FEDERAL COURT OF AUSTRALIA

Oo v Minister for Immigration & Multicultural Affairs [2001] FCA 348

MIGRATION – refugee- application for review of decision of Refugee Review Tribunal – whether Tribunal erred in law in not finding that applicant was a refugee having regard to the findings that it made in his favour – finding that there was a real chance applicant would be subject to monitoring for a period if he were to return to his country of nationality – whether absence of freedom of expression of political views constitutes, or can constitute, persecution

Migration Act 1958 (Cth) s 476(1)(e)

Minister for Immigration & Multicultural Affairs v Zheng [2000] FCA 50 referred to

Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 referred to

Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663 referred to

THAN ZAW OO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1084 OF 2000

LINDGREN J

3 APRIL 2001

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                     Section 29 of the Migration Act 1958 (Cth) (“the Act”) provides that subject to the Act, the respondent (“the Minister”) may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, to remain in Australia, or to do both.

2                     The applicant (“Mr Oo”) applies under subs 476(1) of the Act for review of a decision of the Refugee Review Tribunal (“RRT”) affirming a decision of the Minister’s delegate (“the Delegate”) not to grant him a protection visa permitting him to remain in Australia.  It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.

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”).  Australia is a party to the Convention.

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” (par 475(1)(b) of the Act); the Applicant 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                     In terms of the Convention definition, Mr Oo’s case is that he is outside the country of his nationality, Burma (Myanmar), and is unwilling to return to it because of a well-founded fear of being persecuted for reason of political opinion.

Procedural background

8                     Mr Oo arrived in Australia on 4 August 1995.  On 4 September 1995, through his solicitors, McDonells, he lodged with the Department of Immigration and Multicultural Affairs (“the Department”) an application for a protection visa bearing date 30 August 1995. The application foreshadowed that Mr Oo would submit a “statement” which would address some of the questions in the form of application.  On 29 January 1996 his solicitors wrote a lengthy letter to the Department enclosing a typewritten statement by Mr Oo dated 6 November 1995.

9                     Mr Oo’s wife arrived in Australia on 31 August 1996.  On 16 September 1996 she lodged an application for a protection visa with the Department.

10                  On 30 March 1998 the Delegate refused to grant protection visas to Mr and Mrs Oo.  On 16 April 1998 they applied to the RRT for a review of that decision.

11                  The RRT conducted an oral hearing on 3 August 2000 and on 25 August 2000 gave the decision in respect of which Mr Oo’s present application for review is made.

Claims and evidence

12                  The RRT recounted Mr Oo’s “claims and evidence” based on his typewritten statement, submissions made on his behalf by his solicitors both to the Department and to the RRT, other documentary evidence supplied in support of his contentions and oral evidence which he gave before the RRT on 3 August 2000.

13                  The following account is generally based on Mr Oo’s claims and evidence as related by the RRT.

14                  Mr Oo was born on 10 August 1962.  He is ethnically Arakanese and is a Buddhist.  As noted earlier he is married.

15                  From June 1986 to August 1988, Mr Oo was a student at Rangoon University.  A passport was issued to him in Rangoon on 20 February 1990.  From July 1990 to August 1995 he resided in Thailand, where he was an “illegal refugee” and was employed initially as a cook.  In April 1995 he applied at the Australian Embassy in Bangkok for a visa to enter Australia and was granted one on 4 April 1995.  In April 1995, Mr Oo visited Japan.  From there he went to Malaysia where he spent about three months.  He was “seeking permanent protection” in Malaysia.  He returned to Thailand on 3 July 1995 and travelled from there to Australia on 4 August 1995.  Mr Oo reported his passport as lost to Burwood Police Station on 14 July 1997.

16                  In his statutory declaration dated 6 November 1995, Mr Oo made statements to the following effect:

·        He has two brothers in Singapore and his mother and three sisters in Burma.

