FEDERAL COURT OF AUSTRALIA

VJAD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 468

MIGRATION – review of decision of Refugee Review Tribunal – refusal to grant protection (class XA) visa – whether Tribunal’s decision affected by jurisdictional error – relevant considerations – no jurisdictional error shown

Migration Act 1958 (Cth), ss 36, 91R, 474

Migration Regulations 1994 (Cth), Schedule 2, clause 866.221

Judiciary Act 1903 (Cth), s 39B

Craig v The State of South Australia (1995) 184 CLR 163 referred to

Plaintiff S157/2002 v Commonwealth of Australia(2003) 211 CLR 476 applied

Re Minister for Immigration and Multicultural Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 441 applied

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied

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

Phyo Thet Win v Minister for Immigration and Multicultural Affairs [2001] FCA 1451 distinguished

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

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 considered

Linett v McIntyre (2002) 117 FCR 189 referred to

Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 referred to

Pollocks v Minister for Immigration and Multicultural Affairs (2001) 195 ALR 73 referred to

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

Minister for Immigration and Multicultural Affairs v Islam [2001] FCA 1681 referred to

Than Zaw Oo v Minister for Immigration and Multicultural Affairs [2000] FCA 348 referred to

VJAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 711 of 2002

KENNY J

22 APRIL 2004

MELBOURNE

THE COURT ORDERS THAT:

1.      The application made pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal made on 20 August 2002 be dismissed.

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

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

REASONS FOR JUDGMENT

the application

1                                 This is an application under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) (“the Act”) for review by this Court of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 August 2002, although not handed down until 13 September 2002.  The Tribunal’s decision affirmed the decision of the respondent’s delegate to refuse to grant the applicant a protection visa.

2                                 The applicant, who is a citizen of Myanmar (formerly Burma) and a Christian of Karen ethnicity, arrived in Australia on 15 March 1999, travelling on a visitor’s visa.  On 23 April 1999, she lodged an application for a protection visa (class AZ) with the then Department of Immigration and Multicultural Affairs.  On 27 March 2000, a delegate of the respondent refused to grant a protection visa to the applicant.  On 31 March 2000, the applicant applied to the Tribunal for review of the delegate’s decision.  The Tribunal subsequently affirmed the delegate’s decision.

legislative framework

3                                 Provision is made in s 36 of the Act and Sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) for protection visas.  A criterion for the grant of a protection visa is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol: see s 36 of the Act and Sch 2, cl 866.221 of the Regulations.  The Refugees Convention is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol is the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  Protection obligations arise in relation to a person who falls within the definition of “refugee” in the Convention, as amended by the Protocol (collectively, “the Convention”).  A refugee is defined in Article 1A(2) of the Convention as 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 … .

4                                 The decision under review is the Tribunal’s decision that it was not satisfied that the applicant is a person to whom Australia has protection obligations, because it was not satisfied that she has a well-founded fear of persecution if she were to return to Myanmar (also referred to below as Burma).  The scope of review is affected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), as explained by the decisions of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia(2003) 211 CLR 476 (“Plaintiff S157”) and Re Minister for Immigration and Multicultural Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 441 (“Applicants S134/2002”).

the applicant’s claims

5                                 The applicant claims to have a well-founded fear of persecution if she were to return to Burma by reason of her political opinion.  She set out much of her claim in statutory declarations accompanying her protection visa application and submitted to the Tribunal.  She also relied on the written submissions made on her behalf by various organisations, including the Refugee and Immigration Legal Centre Inc and the Asylum Seeker Resource Centre.  The applicant and other witnesses gave oral evidence to the Tribunal, which the Tribunal summarised in its reasons for decision.

6                                 The applicant said, amongst other things, that, in March 1988, she was a university student in Rangoon and that she had participated in a demonstration at Rangoon University on 16 March 1988.  She was amongst 1,500 people who were arrested and taken to Insein Gaol.  She was interrogated at the gaol and detained for a week.  The authorities released her after she gave a written undertaking that she would not participate further in political activities against the Burmese government.

