FEDERAL COURT OF AUSTRALIA

Win v Minister for Immigration & Multicultural Affairs [2001] FCA 1451

MIGRATION – application for review of a decision of the Refugee Review Tribunal – where applicant is opposed to the ruling regime in Burma – where applicant had repeatedly attended demonstrations against the Burmese regime in Australia – where RRT found that the applicant’s activities may be of more than “little concern” to Burmese authorities – the restriction on free expression may amount to persecution if it can actually and seriously offend a real aspiration held by an asylum seeker such as to offend human dignity – where the RRT failed to consider whether there was a real chance of persecution of the applicant if returned to Burma for political opinion in the event that he expressed his views – where the RRT failed to consider whether there was a real chance the applicant would express his views openly so as to attract punishment – where the RRT failed to make a proper finding but simply recorded an impression of a tentative nature

Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 applied

Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 525 applied

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (FCA, 8 May 1990, unreported) applied

Tolibao-Cortes v Minister for Immigration and Multicultural Affairs [2001] FCA 1183 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

PHYO THET WIN v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 360 OF 2001

TAMBERLIN J

SYDNEY

18 OCTOBER 2001

THE COURT ORDERS THAT:

1.         The application be allowed.

2.         The decision of the Refugee Review Tribunal be set aside and the matter be referred to the Refugee Review Tribunal, differently constituted, for decision in accordance with law. 

3.         The respondent pay the applicant’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

1                     The applicant is a Burmese national who claims that he is a “refugee” within the well-known definition in the 1951 Convention as amended by the 1967 Protocol.  The basis for the claim is that there is a real chance that the applicant will be persecuted for reasons of his political opinion if returned to Burma.  On 14 February 2001, the Refugee Review Tribunal (“the RRT”) affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse his application for a protection visa.  The present matter is an application for review of that RRT decision.

2                     The relevant evidence and claims are set out in the RRT reasons for decision and I will not repeat them.

Findings and reasons of the RRT

3                     The RRT accepted that the applicant is opposed to the ruling regime in Burma and that “the regime has persecuted opponents, some prominent, others less so”.  Generally, the RRT accepted that there were many examples of the Burmese authorities engaging in Convention-related persecutions.

4                     The RRT found the applicant’s evidence as to his political activities in Burma to be “implausible, contradictory and highly inconsistent” in specified respects.  The RRT also said that it was “ultimately overwhelminglysatisfied that the Applicant grossly exaggerated his position as a supporter of the anti-government movement, and its [sic] finds that he has fabricated the whole tapestry of claims he has provided as to the danger he claimed to be fleeing when he departed Burma in September 1996”. (Emphasis original).  The effect of this conclusion is that the RRT rejected, for reasons spelt out in the decision, that the applicant’s evidence as to his actions within Burma gave rise to a well-founded fear of persecution.

5                     The applicant also claimed to have a well-founded fear based on his activities in Australia since his arrival.  The RRT accepted that in February 1997 the applicant attended a ceremony at which an honorary degree was conferred on Aung Sung Suu Kyi but not that this would have been of interest to the Burmese authorities.  The RRT also accepted that the applicant supported dissident associations in Sydney and agreed with their principles but in substance found that he had no close or sustained involvement with and no position of authority within those organisations. 

6                     In relation to country information, the RRT said:

“The information located by the Tribunal, as cited earlier, indicates that the authorities are concerned with what influence a person might have within Burma and that they do act to restrict or punish those who would return to Burma and influence anti-government activities back there. The Applicant does not strike the Tribunal as this kind of person.  All of his efforts to portray himself as an active, pro-active, committed, influential and notorious dissident are damaged by either fabrication or exaggeration or both.”

7                     The RRT accepted that the applicant attended a demonstration against the Burmese regime in Canberra on 9 September 1999 but was not satisfied that he entered or “invaded” the compound of the Burmese Embassy as claimed and it refused to accept the suggestion that he would have attracted negative attention from Burmese authorities for his involvement in this incident.  In reaching this conclusion, the RRT relied on a photograph taken on that day which showed the applicant standing far back from the fence of the embassy grounds.  There appears to have been no evidence before the RRT as to the time at which this photograph was taken on the day in question.

