FEDERAL COURT OF AUSTRALIA

WAKZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1065

MIGRATION – judicial review – protection visa – well founded fear of persecution – applicant imprisoned and raped following involvement in student demonstration in Burma – 17 years ago – currently suffering post traumatic stress – psychological fragility – likely deleterious effect if returned to Burma and subjected to routine questioning of returnees – whether routine questioning thereby persecutory – applicant with little political profile in Burma since imprisonment and rape – little political profile in Australia – whether projected avoidance of political activity upon return due to well founded fear of persecution – failure by Tribunal to consider – jurisdictional error – decision quashed

Migration Act 1958  (Cth) s 91R

Minister for Immigration and Multicultural and Indigenous Affairs v Ibrahim (2000) 204 CLR 1 cited

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

WAHK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 12 cited

S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 cited

Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 cited

WAKZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

WAD 231 OF 2003

FRENCH J

2 AUGUST 2005

PERTH

THE COURT ORDERS THAT:

1.         The  decision of the Refugee Review Tribunal made on 31 October 2003 affirming the refusal to grant a protection visa to the applicant is quashed.

2.         The matter is remitted to the Refugee Review Tribunal for reconsideration according to law.

3.         The respondent is to 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

Factual background

1                     The applicant is an Anglo-Burmese national of Burma who was born on 2 May 1966.  She has parents and a brother and sister who still live in Burma.  She is married and has two children.  Her husband and children are in Burma.  She has a Bachelor of Arts degree from a Burmese university.  Before coming to Australia she worked as an Assistant Manager at an agricultural products shop.

2                     The applicant left Burma in August 2000 and travelled to Australia on a tourist visa.  On 15 September 2000 she applied for a protection visa.  Her application relied upon apprehended persecution by reason of:

1.         her ethnicity – she has Karen and Chin as well as English and Portuguese ancestry;

2.         her Christian religion;

3.         her anti-government activities in Burma;

4.         her husband’s anti-government activities in Burma;

5.         her involvement in pro-democracy activities since her arrival in Australia.

The application for a protection visa was refused on 25 September 2002.  On 21 October 2002 the applicant applied to the Refugee Review Tribunal (the Tribunal) for review of that decision. 

3                     On 22 September 2003 and 13 October 2003 there was an oral hearing before the Tribunal.  On 31 October 2003 the Tribunal affirmed the decision to refuse the applicant a protection visa.  The applicant applied to this Court on 21 November 2003 for judicial review of the Tribunal’s decision.  For reasons which are not entirely apparent from the file, the application was not listed for hearing until 4 July 2005.

The claims

4                     In her protection visa application the applicant said she had always been the victim of social discrimination because of her Eurasian heritage.  She changed her name in order to enrol at school.  Her father had to adopt a Burmese name in order to obtain government employment.  She also claimed to have been the subject of religious discrimination by being taught Buddhist prayers during primary school and by being required to recite Buddhist prayers at secondary school.  As a Eurasian Christian she was unable to obtain a government job.  She claimed that Burmese Buddhists were given preference for public sector positions.

5                     The applicant was very interested in politics from her early youth and was involved in anti-government student demonstrations in 1988 with one of her brothers and her then boyfriend who is now her husband.  She marched with other students to the Rangoon Institute of Technology but was arrested and detained by authorities.  She said she was detained in Insein prison for a few weeks and while there was beaten and raped four times by prison authorities.  She was released upon making a written statement that she would not be further involved in politics.  One of her brothers was killed during the demonstration.  Another was taken as a porter and has not been seen since. 

6                     The applicant said that her husband, whom she married on 1 April 1989, was a member of the National League for Democracy (NLD) and was one of the students guarding Aung San Suu Kyi when she gave speeches in 1988 and 1989. Her husband also helped underground students who fled to other parts of Burma and the Thai border. 

7                     The applicant said her husband was arrested in August 1988 and released after 19 days.  On 17 September 1988 he left for Thailand to fight for democracy with fellow students.  He was detained again when he returned on 20 November 1988.  She said he was detained on four occasions between 1988 and 1989 and was dismissed from university in his third year of study.

