FEDERAL COURT OF AUSTRALIA

‘H’ v Minister for Immigration & Multicultural Affairs [2000] FCA 1605

IMMIGRATION – application for a Protection Visa – Burmese national involved in anti‑government demonstrations in 1988 – arrest and incarceration – allegation of torture – claims of continuing surveillance and harassment by military intelligence - claims of ongoing involvement with anti-government party – claims largely disbelieved by Refugee Review Tribunal – applicant found to have low political profile – applicant over-stated political involvement – of no current interest to Burmese authorities – application for Protection Visa refused – positive finding that applicant arrested in 1988 – no finding as to torture – whether failure to make finding as to torture is failure to find a material fact – in the circumstances not material – application dismissed.

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845

‘H’ V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W157 OF 1999

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant is to pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant ‘H’ was born in Rangoon in the Union of Myanmar (Burma) on 23 July 1967.  His father is deceased and his mother lives in Burma.  He has five siblings, two brothers and three sisters.  All but one live in Burma.  One sister is an Australian resident.  He first visited Australia on a visitor’s visa in 1994, returning to Burma in 1995.  On 11 December 1996 H again came to Australia on a visitor’s visa.  On 30 June 1997 he applied for a Protection Visa.  On 21 March 1998 a delegate of the Minister for Immigration & Multicultural Affairs refused his application.  On 15 April 1998 he applied to the Refugee Review Tribunal for a review of the delegate’s decision.  That application was unsuccessful, the Tribunal affirming the decision not to grant a Protection Visa on 12 November 1999.  On 8 December 1999 an application for review of that decision was filed in this Court.  Although no request for anonymity was made the applicant is designated ‘H’ as there are findings by the Tribunal which suggest monitoring by Burmese intelligence within Australia of the activities of Burmese nationals in this country.

The Applicant’s Story

2                     In his application for a Protection Visa the applicant wrote that in 1988 he was studying in the second year of a Bachelor of Science course at Yangon University in Burma.  He participated in student demonstrations.  Following his involvement in a march on August 8, he claimed to have been taken into custody by military intelligence, tortured and interrogated for twenty-four days and subsequently on 14 October transferred to the Insein Prison where he was given hard labour for six months.  In that prison where there were many young students, he claimed to have suffered political discrimination, blackmail and physical torture.  Following his release on 14 April 1989 he was returned to his family home.  He said he had suffered an alarming deterioration in his physical and emotional state.  He could hardly remember or speak about what had happened to him.  He suffered nightmares and was unable to function in a normal manner.  He was under continuing surveillance by military intelligence.  When the Universities reopened in July 1990 he was transferred to a district branch where military intelligence surveillance continued.  The following year, Yangon University students staged a demonstration in August for three days.  He was warned by a military intelligence officer not to move anywhere or to participate in any political activities.  Surveillance continued.  The Universities were subsequently closed down for ten months until their re-opening in June 1992, which was the third year of his course.  He said he was transferred to Yangon University in February 1993 where he completed his studies in August.  He complained that all his movements were closely monitored and that he continued to suffer discrimination even though he had distanced himself from political activities.  Applications for jobs were promptly rejected.  He was instructed to report all of his movements out of Yangon and surveillance continued.  He said that during the six years prior to his application for a Protection Visa he had suffered intense discrimination.  He complained also that his family suffered constant harassment which affected everyone, particularly his father who died in October 1994.  After his father’s death the pension paid to his father ceased, and they had no income to support their daily living.

3                     On 26 September 1997 H was interviewed by a delegate of the Minister.  The interview was conducted through an interpreter.  H reiterated his statement that he had been in prison for six months.  He said he had not been charged.  The interviewer challenged that proposition, stating that she found it rather implausible that if he were arrested and kept for six months in custody he was not charged.  She also asserted that it would have been impossible for him to return to the University and continue with his studies if he had been in custody for six months.  H told her he had to sign an agreement with his Professor that he would never participate in politics.  He went on to say that the name of the group he participated in was the “Young Student Group”.  The interviewer then said:-

“Why do you say that you could not handle what the Government was doing because you were in a very privileged position.  You were given entry to the University.  Normally in Burma it is a very competitive thing and only people who are privileged get entry to the Burmese Universities.”

H responded that if a student had passed matriculation, the student was allowed to study at university.  He was asked if he had held any position with the Young Student Group.  He said he had distributed pamphlets for them but did not hold any official position.  He said ten out of thirty students had been arrested.  He was arrested in September 1988.  He went on to discuss the discrimination which he had suffered between 1990 and 1993.  He said he could not go out in public.  Everywhere he went he would be followed.  He had no freedom of speech.  If he had done anything they would have called him again and he would have been arrested.

