FEDERAL COURT OF AUSTRALIA

Win v Minister for Immigration & Multicultural Affairs [2000] FCA 1363

MIGRATION – Refugees – application for review of decision of Refugee Review Tribunal affirming decision of delegate of Minister refusing protection visa – after hearing before Tribunal, applicant claimed to have been raped while in detention in country of nationality (Burma) – applicant had previously made claim of thwarted attempts at rape on three occasions while she was in detention – Tribunal did not refer to late claim of rape in its Reasons for Decision – Tribunal described claim of thwarted attempted rape on three occasions as “implausible” – whether failure to set out findings on material question of fact – whether claim of attempted rape abandoned and replaced by claim of rape – whether Tribunal’s decision based on fact that did not exist (making of claim of thwarted rape)

Migration Act 1958 (Cth) ss 424; 430(1)(c); 476(1)(a), (g), (4)(b)

Minister for Immigration & Multicultural Affairs v Li Yue [2000] FCA 856, referred to

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, applied

Najarian v Minister for Immigration and Multicultural Affairs [2000] FCA 933, cited

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, applied

MON MAW MAW WIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 617 OF 2000

LINDGREN J

25 SEPTEMBER 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

Introduction

1                     The applicant (“Ms Win”) applies under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“RRT”) dated 3 May 2000 affirming a decision of a delegate (“the Delegate”) of the respondent (“the Minister”) not to grant her a protection visa.  

2                     Section 29 of the Act provides that subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following:

(a)                travel to and enter Australia;

(b)               remain in Australia.

Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under the Act.  It is not in dispute that the Minister delegated all necessary powers to the Delegate.

3                     Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa.  One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.  Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  As a party to the Convention, Australia has undertaken protection obligations to persons who satisfy the Convention’s definition of a “refugee”.  

4                     Article 1A(2) of the Convention provides that a refugee is 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5                     Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6                     The RRT’s decision was a “judicially reviewable decision” (s 475(1)(b) of the Act), Ms Win was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486).

7                     Ms Win’s case is that she is outside the country of her nationality, Burma, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of political opinion.

Procedural Background

8                     Ms Win arrived in Australia on 11 November 1995.  On 19 January 1996, she applied, through the Legal Aid Commission of NSW, for a protection visa (visa sub-class 866). The Delegate refused the application on 28 April 1998.  On 11 May 1998, Ms Win applied to the RRT for review of the Delegate’s decision.  The RRT conducted a hearing on 22 or 23 February 2000 (both dates appear in the evidence).  As noted above, on 3 May 2000 the RRT affirmed the Delegate’s decision. Ms Win filed the present application in this Court on 13 June 2000.

The reasons for decision of the RRT

9                     The RRT commenced its Reasons for Decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a “refugee”.  It then gave an account of Ms Win’s claims and evidence, of which the following is a summary.

Claims and evidence

10                  Ms Win was born in Rangoon, Burma in 1965 and came to Australia on a student visa.  She has a sister and brother-in law in Australia and another sister in Burma. Ms Win comes from a politically active family.  Her father died shortly before her birth and she was raised by her mother.

11                  In high school Ms Win was a member of an illegal “students’ union”.  After warnings, she was expelled from school in 1985 because of her political activity.

12                  In 1986 she took a job as a counter officer in the Rangoon City Development Office, where she was to remain employed until March 1990.  Her mother had been opposed to Ms Win’s working for the government.

13                  In August 1988, Ms Win joined anti-government demonstrations, strikes and marches.  On 17 August she and her group persuaded several police officers to join them and a prison van was set alight. When the demonstrators reached Rangoon Hospital, Ms Win mounted a dais and made a speech calling for the restoration of democracy. 

14                  A friend of Ms Win’s was arrested on or about 25 August 1988.  A few days afterwards, the authorities came to her house to arrest Ms Win but she was not at home.

15                  The National League for Democracy (“NLD”) was formed on 17 September 1988.  Ms Win joined it that month and was issued with membership card number 3785. She recruited members and visited houses and schools where she made speeches about the NLD’s aim of overthrowing the government.  After she heard of the arrest of her friend, Ms Win went into hiding in a Buddhist nunnery in the suburbs of Rangoon.  She stayed in the nunnery until her arrest on 3 August 1990, referred to below. 

16                  Ms Win was sacked from her government job in March 1990. 

17                  On 3 August 1990, four military intelligence men arrested Ms Win at the nunnery.  She was taken by van to a destination, the identity of which she does not know, where she was interrogated and beaten.  She was not charged with an offence.  Three times she had to fight off attempts at sexual assault by an interrogator.  She was blindfolded and could not tell if it was the same person each time.  Whenever she was interrogated there was someone outside her cell.  When the attacks took place she was unable to scream out. Nonetheless, the person outside her cell came in and stopped the attacks.  At the hearing before the RRT Ms Win expressed the opinion that the person must have heard the commotion in her cell caused by the attacks and by her resistance to them.

18                  Ms Win signed a blank piece of paper and was released from detention the day after signing it.  That was about two months after her arrest. (That would be in early October 1990.)  She was released on conditions which required her to report to the police. 

19                  After her release, Ms Win knew that she would not be able to get work again.  She tried but the only work she could get was seasonal work picking chillis. 