7                                 On 19 September 1988, however, she participated in another rally outside the Rangoon Electricity Office in Insein.  The rally ended when the army began to shoot at the crowd.  In the course of the shooting, her brother was killed.  On hearing of his death, the applicant’s father suffered a heart attack and subsequently died.  Shortly thereafter, the applicant joined the National League for Democracy (“the NLD”).  In a written statement submitted to the Tribunal and in evidence, she explained what membership of the NLD had entailed for her.

8                                 The applicant recalled that, although the NLD won the elections in May 1990, the ruling party, the State Law and Order Restoration Council (“the SLORC”), refused to accept the result and that NLD leaders were arrested.  Although not a leader, she was fearful for her safety and applied for a passport in order to leave the country.  When no passport came, she left Rangoon for a cousin’s house.  She did not return to her studies, but later went to live with a sister in a village in a remote part of the country.  She said, “I was not involved in any political activity between 1991 and 1995 as [the village] is very small and I was in hiding”.  From time to time, from 1995 until the end of 1998, however, she delivered medical supplies to an armed rebel organisation (which the Tribunal subsequently found had signed a cease-fire agreement with the SLORC).

9                                 According to the applicant, friends in Rangoon who remained in the NLD “spoke of continual surveillance by the Military Intelligence, even though some of them had ceased to be active members”.  She commented:

Once you have come under the suspicion of the security forces you have a permanent black mark against your name.  This is why it was dangerous for me to remain in Rangoon and why I could not live there any longer. 

…

The persecution of anyone in Burma who has been involved in any kind of political activity is very extreme.

…

In addition, the authorities would find it suspicious that I had left my university studies in 1990 at the time of the crackdown of NLD supporters to move to a very remote part of Burma.  There are suspicions of people from many ethnic groups in Burma, such as the Karen.

10                              The applicant took the opportunity to leave Burma at the end of 1998.  On her arrival in this country, the applicant met various members of the Burmese community.  On 29 August 2001, she joined the Australia Burma Society (“ABS”).  She said that she has “participated in the demonstrations against the military rulers in Rangoon, led by ABS on all occasions till today”.  These demonstrations were mostly in Melbourne.  One was in Canberra.  They included the anniversary demonstrations that marked the events in Burma of 8 August 1988.

the reasons of the tribunal

11                              The Tribunal accepted that the applicant took part in the 1988 pro-democracy demonstrations.  It accepted that she had been detained in Insein Gaol, interrogated, ill-treated and, ultimately, released upon signing an undertaking not to be further involved in politics.  The Tribunal also accepted that, although she was further involved in politics, she was “never arrested by the authorities during this time”.  In relation to this, the Tribunal said:

The Tribunal accepts that the authorities in Burma would have student demonstrators under surveillance; however, the fact that she was able to continue with her political involvement and not come to the notice of the authorities indicates that she was not of interest to them.

In connection with the NLD, the Tribunal held:

[A]lthough the applicant may have supported the NLD in the 1990 elections her involvement was minor and she did not have any difficulties with the authorities as a result.

12                              Concerning the 1988 demonstrations and the 1990 elections, the Tribunal concluded:

Although the applicant was detained on one occasion in early 1988 after that she continued with her political activities and had no difficulties with the authorities.  Based on the Country Information and the fact that the authorities had ample opportunity to arrest the applicant and interrogate her if they wished to do so whilst she was in Rangoon, the Tribunal finds that there is no real chance that she will be of interest to the authorities if she was to return to Burma in the reasonably foreseeable future on account of either her involvement in pro-democracy activities in 1988 or her involvement with the NLD and her fear of persecution is not well founded.

13                              The Tribunal accepted that the applicant left Rangoon and environs for a more remote area, where she lived between 1991 and 1998.  It found, however, that, if she had been involved in delivering medical supplies to a rebel organisation, then “the applicant never came to the attention of the authorities as a result of these activities”.  The Tribunal added that, based on the country information available to it, “in the late 1980s early 1990s”, the relevant rebel organisation had “signed a cease fire with the Burmese Government … and therefore the provision of medicines to [it] after this time would not have been regarded as anti-government activity”.  On this part of the applicant’s case, the Tribunal concluded:

The applicant did not come to the attention of the authorities between 1991 and 1998.  The Tribunal finds that the applicant was not persecuted in the past for her assistance to the [rebel organisation] and there is no real chance that she will be persecuted in the reasonably foreseeable future if she were to return to Burma on account of these activities and her fear of persecution for reasons of her assistance to the [organisation] is not well-founded. 