·        He participated in the All Burma Students Union (ABSU) in early 1988 while a student at Rangoon University, prior to the official constitution of the ABSU in 1989.  Mr Oo participated in demonstrations every week and was present at a large demonstration on 16 March 1988 in which 30 to 40 students were killed.

·        Following this, Mr Oo began to attend campus meetings and was present at student planning meetings.  He distributed pamphlets about getting rid of the military dictatorship and advocating the punishment of those involved in the deaths of students earlier in the year.  He helped to paste up posters.  In June 1988 he became a “township organiser” for his suburb of Tamwe where he lived.

·        He participated in the mass demonstration and the early September 1988 hunger strike, before fleeing from Rangoon to Arakan, where ultimately he stayed with his aunt (his father’s sister) in Sittwe.

·        Mr Oo continued his political activity in Sittwe, Arakan, through the ABSU and the Arakanese Student Union.

·        He was in Sittwe for three months.  He was arrested on 9 December 1988 while attending an evening meeting convened by the ABSU in Sittwe.  All ten persons attending the meeting were arrested, taken to gaol and interrogated, one by one.  Mr Oo, his head covered by a piece of cloth, was tortured and questioned about his political activity.  He was stripped naked and burnt with cigarettes.  Alcohol was poured over his body (it stung him badly and he has a scar on his shin from the burn).

·        Mr Oo was held in the Sittwe gaol for one month (including one week in solitary confinement) before being transferred to Insein prison on 14 January 1989.  There he was interrogated and tortured again.  He was beaten, given electric shock treatment and forced to walk barefoot over sharp gravel.  The prison was crowded and filthy and there were rats and insects.  Mr Oo considered committing suicide.  He was released on 12 February 1989.  At the same time, other students who had been involved in the demonstrations were also released.  Prior to his release, Mr Oo signed an undertaking that he would not be involved in political activity.

·        After his release from Insein prison, Mr Oo was not permitted to leave Rangoon, and was required to report at the police station weekly.  He was ill following his time in gaol, having contracted malaria in Sittwe.

·        He then became involved with the National League for Democracy (NLD) and planned demonstrations and distributed leaflets in Rangoon, until he was arrested on 5 May 1989.  Mr Oo was taken again to Insein prison where he was interrogated, tortured and sexually assaulted twice.  He was released on 23 July 1989.

·        Upon his release Mr Oo consulted a doctor who advised him to rest in order to recover.  He had lost a lot of weight and had scars from being burned with cheroots.  It took him about one and a half to two months to recover.  Then he went on a nine day retreat to a Buddhist monastery ‘to cleanse [his] soul”.  In January 1990 he married.

·        Mr Oo’s parents advised him to leave Burma and at the end of December 1989 he paid an agent to obtain a passport for him.  He had to pay additional money to the agent in March 1990 when the agent learned that Mr Oo had been involved in political activity.  The agent gave him the passport in March 1990.

·        Mr Oo left Burma on 14 July 1990 and went to Thailand, where he stayed with an uncle.  In Thailand he became involved in Burmese dissident student activity and in demonstrations and in selling books.  He attended a meeting with Burmese refugees for two days at the Thai-Burmese border in October 1990.  He became a member of the Arakanese Liberation Party (ALP) in Bangkok and was involved in fund raising and attended some meetings.  The fund raising was for the All Burma Students Democratic Front (ABSDF) and the Overseas National Students of Burma (ONSB) organisation.

·        Mr Oo was unable to “regularise [his] status in Thailand” as that country is not a party to the Convention.  He was fearful of remaining in Thailand because the Thai authorities commonly return dissidents to Burma.  Therefore he applied for a visa to enter Australia and it was issued on 4 April 1995.  Prior to travelling to Australia, however, Mr Oo visited Japan and Malaysia.  He assisted in fund raising activities in Japan where he was sent by the ALP and where Burmese dissidents were living illegally.  He stayed in Japan for one week and collected funds.  He also went to Malaysia for two and a half months where he made contact with dissidents and raised funds as he had done in Japan.