20                  About January 1991, Ms Win applied for a permit to move to Mandalay where her sister lived. She was still required to report to a police station daily.  Her sister’s husband was a policeman and was warned about having a political activist (Ms Win) living in his house.

21                  Her brother-in-law was sacked from his job, subsequently arrested and jailed for 48 days. Ms Win returned to Rangoon. 

22                  The Rangoon Institute of Technology, backed by the army, confiscated the land on which her mother’s home and 500 other homes were located. Ms Win and her mother were forced to move to a new location and to make do with a hut. They were not well and in fact her mother died in December 1994.

23                  Ms Win sought assistance from her sister in Australia.

24                  It was difficult for her to get a passport. Her sister in Australia sent money and Ms Win arranged for a broker, paid a bribe, and changed her name, receiving a passport in October 1995 in the new name.  The incorrect name in the passport is “Mon Maw Maw Win”, but Ms Win’s correct name is “Mone Maw Maw Win”.

25                  Ms Win made various written submissions to the RRT dated 15 January, 11 February, 17 February and 18 February 2000. The submissions included numerous documents, some of which were directed to showing that Ms Win was an active participant in the Burmese democracy movement in Australia and was actively involved in the Friends of the NLD that met monthly in Sydney. She claimed that if she went back to Burma she would continue to work to replace the government and would be arrested. 

26                  At the hearing the presiding member questioned Ms Win about numerous aspects of her claims and pointed out to her inconsistencies in her claims and evidence, the detail of which I need not discuss.

27                  After the hearing, the solicitor from the Legal Aid Commission of New South Wales (“the Commission”) who had represented Ms Win on the hearing, sent a supplementary written submission to the RRT on 3 March 2000.  The letter raised a new claim, namely, that Ms Win had in fact been raped during the period of her detention.  This new claim, made for the first time after the hearing, was not referred to in the RRT’s Reasons for Decision.  Moreover, when listing the submissions on behalf of Ms Win that it had received, the RRT did not refer to this post-hearing submission of 3 March 2000.

Findings and reasons of the RRT

28                  The RRT accepted that Ms Win was a citizen of Burma and that Burma’s record on human rights was “far from perfect”. But the RRT had difficulties with Ms Win’s credibility and found her to be an unreliable witness.

29                  The RRT accepted that Ms Win may have participated in student politics while at school but did not accept that she was, as a result, a person of interest to the Burmese authorities. The RRT accepted that she had participated in various anti-government activities and may have joined the NLD, but did not accept that she was wanted by the authorities on account of these matters.

30                  The RRT did not accept Ms Win’s claim that she hid in a nunnery from 1988 to 1990, that she was sacked from her job in March 1990 or, importantly, that she was arrested in August 1990 and detained for two months. Moreover, the RRT thought her claim that she “thwarted rape attempts whilst in detention by getting a person standing outside her cell to intervene” to be “implausible”.

31                  The RRT rejected numerous claims made by Ms Win including claims that she was arrested, interrogated, beaten and otherwise mistreated in the two month period commencing on 3 August 1990, and that she hid at the nunnery some time in the period 1991 to 1995. 

32                  The RRT accepted that Ms Win may have paid a bribe to facilitate the obtaining of her passport, but concluded, on the basis of independent evidence, that bribery of that kind did not appear to be unusual in Burma.  The RRT considered it unlikely that Ms Win would have been able to obtain a passport in her own name containing her photograph, and have it stamped or amended by the Director of Burma’s Special Branch and other persons in authority, if she was, as she claimed to be, a person of interest to the authorities.

33                  The RRT did not accept that Ms Win’s true name was “Mone Maw Maw Min” and that the name “Mon Maw Maw Win” was a false one taken by Ms Win for passport purposes in order to escape detection at the airport.

34                  Regarding Ms Win’s “sur place”claims, the RRT did not accept that Ms Win had attended 20 demonstrations in Australia or broken into the Burmese Embassy compound in Canberra in 1999, as she claimed. The RRT thought that she had exaggerated her claims about participating in demonstrations in Australia and, indeed, that she had attended demonstrations in order to advance her application for a protection visa.  The RRT accepted, however, that Ms Win “may have attended several demonstrations outside the Burmese Embassy in Canberra and attended functions in Sydney”, and, as well, that “she was involved in fund raising and community support activities, such as teaching”.  The RRT did not accept, however, that this necessarily meant that Ms Win would be a person of adverse interest to the authorities in Burma if she were to return there.

Grounds of the present application for an order of review

35                  According to her amended application for an order of review, filed in Court on the hearing, Ms Win relies on the following grounds:

“1.       Procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed, in that the Tribunal failed to give reasons and to set out its findings on material questions of fact or refer to the evidence or any other material upon which its findings of fact were based: s. 476(1)(a) and s. 430(1)(b), (c) and (d) of the Act.”

            The particulars given of this ground are that the RRT failed to give reasons and set out its findings or refer to the evidence in respect of the following claims made by Ms Win:

(a)                The claim made in the Commission’s letter dated 3 March 2000 that Ms Win had been raped and that she had not put this in her previous statement because she had been ashamed;

(b)                The claim that Ms Win had been heavily involved in NLD activities after the 1988 coup in Burma, including making a speech on a dais outside the Rangoon Hospital and making a number of speeches at schools;

(c)                The claim that Ms Win was a regular, current and repetitive demonstrator in Australia against the Burmese Government and that this would cause her particular problems upon her return to Burma;

(d)                The claim that if Ms Win were living in Burma she would continue to take political action against the government.