8                     The applicant obtained employment in 1992 at the Public Service and Selection Training Department.  While there she claimed to have been required to complete questionnaires, including questions about her political activities.  She did not answer all the questions and eventually was dismissed from her employment.

9                     The applicant said that her husband was regularly detained for interrogation and on some occasions for up to two weeks.  He was required to notify authorities of his movements and to sign guarantees when he travelled outside Rangoon.  He was detained just before her departure for Australia because he had some anti-government pamphlets which he obtained from friends.   

10                  The applicant applied for a passport.  According to her this was so she could work in Singapore.  When her husband was detained she left her two children with her parents and departed Burma for Australia.  She travelled to Australia with her husband’s cousin who left luggage containing anti-government letters and pamphlets in the airport as they departed Rangoon.  Her cousin’s mother got in touch with her when they arrived in Australia to say that the authorities had discovered the luggage and had been asking about it.  The cousin’s mother advised the applicant and her cousin to remain in Australia.  She subsequently received correspondence from her own mother about that issue.  Her father works for a government department and her mother said that his job could be affected because the applicant had left Burma with her cousin who had left behind anti-government papers.

11                  The applicant said her husband was currently in prison on account of his political involvement.  She did not know when he would be released.  She feared that if returned to Burma she would be jailed and might not be able to see her husband and children again.  The authorities could imprison her as the accomplice of her husband and could lay any charge against her on her return. 

12                  Since she came to Australia the applicant has joined Tribal Refugee Welfare (TRW) and has participated in Burmese pro-democracy activities in this country.  She did not want to return to Burma because of the problems caused by government officials finding her cousin’s anti-government papers and her past involvement in politics.  She claimed that she would be imprisoned if returned to Burma. 

13                  The applicant’s advisor submitted to the Tribunal a report prepared by Dr Main, an associate professor of psychology at Murdoch University.  Dr Main reported that the applicant showed well attested signs of trauma with memory of distressing events which in her case were the successive rapes she underwent in 1988.  There were repetitive fears of new situations, recurring nightmares relating to her treatment in prison and insecurity about the future.  The psychologist was of the opinion that the applicant’s return to Burma would have a deleterious effect on her well being and mental health.  The applicant’s adviser also submitted a report from a counsellor, Mr Neustern, with the Association for Services to Torture and Trauma Survivors Inc.  He stated his belief that the applicant was suffering from chronic anxiety, leading at times to dissociation compounded by the specific fear of being returned to Burma. 

14                  At the hearing the applicant told the Tribunal that she did not know where her husband was.  She believed he was in prison and had been for the last three years.  Her children were with her parents and sometimes stayed with her parents-in-law.  She telephoned her parents sometimes and last spoke with them about a month before the hearing. Asked about her decision not to bring her children with her to Australia, she said her parents-in-law were worried about the climate in Australia and about the children’s health as well as problems for the applicant on a long flight.  She was not feeling well emotionally. The children did not have passports.  Had her plan to travel to Singapore come to fruition she would not have stayed there long.  The applicant claimed that she had come to Australia to see an aunt who lives here.  However she has not done so due to problems after leaving Burma, her decision to remain in Australia and to seek a protection visa and because she had been working.  Nevertheless she claimed to be in touch with her aunt by telephone. She did not ask about her husband when she contacted her parents because the telephones are tapped and because her father had problems at his office. 

15                  The applicant told the Tribunal that she had obtained her passport through a friend and did not apply in the normal manner before leaving Burma.  Asked why she had applied for a protection visa from Australia she said that she and her husband had been involved in politics and that their lives would be difficult in Burma.  She denied any knowledge of her husband’s political activities for the first ten years after they were married.  She said she told him what had happened to her in prison after they were married and said he would not tell her what he was doing for fear that she might become involved and be returned to prison. 

16                  The applicant said she had joined TRW in 2001.  It is the only Burmese organisation involved in political activities in Australia.  It helps those who try to get refugee status.  Although she was an ordinary member of TRW at first, she was Vice Chairman for a short time and helped to distribute food.  She had no concerns about joining an organisation like TRW in Australia which she regarded as a free country.  She claimed to have been video taped reading out a statement about human rights.  The video taping was done by a man whom she thought might be associated with the government.

