FEDERAL COURT OF AUSTRALIA

Kyaing v Minister for Immigration and Multicultural Affairs [2001] FCA 1495

IMMIGRATION – application for a protection visa – activities of applicant in Australia – whether Tribunal found that applicant was a repetitive demonstrator – no such finding – no error of law.

Migration Act 1958 (Cth) ss 476(1)(e), 476(1)(g)

SEIN KYAING V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 842 of 2001

CONTI J

SYDNEY

19 OCTOBER 2001

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

Application for Review

1                     Before the Court is an application for review against the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 April 2001, whereby the Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa, because as in the case of the delegate, the Tribunal was not satisfied that he was a refugee within the Convention definition. The Applicant was both legally represented before the Tribunal and in the proceedings before me.

2                     The grounds of the amended application for review, which I granted leave to file in court, are as follows:

“1.       The RRT erred in the course of finding that the Applicant does not face a real chance of persecution in Burma as a result of his activities in Australia since 1996 in that:

(a)               in light of the RRT’s finding that the applicant was a “repetitive demonstrator”, it was not open to the RRT to find that he would only be of slight concern to the authorities, giving rise to an error of law under s 476(1)(b) or s 476(1)(e) of the Act.

(b)               In considering whether the punishment the applicant might face on his return to Burma constituted persecution, the RRT incorrectly applied the law to the facts as found, giving rise to an error under s 476(1)(e) of the Act.

(c)                In considering whether the punishment the applicant might face on his return to Burma constituted persecution, the RRT based its decision on a particular fact where that fact did not exist, giving rise to an error under s 476(1)(g) of the Act.

(d)               In considering whether the punishment the applicant might face on his return to Burma constituted persecution, the RRT took into account the level and nature of the government’s intrusiveness in the lives of all Burmese. In taking this matter into account, the RRT has incorrectly interpreted the law giving rise to an error of law under s 476(1)(e) of the Act.”

Factual background

3                     The Applicant is a national of Burma born in the city of Rangoon in 1962. He is married without any children and his wife continues to reside in Burma. The Applicant arrived in Australia on a tourist visa on 10 December 1996. On 2 June 1997, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 27 May 1998, a delegate of the Minister refused to grant the Applicant a protection visa. When the Applicant sought review of that decision, he claimed before the Tribunal that he had a well-founded fear of persecution by reason of his political opinion, namely, that he is a supporter of the pro-democracy uprising in Burma.

4                     The claims said to give rise to a well-founded fear of persecution were set out in a series of detailed written submissions. The Applicant was also granted the opportunity to supplement such claims with oral submissions before the Tribunal. I interpolate here to note that the decision of the Tribunal extends over some 35 pages, and a substantial part of such decision concentrates on a number of claims made by the Applicant pertaining to his experiences as a purported political activist in Burma. The application before the Court is limited to that part of the Tribunal’s decision which deals with the activities of the Applicant in Australia. Accordingly, it is convenient to record that the Tribunal found that the Applicant’s claims relating to his pro-democratic activities in Burma were “implausible, contradictory and highly inconsistent”.

5                     In the six months between arriving in Australia and applying for a protection visa, the Tribunal found that the Applicant’s involvement with the Burmese political organisations was very slight. Upon applying for a protection visa in Australia, his participation in the pro-democratic movement somewhat escalated.

6                     In July 1998, the Applicant joined Radio Free Burma. His role within that organisation extended to presenting news three or four times per month. He also claimed that he was responsible for writing and editing his own news stories.

7                     When the matter was before the Tribunal, Mr George Haider (the coordinator of the radio program) was the only witness who gave evidence as to the role of the Applicant within Radio Free Burma. According to the Tribunal, Mr Haider down-played the Applicant’s involvement to that of a news reader only. Furthermore, he made the qualification that the Applicant never identified himself on air as the author of any of the news stories he read. During the course of the hearing, the Tribunal referred the Applicant to certain concerns it had with Mr Haider as a witness and the operation of Radio Free Burma. The Tribunal drew to the Applicant’s attention an anonymous letter dated 14 September 2000 which alleged that the coordinator of Radio Free Burma ran a business that required clients to pay him before he would allow the same to have their names included in his radio roster. Furthermore, such letter alleged that the coordinator demands payment before appearing as a witness at RRT hearings, a circumstance which would tend to raise questions as to the entire reliability of his testimony. The Applicant’s response to such line of questioning of the Tribunal was that the membership fee, which amounted to A$100.00 per year, represented a “sought of” donation towards equipment. The Applicant also denied that the coordinator had demanded money in exchange for appearing as a witness or for writing reference letters in relation to the proceedings before the Tribunal.