“2.       Procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed, in that the Tribunal failed to have regard to the evidence on the applicant’s claim in a letter dated 3 March 2000 that she had been raped and that she had not put this in her statement because she was ashamed: s. 476(1)(a) and s. 424(1)”.

“3.       [This ground was not pursued on the hearing.]”

“4.       There was no evidence or other material to justify the making of the decision, because the decision was based on the existence of particular facts that did not exist: s. 476(1)(g) and s. 476(4)(b)”.

On the hearing, particulars of ground (4) were clarified.  The “particular fact” to which the ground referred was formulated on the hearing as follows:

“The applicant had claimed she had to fight off attempts to rape her and only succeeded because she was able [sic] to scream out and a person outside her cell would come in and stop the attack.”

36                  Ms Win submits that on the totality of the evidence, including the Commission’s letter dated 3 March 2000 to the RRT, she was not making that claim which had been superseded by the new claim made in that letter that she had in fact been raped, and the claim that she had not put this in her previous statement because she had been too ashamed to do so.

37                  (Another particular of ground (4) was abandoned on the hearing).

Reasoning on the present application for an order of review

Ground 1: failure to observe required procedures – ss 476(1)(a) and 430(1)(b), (c) and (d) of the Act

38                  Subsection 430(1) of the Act provides as follows:

“(1)     Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)               sets out the decision of the Tribunal on the review; and

(b)               sets out the reasons for the decision; and

(c)                sets out the findings on any material questions of fact; and

(d)               refers to the evidence or any other material on which the findings of fact were based.”

39                  I accept the Minister’s submission that the RRT did not fail to meet the requirements expressed in pars (b) and (d) of subs 430(1) of the Act and that it is only par (c) of that subsection that merits extended consideration.  This is because the RRT did set out its reasons for its decision to affirm the Delegate’s decision not to grant a protection visa, and because its reasons refer to the evidence and other material on which its findings of fact were based.  To express the matter differently, it is not shown that the RRT had a reason for its decision to affirm the Delegate’s decision that it did not set out, or that there was evidence or other material not referred to in its Reasons for Decision on which its findings of fact were based.  The only substantial question raised is whether the RRT’s Reasons for Decision set out findings by the RRT on “any material questions of fact” (par (c)).

40                  The parties are agreed that the applicable principles are to be found in the joint judgment of Black CJ, Sundberg, Katz and Hely JJ in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 and that a convenient analysis of them is found in the judgment of Merkel J in Najarian v Minister for Immigration and Multicultural Affairs [2000] FCA 933 at [13].  Those principles are as follows:

(a)                A failure to comply with subs 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 par 476(1)(a): Singh at [43];

(b)               Subsection 430(1) does not oblige the RRT to prepare a statement disclosing a satisfactory process of reasoning leading to its decision, although it must set out its findings on any material questions of fact: Singh at [44] and [47];

(c)                There is no specific requirement in subs 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 makes, although if one of the reasons which actually induced it to come to its decision was that it decided to reject or to attach no weight to particular material, par 430(1)(b) will require disclosure of that element of the RRT’s actual reasoning process: Singh at [46];

(d)               The RRT must make, and set out, findings on all matters of fact that are objectively material to the decision it is required to make, and whether a particular fact is objectively material will depend on whether it is “central to the case raised by the material and evidence before it” or whether the “decision, one way or the other, turns upon whether a particular fact does or does not exist”, having regard to the reasoning process the RRT has employed as the basis for its decision: Singh at [48], [56] and [57];

(e)                The requirement to set out findings on material questions of fact and to 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 (Singh [56]), and, accordingly, a failure to comply with s 430 is not made out by reason only of a failure by the RRT to explain why it did not accept and act upon material which was  contrary to findings that it made (Singh at [56] and [64]);

(f)                 Fundamentally, on a fair reading, the reasons of the RRT must reveal to the parties why “the decision went the way it did”: Singh at [62].

Ground 1(a) : claim of rape not made previously because Ms Win too ashamed

41                  The Minister submits that for reasons independent of what it found to be “the implausibility” of Ms Win’s claim of thwarted sexual assaults, the RRT found that Ms Win had not been detained at all, so that her claim of rape during detention was “logically irrelevant”.

42                  It is important to trace the making of the claims of thwarted sexual assaults on three occasions and of actual rape, and the RRT’s treatment of them. 

43                  In a statutory declaration annexed to her visa application, Ms Win described her alleged arrest, detention, interrogation and torture, then stated:

“On three occasions I had to fight off attempts at sexual assault by an interrogator.  The interrogators used to change all the time and not all of them were like that.  I was blindfolded during these encounters and I cannot tell if each time it was the same person.  Each time I was interrogated there was someone outside my cell.  On the occasions when the interrogator tried to attack me I was unable to scream out and the person outside came and stopped him.  I would rather die than be treated like that in gaol.

A friend of mine who also went to gaol was sexually assaulted there and was pregnant on her release.  She had an abortion and was then sent back to gaol because she had an abortion.