·        Mr Oo has been actively involved in political activity since arriving in Australia on 4 August 1995.  He became a member of the All Young Burmese League Inc very soon after his arrival.  The League is largely a social and cultural organisation.

·        Mr Oo believes that if he returns to Burma he will be arrested and imprisoned.  His political activities in Burma, Thailand and Australia would have been noted by the SLORC administration.  He fears being interrogated and tortured.

17                  Mr Oo’s passport was issued as valid for 6 years and Mr Oo said that this was an unusually long time for which he had to pay bribes.  He said that he did not go to Thailand to study and that he had no opportunity to study there.  He said he went there on a tourist visa which was valid for three months, after which he lived in Thailand illegally.  He said that in Australia he has been living in the Burmese Community Centre in Lidcombe, Sydney, and has obtained employment in a café.

Findings and reasons of the RRT

18                  The RRT accepted:

·        that Mr Oo is a citizen of Burma and an ethnic Arakanese who participated in the 1988 pro-democracy demonstrations; 

·        that while in Burma he was involved in the ABSU and the Arakanese Student Union (ASU); 

·        that he was imprisoned in December 1988 for three months after being arrested at a meeting in Arakan, and again in May 1989 for two months following his distribution of NLD pro-democracy literature.

19                  The RRT did not, however, accept that Mr Oo became active in the ALP soon after his arrival in Thailand.  He provided a “Member’s Record” from the ALP dated 10 December 1999 which indicated he became a member of the ALP on 25 July 1995, that is, more than 5 years after he arrived in Thailand and only shortly before he left for Australia.  That was a time at which he had already received (on 4 April 1995) his visa to enter Australia.

20                  The RRT found that for the most part, Mr Oo spent his time in Thailand working full time in Bangkok as a cook, and later as a labourer, and was aware that political activism might lead to his deportation to Burma.  The RRT did not accept that Mr Oo was a member of the ALP underground or was widely known to be an ALP member, either.  Nor did it accept that in his activities in Thailand he was governed by the dictates of the ALP.

21                  The RRT accepted that in July 1990 and again in October 1990 Mr Oo visited the Thai-Burmese border with medical supplies for the refugees and possibly rebels living there, but noted that on his own account he did not return there afterwards, that is, after October 1990.  The RRT also did not accept that he undertook those missions on behalf of the ALP.

22                  Mr Oo claimed to be a member of the ALP “underground” in Australia, but was vague as to what this involved.  The RRT did not accept that he was an active member of the ALP at all.

23                  The RRT did not accept that Mr Oo went to Malaysia and Japan to raise funds for the ALP.  The RRT noted that Mr Oo did not become a member of the ALP until 25 July 1995, that is, after he had completed the claimed visits to Malaysia and Japan. 

24                  Although the RRT accepted that Mr Oo was twice imprisoned, in 1988 and 1989, and maltreated, it also found that he was not, afterwards, of much interest to the authorities.  He remained in Burma for almost twelve months after his release from prison and, although subject to a reporting requirement, did not suffer any harassment from the authorities during that period.

25                  The RRT accepted that Mr Oo had attended various demonstrations in Canberra and Sydney, but only as a participant, not as a leader.  The RRT stated:

“The applicant has not been an active dissident since he was released from his second imprisonment in 1989.  I accept that he has given financial support to the refugees on the Thai/Burmese boarder, but has done so discreetly.  He has been a participant in the major demonstrations by members of the Burmese Community in Australia but has not taken a leadership role.   He fears that upon return his breach of the reporting conditions may be held against him.”

26                  Finally, the RRT said that although Mr Oo’s attendance at demonstrations in Australia had been regular and therefore could be described as “repetitive”, he has not taken any prominent role in those demonstrations.  He has not been a member of the ABSDF and, although a member of the ALP, was neither active nor of high profile in that organisation. 