8                     The Applicant also joined the All Burmese Students Democratic Organisation (ABSDO) sometime during the year 2000. A photocopy of a membership card possessed by the Applicant was tendered as evidence in support of this. When the matter was before the Tribunal, the Applicant claimed that he had joined ABSDO whilst he was still in Burma and that he was already a member of the same prior to arriving in Australia. For reasons that are not relevant to this decision, the Tribunal was of the view that it was not plausible to accept that the Applicant had been a member of the ABSDO in Burma. Nevertheless, it accepted that he had participated in activities supported by ABSDO since coming to Australia and that sometime thereafter he had applied for his protection visa he joined the organisation. I interpolate here and note that in 1999, the ABSDO (Australia) formed a “9999 Action Committee” to steer support for the demonstrations on 9 September 1999 which were to commemorate the events of 8 August 1988. Such 8 August 1988 events involved a tragic occurrence whereby the military were given orders to open fire on peaceful demonstrators with machine guns and automatic weapons. As a consequence many innocent people were wounded or killed. The Action Committee then evolved into the Free Burma Action Committee (FBAC). Such is an Australian based organisation, and therefore has no international structure. Nevertheless, it operated in cooperation with other bodies, like the NCGUB and the ABSDF. It was accepted by the Tribunal that the Applicant is a member of the FBAC and that his activities within that group up to July 2000 were evidenced in a letter from the FBAC general secretary dated 14 July 2000.

9                     In March 1999, the Applicant joined the Friends of National League for democracy Australia (FNLDA). The FNLDA is a group of like- minded persons who seek to promote understanding of the plight of Burma. Such group works in a cooperative manner with other pro-democracy organisations. The Tribunal accepted that the FNLDA warmly accepted the membership of the Applicant after considering his attendance of the mandatory three meetings for probationary members. The Tribunal added however that such seemed indicative of the organisation’s capacity to filter potentially exploitative members. The Applicant was elected vice president of the group on 21 March 2000. The Tribunal pointed out that the minutes of FNLDA’s meeting on 18 April 2000 recorded a discussion of the phenomenon of its members using their membership of the FNLDA purely for the sake of getting references to support their refugee review tribunal applications.

10                  In providing the Tribunal with some further details as to the organisational structure of the FNLDA, the Applicant submitted that it was a branch of the National League for Democracy (NLD). The Tribunal concluded, however, that such proposition was incorrect. It also found that the Applicant displayed a lack of understanding as to the relationship between the NLD and the FNLDA when it should have been quite clear to a member of the NLD what was the relationship. The Applicant also contended that he had been a member of the NLD back in Burma. The Tribunal was quick to point out that in his 30 October 2000 declaration, the Applicant stated that he did not commit himself to having been a member of the NLD, but rather described himself as merely participating in the activities of the NLD.

11                  As a result of the Applicant’s membership in the organisations referred to above, he participated in a number of demonstrations in Australia supporting the democratic movement in Burma. The Applicant’s involvement in such demonstrations commenced on 4 January 1997 whereupon joining Radio Free Burma, he attended two further demonstrations in that year on 25 July to September. As a result of joining the FNLDA he attended two further demonstrations, one on 2 December and the other being the notorious 9 September 1999 protest that ultimately ended in an invasion of the Burmese Embassy in Canberra. Up until July 2000, the Applicant attended three further demonstrations namely on 1 February, 25 February and 29 June 2000. The Applicant’s attendance at these and other demonstrations was evidenced by photographs and video-tapes submitted before the Tribunal. The Applicant’s attendance at other meetings and conferences was also documented in a like manner. When the Applicant was involved in the well-known 9 September 2000 protest, the Tribunal referred to a photograph of the Applicant standing with his back to the melee, with posing of the camera eye to eye with the lens. The Tribunal observed that such photo demonstrated that he was within the Embassy compound but that it was difficult not to view this photograph as opportunistic.