Finally, unable to take the torture any longer I signed a blank sheet of paper that they proffered….”

44                  In his Reasons for Decision, the Delegate stated:

“Finally, the notion that there was one interrogator always ready to rescue her from any sexual indignities during her claimed captivity is unprecedented and unrealistic romanticism according to my reading of the Burma country information…”

45                  The transcript of the hearing before the RRT on 22 February 2000 includes the following passages:

“Q.151:           You’ve said in here, somewhere, in your written Application, Miss Win, … that when you were interrogated there was always somebody outside your cell, was there and that, on three occasions, attempts were made to sexually assault you?  You said that ‘you were unable to scream out’ but I think that you meant to say that ‘you were able to scream out’ and the person outside came in and stopped you from being assaulted?

A. (Intrptr):     I couldn’t scream but I struggled and ah, the person outside must have heard the struggle and came in.

Q.152:             And this happened three times, did it?

A.(Intrptr):      Yes.

Q.153:             So he prevented you from being raped then, did he?  He saved you from being assaulted.  Is that what you’re telling…saying?

A.(Intrptr):      (No response)

Q.154:             All right!  Well, we’ll leave that.

Ms Reid:          I’m not sure she can talk about it.

Q.155:             I’m just trying to clear up.

Ms Reid:          (unclear) She physically cut the man, as well.

Q.156:             All right!  Well, maybe you can make a comment?

Ms Reid:          Sure!”

Towards the end of the hearing, the following passage occurs (I think it important to set all of it out in view of its relevance to Ground 2 as well as to the present Ground):

“A. (Intrptr):   If they hand over power to Aung San Suu Kyi and she is in power then I wouldn’t mind going back.

Q.334:             They what?

A. (Intrptr):     Hand over power to Suu Kyi then I’ll be happy to go back.

Q.335:             OK.  Thank you.  Ms Reid, did you want to say something?  Address any particular point?  Send in another submission, perhaps?

Ms Reid:          Well, I mean, I would like to review back and, if necessary, send something in later but I would like to say a short amount now.  I mean, I have made submissions and I would adhere to those.  I mean, I would ask you Dr. to look at the Applicant not simply in the light of advents that happened ten years ago but across and continuing up to the present date. … and I would submit that Miss Win is at real risk, if she returns to Burma because of her activities in the past and also because of what she has done in Australia.  Um, there is no evidence that what she has done in Australia was done simply to promote her Refugee case and, on the contrary, I think, if you look at the range of activities she’s undertaken; not simply political activities but educational and on behalf of her community, it seems clear that those together with her numerous political activities have been undertaken out of a genuine desire to promote democracy in Burma and to contribute to the Burmese community.  There have been a number of matters raised today and, I would like the chance to go back and, if necessary, address particular things.  One question, in particular; you asked, at one stage, about addresses that she had put down on her form, I just wish to make the point that the question asked for addresses that you’ve lived at for more than twelve months and, in fact, I think that her answer was correct on the form based on … I mean, if you look at whether she’d lived somewhere for twelve months.  I’d also ask you to consider the risk to her given her profile in Australia plus her previous activities, if she again engaged in political activity in Burma which she has stated in Statutory Declarations that she would do, if she lived there.  Um, and um, in my submission, she would be at risk of persecution.  There’s nothing more I wish to say, at the moment.  If I wish to put in further submissions, do you wish to nominate a time or, if it suits you, to have them (unclear) seen.

Q.336:             Um, well, I give you till, let’s say, the end of next week.

Ms Reid:          Thank you.  I should have mentioned earlier the difficulties Miss Win had when questioned about the attempted sexual assault.

Q.337:             Right.  What was that?

Ms Reid:          Well, I mean, it was very disconcerting for her.  It’s something she finds very difficult to talk about and even did with me, and I just ask you to take that into account.

Q.338:             Well, I just wanted to establish that she was able to avoid this unhappy circumstance because somebody happened to be outside the door?  And, as you would have noted from the Department decision, the Delegate found that an implausible account of the treatment of a woman in a goal[sic – gaol] in Burma.

Ms Reid:          I haven’t seen any evidence on whether that would be plausible or not.

Q.339:             Well, I’m not arguing, I’m pointing out to you what the Delegate said but I’m attempting to ascertain what Miss Win was … seemed to be reluctant to talk about.  Whether that was the case.  So, how was it, if there were three occasions when there was near assault and she was blindfolded that fortuitously somebody was outside the door and even though she could not speak or scream, nonetheless, this person came in and rescued her.  It sounds quite highly and unusual that this would occur, to me.  That’s all.

Ms Reid:          Thank you.  Well, I’ll take further instructions on that incident.

Q.340:             Well, if you don’t have anything more then…that’s the end of the Hearing.  So, thank you for coming in today, Miss Win and Mr. Htwe.

Hmm.  Is there something else you wanted to say before I close the Hearing.

A. (Intrptr):     Ah, this is the new address she has moved to.

Q.341:             Now, I’ve said that I’ll accept a submission on your behalf up until the end of next week so a Decision on your Application will be made, I should think, in about probably more than a fortnight…it may be three weeks.  You’ll be invited into the Tribunal and to be given the Decision, in person, but you don’t have to come in if you don’t want to because a letter will be sent out to you, in the alternative.”