27                  The RRT accepted that upon returning to Burma, Mr Oo will come to the attention of the local authorities and may face monitoring for a period, much like the reporting duties he faced for the twelve months after his release from prison in 1989, but considered that this was not of sufficient seriousness to amount to persecution.

Reasoning on the present application for review

28                  Mr Oo abandoned reliance on all but one ground set out in his application: that the RRT’s 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 the RRT (cf par 476(1)(e) of the Act).  Wide particulars of this ground were given in the application for an order of review.  But the submissions of Ms Winfield of counsel, by which I was assisted, although wide ranging, did not refer to all of the matters particularised.  It will be sufficient if I address her submissions.

Whether, on its findings of fact, the RRT was bound to conclude that a well-founded fear of persecution was established

29                  The supposed error of law is based on findings made by the RRT in favour of Mr Oo.  Ms Winfield referred to the well known discussion of the term “persecuted” by McHugh J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 429-431.  She submits that the RRT made findings which were sufficient to prove a well-founded fear of persecution for a Convention reason and, accordingly, that the RRT erred in failing to find that fear established.

30                  Mr Markus, the solicitor who appeared for the Minister and whose submissions likewise have been of assistance, emphasises that the contention made on behalf of Mr Oo can be made good only if an error of law is established, that is, it is shown in the light of the findings of the RRT that it was bound, as a matter of law, to recognise that he was a person to whom Australia had protection obligations.  Mr Markus contends that Ms Winfield’s submissions fail to take into account those findings of the RRT which were unfavourable to Mr Oo.  He referred to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575 as authority for the proposition that past events can only be a guide as to the likelihood of what may or may not occur in the future, and that it is not correct to assume that if a person has been persecuted in the past, the RRT is bound to conclude that he or she has a well-founded fear of persecution in the future.

31                  It is convenient to list the RRT’s findings favourable and unfavourable to Mr Oo, even though some of the second class are in the nature of qualifications on some of the first class.

Findings favourable to Mr Oo

1.         Mr Oo participated in the 1988 pro-democracy demonstrations.

2.         While in Burma, he was involved in the ABSU and the ASU.

3.         Mr Oo was imprisoned in December 1988 for three months after being arrested at a meeting in Arakan and he was imprisoned again in May 1989 for two months following his distribution of NLD pro-democracy literature.

4.         While Mr Oo was in Thailand he was aware that political activism might lead to his deportation to Burma.

5.         In July 1990 and again in October 1990 Mr Oo visited the Thai-Burmese border with medical supplies for refugees and possibly rebels living there.

6.         Mr Oo attended various demonstrations in Canberra and Sydney.

7.         Mr Oo made contributions to fund raising, but in a non-traceable manner.

8.         Mr Oo has given financial support to the refugees on the Thai-Burmese border.

9.         Mr Oo has been a participant in the major demonstrations by members of the Burmese Community in Australia.

10.       Mr Oo’s attendance at demonstrations in Australia has been regular and may be described as “repetitive”.

11.       Upon returning to Burma, Mr Oo would come to the attention of the local authorities and might face monitoring for a period, much like the reporting duties he faced for twelve months after his release in 1989.

Findings unfavourable to Mr Oo

1.         In relation to Mr Oo’s participation in the pro-democracy movement of 1988 and 1989, independent country information before the RRT showed that many thousands of Burmese participated and many were interrogated and some imprisoned, but that those events of 1988 and 1989 have rarely been treated as the basis for ongoing harassment unless the person has continued to be an active dissident.

2.         The RRT did not accept that Mr Oo became active in the ALP soon after arriving in Thailand; rather, it accepted that he became a member only as late as 25 July 1995, that is, more than five years after he arrived in that country, after he obtained his visa to enter Australia and shortly before he actually left Thailand for Australia.

3.         Mr Oo spent most of his time in Thailand working full time in Bangkok as a cook and later as a labourer.

4.         The RRT did not accept that Mr Oo was an active member of the ALP, that he was a member of the ALP underground or that he was widely understood to be an ALP member.

