness and her inability to give any credible account of this claim of discrimination suffered ‘since childhood’ because of her ethnicity, the Tribunal cannot be satisfied that the applicant has a well founded fear of persecution for reason of her ethnicity in the foreseeable future upon return to Burma.”

31                  The Tribunal then turned to the incident in 1988 and stated that the applicant’s evidence in this area “contains a number of notable implausibilities upon which the applicant has not elucidated”.  Four matters are then mentioned as follows:

“l        Firstly, the applicant gave no indication as to why the authorities came specifically to her parents’ factory – that is, how they knew that a demonstrator had entered the premises and yet the applicant’s evidence was to the effect that they specifically targeted the applicant’s parents’ factory.

·                    Secondly, she did not explain why the authorities knew the someone was hiding in the factory, and indeed, she did not claim that her parents’ hid the demonstrator, making it implausible that the authorities would need to search the premises.

·                    Thirdly, the applicant claimed that while the soldiers were very brutal to the demonstrator, they did nothing at all to harm the applicant’s parents.  The independent evidence suggests that the treatment of those assisting opposition has been fierce for instance, on September 1, 1991, the Burmese army arrested Sayadaw U Ottama, the abbot of the monastery in Chaung Zon township, and two other monks on charges of assisting the insurgent All-Burma Students Democratic Front.  Sayaday U Ottama was reportedly disrobed and severely mutilated with a razor blade while interrogated in Tavoy (CISNET document:  CX7926, Lawyers Committee for Human Rights, 18 October 1991).

·                    Fourthly, the applicant claimed that her parents’ factory was burned down in December 1988 as a result of this incident and suggested that the two soldiers who were involved in the incident were responsible.  On further examination, the Tribunal finds this claim to be entirely implausible, since on the one hand the applicant’s evidence was to the effect that these soldiers had been transferred out of Rangoon immediately after the incident [in August 1988], and had not returned until 1995, while on the other hand she suggested that they were present in Rangoon engaging in arson.”

32                  The Tribunal then went on to deal with the claim with respect to extortion attempts in 1995.  The Tribunal noted that there was no evidence to suggest that the two soldiers made any threats against her parents in 1988;  and that the applicant had not claimed that these two soldiers had any contact with the applicant’s parents between 1988 and 1995.  The Tribunal said:

“The Tribunal finds the applicant’s claim, that these two soldiers would take no action against the applicant’s parents at the time of the incident and then wait seven years before approaching them again and extorting them to be far fetched in the extreme.”

33                  The Tribunal went on to deal with this matter in greater detail, which it is not practicable to summarise here.  The Tribunal concluded that in the light of the “implausibilities” in the applicant’s evidence, and inconsistency with independent evidence, it could not be satisfied that the incident in 1988 actually ever took place.

34                  Further, the Tribunal said, it found that the applicant’s claims of the ensuing incident seven years later in 1995 to be “far fetched and fanciful”.  The Tribunal said that in the light of this, and the inconsistencies for which the applicant has failed to provide any reasonable explanation, the Tribunal finds these claims “to have not a shred of credibility, lacking in truth and concocted for the purpose of facilitating a claim to be a refugee”.

35                  The Tribunal then turned to the claim with respect to the applicant’s political activities in Burma.  It noted that the independent evidence suggested that the Burmese authorities target anyone even suspected of being involved in any political activity.  However, the Tribunal said, nothing adverse happened to the applicant in the seven years after her participation and before she left Burma.  The Tribunal, therefore, said that it could not be satisfied that the applicant had a well-founded fear of Convention-related persecution as a result of her participation in the demonstrations in 1988.  The Tribunal noted that there was no other claim of involvement in any opposition political activities since she departed Burma. 

36                  The Tribunal went on to say that it was not satisfied that the applicant had been truthful in her claims to the Tribunal and that the applicant had misled the Tribunal and fabricated her claims and evidence.

37                  On behalf of the applicant it is said that the Tribunal erred in law in two respects.  First, it failed to have regard to the general material available relating to the mistreatment of Chinese as a racial minority or racial minorities generally.  The argument appears to accept, correctly I think, that the Tribunal dealt at some length with the applicant’s specific claims with respect to her personal position.  The argument now advanced on her behalf is rather that the Tribunal erred in law by not looking to the wider picture.  In my opinion the argument is without substance.  The Tribunal was, of course, bound to consider the particular position of the applicant as an individual.  It did so but, in any event, I am not at all satisfied that the Tribunal failed to place the applicant’s claims in their proper context.  It was clear that the Tribunal recognised and accepted that the applicant was of Chinese ethnicity.  It did, however, conclude, and this conclusion was clearly open to it on the material, that notwithstanding that ethnicity, the applicant had not suffered any relevant discrimination.

38                  The second area of law arises out of an alleged failure to comply with the provisions of s 430 of the Migration Act 1958 (“the Act”).  The principles in this area are now settled.  They may be summarised or extracted from the majority judgment of the five member Full Court Bench in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 845 as follows:

“l        a failure to comply with s 430(1) is a failure to observe procedures required by the Act to  be observed in connection with the making of a decision and therefore constitutes a ground of review under s 476(1)(a): see [43];

·                    s 430(1) does not impose any obligation on the RRT to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached, although the RRT is obliged to set out its findings on any material questions of fact: see [44] and [47];

·                    there is no specific requirement in s 430(1) for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made, although if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT’s actual reasoning process: see [46];

·                    the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make.  Consequently, it must make findings on questions of fact ‘that are central to the case raised by the material and evidence before it’ or upon which the ‘decision, one way or the other, turns’, having regard to the process of reasoning the RRT has employed as the basis for its decision: see [48], [56] and [57];

·                    a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact must be dealt with: see [56].  Accordingly, a failure to comply with s 430 is not made out by reason only of the failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue: see [56] and [64];

·                    fundamentally, on a fair reading, the reasons of the RRT need to reveal to the parties why the decision went the way it did: see [62].”  (See Najarian v Minister for Immigration and Multicultural Affairs [2000] FCA 933)

39                  I have endeavoured to summarise as much of the Tribunal’s detailed consideration of the matter as was practicable.  It is simply not feasible to go beyond that but the summary I have given of the Tribunal’s approach speaks for itself.  In my view, the suggestion that there was here any failure to comply with the provisions of s 430 of the Act is quite without substance.  It is true, as was argued on behalf of the applicant, that the Tribunal placed great emphasis on the lack of credibility of the claims made by the applicant, but that conclusion was expressed in a fashion that made it clear to the reader that the basis for that conclusion was grounded in the reasons stated in the Tribunal’s decision.

40                  I am, therefore, of the view that the application must be dismissed with costs and I make that order in both matters.

Associate:

Dated:              September 2000