The Commission’s letter dated 3 March 2000 to the RRT stated, relevantly, as follows:

“I wish to make further submissions to the tribunal following the hearing in this matter on 22 February.

I have spoken to Ms Mone Maw Maw Win about matters raised in the hearing, in particular about her experiences in detention.  She told me that she had in fact been raped and that she had not put it in her statement because she was ashamed.  Even to say that someone saved her from rape made her very ashamed.  She could not answer when she was asked about it at the hearing because of her shame.  Because of her distress I have written this in a letter rather than preparing a statutory declaration.”

46                  In its Reasons for Decisions, the RRT concluded:

“I find therefore that the applicant was not arrested, interrogated, beaten and otherwise mistreated in August-October 1990, as she claimed.”

47                  To what does the word “therefore” in this passage refer?  This question calls for a careful reading of the passages that precede this one.

48                  The presiding member stated at the outset that he had “a number of  problems with the applicant’s credibility and found her to be an unreliable witness”, and proceeded to explain why.  It is possible to analyse the paragraphs leading up to the short conclusory sentence set out above in different ways.  I would summarise the “problems” (sometimes overlapping) which the presiding member found as follows:

1.                  Inconsistent accounts by Ms Win of what happened to her certificate of membership of the NLD (that she did not bring it with her to Australia for fear of being searched at the airport in Burma, and that she had thrown it into a river near Rangoon in October or November 1990);

2.                  The claim that Ms Win was in hiding in a nunnery as of January 1989, as against her visa application claim that she was in hiding as of August 1988;

3.                  Ms Win’s claim of being in hiding in the nunnery until 3 August 1990 as against the visa application claim that she had been employed as a government clerk in the Rangoon City Development Office from 1986 until March 1990;

4.                  The inconsistency between Ms Win’s claim that she was wanted by the authorities because of her NLD activities, and her being employed as a government clerk in the Rangoon City Development Office from 1986 until March 1990;

5.                  The inconsistency between Ms Win’s claims that the authorities were searching for her to arrest her and that she was heavily involved in NLD activities, for example, making speeches at primary schools; that she sometimes left the nunnery to return home to visit her mother; and independent evidence of the Burmese authorities’ “impressive surveillance capability”;

6.                  The inconsistency between the claim in Ms Win’s protection visa application that she went into hiding in late August 1988 and remained in hiding until she was arrested on 3 August 1990, and her claim at the hearing that she went into hiding in January 1989, and the inconsistency between both of these claims and her claim to have worked as a government clerk from 1986 until March 1990 and lived at the same home address until October 1994.

Immediately following the listing of these “problems”, the RRT stated:

“Because of my problems with the applicant’s credibility – for the reasons set out above – and because I do not accept her claim that she was in hiding in a nunnery in 1988-90, I do not accept her claim that she was sacked from her job in March 1990 or that she was arrested in August 1990 and detained for two months” (my emphasis)

49                  This passage makes it clear that the non-acceptance of Ms Win’s claim of arrest on 3 August 1990 followed by detention for two months had nothing to do with what the RRT saw to be the implausibility of her claim of thwarted sexual assaults.  Rather, it was based on (a) problems the RRT had with Ms Win’s credibility generally, and (b) its non-acceptance of her claim that she had hidden in the nunnery from 1988-1990 in particular.

50                  Importantly, the RRT found the claim that Ms Win was hiding in a nunnery from 1988-1990 to avoid detention by the authorities that were searching for her, inconsistentwith several aspects of her claims and evidence that had nothing to do with her alleged arrest, detention or suffering while in detention.  Perhaps the most notable of these aspects was the claim that Ms Win was employed in the Rangoon City Development Office throughout that period.  The rejection of the claim that Ms Win hid in a nunnery from 1988 to 1990 was destructive of her claim that on 3 August 1990 four military intelligence men arrested her at the nunnery where she was hiding and took her from the nunnery into detention and of her claim of subsequent mistreatment while in detention.

51                  In the paragraph following the one set out above, the RRT proceeded to deal with an inconsistency as to the claimed timing of the release from detention.  The presiding member noted that, in effect, Ms Win’s claim in her protection visa application was that she had been released in early October 1990.  (In fact, the claim in her statutory declaration accompanying her protection visa application was that she was arrested on 3 August 1990 at the nunnery and that she was released the day after she signed the blank paper which was “two months after [her] arrest”.  It therefore seems fair to say, as the RRT said, that her claim was that she was released in early October 1990.)  The RRT then noted that at the hearing Ms Win claimed that she threw her NLD membership card into the river in October 1990 after being released, but that later in the hearing she claimed to have been released in November 1990.  The RRT then stated:

“This [a release in November 1990] means the applicant could not have thrown her card into the river in October 1990 and it raises doubts as to whether the applicant was detained for two months, as she claimed.  This might, on its own, be overlooked as just one minor mistake, but when it is added to the other inconsistencies in the applicant’s evidence, it is another indication that the applicant is not a reliable witness.  In my view, moreover, the applicant’s claim that she thwarted rape attempts whilst in detention by getting a person standing outside her cell to intervene is implausible.” (my emphasis.)