5.         The RRT did not accept that Mr Oo’s activities in Thailand were governed by the dictates of the ALP.

6.         On Mr Oo’s own account, he did not return to the Thai-Burmese border after his second visit to that area in October 1990.

7.         Mr Oo’s claim to be a member of the ALP “underground” in Australia was vague and the RRT did not accept that he was an active member of the ALP here.

8.         The RRT did not accept Mr Oo’s evidence that he went to Malaysia and Japan to raise funds for the ALP and it noted that he had not in fact become of the ALP until after his visits to those countries.

9.         After the imprisonment and maltreatment in 1988 and 1989 which the RRT accepted, Mr Oo was not afterwards “of much interest to the authorities”.  He remained in Burma for almost twelve months after his release from the second imprisonment and, although subject to a reporting requirement, did not suffer harassment from the authorities.

10.       Mr Oo did not approach UNHCR in Thailand seeking protection and the RRT rejected his explanation that he did not do so because the ALP did not instruct him to do so.

11.       Mr Oo did not experience difficulties in Thailand on the basis of his political opinion or his Burmese political activity.

12.       Mr Oo’s political activity in Thailand was minimal and the only documentary or supportive evidence he provided of it indicated that his membership of the ALP commenced within weeks of his leaving Thailand for Australia.

13.       The RRT did not accept that the purpose of Mr Oo’s trips to Japan and Malaysia was fund raising for the ALP.

14.       The RRT also had difficulty accepting that the level of activity undertaken by Mr Oo in Australia would bring him to the attention of the authorities in Burma.

15.       At the various demonstrations in Canberra and Sydney, Mr Oo was “only … a participant, not a leader”.

16.       Mr Oo has not been an active dissent since being released from his second imprisonment in 1989.

17.       Although he has been a participant, Mr Oo has not taken a leadership role in the major demonstrations by members of the Burmese community in Australia.

18.       The fact that upon returning to Burma Mr Oo would come to the attention of the local authorities and might face monitoring for a period is not of sufficient seriousness to amount to persecution. 

32                  At the outset, it must be acknowledged that it is not sufficient for Mr Oo to show that another decision-maker might have reached a conclusion different from that reached by the presiding Member of the RRT in this case.  Similarly, I must not review the RRT’s decision on the merits. 

33                  Ms Winfield, counsel for Mr Oo, makes several criticisms of the course of reasoning which led the presiding Member to reach the conclusion which he did, but I do not think that an error of law is shown.

34                  Ms Winfield attacks the RRT’s statement that Mr Oo remained in Burma for almost twelve months after his release from prison on the second occasion and, although subject to a reporting requirement, was not harassed by the authorities during that period of twelve months.  Mr Oo had said that it took him about one and half to two months to recover his  health (his loss of weight had fallen from a normal 52 kg down to 38 kg).  A period of two months expired on 23 September 1989.  The nine day retreat in a Buddhist Monastery would have ended in early October 1989.  In November 1989 Mr Oo completed his application form for a passport and made his first payment to an agent in Rangoon.  He made a second payment to that agent in December 1989 and a final payment in March 1990 when the passport was handed over.  In May 1990 Mr Oo’s father was very ill and was admitted to hospital, so Mr Oo remained in Burma until he was better.  Mr Oo left Burma on 14 July 1990. 

35                  By reference to these facts, counsel for Mr Oo makes the point that it is wrong to conclude, as the RRT seems to have done, that Mr Oo chose to live in Burma for almost twelve months after his release from prison, and was not harassed during that time. She submits that the true position is that after recovering from the effects of his imprisonment and spending nine days in the Buddhist monastery, Mr Oo virtually immediately took steps directed towards his leaving the country and pursued that objective as diligently as the circumstances permitted.