The Tribunal’s findings

12                  The Tribunal had great difficulty with the fact that despite his claim of being so dedicated to the pro-democracy movement, the Applicant was nevertheless so slow in becoming formally engaged in such debate in Australia (see [5] above). After referring to various organisations that he joined and the subsequent demonstrations attended, the Tribunal was left with the impression of the Applicant being “opportunistic, notwithstanding that he had passed the FNLDA’s credibility test in reason to the position of vice chairperson of its management committee”, and further that “the photograph of the Applicant posing calmly for the camera in the Burmese Embassy grounds on 9 September 1999 added to such impression.” Despite this finding, the Tribunal considered it necessary in light of his involvement with Radio Free Burma, the ABSDO, the 9999 Action Committee, the FBAC and the FNLDA, there was the chance that he might nevertheless have generated the appearance of being a threat or insult to the Burmese regime.

13                  After considering the Applicant’s role with Radio Free Burma and the evidence of his witness, Mr Haider, the Tribunal accepted that the A$100.00 fee for joining the same could provide a break for opportunists who would pay it, as well as those who demand it. Nevertheless, the Tribunal considered it imperative to determine whether there would be any potential implications of Burmese officials hearing the Applicant’s name on the radio and hearing him reading the news designed to be of interest to people opposed to the Burmese government. By reason of his relatively junior and minor role in the radio station, the Tribunal was of the view that such involvement was not high in profile. This was particularly so, considering the rosters of the station which demonstrated that dozens of people line up for a small slot every few weeks to read the news.

14                  In its reasons for decision, the Tribunal referred to a Report which provided as follows:

“Burmese involved in demonstrations in Australia, whilst often known to the authorities are generally of little concern, even if they return to Burma. There would be a couple of exceptions: those who are repetitive demonstrators; active and high profile members of the ABSDF or the NCGUB and those ringleaders of the more violent attack on the Embassy in Canberra in September 1999. Other than these exceptions, any Burmese returning to Burma after a lengthy period in Australia (or elsewhere for that matter) would come to the attention of their local township authorities and their movements may be monitored for an initial period.

Escorted deportations from Australia will result in a returnee being detained for questioning but unless they departed Burma illegally, have a recent “profile” in Burma or have been active with the ASBDF or NCGUB they are unlikely to face any problems.”

In light of this, the Tribunal identified three potentially critical factors that may affect an individual’s profile with the Burmese authorities. Such factors, however, were not considered by the Tribunal to be “broadly applicable pass marks whereby the slightest resemblance between an applicant and any one of the three categories described in the report necessarily dictates a conclusion to the effect that he or she would face a real chance of persecution in Burma”. In relation to the notion of “repetitive demonstrators”, the Tribunal was of the view that the Applicant has repeatedly attended demonstrations convened by Burmese groups to express mass opposition to the regime in Burma. Nevertheless, the Tribunal was of the view that a “consideration of this notion and the potential implications of repetitive demonstration is not complete once a pattern of repetition has been observed.” This is especially so, the Tribunal further found, “if the level of demonstration, as in the case of the Applicant, has been minor, so far short lived and perfunctory”. Upon that footing, the Tribunal concluded:

“Having given the Applicant’s activities in Australia serious consideration, and not withstanding his role with coordination groups like the “9999 Action Committee” and the FBAC, the Tribunal is not satisfied that his career as a demonstrator in Australia would be of other than slight concern to the authorities in Burma. Even were these activities to attract a session of interrogation and admonition, or even of brief detention of the Applicant, such as some returning Burmese are reported to face either directly upon or soon after arrival in Burma …the Tribunal would accept that this were (sic) a form of harassment, but it would not be satisfied that it amounted to persecution, especially given the level and nature of the government’s intrusiveness in the lives of all Burmese.”

15                  The Tribunal further considered the extent of the Applicant’s involvement within the various organisations referred to above. In relation to the ABSDF and the NCGUB, which were referred to in the independent information, the Tribunal concluded that there was no evidence before it to suggest that the Applicant had any close involvement with such organisations. Nevertheless it was acknowledged that there still remained a potential significance of the Applicant’s activities with other organisations, namely the ABSDO, the FBAC and the FNLDA. Despite his involvement with these three bodies, the Tribunal concluded that such would “not be regarded as significant, even if known to agents of the Burmese authorities”. Thus the Tribunal was of the view that the Applicant did not face a real chance of persecution in Burma by reason of his membership and participation in the groups which it found he had participated in.

16                  Finally the Tribunal referred to the incident at the notorious 9 September 1999 demonstration in Canberra, in which the Applicant participated by reason of his involvement with the 9999 Action Committee. Although the Tribunal accepted that the Applicant was one of many who had broken into the Burmese Embassy, he was not a ringleader of either the demonstration or the break in. As a consequence, so the Tribunal concluded, he would not be identified by Burmese officials as one of the persons who incited others to enter the compound.