4                     H told the delegate that after finishing his studies he applied for jobs in both public and private sectors.  He said:-

“Once you are involved with politics it is very hard to get a job.”

He said he had made a false declaration in his application for a visitor visa that he had worked for an organisation called the All Star Group.  He had been told that to get a visitor visa he would have to be employed in Burma.  The interviewer asserted to him that there is a lot of unemployment in Burma and that his failure to obtain employment in the private or public sector would not amount to persecution.  The interviewer further asserted to him that if he had the profile he claimed, he would not have been given a passport, the Burmese Government being very stringent in giving passports.  He said it took a whole year to apply for the passport but with help from his sister, he eventually got one.  He said he was not in any political party.

5                     The interview as it appeared from the transcript was notable for the intrusive and challenging approach taken by the delegate.  Given the tone of the interview, a decision adverse to H could confidently have been anticipated.

6                     The Tribunal conducted an oral hearing on 14 July1999.  That hearing elicited some new material including the information that he had been involved in further political activity in Burma at the end of 1989 and the beginning of 1990.  He said he had had to arrange for three people to go and hear speeches by Aung San Suu Kyi, the leader of the NLD Party.  He supported that party but was not a member.  He had not joined because that would mean travelling to Aung San Suu Kyi’s office and he could not do that because the intelligence services surrounded the area.  He claimed he could only get a membership card from her office.

7                     He said he was the subject of further surveillance after 1990.  He was watched from a teashop in front of his house and by intelligence people posing as students at the University.  He said he was taken in for questioning on three or four occasions in 1990 and 1991.  He had not mentioned these incidents previously because his initial application was handwritten by a friend who had translated his Burmese into English.  As to the interview with the delegate he said “…they asked me whatever they want and I did not get a chance to explain everything”. 

8                     In Australia, H said he had become involved in August 1999 with a Burmese organisation called the “Tribal Refugee Welfare Group”.  He claimed he only became aware of its existence at that time.  A friend took him to a function organised by the group.

9                     H told the Tribunal he was afraid of returning to Burma because he had been photographed by Burmese intelligence at TRW demonstrations he attended in Australia.  The photographs he thought might go back to Burma and he could be arrested on the strength of them.  His arrest could result from his involvement with the TRW and also because of his previous anti-government activities in Burma.  He claims that when he had returned to Burma in 1995 after his first visit to Australia, he had done so rather than claim for refugee status because he hoped to apply for entry under a Humanitarian programme.  This was indicated by his reference to a Form 917 in his testimony.  When asked about his ability to leave Burma on two occasions, he said anything could be facilitated if one paid a large sum of money.  Even when he paid for his passport he paid money to authorities at the Passport Department.  He had contacted the Burmese Embassy in Australia to have his passport extended.  They had asked him whether he was involved in any politics here in Australia.  That was in 1997.  He wrote a letter saying he was not involved in politics.  They extended his passport for one year.

10                  Asked why he had waited so long to lodge his application for refugee status, he explained the delay in terms of the time he had waited for a response to his Humanitarian Entry Application.  The Tribunal asked him about a person called U Tin Oo and the date of the person’s arrest.  He knew little about that.

11                  The Tribunal also heard from H’s sister and another witness who was involved with the TRW and had known H since the beginning of 1998.  He corroborated that Burmese military intelligence personnel were in Australia and he claimed that four people who took photographs of Burmese in Australia at a demonstration rally in August 1998 were with military intelligence.

12                  H sent the Tribunal photographs of himself associated with TRW people and said to indicate that he has been an activist in Australia against the current regime in Burma.  Further photographs were sent on 7 July 1999 and a letter from Tribal Refugee Welfare stating that they had known him since early 1999.

Tribunal’s Decision 1999

13                  The Tribunal accepted that H was involved in student protests in 1988.  However, given his lack of knowledge of political matters and the shift in his claims it did not believe that he was the leader of a student group.   While it was prepared to find that he was arrested for his involvement it was not persuaded, given the low level of his involvement, that he was detained for six months in jail.  He was not an activist or a high level organiser.  The Tribunal referred to country information which it had cited and found that he would have been a low level demonstrator along with thousands of others and would not have been singled out for such severe punishment.  It noted that he had been admitted to a hospital for mental illness in April 1989 for a disease that occurred in November 1988 but the report did not indicate what the trigger was for the disease nor why he was not treated for six months.