17                  The applicant called witnesses in support of her claims.

18                  The Tribunal referred to independent country information.  This included information about the 1988 disturbances in which the applicant claimed to have taken part.

The Tribunal’s decision

19                  The Tribunal accepted that Burma is ruled by a highly authoritarian military regime which, since the 1990s, has systematically violated human rights in the country in order to suppress the pro-democracy movement.  It also found that the Burmese government had reinforced its firm military rule with a pervasive security apparatus led by its military intelligence organisation.  It accepted that control is reinforced by arbitrary restrictions on citizens’ contact with foreigners, surveillance of government employees and private citizens, harassment of political activists, intimidation, arrest, detention and physical abuse. 

20                  The Tribunal accepted that the applicant is a citizen of Burma.  It accepted that she may have been discriminated against because of her Eurasian heritage.  It accepted that she was forced to change her name to enrol in a school and that her father had to change to a Burmese name in order to obtain government employment.  The Tribunal accepted the applicant’s claims that she had been the subject of religious discrimination and was taught Buddhist prayers while at primary school and forced to recite Buddhist prayers at her secondary school.  It did not, however, accept that such discrimination amounted to persecution. 

21                  The Tribunal had ‘difficulty’ in accepting the applicant’s claim that, as a Eurasian Christian, she was unable to obtain a government job.  Her father had been working for the government since before 1988 and she herself had been employed by the Public Service and Selection Training Department until being dismissed over political activities.  The Tribunal rejected this aspect of the claim.

22                  The Tribunal was prepared to accept the applicant’s evidence of her interest in politics and her involvement in the 1988 demonstrations.  It accepted that she was detained in the Insein prison for three weeks and that while there she was beaten and raped by prison authorities.  Nevertheless it referred to the applicant’s evidence that she was not singled out for such treatment and that other people in the prison were similarly mistreated.  It accepted that she was released upon making a written statement that she would not be further involved in politics.  It also accepted that her brothers were killed during this period. 

23                  The Tribunal accepted that the applicant had participated in a mass demonstration on 24 August 1988 as part of her high school’s Old Students Association and that she was responsible for delivering lunches, cigarettes and pamphlets.  The Tribunal found that she took no further part in politics in Burma thereafter.  It was prepared to accept that her husband might have been detained prior to her departure for Australia because he had some anti-government pamphlets which he got from friends.  The Tribunal accepted that the applicant was dismissed from her employment with the Public Service and Selection Training Department in connection with her responses to a questionnaire about her political views. 

24                  The Tribunal referred to a Department of Foreign Affairs and Trade (DFAT) report of June 1994 suggesting that the blacklisting of political participants from access to education and employment depended to a large extent on the level of involvement of the person in question.  As the applicant was able to obtain a government position and hold it for more than a year and be promoted in the position, the Tribunal concluded that she was not considered to be a high profile activist and thereby denied access to government employment.  The Tribunal  found that the applicant was not denied access to higher education and was not considered to be a high profile activist despite her husband’s continued political involvement.  She was also able to obtain employment in the private sector through the help of her aunt and a friend.

25                  The Tribunal accepted that the applicant, with help from third parties, paid a bribe to obtain a passport.  Brokers are available for every step of the process of obtaining a visa and bribery is common practice in Burma.  The applicant departed from Rangoon on 4 August 2000 with a visa for Australia in her passport on valid travel documents.

26                  The Tribunal found it unlikely that the applicant ever had any intention of looking for work in Singapore.  It could accept that she did not obtain passports for her children because of the possible cost involved.  However she had applied unsuccessfully for protection visas for the family in 1995.  She had told one of her own witnesses in late 1999, at about the time she obtained her passport, that she was coming to Australia.  However her visa was not issued until 5 July 2000.  The applicant claimed that she never heard anything more about her application to work in Singapore but she had her passport, her husband had been detained, her aunt had invited her to visit Australia and her husband’s cousin was coming to Australia.  So she just came to Australia.  It all just happened at the same time.