52                  In my opinion, a fair reading of the RRT’s Reasons for Decision shows that the RRT made its finding that Ms Win had not been arrested while in hiding at the nunnery, interrogated, beaten and otherwise mistreated in August-October 1990, as she claimed, well before noting the implausibility of her claim of thwarted sexual assaults and without reference to, and independently of, that claim.

53                  The RRT did not accept the claim of arrest in August 1990 and detention for two months, and later made the finding that Ms Win was “not arrested, interrogated, beaten and otherwise mistreated in August-October 1990, as she claimed”.  Between the two occurs the paragraph just set out which seems to me to be dealing with two matters which were relevant to the RRT’s conclusion that Ms Win was not a reliable witness.  The first was the discrepancy as to the claimed timing of her release from detention and the implications of a release in November 1990 for her claim of having thrown her NLD membership card into a river near Rangoon in October 1990.  The second was the implausibility of the claim of thwarted sexual assaults.  Of the former, the RRT acknowledged that the problem might, on its own, be “overlooked as just one minor mistake”.  It was the fact that this problem could be added to others mentioned earlier that gave it force.

54                  What is the significance of the use of the word “moreover” in relation to the second point (the implausibility of the claim of thwarted sexual assaults)?  Does it signify that the observations made about the first point apply equally to the second, that is, that the implausibility of the claim of thwarted sexual assaults might also “on its own, be overlooked as just one minor mistake but when … added to the other inconsistencies … is another indication that [Ms Win] is not a reliable witness”?

55                  I think not.  The word “moreover” appears, in substance, immediately after the words “indication that the applicant is not a reliable witness” and suggests that the implausibility of the account of thwarted rape attempts had an “additional” role in demonstrating unreliability.  The RRT was not saying that the implausible claim of thwarted sexual assault was to be overlooked as a “minor mistake”.  However, this is not to say that Ms Win’s making of the claim of the thwarting of rape attempts was “central to the case raised by the material and evidence before [the RRT]” or that the RRT’s “decision, one way or another, turn[ed] upon [it]”: Singh at [48] and [56].

56                  It was a material question of fact raised by Ms Win’s claims in the form that they ultimately took,  that she was raped while in detention from 3 August to early October 1990, but I think that the RRT made, and implicitly set out, its finding on that question by its express non-acceptance of her claim that she was in detention at all during that period, and, therefore, its implied non-acceptance of her late claim that she was raped while in detention during that period.  The critical course of reasoning was: “Ms Win did not hide in the nunnery, therefore was not arrested while in hiding there and taken away from the nunnery into detention for two months, therefore was not detained, interrogated and mistreated by her captors while in that detention”.

57                  The Minister made other submissions as to why the present ground should fail.  He submitted that the Commission’s letter of 3 March 2000 did not have the effect of substituting the claim of rape for the claim of thwarted sexual assaults on three occasions, with the results that the latter claim remained in place and that the RRT was entitled to refer to its implausibility. 

58                  This submission calls for the Commission’s letter of 3 March 2000 to be construed.  It may be that the new claim was of rape in addition to the three occasions of alleged thwarted sexual assault.  It may be that it was a claim that, rather than attempts, on each of the three occasions a rape in fact took place.  Again, it is possible that the claim was that a rape took place on one or two of those three occasions, leaving the other occasions or occasion in place as claims of thwarted attempts at rape. 

59                  There was no unequivocal withdrawal of the claims of thwarted sexual assault.  But the letter of 3 March 2000 does more than just make a new claim that Ms Win was also raped while in custody.  Firstly, it attempts to explain why the claim of actual rape was not made earlier.  This was because of Ms Win’s feeling of shame in relation to it. Secondly, it implicitly explains away the implausibility of the claim that had been made earlier: Ms Win felt unable to tell the truth.  I appreciate that the claims of thwarted rape and actual rape can stand together. However, I think that the ambiguity in the letter is such that the RRT was not entitled to treat the earlier version of attempted rape as being maintained alongside the later version.

60                  A question remains, however, as to the effect of this.  In particular, does the RRT’s failure to make an express finding in relation to the claim of rape amount to a failure to “set out the findings on any material question of fact”?  I think not.  The RRT’s reasoning of “no hiding from the authorities in the nunnery → no arrest in the nunnery and taking from it into detention → no mistreatment while in detention”, is quite independent of the replaced claim of thwarted attempts at rape and also excludes the possibility of actual rape while in detention.

Ground 1(b): The claim of heavy involvement in NLD activities in Burma after the 1988 coup, including the making of a speech on a dais outside the Rangoon Hospital and the making of speeches at schools.

61                  There was independent country information before the RRT that most Burmese who participated in the 1988 pro-democracy movement have experienced no harassment

“…unless they … participated in more serious activities such as giving anti-government speeches or making contact with illegal organisations.”

Ms Win claimed to have carried out significant organisational work with the NLD after the 1988 coup in Rangoon, such as visiting houses and making speeches at primary schools and making a speech on a dais outside the Rangoon Hospital. At the hearing, the presiding Member questioned her at length about her speeches.

62                  The RRT accepted:

“…that the applicant participated in various anti-government activities after 1988, such as distributing pamphlets once or twice a year and that she joined pro-democracy demonstrations in 1988, as did thousands of other people.”