14                  Even had he been detained for six months the Tribunal found that H had not come to the attention of the authorities since that time.  On his own evidence he had not been involved in politics since 1990.  Given his lack of involvement at the time of the demonstration and after 1990 the Tribunal did not believe that he was constantly under surveillance as claimed.  Nor did it accept that he was not able to obtain employment because of his political involvement.  He did not have a political profile.

15                  The Tribunal did not accept that H was involved in organising people to attend the speeches of Aung San Suu Kyi given that he never attended them himself and was vague as to their circumstances and did not know when she had been placed under house arrest.  He was not found to be involved with, or a member of the NLD or any student group under the NLD nor that he campaigned on their behalf in 1990.  The Tribunal did not find plausible his claim that he could not get a membership card because they were only available at the home of Aung San Suu Kyi.  His ignorance of U Tin Oo was unexpected for somebody who was said to be involved with the NLD.  U Tin Oo was the founder of the NLD and spent lengthy periods of imprisonment because of his involvement with it.

16                  The Tribunal did not accept that H was taken for questioning in 1990‑1992, nor that he was detained for questioning for three days on his return to Burma in 1995.  This had not been mentioned in his initial claims nor in his interviews with the delegate.  The Tribunal did not accept that military intelligence were still looking for him.  It found that Burmese authorities have no interest in him.  He was able to complete his university education, obtain employment and travel overseas on two occasions.  Even if he had to pay bribes there was nothing to indicate that these were other than official corruption.  The Tribunal then referred to country information.  It noted that major Human Rights reports confirmed H’s claims that political activists who persist in criticising the military regime in Burma do attract adverse attention of authorities in that country.  It noted that the Government of Burma does harass and at times persecute political activists “…but only if they persist with political activities.”

17                  The Tribunal then considered H’s activities in Australia.  He had not become involved with the TRW until after 1999 after the rejection of his application by the delegate.  This indicated he was not highly motivated to become involved in Burmese politics in this country.  There was no suggestion that he had a political profile within the TRW and although he had provided photographs of his attendance at various demonstrations, the Tribunal found that he was only involved in the TRW at a minor level.  The Tribunal accepted that Burmese authorities are aware of the activities of the organisation and are monitoring it.  Military intelligence is wide-spread throughout Burma and probably present in Australia as well.  The Burmese Embassy in Australia is probably “well aware of the activities of its own people here.”  Again, the Tribunal referred to independent information in this respect.  The Tribunal concluded its considerations by saying:-

“The Tribunal accepts that the Burmese authorities monitor the activities of their nationals in Australia.  However, the material quoted above indicates the authorities are concerned about people who are involved with political activities over a period of time, not with low level participation.  The Tribunal finds that although the Burmese authorities would be concerned with people who were in high level political activities it would not be concerned about the applicant’s level of involvement.  The applicant has not had a political profile in Australia within the Burmese community and the Tribunal finds he would not experience difficulties for his low level involvement in social functions and demonstrations if he returned to Burma.  The Tribunal finds that there is no real chance that the applicant will be persecuted for reasons of his political opinions, real or imputed, now or in the reasonably foreseeable future, and that his fear of persecution is not well founded.”

The Grounds for Review

18                  The amended grounds for review were as follows:

1.         The Refugee Review Tribunal (“the Tribunal”) in its written statement prepared pursuant to s 430(1) of the Migration Act 1958 (“the Act”) failed to set out the reasons for its decision, all of its findings on material questions of fact and to refer to the evidence or other material on which its findings of fact were based, and so failed to observe procedures that were required by the Act to be observed in connection with the making of its decision.

Particulars

(a)        The Tribunal failed to set out a finding of fact on the claims by the applicant that he was tortured following his arrest in 1988.

(b)        The Tribunal failed to refer to the evidence or other material on which any such finding of fact (if made) was based.

(c)        The Tribunal failed to set out the reasons for its decision by failing to state whether it had rejected or failed to accept those claims.

2.         The decision involved an error in law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by it.

Particulars

In its written statement prepared pursuant to s 430(1) of the Act the Tribunal failed to set out any finding of fact on the claims by the applicant that he was tortured following his arrest in 1988 and to refer to the evidence or other material on which any such finding of fact was based.

3.         The decision was not authorised by the Migration Act 1958 or the Migration Regulations 1994.

Particulars

(a)        In its written statement prepared pursuant to s 430(1) of the Act the Tribunal failed to set out any finding of fact on the claims by the applicant that he was tortured following his arrest in 1988 and to refer to the evidence or other material on which any such finding of fact was based.

(b)        Those claims raised a substantial and material question of fact.

(c)        The Tribunal failed to have regard to those claims.