The Tribunal did not accept that the applicant’s passport had been secretly issued.  Nor did it accept the evidence given by a witness for the applicant that the authorities had “recently been asking questions about the applicant”.

14                              The Tribunal accepted that, in Australia, the applicant “has been involved in some minor political activities”.  It added:

Despite arriving in Australia in 1999, she has only joined one organisation and that was in 2001.  The applicant has attended a number of demonstrations.

The Tribunal concluded:

[T]he Burmese authorities take an interest in political activities in Australia and have them under surveillance.  However, the Country Information available to the Tribunal indicates that the Burmese authorities are only interested in those people who are organisers or leaders of the demonstrations, or have links to particular organisations.  The applicant, when questioned about her involvement in political activities in Australia, displayed little knowledge of the various political groups.  She did not know what ABSDF stood for and she was not aware that there was the NCGUB, being the government in-exile which was set up in 1990 and continues to this time, which suggests to the Tribunal that her involvement in political activities in Australia has not been at a high level.  Based on the country information the Tribunal finds that the applicant has not been involved in activities in Australia that have led to her having a profile that would warrant the attention of the authorities on her return.  The Tribunal finds that there is no real chance that she will be persecuted in the reasonably foreseeable future for reasons of her activities in Australia and her fear of persecution is not well-founded.

15                              Whilst noting that the applicant’s claims did not relate to her Christian Karen status, the Tribunal also considered the possibility of persecution in Burma on account of her religion or ethnicity.  The Tribunal found that there was no country information before it that indicated that the applicant was at risk of persecution because of her religion or ethnicity.  The Tribunal concluded by stating that:

[It had] considered the applicant’s claims cumulatively, that is, whether she will be at risk if she returns to Burma because of her political activities in Australia, combined with the fact that she is Christian Karen and politically active in 1988 and a supporter of the NLD in the 1990 election.  Based on the Country Information … the Tribunal is not satisfied that she faces a real chance of persecution on cumulative grounds, and her fear of persecution is not well founded, and she is not a refugee within the terms of the Convention.

the parties’ submissions

16                              By her amended application for an order of review filed on 4 March 2003, the applicant alleged that (1) the Tribunal’s decision was so unreasonable that no reasonable decision-maker could have made it; (2) that, in making its decision, the Tribunal failed to take into account relevant considerations; (3) that the decision was not made in good faith or was not a bona fide attempt to exercise the powers conferred on the Tribunal; and (4) the Tribunal’s decision was affected by jurisdictional error.  At the hearing, the applicant did not pursue the unreasonableness and good faith grounds, but contended that the Tribunal’s decision was affected by jurisdictional error because the Tribunal did not take into account certain relevant considerations.  These considerations were that, between 1991 and 1998, the applicant was in hiding and that, in Australia, she was a “repetitive demonstrator”.

17                              Referring to a DFAT cable (cited in the Tribunal’s reasons as DA1782 1 February 1995 cisnet CX9957), counsel for the applicant first submitted that the applicant did not fall within the description of a person who in Burma was likely to be free of harassment.  Counsel submitted that:

[T]he applicant is a person who was not picked up by the authorities in Burma because she was in hiding between 1991 and 1998, but has continued anti-government activities in Australia.  Because of her continued involvement in anti-government activities in Australia and because she has previously been arrested and detained for a week, she is a person in respect of whom it is reasonable to believe there would be a record kept. She would be on file and that would be used against her, particularly given her increased profile in Australia.

The applicant specifically challenged the Tribunal’s finding that “there was no real chance that she will be of interest to the authorities if she was to return to Burma … on account of either her involvement in pro-democracy activities in 1988 or her involvement with the NLD” on the basis that the Tribunal failed to consider the fact that she was in hiding between 1991 and 1998 and that she subsequently attended a number of demonstrations in Australia.  In this connection, counsel submitted that “the Tribunal has not turned its mind to the relevant consideration of the applicant’s repetitive attendance at demonstrations but has dismissed the matter as a characterisation of minor political activities”.