8                     Finally, the RRT accepted that the applicant had “repeatedly attended demonstrations” against the Burmese regime since his arrival in Australia, both before and possibly after the date of the RRT hearing.  It noted DFAT country information which states that: “[A] person may be of greater than ‘little concern’ to Burmese authorities if he is noted by them to be a ‘repetitive demonstrator’”. However, the RRT considered that because the applicant’s lack of activities demonstrated that his “level of demonstration” was “minimal”, irrespective of whether his activities may have been observed by Burmese authorities or their agents, he was not within the class of “repetitive demonstrator” referred to in the DFAT material.

9                     The conclusion of the RRT was that the applicant’s activities may be of “slight concern” to Burmese authorities.  It also considered that because conduct which it considered to be of “something greater than ‘little concern’” would not attract persecution, the applicant had not made out his case.  The reasons for this view were that the consequences for the applicant on his return to Burma, as perceived by the RRT, were interrogation, admonition, brief detention or monitoring, and such treatment could not be a sufficient degree of harassment to amount to persecution, especially given the level and nature of intrusion by the government in the lives of all citizens within Burma.

Submissions for the applicant

10                  The applicant submits that there were four errors in the RRT decision.  These are:

1.         The RRT did not consider whether harassment by Burmese authorities which had the effect of severely restricting freedom of speech amounted to persecution.

2.         The RRT did not make a finding whether the applicant was a member of the National League for Democracy (“NLD”) in considering whether there was a real chance of persecution.

3.         The RRT failed to consider whether the applicant, having been found to be an opponent of the Burmese regime and an active demonstrator against it in Australia, faced a real chance of persecution upon return if he continued at his then current level of dissenting behaviour.

4.         The RRT relied on irrelevant material, namely the photograph of 9 September 1999, taken during the Burmese Embassy incident in Canberra, after having previously acknowledged the irrelevance of that photograph.

reasoning

11                  Grounds 1 and 3 are related and I will consider them together.  The respondent submits that because the applicant did not make the claim contained in ground 3 before the RRT, the RRT did not err in failing to consider the issue.  In relation to the question whether any claim was made, there is in evidence a letter from the former solicitor for the applicant, dated 9 October 2000, to the RRT.  It states:

“The applicant not only has a history of continuing political involvement since 1988 but has shown an active commitment to the pro-democracy movement in Australia.  It is reasonable to expect that the applicant would continue his political activities if returned to Burma, in spite of continuing repression of political opposition.  From the overwhelming country information it is clear that from the regime’s perspective, the definition of anti-government activity can be very broad, and political activity that in any other situation may be considered low risk could not be so regarded in the context of the ongoing and worsening political repression in Burma.  Furthermore, the applicant has been a repetitive demonstrator in Australia.  He has attended a number of demonstrations in Australia and is a member of the Free Burma Action Committee.  The applicant arrived in Australia on 23 September, 1996, and since then has had a high profile involvement in the pro-democracy movement in Australia including the 9999 [sic] demonstration staged in Canberra.

Given the evidence of widespread human rights abuses and the crushing of any political opposition, there is a real chance that the applicant will face arrest, detention, or torture as a result of his political opinion.  In addition, the applicant will not be permitted to openly express his political views and faces the prospect of ongoing monitoring and/or surveillance.  These are political realities in Burma.” (Emphasis added)

12                  The applicant submits that the RRT decision does not deal with his claim that, if returned, he will speak out or act against the regime and that there is a real chance that he will be persecuted for so doing.  It is also submitted that the repression of the applicant’s right to free speech in Burma is substantial and would constitute persecution. 

13                  In answer to these submissions, it is argued for the Minister that the question of the applicant speaking out against the regime was not raised or argued before the RRT, nor was evidence furnished to this effect.  It is also said that the RRT found that the applicant did not strike it as the “kind of person” who would influence anti-government activities if returned to Burma.  Furthermore, it is submitted that the RRT found that any harassment arising from the applicant’s action or speech in Burma, of the type considered by the RRT, would not amount to persecution.