36                  The difficulty I have with this criticism of the RRT’s reasoning is to appreciate how it advances establishment of the error of law ground on which Mr Oo relies.  The fact is that regardless of why he did so, it is not disputed that, as the RRT said:

“[h]e remained in Burma for almost 12 months after his release and, although subject to a reporting requirement, did not suffer any harassment from the authorities.”

That is, the authorities were not interested to pursue him for the period of twelve months although he was in Burma available to be pursued.

37                  Counsel for Mr Oo also attacks the RRT’s finding that Mr Oo did not become a member of the ALP in Thailand until 25 July 1995.  That finding depended on a document which Mr Oo produced to the RRT.  It was headed “Arakan Liberation Party – Thai/Burma Border Registry Section” and was dated 10 December 1999.  That is, Mr Oo obtained it some years after coming to Australia.  The document was a “Member’s Record” in respect of “Mr San Schwe Thein” who was born on 6 January 1968 in Rangoon.  Mr Oo had, on his application for a protection visa, given his Arakanese name as “San Schwe Thein” but he had given his date of birth as 10 August 1962.  The document contained an entry reading,

“Membership Date: 25 July 1995”

Counsel for Mr Oo submits that constructions of this entry are available other than the one adopted by the RRT, that is, that Mr Oo became a member of the ALP on 25 July 1995 and not before.  Counsel points out that Mr Oo travelled from Burma to Thailand on 14 July 1990 and suggests he may have become a member of the ALP virtually immediately on 25 July 1990, and, on the basis of a membership renewable annually, his membership would have fallen due for renewal on 25 July 1995.  Another suggestion she makes is that the recording of the date 25 July 1995 against “Membership Date” in the form might have been intended to mean that Mr Oo had been a member from some unspecified date up to that date.

38                  While it is conceivable that the RRT may one day be shown to have been “wrong” in giving to the entry in question what I consider to be its prima facie significance, this does not advance Mr Oo’s case.  Indeed, even if it were shown now, by reference to other incontrovertible evidence that was before the RRT, that the entry was intended to convey a meaning different from that identified by the RRT, this would not establish an error of law of the limited kind referred to in par 476(1)(e) of the Act.

Whether well-founded fear of persecution by reason of political opinion established by absence of freedom of speech and of expression of political opinion

39                  Counsel for Mr Oo submits that the RRT erred in not categorising the monitoring for a  period which it found Mr Oo would be likely to face upon returning to Burma as being “ of sufficient seriousness to amount to persecution”.  No doubt what may amount to persecution for reason of political opinion of a person with a high degree of political commitment may not amount to persecution for that reason of a person with no such commitment.  Similarly, what may amount to persecution for reason of religion of a deeply religious person may not amount to persecution for that reason of an irreligious person.

40                  Counsel for Mr Oo submits that the factual findings of the RRT in favour of Mr Oo established that he “holds a well-founded fear that he will not be able to exercise the right to free speech or political opinion should he return to Burma.”  Counsel referred to Minister for Immigration & Multicultural Affairs v Zheng [2000] FCA 50 (FC) (“Zheng”); and Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 (“Win”).

41                  In Zheng, Hill J stated that “the prohibition legally to practise one’s religion could, and probably would, constitute persecution on religious grounds for the purposes of the Convention” (at [41]).  His Honour concluded, however, that it had been open to the RRT to find, as it had done, that the Chinese authorities did not prohibit Roman Catholics, including the respondent to the appeal from practising their religion.  Carr and Whitlam JJ agreed with Hill J in this respect.

42                  Win is a recent decision of Madgwick J.  His Honour held that the RRT had failed to consider a subsidiary claim of the applicants that they “faced persecution because they would be denied the right to express their political opinions freely if returned to Burma” (at [13]).  He concluded that a denial of freedom to express one’s political opinion may, of itself, constitute persecution.  But his Honour stated (at [19]):

“However, the mere fact that a right is denied is not, in my opinion, necessarily enough to establish refugee status. It will generally also be important to ascertain the importance that the asylum-seeker places upon the exercise of that particular right. To take an extreme example, heterosexuals could not claim to be persecuted because they are prohibited from engaging in homosexual acts.”