(d)        The Tribunal failed to make any finding of fact regarding those claims.

4.         The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by it.

Particulars

(a)        In considering the ultimate question (namely whether it was satisfied that the applicant is a person to whom Australia has protection obligations by reason of his having a well-founded fear of persecution for Convention reasons) the Tribunal was obliged, if it either

(i)        was uncertain whether the applicant had been tortured;

or

(ii)       had found that although the probabilities were against it, he might have been tortured.

to take into account the possibility that he had been tortured, given the significance of that claim to the ultimate question.

(b)        On a fair reading of the Tribunal’s written statement and assuming that it made a finding of fact with respect to the claims of the applicant that he was tortured following his arrest in 1988, it either was uncertain whether he had been tortured, or found that although the probabilities were against it, he might have been tortured.

(c)        The Tribunal failed to take into account the possibility that the applicant had been tortured.

(d)        In the circumstances such failure constituted a failure to undertake the required reasonable speculation in deciding whether there is a real chance of persecution or a real substantial basis for the applicant’s claimed fear of persecution.”

Absence of a Finding as to Torture

19                  The Tribunal’s decision turned upon assessments of the credibility of the applicant which cannot be challenged in these proceedings.  The challenge which was made reduced to one very short point, namely, that the Tribunal failed to address H’s claims to have been tortured following his arrest in 1988.  All the grounds of review really reduced to that one contention albeit it is expressed in various ways.

20                  This issue was raised in the first ground of review via the contention that the Tribunal in its reasons for decision failed to set out its findings on material questions of fact.  That is a procedure mandated by s 430 of the Act, the breach of which is a ground of review under s 476(1)(a) – Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845.  A fact is material for this purpose if it is a fact on which the decision turns.  It was submitted for H that the question whether he was tortured in 1988 was a material fact “…because in a real practical sense the outcome of this application for a Protection Visa can be seen as depending upon whether his claim of the existence of that fact is accepted or rejected”.

21                  The difficulty with the Tribunal’s written statement of reasons was said to be that it did not inform the reader of what became of the claims of torture, claims which were centrally placed in his contention that he feared persecution for reasons of political opinion and thus raised a material issue.  The Tribunal is said to have ignored these claims and the issue altogether.

22                  The respondent submitted that in its reasons for decision the Tribunal accepted that H was involved in student protests in 1988 but had not been satisfied that he was leader of a student group.  It found, that even on his own evidence, the group was not involved in any confrontation with the authorities.  While accepting that he was arrested for involvement it did not find that he was detained for six months in Insein Prison having regard to the low level of his involvement and the fact that he was not an activist or a high level organiser.  The Tribunal, referring to country information cited earlier in its reasons for decision stated that it found that H had been a low-level demonstrator along with thousands of others and that he would not have been singled out for such severe punishment.

23                  It was submitted for the respondent that it is implicit in by the Tribunal’s reasons and its express reference to H’s claims, that it did not accept that he had been tortured as the leader of a group protesting against the Government.  In substance the Tribunal’s reasoning revealed that it rejected his claims to have been imprisoned for six months and tortured.  Moreover, having regard to the Tribunal’s conclusions about his subsequent activity, even if he had been detained for six months and tortured as claimed, his later history meant that he did not have a well-founded fear of persecution for reason of his political opinions.  Accordingly, the Tribunal was not required to make a finding as to his claim to have been tortured after his arrest in 1988 and during his six month’s imprisonment.

24                  In my opinion, the findings of the Tribunal about H’s low political profile both in Burma and subsequently in Australia, the fact that he was not imprisoned for six months as claimed, and the absence of significant political activity since 1988, militate against the contention that the claim that he had been tortured at that time has any significant bearing upon whether or not he now holds a well-founded fear of persecution on account of his political opinions.  The torture claim is not one which, in the light of its other findings, the Tribunal had to determine in order to arrive at a conclusion on the ultimate issue which it had to decide.

25                  It cannot be assumed that the Tribunal has overlooked or forgotten about the torture question because it specifically referred to the claims made in that respect.  Consistently with having made the findings it did, was entitled to take the view that whether or not the torture occurred was not a matter which would weigh in its assessment of H’s current entitlement to protection.  In my opinion, it has not been shown that the Tribunal has failed to make a finding on a matter of material fact.

Grounds 2 and 3

26                  Grounds 2 and 3 re-visit the same issues in different ways.  However it is approached, the absence of any express finding on this issue cannot amount to any error of law nor vitiate the power which the Tribunal had to make the decision that it did.

Conclusions

27                  The application will be dismissed with costs.

Associate:

Dated:              10 November 2000