The RRT did not accept that Ms Win was wanted by the authorities, noting that on her own evidence she had continued to work in a government position until March 1990.  The Minister submits that it is implicit that the RRT was rejecting Ms Win’s claim to have been “heavily involved in speech-making” as she submits she was.

63                  The Minister relies on the following passage from the judgment of the McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423:

“If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”

64                  Ms Win submits that her claim, if accepted, took her outside the category of “the vast majority of persons who participated in the pro-democracy activities”.

65                  In my opinion, the RRT’s conclusion that Ms Win was not a credible witness, its muted acceptance of her participation in various anti-government activities after 1988, such as the distribution of pamphlets once or twice a year and her participation in pro-democracy demonstrations “as did thousands of other people”, together with its noting that she had continued throughout to work in the Rangoon City Development Office, suffice to show that the RRT did not accept that she was a high profile anti-government speech-maker.  That is, I think that in substance the RRT dealt with this claim.

Ground 1(c): Claim that regular, current and repetitive demonstrator against Burmese government in Australia and problems upon return to Burma

66                  Ms Win submits that she provided photographic evidence to the RRT that she had attended at least twelve demonstrations in Australia.  In her submissions she relies on DFAT Cable CX9957 which was relevantly as follows (this and subsequent cables are reproduced with the solecisms that are in the originals):

“BURMESE WHO ARE CURRENTLY ACTIVE IN ANTI-GOVERNMENT ACTIVITIES OVERSEAS OR MEMBERS OF AN ANTIGOVERNMENT ORGANISATION ARE NOT WELL-LOOKED UPON BY THE GOVERNMENT AND ARE LIKELY TO HAVE DIFFICULTY GETTING ENTRY VISAS, BUT LOW LEVEL PARTICIPATION MAY BE IGNORED.  PERSONS WHO HAVE LEFT SUCH ORGANISATIONS ARE ABLE TO GET VISAS AND SOME – INCLUDING FROM AUSDTRALIA – HAVE BEEN WELCOMED BY THE GOVERNMENT.  PERSONS WHO HAVE BEEN PHOTOGRAPHED AT DEMONSTRATIONS WOULD BE IN A SIMILAR SITUATION: REGULAR AND CURRENT ATTENDANCE MIGHT CAUSE PROBLEMS, BUT PERSONS WHO HAD OCCASIONALLY PARTICIPATED IN THE PAST” (Ms Win’s emphasis).

Ms Win also relies on DFAT Cable CX39784 which was relevantly as follows:

“BURMESE INVOLVED IN DEMONSTRATIONS IN AUSTRALIA, WHILST OFTEN KNOWN TO THE AUTHORITIES ARE GENERALLY OF LITTLE CONCERN, EVEN IF THEY RETURN TO BURMA.  THERE WOULD BE A COUPLE OF EXCEPTIONS: THOSE WHO ARE REPETITIVE DEMONSTRATORS…AND THOSE RINGLEADRERS OF THE MORE VIOLENT ATTACK ON THE EMBASSY IN CANBERRA IN SEPTEMBER 1999.” (Ms Win’s emphasis).

Ms Win submits that while the RRT accepted that she had attended “several demonstrations outside the Burmese Embassy in Canberra and attended functions in Sydney”, it did not find that she had attended at least twelve demonstrations in Canberra and Sydney which would have made her a “regular, current and repetitive demonstrator” and so brought her within the class of persons at risk.

67                  As the Minister points out, however, the RRT rejected Ms Win’s claims that she had attended at least twenty demonstrations in Sydney and Canberra and that she broke into the Burmese Embassy Compound in Canberra on 9 September 1999.  The presiding Member stated that because he had problems with Ms Win’s credibility, he found that she had exaggerated her claims about attending demonstrations in Australia, and, indeed, that she had attended them in order to advance her claim to a protection visa.

68                  In the light of those findings it was not incumbent on the RRT to make findings that Ms Win had participated in some specified lesser number of demonstrations and as to the consequences of her having done so.

Ground 1(d) The claim that if Ms Win were living in Burma she would continue to take political action against the government

69                  Ms Win relies on DFAT Cable CX28959:

“WHILE NORMAL MEMBERS OF THE COMMUNITY IN AUSTRALIA PROTESTING OUTSIDE THE BURMESE EMBASSY ON 2 OR 3 OCCASIONS WOULD MOST LIKELY COME TO THE ATTENTION OF THE AUTHORITIES THERE IS NO EVIDENCE TO SUGGEST THEY WOULD FACE ADVERSE CONSEQUENCES UNLESS THEY CONTINUED TO COMMIT FURTHER ANTI-GOVERNMENT ACTIVITIES WITHIN THE COUNTRY ON THEIR RETURN” (Ms Win’s emphasis).

The RRT referred to this claim of Ms Win in the “Claims and evidence” section of its Reasons for Decision but not in the “Findings and reasons” section.

70                  The RRT’s rejection of essential elements of Ms Win’s claims of past persecution made it unnecessary, in my view, for it to address expressly the particular activity in which she said she would engage if she returned to Burma.  In substance, the RRT accepted that Ms Win had engaged in low level anti-government activities in Burma in the past and might do so again if she were to return, but that just as her activities had not brought her to the attention of the authorities in the past, the activities she might engage in in the future would not do so either.  This conclusion is inherent in the RRT’s conclusion that it was not satisfied that Ms Win had a well-founded fear of persecution. 