27                  The Tribunal was sceptical about the alleged coincidence of dates and events.  It found that it did not just all happen at the same time and that the applicant had long term and well laid plans to come to Australia.  Apart from the witness’ evidence that she had intended to come to Australia in late 1999, the applicant had told the delegate that her husband was arrested on 23 July 2000.  But her application for a visa, issued on 5 July 2000, must have been submitted in advance of that date.  The Tribunal found that the applicant had given thought to and had planned over a period of many months to come to Australia.  It found her claims that her parents-in-law had objected to her bringing her children to Australia out of concern for the children to be hollow.  In her statement in support of the protection visa application the applicant said her husband had been arrested on 23 June 2000 just before her departure to Australia.  The factual error was not raised in this application.

28                  The Tribunal was prepared to accept that the applicant’s husband was detained on 23 July 2000.  But as she was able to leave Burma without difficulty some eleven days after the arrest of her husband, the Tribunal did not accept that she had an adverse profile with authorities and did not accept that she would have been imputed with an adverse profile by authorities on account of her husband’s activities and arrests.  In this respect it referred to independent country information.  The Tribunal accepted that the applicant had been involved in 1988 student demonstrations and was treated badly because of that involvement.  It found, however that she had no profile as a student leader or organiser and no involvement in politics in Burma after 1988.  It was satisfied, and found, that Burmese authorities had no interest in her after 1988. 

29                  The Tribunal had no reason to disagree with or challenge the opinions of the psychologist and counsellor that the applicant’s mental health had been affected by her past trauma.  However she gave clear evidence at the hearing in responding to the Tribunal’s questions.

30                  The Tribunal found that the applicant’s claims of a continuing political interest of her own, sufficient for her to become engaged in political activities in Australia, while evidencing a lack of any interest in what was effectively her husband’s only career for ten years, to be oddly discordant.  It was difficult to avoid the suspicion that there were problems in the marriage which the applicant had not mentioned.  On her own evidence she had made no inquiries about her husband in the three years she had been in Australia until recently.  The Tribunal could not be satisfied on the evidence presented to it that her husband remained in detention as claimed or that he had a profile of a high level dissident as claimed by her advisor at the hearing.  Not being satisfied that her husband remained in prison, the Tribunal could not be satisfied that the applicant would face adverse consequences on return to Burma on account of her husband’s alleged continuing detention and profile as a high level dissident. 

31                  The Tribunal found that the applicant’s journey to Australia was premeditated and that the claim that a compromising parcel had been left behind at the airport in Rangoon was fabricated.  In support of that latter finding, the Tribunal found the claim, that the applicant’s travelling companion would carry anti-government materials when passing through customs and immigration checks in Burma and would leave such compromising material behind, to be fanciful.  The Tribunal also rejected the claim that the cousin’s mother contacted the applicant to advise her that the authorities had been asking questions over the parcel and to advise her to remain in Australia.  The applicant had also claimed that her mother wrote a letter about the dangers of returning to Burma.  The Tribunal did not accept that such a letter was written.  If such a letter were written it was written with the express purpose of supporting the applicant’s claims.

32                  The Tribunal considered the sur place claims based upon the applicant’s activities in Australia with TRW.  The applicant submitted to the Tribunal photographs of her attendance at Burmese activities and events with high profile dissidents in Western Australia.  The Tribunal accepted that she was present on these occasions and that such photographs and pictures showed that she attended the events and to that extent had associated herself with anti-Burmese government activities.  It felt however that the circumstances of her case strongly suggested that she had taken up a public role in Western Australia with ‘the clear aim of garnering support for her protection visa application’.  Nevertheless it did consider the consequences of her association with TRW and her political activities. 

33                  The Tribunal did not disagree with claims that Burmese intelligence agencies are interested in anti-Burmese government activities in Australia.  It referred in this connection to independent country evidence.  It also referred to her claims that someone, whom the applicant met called ‘Johnny’, had made a compromising video tape of her making a statement about human rights and had taken it to Rangoon.  The Tribunal noted that concerns about Johnny and his activities with a video camera had been raised on previous occasions.  This was evidently a reference to previous review applications by other Burmese applicants. 