18                              The applicant’s counsel referred to what the Tribunal termed “DFAT Country Information Report No 55/00, 7 February 2000 CISNET CX 39784”, part of which was set out in the Tribunal’s reasons.  In particular, she referred to the statements that:

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.

The same statement appeared in what the Tribunal referred to as “Country Information Service 2000, Country Information Report No 111/00 – Treatment of Returnees to Burma (sourced from DFAT advice of 15 March 2000), 12 April. (CISNET Burma CX 41130)”.  The Tribunal also set out the relevant quotation from this document in its reasons.

19                              Counsel submitted that “the country information has stated that an exception to Burmese being involved in demonstrations being of little concern … is if they are repetitive demonstrators” and, in consequence, “being a repetitive demonstrator is a relevant consideration to an objective finding of persecution”.  Counsel further contended that the Tribunal had turned its mind only to “the other categories of exceptions … whether the applicant is an active and high profile member of some of these anti-government organisations”.  In this regard, counsel referred to the Tribunal’s finding that “[b]ased on the country information … the applicant has not been involved in activities in Australia that have led to her having a profile that would warrant the attention of the authorities on her return”.  In this connection too, counsel for the applicant sought to emphasise the depth of the applicant’s commitment to her anti-Burmese government stance, referring to her repeated attendance at demonstrations and her statutory declaration of 17 July 2002.  In this statutory declaration, the applicant stated that, at the time of her arrest and detention in 1988, she made a “vow that [she] would play every available part and take every opportunity to topple the present regime in Burma, as far and as long as [she] could”.

20                              In support of her case that the Tribunal’s decision was affected by jurisdictional error because the Tribunal failed to have regard to relevant considerations - the applicant’s status as a repetitive demonstrator and that she was in hiding from 1991 – the applicant’s counsel referred to Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 (“Win”) and Phyo Thet Win v Minister for Immigration and Multicultural Affairs [2001] FCA 1451 (“Phyo Thet Win”).  The applicant’s counsel submitted that these cases supported the applicant’s case “in terms of the analogy of this applicant having a depth of commitment, going into hiding, and then when the fetters of the regime are removed she comes to Australia, her anti-government activities bloom”.

21                              Counsel for the respondent accepted that, whilst the Tribunal had country information concerning the status of repetitive demonstrators, it did not deal with the applicant’s claim by reference to this status (although counsel also drew attention to an ambiguity arising from the use of a colon and semi-colon in the DFAT information): see above [18].  According to the respondent’s counsel, the Tribunal did not deal with the applicant’s claim by reference to repetitive demonstrator status because the Tribunal did not in fact rely on this piece of country information.  The respondent’s counsel conceded that the Tribunal accepted that the applicant attended the demonstrations in Australia, as she claimed, but, so counsel submitted, the Tribunal preferred what it said were the views of “Andrew Seth, an academic and former visiting fellow at the Australian National University’s Strategic and Defence Studies Centre, at the 2 June 2000 Burma Workshop, conducted as part of the Members’ Professional Development Programme, who commented on the near paranoia fuelling the Burmese authorities’ interest in the activities of Burmese groups in Australia”.  As the respondent noted, the Tribunal said, in this connection, that:

The Tribunal accepts that the Burmese authorities monitor the political activities of Burmese in Australia.  In response to a question about whether the Burmese government’s treatment of a returning activist would differ depending on whether the returnee was a person with leadership history and capacity or an individual who was simply a noisy fact in a crowd at a demonstration, Mr Seth concluded:

I would say undoubtedly they would make that distinction and one of the purposes of compiling this sort of information that they’re so keen to get, is so that they can in fact try and identify and take action against people with real leadership potential or people who could constitute a real threat to the state …

22                              The respondent also noted that, in discussing the position of Burmese who returned to Burma and before setting out its conclusion about the applicant in the present case, the Tribunal referred to a report of the detention and interrogation of a member of the ABSDO, adding:

That person however was in a different position to the applicant.  He had claimed to previously have been a member of the ABSDF and PLF in Burma and had been arrested and detained on several occasions in Burma.  He had been involved with the NLD.  He was thus someone who had a political profile in Burma before he came to Australia.