Ground 2 – Failure to observe procedures: ss 476(1)(a) and 424(1)

71                  Subsections 424(1) and (2) of the Act provide as follows:

“(1)     In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)               Without limiting subsection (1), the Tribunal may invite a person to give additional information.”

Subsection (1) predicates a view of the RRT that information to be got by it is considered by it to be “relevant”.  In the light of this, it is understandable that subsection (1) obliges the RRT, upon getting information satisfying that description, to have regard to it in making its decision on the review. 

72                  Subsection (2) is different.  It is concerned with an invitation by the RRT to a person to give “additional information” not expressly qualified by reference to the RRT’s consideration of it as being “relevant”.  Subsection (2) does not impose an obligation on the RRT to “have regard to” that additional information.

73                  I have set out earlier the circumstances in which the Commission made its submission of 3 March 2000.  In my view, the lengthy passage from the transcript of the hearing before the RRT which I set out shows that the RRT was not, within subs 424(1), seeking to get information that it considered relevant, but was, within subs 424(2), inviting the solicitor for Ms Win to make a further submission within a limited time if she so wished.

74                  For all that appears, upon receiving the Commission’s further submission, the RRT decided that the claim of rape during detention was not relevant in view of the RRT’s failure to be satisfied, for other and independent reasons, that the detention took place in the first place.

Ground 4 – no evidence or other material to justify making of decision because decision based on existence of particular fact that did not exist: ss 476(1)(g) and 476(4)(b).

75                  Sections 476(1)(g) and 476(4)(b) provide, relevantly, as follows:

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

            ………………………………………………………………

(g)       that there was no evidence or other material to justify the making of the decision.…

(4)       The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)………………………………………………………; …

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

As noted earlier, on the hearing, counsel for Ms Win formulated the “particular fact” referred to in par (b) of subs 476(4) as the making of a claim by Ms Win that “she had had to fight off attempts to rape her and only succeeded because she was able [sic] to scream out and the person outside her cell would come and stopped the attack.” Ms Win’s claim was, indeed, that she was not able to scream out.  This was made clear on the hearing when she volunteered the opinion that the person outside her cell must have been prompted to intervene by the noise of the struggle within her cell.

76                  As has been recently noted in Minister for Immigration & Multicultural Affairs v Li Yue [2000] FCA 856 (FC) at [54], it is not a straightforward matter to apply the terms of par 476(1)(g) where the decision-maker’s conclusion is that it is not satisfied that statutory criteria are met.  In the comparable statutory context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”), it has been said that “[i]t is not, of course, enough to satisfy the requirements of s 5(3)(b) [of the ADJR Act; cf s 476(4)(b) of the Act] alone as to do so would ignore the language of the ground provided for by s 5(1)(h) [of the ADJR Act; cf s 476(1)(g) of the Act] itself”: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (“Curragh”) at 221 per Black CJ with whom Spender and Gummow JJ agreed; and see, Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 (Wilcox J) at 519-521 and Pat Tai Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1556 (Lindgren J). 

77                  As noted earlier, on one construction of the letter of 3 March 2000, there was evidence before the RRT that Ms Win was still making a claim of thwarted attempt at rape.  However, the better view, as I have explained, is that the claim of 3 March replaced the earlier making of the claim the RRT found to be implausible.  On this view, the final position is that there was no evidence before the RRT that she was making that claim, that is, the making of that claim was a fact that no longer “existed”.

78                  The “decision” to which par 476(1)(b) refers is the decision to which the introductory words of subs 476(1) refer: in the present case, the RRT’s decision to affirm the Delegate’s decision.  The requirement that the decision be “based on” a non-existing fact is a requirement that the supposed particular fact that did not exist be “critical to” the decision (Curragh at 211 per Black CJ, with whom Spender and Gummow JJ agreed) or that the decision “depend upon” that supposed particular fact (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340-341 per Mason CJ) (both of these decisions related to the comparable provisions of the ADJR Act).  The paragraph does not require that one particular fact, and no other, be identified as the particular fact on which the decision was based, and the paragraph may be satisfied where the decision was based on many particular facts, provided the one in question was critical, as by being a link in a chain (Curragh at 220-221).

79                  Ms Win submits that once it is accepted that the making of the thwarted rape claim did not exist, the minor inconsistencies in relation to dates and the general credibility findings by the Member are seen to be not sufficient in law to support the RRT’s finding that she was not detained.  She submits that although her claim that she fought off rape attempts was not a “link in a chain” of the RRT’s reasoning, it was sufficiently strong a “strand” as to be critical to the decision reached.

80                  In my respectful opinion, however, the presiding Member did not “base” his decision to affirm the Delegate’s decision on the making of the claim of thwarted sexual assaults.  For the reasons which I gave when dealing with Ground 1(a), the making of that claim and its implausibility were not critical, either to the RRT’s impression of Ms Win as an unreliable witness or to its chain of reasoning: “no hiding in the nunnery → no arrest there and taking from there into detention for two months → no mistreatment while in that detention.”

Conclusion

81                  For the above reasons the application will be dismissed with costs.

Associate:

Dated:              25 September 2000