14                  As to the first question, I am satisfied that the claim as to the applicant’s future conduct if returned to Burma was raised before the RRT.  The solicitor’s letter expressly raised it and referred to the material on which it was based; namely, the applicant’s continued political activities as evidenced by his conduct as a repetitive demonstrator in Australia.  In addition, there is the accepted country information that a person may be of more than “little concern” to Burmese authorities if perceived by them to be a “repetitive demonstrator”.  There is authority that the restriction on free expression may amount to persecution if it can actually and seriously offend a real aspiration held by an asylum seeker such as to offend human dignity.  It is not necessary to show that the claimant is a leading exponent or a prominent activist: see Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 at [20] per Madgwick J; Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 525 at [16] per Madgwick J.

15                  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 22, the majority decision confirms that ignoring relevant material may amount to an error of law.  This principle applies where a serious and substantial claim is simply not addressed.  In my view, the failure by the RRT in the present case to address the question whether the applicant would express anti-government opinion if returned and would be prevented from engaging in such expression or activities, amounted to an error of law within the reasoning accepted in Yusuf.  This is because the submission as to future conduct was squarely raised, there was abundant material as to the severe repression of political views by Burmese authorities, and it was accepted both that the applicant was a repeat demonstrator and that his activities could be of “something greater than ‘little concern’” to authorities in Burma.  This oblique mode of expression must be taken to mean “significant” or “having some substance” in fact.  Although the RRT found that the “Applicant does not strike the Tribunal” as the “kind of person” who would influence anti-government activities if returned to Burma, it made no proper finding on the likelihood that the applicant would need or want to express his views in Burma if returned.  Nor did it make a proper finding as to the consequences of such expression.  In particular, the RRT did not address the question whether, if the applicant is “within” Burma (as opposed to Australia), and expresses his political opinion against the regime, there would be a real chance of him being persecuted.

16                  In my view, the matters referred to above and the findings made by the RRT were sufficient to call for consideration of the questions whether there was a real chance of persecution of the applicant if returned to Burma for political opinion in the event that he expressed his views, and whether there was a real chance he would express his views openly so as to attract punishment.

17                  As was pointed out by the Full Federal Court in Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (8 May 1990, unreported) at [10]:

“It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision.  If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision.  Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts.  A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence.”

See also Tolibao-Cortes v Minister for Immigration and Multicultural Affairs [2001] FCA 1183 at [7], where Heerey J referred to and accepted the force of these observations. 

18                  In this matter, the reference in the RRT decision to an opinion that “[t]he Applicant does not strike the Tribunal as this kind of person” is unsatisfactory insofar as it does not embody any proper finding but simply records an impression of a tentative nature.  In my view, this also constitutes an error of law in the application of the law to the facts.

19                  In relation to the applicant’s submission concerning the applicant’s membership of the NLD, I do not accept that the RRT failed to make a finding because it stated that it “resists accepting” that the applicant could possibly have joined the NLD in 1990.  For the reasons given above, the mode of expression used by the decision maker is unsatisfactory.  However, I am satisfied that in the particular context in which this conclusion is expressed, the statement amounts in substance to a rejection of the evidence that the applicant joined the NLD in 1990 as alleged.  In my view, the criticism of this particular expression by the applicant is not warranted and reflects an over-refined semantic approach of the type disapproved by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

20                  Finally, I do not accept the applicant’s submission in relation to the photograph which is that the decision was based on irrelevant material because the time at which the photograph was taken was not indicated and the RRT considered the photograph to be of no assistance to the applicant.  The photograph was clearly relevant and was so treated by the RRT.  The question of its importance and weight as evidence was weakened by the lack of evidence as to the time at which it was taken.  This was an appropriate matter for consideration by the RRT in assigning weight to the activity shown in the photograph.  The RRT did not consider that it carried sufficient weight to make good the applicant’s claims as to the extent of his participation and this conclusion was open to it.  There was a lack of any other accepted evidence as to what had transpired on that day.  On a fair reading of its language, the RRT found that the photograph was relevant but of limited weight and that it did not assist the applicant.  No error, in my view, has been disclosed in relation to this aspect of the RRT reasoning.

concLusion

21                  The application for review should be granted.  The decision of the RRT should be set aside and the matter referred to the RRT, differently constituted, for decision in accordance with law.  The respondent should pay the applicant’s costs.

Associate:

Dated:              18 October 2001