23                              As the respondent noted, this example was relevant to the applicant’s case because the Tribunal had concluded, earlier in its reasons, that any involvement with the NLD on her part was merely “of a minor nature during the election campaign in 1990”.  The respondent submitted that, whilst the Tribunal accepted that the Burmese authorities kept surveillance over the political activities of Burmese in Australia, it rejected the applicant’s claim that there was a real chance that she would be persecuted in Burma merely because of her attendance at demonstrations against the Burmese government.  As the respondent observed, on the applicant’s own account, she did not engage in political activity between 1991 and 1995.  The respondent submitted that the Tribunal rejected, as it was entitled to do, the applicant’s claims concerning her activities after 1995.

consideration

24                              The decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) did not widen the concept of jurisdictional error as explained in Craig v The State of South Australia (1995) 184 CLR 163 at 179.  In Yusuf at 352, McHugh, Gummow and Hayne JJ stated the relevant law as follows:

Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals.  That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language.  If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.  If that is so, the ground in s 476(1)(e) is made out.

For the reasons that follow, I reject the applicant’s submission that, in this case, the Tribunal ignored relevant material or asked itself the wrong question.

25                              There was, plainly enough, material before the Tribunal concerning the applicant’s participation in demonstrations in Australia (e.g., the applicant’s statutory declaration of 17 July 2002 and the Asylum Seeker Resource Centre letter of 17 July 2002).  Indeed, the Tribunal referred to her participation in demonstrations in Australia in its reasons, under the heading “Claims and Evidence”.  Under the same heading, the Tribunal specifically referred to the applicant’s statement that she was “in hiding” after 1991, although it did not state expressly whether it accepted or rejected her evidence in this regard.

26                              When the Tribunal’s reasons are read as a whole, it is clear that the Tribunal did not disregard the country information provided by DFAT, which referred to the status of repetitive demonstrators, but rather considered this information in light of the information provided by Mr Seth and the reported detention and interrogation of a Burmese with “a political profile” returning to Burma.  In substance, as the respondent noted, the Tribunal rejected the applicant’s claim that her attendance at demonstrations in Australia was sufficient to give rise to a well-founded fear of persecution in Burma.  The rejection of this aspect of the applicant’s case is consistent with the Tribunal’s statement, earlier in its reasons, that:

It was put to the applicant that the Tribunal had information that the Burmese authorities were only interested in the leaders and organisers of political activities in Australia, and that her involvement was not in this category.

27                              When the Tribunal’s reasons are read as a whole, the information mentioned by the Tribunal in this questioning would appear to be that given by Mr Seth.  The Tribunal effectively rejected the possibility that there was a real risk of persecution for the applicant in Burma if she had merely participated in demonstrations in Australia.  After referring to the country information, including the information from DFAT and Mr Seth, the Tribunal concluded that:

[T]he Burmese authorities are only interested in those people who are organisers or leaders of the demonstrations, or have links to particular organisations.  The applicant, when questioned about her involvement in political activities in Australia, displayed little knowledge of the various political groups.  She did not know what ABSDF stood for and she was not aware that there was the NCGUB, being the government in-exile which was set up in 1990 and continues to this time, which suggests to the Tribunal that her involvement in political activities in Australia has not been at a high level.

Accordingly, the Tribunal found that the applicant had “not been involved in activities in Australia that ha[d] led to her having a profile that would warrant the attention of the authorities on her return”.

