FEDERAL COURT OF AUSTRALIA

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824

MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – whether Tribunal failed to take into account relevant consideration, namely applicant’s ethnicity

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [75] and [82] applied

THET NAING HTUN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 139 OF 2000

HEEREY J

4 JULY 2001

MELBOURNE (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs to be taxed.

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

REASONS FOR JUDGMENT

1                     This is an application for review under Pt VIII of the Migration Act 1985 (Cth) (the Act) of a decision of the Refugee Review Tribunal made on 5 July 2000 affirming a decision of a Delegate of the Minister to refuse to grant a protection visa to the applicant.

2                     The applicant is a citizen of Burma now aged 27.  He is a single male and a Karen.  Karens are a minority ethnic group in Burma.  He arrived in Australia on 3 July 1999 and applied for a protection visa on 16 August 1999. 

3                     The Tribunal dealt with the case on the basis that the applicant’s fear of persecution was by reason of political opinion which took the form of activities in connection with the National League for Democracy (NLD) in Burma and his engagement in protest activities after arrival in Australia which he feared would become known to the Burmese authorities.

4                     However, on the application for review to this Court counsel for the applicant argued that the Tribunal erred in law by failing to have proper regard to a relevant consideration, namely his ethnicity as a Karen.  This was said to found a fear based on another Convention ground, namely race, or alternatively was something which gave added weight to his fear based on political opinion.  It will therefore be necessary to give some attention to the materials which were before the Tribunal and the way the hearing was conducted. 

Material before Tribunal

5                     In his application for a protection visa dated 16 August 1999 in answer to the question “Why did you leave that country [i.e. Burma]”?  The applicant stated:

“The situation is becoming worse in Burma and since my teens I have been helping my uncle Peter Maung Maung with his activities against the military regime.  One of his activities is to uprise [sic] on 9.9.1999 together with other under ground movements.  The military intelligence has begun to make enquiries about him, so I had to leave Burma.”

In answer to the question “What do you feel may happen to you if you go back to that country”?  The applicant stated:

“If I return to Burma and because I have been involved with my uncle, I would be arrested by the military intelligence and tortured and put into gaol for many years.”

In answer to the question “Who do you think may harm/mistreat you if you go back”?  The applicant stated:  “The military intelligence would harm and mistreat me.”  In answer to the question “Why do you think they will harm/mistreat you if you go back”?  The applicant stated:

“Since my teens I have assisted my uncle who was a student leader at Hledan University by distributing leaflets, putting out anti-government posters and reporting under ground activities.  The military intelligence is following his activities and some students have already been arrested.  If I remain in Burma I would also be arrested.”

In answer to the question “Do you think the authorities of that country can and will protect you if you go back?  If not why not”?  The applicant stated:

“I do not think the Burmese government would protect me as I have been an activist most of my life against the military regime.”

6                     The applicant was not interviewed by the Delegate.  In his application for review by the Tribunal dated 17 September 1999 in answer to the question “Your reasons for making this application”.  The applicant stated:

“I was never called for an interview.  Due to my participation with Karen community and political groups I have made a number of friends, some of whom are members of the Karen National Liberation Army.  In the community there are spies who keep watch on all pro-democracy groups and those who apply for protection visas.”

7                     The applicant provided various material to the Tribunal.  One document was the Amnesty Asia Pacific Regional Country Report for 1999 on Burma.  This included the following statement:

“Members of ethnic minorities continued to suffer human rights violations, including extrajudicial executions, torture, ill-treatment during forced portering, and other forms of forced labour and forcible relocations. Six political prisoners were sentenced to death.  No executions were known to have taken place.”

8                     Later in dealing with forcible relocations “apparently carried out solely because of ethnic origin or perceived political beliefs” the document stated:

“Thousands of Karen villagers were reported to have been forcibly relocated during June and July in Pa’an District, the Kayin (Karen) State.  Mon, Karen, Shan and Karenni people continued to be subjected to forced portering and other forms of forced labour amounting to cruel, inhuman or degrading treatment.  They were also detained solely on grounds of their ethnicity.”

9                     On 1 November 1999 the applicant provided further information to the Tribunal of his involvement with Tribal Refugee Welfare of WA Inc (TRW) and the National Ethnic League of Burma including photographs of him taken with the Chairman of the Overseas Burma Liberation Front and the Chairman of Karen Welfare Association of WA on 10 October 1999 and at the TRW office with a former soldier from the Karen National Liberation Army on 19 September 1999.  The National Ethnic League of Burma was an organisation in the process of formation in August – November 1999 to combine various ethnic groups in line with the National Democratic Front.

10                  On being advised by the Tribunal that his application was listed for hearing on 28 April 2000 the applicant provided further information in the form of photographs and documents.  The photographs included one of the applicant with the Chairman of the Karen Welfare Association, a Lieutenant Colonel from the Karen National Liberation Army, the Chairman of the Australian Karen Organisations, the Overseas Burma Liberation Front and Ethnic National League of Burma in January 2000.  There was also a photograph of him farewelling executive members of TRW at Perth airport on route to Bangkok for a fact-finding mission and photographs of the applicant at a demonstration on 3 February 2000 outside the Thai Consulate in Perth against the killing of God’s Army Freedom Fighters (Karen tribesmen).  There was also an extract from University paper describing the thousand members of the Karen community in Perth.  This report stated that refugees had

“formed their own organisations in their new countries both to promote knowledge of the plight of the Karen back in Burma and to provide support for them in the way of economic and other assistance and the sponsoring of more Karen refugees for migration.”