34                  The Tribunal said it could accept that a person took a video tape of the applicant at a function in 2001 to celebrate the anniversary of the 1988 demonstrations, that other photographs may have been taken and that the applicant’s picture may have been posted on the website.  It did not accept that her profile had been in any way changed or adversely enhanced by any such action.  There was no compelling evidence that the alleged video tape had ever been given to Burmese authorities.  The Tribunal noted DFAT advice regarding official Burmese interest in Burmese demonstrators in Australia.  It acknowledged and accepted that on the basis of that advice, any Burmese returning to Burma after a lengthy period in Australia would come to the attention of local township authorities.  It acknowledged and accepted that the movements of such returnees might be monitored for an initial period and that the applicant was likely to face questioning on return.  The Tribunal did not accept that such attention and questioning amounted to persecution even though it was abhorrent but normal in a country which commits serious human rights abuses.

35                  The Tribunal reiterated that the applicant was not an organiser, a leader or a person with a prior career of significant political activism which was the profile suggested by DFAT advice as putting a person at risk.  The applicant did not have a profile of negative interest to the authorities before and at the time she left Burma.  Although she had joined a Burmese dissident organisation in Australia she had not taken any ongoing leading office in it.  Although photographs might have been taken of her in the company of former high profile dissidents, the Tribunal was not satisfied that such photographs or their contents would be known to Burmese officials or that her relationship with such people was sufficient to have elevated her own profile to that of high level dissident.  The Tribunal’s assessment was that the applicant had not acquired a serious dissident profile while in Perth.  Her own profile was that of a person who had attended some TRW and other functions in Perth.  She had not taken an ongoing leading position and there was no convincing evidence that the Burmese authorities do more than question those who return after such experiences and periods overseas.

36                  The Tribunal said that if she were to return to Burma it was satisfied that she would not become involved in anti-government activities.  She had a brief record of such involvement while in Burma, one for which she paid dearly, to which she has not added substantially while in Australia.  The Tribunal was satisfied that she would not be motivated to be involved in anti-government activities in Burma in such a way as to put herself at risk with Burmese authorities. 

37                  It also considered the applicant’s mixed parentage from minority ethnic groups, her Christian religion, her past involvement in anti-government activities, her association with her husband and her political involvement in Australia.  Nevertheless it found that she did not face a real chance of persecution on return to Burma because of that profile.  The Tribunal was not satisfied that the applicant would face a real chance of persecution by Burmese authorities for the reasons she had given.

The grounds for review

38                  The applicant relied upon only two grounds of review in her application which was amended by leave at the hearing.  The first (numbered ground 4 in the application) involved the contention that the Tribunal had ignored psychological evidence relating to her traumatised mental state.  That state being attributable to her political persecution in 1988, it meant that she stood a chance of serious harm upon her return to Burma.  The Tribunal was said to have erred in ignoring that evidence and/or asking itself the wrong question. 

39                  The other ground relied upon was based upon the Tribunal’s finding that the applicant would not become involved in anti-government activities and would not be motivated to be involved in anti-government activities in Burma in such a way as to put herself at risk with the Burmese authorities.  This was said to have involved jurisdictional error in two ways.  The Tribunal was required to determine whether ‘the modified conduct’ of the applicant would be influenced by the threat of harm and if that were the case, the applicant would come within Article 1A(2) of the Refugees Convention.  The second limb of this ground was a natural justice limb.  The Tribunal was said to have erred in failing to invite the applicant to comment upon whether or not she would be motivated to be involved in anti-government activities if she were returned to Burma.

The first ground – whether harm upon return equates to persecution

40                  It is convenient to begin consideration of this question by setting out the full text of the ground of review relied upon.  That is ground 4, which was presented first in argument and was in the following terms:

‘4.1      The Tribunal accepted that the Applicant was detained in 1988 at Insein Prison for 5 weeks and was beaten and raped by prison authorities (Reasons 22.3).