28                              It follows from what I have said that I reject the applicant’s submission that the Tribunal did not take into account the fact that she attended demonstrations in Australia and the country information that related to it.  Even if such a matter were properly regarded as a relevant consideration, as explained in Yusuf at 347-348 [73]-[74] and in Applicants S134/2002 at 459 [39] – [40], it is clear that the Tribunal took these matters into account and no jurisdictional error is shown in this regard.  Absent jurisdictional error, the Tribunal’s findings of fact cannot be set aside, whether or not the Court might have taken a different view of the material that was before the Tribunal at the time: compare Kyaing v Minister for Immigration and Multicultural Affairs [2001] FCA 1495 at [19] per Conti J.  As I have endeavoured to show, when the Tribunal’s reasons are read as a whole, the Tribunal’s reasoning on this aspect of the applicant’s case is tolerably clear.  The contrary conclusion would require the Tribunal to state expressly that, to the extent of any conflict, it preferred Mr Seth’s information to the other country information.  There is, however, no basis for imputing such a requirement to the Tribunal: see Linett v McIntyre (2002) 117 FCR 189 at 190-191 [5] per Wilcox J and 198 [32] per Kiefel J; Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 614 [46] per Gaudron J and 640 [169] per Gummow J; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 644-645 [149] per Hayne J.  As the Full Court said in Pollocks v Minister for Immigration and Multicultural Affairs (2001) 195 ALR 73 at 81 [35]:

The selection of what are material facts and what is the evidence, or other material, which is relied on for making those findings is a matter for the tribunal in its consideration of the circumstances surrounding the application.

The Court added, at 82 [39]:

It is not necessary that there should be an in-depth discussion or evaluation or indeed a detailed catalogue of every piece of evidence on the basis of which the findings on [the] material questions of fact were made.

29                  It was for the Tribunal to assess whether, in the circumstances of the applicant’s case, having regard to the material before it, her attendance at demonstrations in Australia might subsequently lead the Burmese authorities to treat her so injuriously as to give rise to a well-founded fear of persecution.  It was also open to the Tribunal to determine that, in the circumstances, this attendance would not give rise to such a fear.

30                              There is also no substance in the applicant’s contention that the Tribunal failed to take into account that she was “in hiding” from 1991.  The Tribunal specifically dealt with the essential factual integers of the applicant’s case concerning the period from 1991 to 1998.  As already noted, the Tribunal accepted the applicant’s account of leaving Rangoon after 1990.  Whilst the applicant did not claim any political activity between 1991 and 1995, saying that she was “in hiding”, her case was that, after 1995, she had been involved in delivering medical supplies to a rebel organisation, which left her at risk of persecution if she returned to Burma.  The Tribunal specifically dealt with the case she made, finding, however, that following the ceasefire agreement in the late 1980s early 1990s, the delivery of medical supplies to the organisation would not have constituted an anti-government activity in Burma.  The Tribunal dealt with the case that the applicant made when it found that:

The applicant did not come to the attention of the authorities between 1991 and 1998.  The Tribunal finds that the applicant was not persecuted in the past for her assistance to the [rebel organisation] and there is no real chance that she will be persecuted in the reasonably foreseeable future if she was to return to Burma on account of these activities and her fear of persecution for reasons of her assistance to the [rebel organisation] is not well-founded.

31                              Section 430 of the Act required the Tribunal “to set out what were its findings on the questions of fact it considered material”: see Yusuf at 346 [69].  As McHugh, Gummow and Hayne JJ said, at the same place, “[t]he Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration” (emphasis original).  As already noted, in the present case, the Tribunal made no express finding about whether it accepted or rejected the applicant’s statement that she was “in hiding” from 1991, although it did make specific findings about her whereabouts and her activities between 1991 and 1998.  Save for the fact that the Tribunal did not make an express finding about this particular matter, there is nothing in the Tribunal’s reasons to indicate that, in considering her claim as a whole, it failed to take this aspect of her evidence into account.  In response to the line of questioning referred to earlier at [26], the Tribunal recorded the applicant’s response as follows:

She claimed she believed she would be in trouble because of her past involvement in political activities.  She believed she would be arrested and immediately put in gaol and tortured.  The only reason they had not done this before was because she was hiding … .

32                  As already noted, this aspect of the applicant’s evidence was also referred to elsewhere in the Tribunal’s reasons.  The applicant’s claim was, however, that she had a well-founded fear of persecution if returned to Burma because of her past activities in Burma and her activities in Australia.  In the circumstances of the case, it was open to the Tribunal to deal with the specific events that the applicant said constituted the basis for her well-founded fear, without referring specifically to her evidence that she was in hiding for a period of time.  I interpolate, too, that there was no suggestion in this Court that the Tribunal had misstated the effect of the evidence that the applicant gave or the nature of her claims.  Accordingly, the fact that the Tribunal did not state expressly whether it accepted or rejected her evidence about being in hiding does not lead me to infer that the Tribunal failed to have regard to a relevant consideration such as to constitute jurisdictional error.