11                  On 8 June 2000 the applicant sent documentation to the Tribunal including photographs taken at a 24 hour hunger strike in May 2000 in which he participated together with eight others.  He also submitted a statutory declaration from Constance Allmark, the honorary secretary of TRW dated 8 June 2000.  This stated:

“The people in Burma continue to live under a highly repressive, authoritarian military regime.  The international community widely condemns that regime for its serious human rights abuses.  The State Peace and Development Council (SPDC), Burma’s ruling military junta since 1997, has made no significant changes in the governing policies of its predecessor, the State Law and Order Restoration Council (SLORC) which seized power in 1988.

I have known Mr Thet Naing Htun since August 1999 when he applied for a protection visa.  Due to his circumstances we are very concerned for his welfare should he be forced to return to Burma. 

The regime has made no progress towards greater democratisation.  To the contrary, conditions have worsened and we fear for Thet Naing Htun’s life.”

12                  On 13 June 2000 the applicant sent to the Tribunal a three page typed statement described as his “Personal Autobiography”.  A covering letter stated that it was in support of his application for refugee status.  Included in the statement is an account of the applicant aged sixteen trying to join the NLD but being refused membership as too young.  Nevertheless he handed out pro-democracy leaflets and put up party posters for the forthcoming elections.  He was taken under the guidance of his uncle Peter Maung Maung who was a member of NLD.  Since then he had been continually involved in many ways with the NLD.  During this time to date four personal friends of his have been arrested for activities such as his.  In 1998 his uncle and fellow party members started to organise a rally in remembrance of the tenth anniversary of the 1988 riots.  However news leaked to junta intelligence and the majority of the organisers were arrested during a midnight raid.  It is stated that it is “certain” that the intelligence service of the military have documentation of the applicant’s involvement with the pro-democracy movement.  His uncle was told “through the grapevine” that the applicant would be arrested in the near future.  He decided to flee the country and contacted his sister who lives in Perth.  He engaged an agent to obtain a passport with a bribe.  It took a further five months to clear the country and he spent more money on bribing authorities for police clearances and a departure permit.  He had to bribe immigration authorities at the airport.  Since his arrival in Perth he has worked with organisations assisting refugees and in doing so puts himself at risk with the present military junta in Rangoon.  Informers here feed back information of activities.  If he has to return to Burma it will be discovered that he has claimed refugee status while in Australia.  In January 2000 he learnt that his uncle and six others were arrested for political activities.  He has not heard of their fate.  In conclusion it is stated:

“Due to the above facts and well documentation of human rights abuse, no rights of self expression, freedom of speech for different political points of view, actively taking part to have the fair and democratically elected party to govern a country would cause [sic – presumably “me”] to be incarcerated without a fair trial.  I find myself vulnerable to the local authorities on my return.

Thus, I genuinely fear for my life, safety and well-being, if I am forced to return to Burma.  I only ask that my case be looked upon with the true facts that have been presented to this Tribunal.  I seek the right that any individual has, in a democratic society, which has been denied to me as well as many of my fellow country people.  I seek the right to speak without fear of prosecution or to express one’s point of view, be it in politics or religion, or to make statements of any beliefs that one has and the right to demonstrate peacefully – no more, no less.”

Tribunal hearing

13                  The transcript of the hearing before the Tribunal was in evidence.  It contains no reference to fear based on Karen ethnicity.  The applicant was given every opportunity to state what his fear was.  For example, after relating his connection with his uncle substantially along the lines already mentioned the applicant was asked:

“Q.      Apart from your uncle is there any other reason why you are fearful of going back to Burma?

A         Yes, I have.

Q.        Why else?

A         As soon as I arrived in Australia I took part in the anti-government activities.  For example I participated at the refugee week activities.  I also helped TRW to welcome the people from border-Bangkok border.  I also took part in the activities for this God’s Only Movement during February.  I always took part in hunger strike and Aung San Sue Kyi’s support parties.”

Then at the end of the hearing:

“Q.      Is there anything else that you want to make sure that you told me today:?

 A.       I want to say something.  Yes.  When you consider my application, please may I request – firstly I’m one of the persons wanted by the MIs [Military Intelligence] from Burma; secondly, the MIs will definitely know that I am actively involved in anti-government activities in Australia and I am sure that my activities, involvement with TRW, God’s Only will be photographed by the informer and they will definitely have those information.”

Tribunal’s decision

14                  In the course of giving a brief background the Tribunal noted that the applicant “was represented in his written applications by Mrs Constance Allmark”.  The Tribunal then records the evidence of the applicant’s claim which was substantially that in the “Personal Autobiography” already referred to.  The Tribunal also referred to the applicant’s evidence about his participation in various Burmese activities while in Australia, including the demonstration outside the Thai Consulate.  The Tribunal noted that it had informed the applicant of information from the Australian Embassy in Rangoon that there was no evidence that any returnees were at risk as he claimed, and that there was no reason to believe that they were in serious trouble with the authorities unless they had a significant political profile. 