17                 In light of the above, the Tribunal ultimately concluded that despite the fact that the Applicant had maintained some degree of involvement with pro-democracy movements in the last two and a half years since the lodgment of his primary application, the Applicant “has not been a devoted supporter of the pro-democracy movement and certainly not the kind he claims to have been … the Tribunal is overwhelmingly convinced that the Applicant is not a reliable witness in the present matter. It is not satisfied that he faces a real chance of Convention-related persecution in Burma. He is not a refugee.”

The Applicant’s legal contentions

18                  Central to the Applicant’s argument lies the submission that the Tribunal found that the Applicant was a “repetitive demonstrator”, so as to fall within those class of persons who, in accordance with the Report, identified in [14] above, would face problems from the Burmese authorities upon their return to Burma. As a consequence, the Tribunal is argued to have committed an error of law in finding that the Applicant would only be of “slight concern” to the authorities.

19                  The Report, which is extracted at [14], contains material to the effect that Burmese involved in demonstrations would be of little concern to the authorities. As I noted in [14] above, the Tribunal accepted that there were three critical exceptions to this view, including the case of “repetitive demonstrators”. It is quite apparent from the Tribunal’s reasons that it thereby found that the Applicant was not a ‘repetitive demonstrator’. Although the Tribunal accepted that the Applicant had attended a number of demonstrations, it considered that it did not automatically follow that he fell within the notion as described in the report. Evidently the Tribunal was of the view that a consideration as to whether an applicant is a repetitive demonstrator is a question of fact and degree. As part of its function of making findings of fact, it was open to the Tribunal to assess whether, in spite of the Applicant establishing a pattern of repetition, his participation in the demonstrations was such that it may or may not generate adverse attention on the part of Burmese authorities. The Tribunal concluded on the material before it that repetitive demonstration is not complete, “especially if the level of demonstration, as in the present case, has been minor, so far short-lived and perfunctory”. Accordingly, it was open to the Tribunal to conclude that the Applicant’s activities would not provide Burmese government spies with enough opportunities to mark him out as a repetitive demonstrator as described in the Report. No error of law arises in this respect.

20                  Turning to the second and third grounds of the amended application (see [2] above), the same are based on the footing that the Tribunal found that the Applicant was a repetitive demonstrator. Since I have already concluded that this is not what the Tribunal found, these two grounds must fail. Nevertheless, it is appropriate that I briefly outline why this is so. The gravamen of the Applicant’s complaint in this respect lies in the proposition that if the Tribunal found that the Applicant was a repetitive demonstrator, then he would fall outside those categories of person who would be of slight interest to the authorities (see [14] above). Accordingly, the Applicant would face a situation quite unlike those persons who would simply attract a brief session of interrogation or detention or a short period of monitoring, by the authorities upon their return to Burma. In this way the Applicant contended that it was not open to the Tribunal to draw the inference that he would only be subject to the above- mentioned treatment upon his return to Burma.

21                  In my view, the Tribunal was entitled to conclude that in light of the finding that the Applicant was merely of slight concern to the authorities by reason of the Applicant not falling within the exceptions outlined in the Report, the Applicant would only be subject to such actions of authorities as were described in [20] above, as distinct from any harsher form of punishment.

22                  Finally, it was argued that the Tribunal’s observations that even if the Applicant was to attract interrogation, detention or monitoring, such experiences would not amount to persecution, “especially given the level and nature of the government’s intrusiveness in the lives of all Burmese” was such as to give rise to an error of law. Doubtless tribunals would normally ensure that when persons of a particular nationality are subject to a regime that operates harshly in terms of deprivation of human rights, the bar is not simultaneously raised in terms of assessing what constitutes persecution. It seems to me, however, that what the Tribunal found in the present case was that if the Applicant was to be subjected to such intrusive behaviour on the part of the authorities, whether by reason of interrogation, detention or monitoring, being conduct which coincidentally happens to be commonplace in Burma, any such subjection would not constitute persecution. Therefore I conclude that the Tribunal did not in the course of its reasoning impose a higher standard than is justifiable as to what amounts to persecution. It follows that this ground must also fail.

23                  I order that the application be dismissed and that the Applicant pay the costs of the Respondent.

Associate:

Dated:              24 October 2001