33                              As already mentioned, the applicant relied heavily on the decisions in Win and in Phyo Thet Win.  Counsel for the applicant relied on these decisions to support the proposition that, in the present case, the Tribunal failed to recognise that the taking of steps to hide political opinions and activities is no answer to a claim for refugee status where an applicant claims a well-founded fear of persecution for those opinions or activities.  Further support for this submission is contained in the recent decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 (“S395/2002”) at 124-126 [48]-[53] and 122 [40]-[41], 124 [48] per McHugh and Kirby JJ and 131-132 [80]-[82] per Gummow and Hayne JJ.  Further, for present purposes, I accept, as both parties maintained, that nothing turns on the fact that s 91R of the Act was applicable at the time the Tribunal made the decision under challenge in this case, but was inapplicable at the time of the Tribunal decisions in Win and Phyo Thet Win: see Migration Legislation Amendment Act (No 6) 2001 (Cth) (No 131 of 2001), Sch 1, Pt 2, Item 7.  This is, indeed, consistent with the observations of McHugh and Kirby JJ in S395/2002, at 124 [48].  For the reasons I am about to give, however, I accept that, as the respondent contended, these decisions are distinguishable from the present case.

34                              As in this case, the applicant before the Court in Win was a Burmese national, whose application for a protection visa had been rejected, first, by the Minister’s delegate and, subsequently, by the Tribunal.  The protection visa applicant contended, in written submissions before the Tribunal, that he feared being persecuted on his return to Burma because, among other things, he would “not have the right to speak freely, the right to writing freedom and the right to living freedom”:  Win at [4].  Madgwick J treated this submission as a claim that certain forms of political expression were prohibited in Burma; that the applicant would comply with the prohibition if he returned to Burma; and that for the applicant to comply with the prohibition would constitute persecution of him for reasons of political opinion.  His Honour stated, at [18]-[19] and [23] (emphasis original):

There appears to be no reason why, similarly, a denial of freedom to express one's political opinion may not, of itself, constitute persecution.  …

However the mere fact that a particular 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.  …

In this case, the more difficult part of the factual assessment may be to determine whether the entire situation of the applicants in Burma was (more correctly: is likely to be) such that their human dignity would be truly affronted by the denial of civil and political rights inherent in the disposition there if they have to return.

35                              Madgwick J held that the Tribunal was required to deal with the claim pressed by the applicant: see [24]-[25].  The Tribunal’s failure to deal with the claim enlivened the grounds of review set out in pars 476(1)(c) and (e) of the Act: see [26].  His Honour said, at [25]:

In light of the high degree of political commitment that the applicants claimed to have demonstrated in the not so distant past (and even though some of their claims more recently to have been politically motivated in their actions were rejected), combined with the independent information considered by the Tribunal, their claim to have been persecuted on the basis of being denied the right to political expression was not only distinctly but also sufficiently raised by the written submission just referred to.

36                  Madgwick J held that, when dealing with the claim on remittal, the Tribunal was required to ascertain the importance which the applicant placed on engaging in the proscribed forms of political expression: see [19] and [20].  The denial of the ability lawfully to engage in forms of political expression would only amount to persecution of the applicant for reasons of political opinion if “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”: see [20].

37                              The applicant in the present case did not claim before the Tribunal that she would be at risk of persecution because, if she returned to Burma, she would not be able to exercise civil rights of the kind referred to in Win.  Her claim to a well-founded fear of persecution derived from what she claimed she had done in Burma in the past and, more recently, in Australia.  The Tribunal dealt with this claim: compare Than Zaw Oo v Minister for Immigration and Multicultural Affairs [2000] FCA 348 at [48] per Lindgren J.  Win is distinguishable from the present case, because in this case the applicant did not make any claim concerning the exercise of her right to political expression in the future.