His Honour also stated (at [20]):

“The principle, it seems to me, is that a denial of [civil rights] would amount to persecution when that denial is so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity. It is not fatal to such a claim of persecution that the claimant fails to show that he or she is a leading exponent of a claim to, or the wish to, exercise such rights, let alone that he or she exhibits a capacity for martyrdom.”

43                  In Win, the applicants had claimed in their written submissions to the RRT to fear persecution because, if returned to Burma, they would “not have the right to speak freely, the right to writing freedom and the right to living freedom” (at [4]).  Madgwick J held that, “having accepted that free expression of political opinion was not tolerated by the Burmese government and that those actually undertaking such expression were subject to persecution”, the RRT was bound to consider this subsidiary claim made by the applicants because, firstly, the applicants had claimed to have demonstrated a high degree of political commitment in the not so distant past, and, secondly, the claim was distinctly and sufficiently raised (at [25] and [26]). 

44                  Mr Markus for the Minister refers to an earlier decision of Madgwick J, Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663 (“Cho”).  In Cho, his Honour held that the applicant had not claimed to have a well-founded fear of persecution based on the fact that she was likely to wish to assert her political opinions in Burma, and, therefore, that the RRT had not made an error of law based on a failure to consider the claim made or on a failure to make a finding on a material question of fact.

45                  Mr Markus submits that both cases taken together establish that “in some instances, people who are particularly active in political life, to whom their political activity is so central, denial of those political activities or free expression can be so serious a matter as to amount to persecution”.  He submits that there are two reasons why the present case is not of this kind. First, the RRT found that Mr Oo had not been an “active dissident” since he was released from his second imprisonment in 1989.  I think it is clear from the RRT’s findings, including its findings in relation to Mr Oo’s participation, but not as a leader, in demonstrations in Sydney and Canberra, that the RRT meant that Mr Oo was not a “prominent” or “leading” or “notable” dissident voice.  Secondly, Mr Oo did not claim to fear persecution of the kind and for the reason mentioned.

46                  Because I accept the second of these submissions, I need not address the first further.

47                  It is true that Mr Oo did not claim before the RRT to hold a well-founded fear of persecution by reference to the fact that he would not be at liberty to express his political opinion upon returning to Burma.  Rather, his claim was that he feared persecution based on political activities in which he claimed to have participated in the past, in Burma, Thailand and Australia.  In the final paragraph of his lengthy typewritten statement, prepared with legal assistance, he said:

“I believe that if I return to Burma I will be arrested and imprisoned.  My political activities in Burma, Thailand and in Australia would have been  noted by the SLORC administration.  It is usual practice to interrogate and torture returnees from Thailand, and my friends who were forcibly returned to Burma will have been interrogated and tortured and may have spoke of my activities in Thailand against the Burmese government.”

The RRT also noted that Mr Oo feared “that upon [his] return his breach of the reporting conditions may be held against him”.  But the RRT addressed and rejected the claim that a fear of persecution based on Mr Oo’s past was well founded.  It did so on the basis of independent country information, quoting the following passage from “Human Rights Update” dated 7 February 2000:

“Activists from the period of the 1988 pro-democracy uprising would be treated no differently from the broader population nor face persecution or discrimination today unless¼they have continued to be and are known to be still actively working in opposition to the government.  Even then, the level of activity would be taken into account.”

48                  Although the RRT may be required in particular circumstances to make an investigation extending beyond the limits of the claim made by an applicant, there is no reason to think that it was bound to do so in the present case.  Accordingly, the error of law ground relied on is not established.  (I note that the RRT’s finding that Mr Oo had not been an “active dissident” since his release from prison in 1989 is not inconsistent with his not having made the claim postulated.)

Conclusion

49                  For the above reasons, Mr Oo’s application should be dismissed with costs.

Associate:

Dated:              3 April 2001