15                  Under the heading “Findings and Reasons” the Tribunal referred to the Convention definition  of “refugee” and stated:

“The applicant has claimed he holds such a fear for reasons on [sic] his political opinion.”

16                  The Tribunal noted there was no doubt that the Burmese government resisted international and internal pressures for reform.  NLD politicians in particular continued to be at risk of serious harm by the military regime.  The passage from the Amnesty International Report was quoted.  However, the Tribunal was unable to accept the applicant’s claim that he had any significant political activity in Burma.  At the hearing he was given opportunities to provide some of the details which could be expected from someone who took part in risky activities in a country where the level of surveillance is very high.  The Tribunal’s assessment was that his knowledge was “minimal and general”.  There was no point at which a detail emerged which could encourage the Tribunal to accept his claims and he could not name any local NLD politicians.  He knew nothing of the NLD structure nor of its situation as he left the country.  The Tribunal thought it implausible that anyone taking the risk of being in opposition to the government would not know such basic information.  The Tribunal was not satisfied with his particular claim that he was at risk for reasons of support for his uncle’s activities.  His lack of specific political knowledge was a feature of his answers to the Tribunal’s questions.   For example, his responses on the source, nature and distribution methods of the pamphlets were unconvincing.  The Tribunal considered his claim that his fear arose from the possibility that his uncle had named him as an opposition activist.  The Tribunal had been unsuccessful in its attempts to locate his uncle’s name on the list of known activists or detainees from the period of 1988 onwards.  There was not satisfactory evidence that the applicant himself was an activist and needed to fear implication by his uncle.

17                  Turning to the claim relating to the applicant’s activities in Australia, the Tribunal accepted his evidence that he had been associated in Western Australia with TRW and has participated in its welfare, social and political activities.  However, the question was whether this was sufficient to cause the authorities to take action against him and cause him harm in the foreseeable future.  The Tribunal accepted the advice of the Department of Foreign Affairs and Trade that Burmese involved in demonstrations in Australia, whilst often known to the authorities, are generally of little concern even if they return to Burma unless they are

“repetitive demonstrators, active and high profile members of ABSDF or the NCGUB and those ringleaders of the more violent attack on the Embassy in Canberra in September 1999.”

18                  The Tribunal said it had sought information on whether the applicant’s association with TRW in particular had faced him with a real chance of persecution on his return to Burma.  It concluded, notwithstanding a contrary assertion by an officer of the Australia/Burma Council, that it preferred the advice of the Australian Embassy.

19                  In conclusion the Tribunal stated:

‘In the applicant’s case, it is satisfied that he is not an organiser, a leader nor a person with a prior career of political activism.  The Tribunal has taken into account that the applicant has lived in Rangoon for most of his life.  He has been ‘available’ to the authorities for all that time.  He has never been a member of a political party nor has he been detained, questioned or arrested.  It finds that his activities in Australia are not of a level to make him a person of concern to the Burmese authorities.  It finds that he left Burma on a legal passport and that this is still valid for his return.  In summary it finds that he is not a refugee.  It finds his fear of persecution for reasons of his political opinion not to be well-founded.”

Conclusion

20                  As counsel for the Minister conceded, clearly the Tribunal neither considered nor made any findings as to the existence of a well-founded fear of persecution based on ethnicity, either by itself, as constituting the race ground, or as part of consideration of the political opinion ground.  Was there therefore a failure to take account of a relevant consideration, or a case of asking the wrong question or ignoring relevant material:  see Minister for Immigration and Multicultural Affairs v Yusuf  [2001] HCA 30 at [75] and [82].

21                  In my opinion, not.  The short answer is that the applicant never raised the race ground himself.  There must be an actual subjective fear held by an asylum seeker on a Convention ground before any consideration arises as to whether that fear is, objectively considered, well-founded.  Time after time the applicant had the opportunity to state what his fear was but nowhere was there any assertion that his ethnicity as a Karen played any part in his fear.  I particularly refer to his “Personal Autobiography” of 13 June 2000 which is carefully compiled and consistent with all other material, and with the answers he gave at the oral hearing.  By this time he had been in Australia for a year and actively involved with refugee groups so must be taken to have been familiar with what asylum seekers need to establish.   Likewise the statutory declaration of Mrs Allmark makes no reference to ethnicity.  I do not accept the argument of counsel for the applicant that the mere fact that the applicant was a Karen and that some of the material submitted related to persecution of Karens implicitly conveyed an assertion by the applicant that he had a fear of persecution because he was a Karen.  On the contrary, I think on a fair reading of all the material the applicant was saying that he had a fear of persecution because of his political activities in Burma, and subsequently Australia, and for no other reason.  In my opinion the Tribunal did not fall into error in dealing with the application in the way that it did.

22                  The application will be dismissed with costs, including reserved costs.

Associate:

Dated:              3 July 2001