38                              I note that, in this Court, counsel for the applicant emphasised the applicant’s commitment to opposing the current Burmese government, as reflected in certain statements in her statutory declaration of 17 July 2002.  The sincerity of this commitment was not, however, in issue before the Tribunal.  What was in issue was the nature and extent of her political activities in Burma and also in this country.  The applicant failed to satisfy the Tribunal that she had a well-founded fear of persecution because the Tribunal found that her involvement in political activities in Burma was minor and that she had done nothing in Australia to attract such severe censure from the Burmese government as to amount to persecution.

39                              In Phyo Thet Win, the applicant was also a Burmese national, who claimed that there was a real chance of persecution for reasons of political opinion if he returned to Burma.  Referring to Win and to Madgwick J’s decision in Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 525 (appeal allowed: see Minister for Immigration and Multicultural Affairs v Islam [2001] FCA 1681), Tamberlin J found, at [14] that, before the Tribunal, the applicant had raised a claim as to his future conduct if returned to Burma; and accepted that there was “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”.  His Honour held, at [15], that the Tribunal had failed to consider the nature of the applicant’s future political activities and whether the regime would prevent him from engaging in them, and that this failure amounted to an error of law.  According to Tamberlin J, at [15]:

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.

40                              As already noted, the applicant in this case did not raise the question of her future conduct if returned to Burma and, in any event, in contrast to the Tribunal in Phyo Thet Win, the Tribunal in this case held that the nature of her participation in demonstrations in Australia was not such as to lead her to “having a profile that would warrant the attention of the authorities on her return”.

41                              The Tribunal did not, in this case, commit an error of the kind referred to in S395/2002.  In this case,McHugh and Kirby JJ said, at 123 [43], that a tribunal of fact erred by reasoning that, if an applicant has modified his or her conduct to avoid persecution in the past, then he or she can reasonably be expected, by the same means, to avoid persecution in the future.  As their Honours observed, “[i]t is the threat of serious harm with its menacing implications that constitutes the persecutory conduct”: S395/2002 at 123 [43]; also 131 [80] per Gummow and Hayne JJ.  This reasoning did not, however, inform any part of the Tribunal’s decision.  The Tribunal did not, as the applicant’s counsel would have it, infer that the applicant was not at risk because she went into hiding from 1991.  Rather, the Tribunal found that, if the applicant had any involvement with the NLD, it was “of a minor nature during the election campaign in 1990” and, if she was involved in delivering medical supplies to a rebel organisation, the Burmese government would not regard this as anti-government activity and, in any event, “the applicant never came to the attention of the authorities as a result of these activities”.  It was open to the Tribunal, in the circumstances of this case, to make these findings of fact, without adopting the fallacies referred to by the High Court.

conclusion

42                              For the reasons set out above, the applicant has not made out her case that the Tribunal failed to consider, as relevant considerations, that she was a “repetitive demonstrator” in Australia or that she was in hiding from 1991.  Having regard to the grounds set out in the amended application filed on 4 March 2003, and to the matters advanced at the hearing in this Court on 1 December 2003, no jurisdictional error of the kind referred to in Plaintiff S157 and Applicants S134/2002 has been shown in the Tribunal’s decision in this case.

43                              By her submissions in this Court, the applicant effectively asks the Court to examine the making of particular findings of fact upon which the Tribunal acted.  In this case, this is to ask the Court to assess the merits of the case, which the Court may not do.  Specifically, I conclude that it was open to the Tribunal to find that:

(i)                      The applicant was not involved in activities in Australia that gave her a profile that would warrant the attention of the authorities on her return to Burma.  In so doing, it did not fail to take account of any consideration that it was bound to take into account.

(ii)                     There is no real chance that the applicant will be of interest to the authorities if she was to return to Burma on account of her political activities in 1988, her involvement with the NLD in 1990, or her activities in Burma after 1995.  In so doing, it did not fail to take account of any consideration that it was bound to take into account.

In consequence, I would dismiss the application, on the basis that the applicant pays the respondent’s costs.

44                              Once again pro bono counsel has assisted the Court.  The Court acknowledges the great service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as counsel (or solicitor) in the presentation of argument or in the preparation of a case.

Associate:

Date:                22 April 2004