4.2       There was evidence before the Tribunal that this and related experiences while detained had traumatised the Applicant in that:

            (a)        an associate professor of psychology, Dr Alex Main said at the time of his assessment of the Applicant on the 16^th September 2003 the Applicant was in a traumatised state with memory of distressful events surrounding the four rapes she had had and her return to Burma would have “deleterious effect on her wellbeing and mental health” (Court Book 255);

            (b)        a letter dated 17^th September 2003 from a counsellor at Asetts, David Neustern, stating that the Applicant suffers from chronic anxiety compounded by specific fear of being returned to Burma where she assumes she will be detained, interrogated and punished and that this is consistent with her account of imprisonment, rape and harassment over many years (Court Book 253);

            (c)        the Applicant’s own evidence to the Tribunal that “I don’t want to go back ... I don’t want to have a revisit of the first difficulties, the first persecution, that I’ve gone through in the Burmese jail” (tp 54 line 33 to 36).

4.3       The Tribunal erred in ignoring the evidence referred to in 4.2 and/or asked itself the wrong question which evidence showed that the Applicant’s traumatised state attributable to earlier political persecution would mean the Applicant stood a real chance of serious harm if returned to Burma and thus the Tribunal committed jurisdictional error.’

41                  It was submitted on behalf of the applicant that in addressing the issue of what occurred to her in 1988 the Tribunal said that, while it accepted she had been detained, beaten and raped she had not been treated in a differential way from other women who received similar treatment.  In so saying, the Tribunal had adopted an approach deprecated by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ibrahim (2000) 204 CLR 1.  It may be accepted that in making the comment that the applicant was treated no differently from other women in prison the Tribunal was in error.  It is ludicrous to suggest that where a woman is imprisoned on account of her political views and is repeatedly raped, the rape should not be considered as an element of her persecution on account of those views merely because everybody gets raped in prison.  In the end however this proper criticism of the Tribunal’s reasoning did not bear upon the point of the ground of review being advanced.  That point had to do with the characterisation of the likely effects upon the applicant of her return to Burma and, in particular, whether the likely deleterious effect of her return upon her mental state could be characterised as ongoing persecution on account of its link to the events of 1988. 

42                  The applicant submitted that the Tribunal did not consider the significance of Dr Main’s conclusion that a return to Burma would be deleterious to her mental health.  It accepted that Burmese authorities do interrogate Burmese returnees.  From that acceptance it required no great leap of logic for the Tribunal to consider the effect of such actions on a person in the applicant’s condition.  The Tribunal, it was submitted, ought to have asked itself, given its findings about what had occurred in 1988 and the expert evidence of the effects of those events, whether   the prognosis of what the applicant would suffer if returned to Burma satisfied the description of ‘persecution’ for the purposes of Article 1A(2) and s 91R of the Migration Act 1958 (Cth) (the Act). 

43                  It was submitted that although s 91R does not expressly mention mental harm, the term ‘serious harm’ would embrace mental as well as physical effects.  It was submitted for the applicant that upon her own evidence and the objective evidence particularly from Dr Main, she had a well founded fear of serious harm if now returned to Burma.  That well founded fear was derived from her politically motivated torture in 1988 which was the essential and significant reason for her apprehended persecution. 

44                  On the Tribunal’s findings about what happened to the applicant in 1988 and the expert evidence about the effect of her return to Burma on her psychological state, there may be a case for the grant of a visa on humanitarian grounds.  However the question which the Court must consider here is whether the apprehended harm could constitute persecution within the meaning of Article 1A(2) of the Refugees Convention. 

45                  The concept of persecution necessarily involves action by government or government agencies or by third parties which government is unable or unwilling to control.  The psychological impact upon the applicant of her return to Burma is a consequence of action which was persecutory in the relevant sense and which took place about 17 years ago.  But the fear of that consequence, associated with her return to Burma, does not amount to a fear of a prospective persecutory action by government authorities or other actors in Burma.  The stress, which it is said will be associated with the monitoring and questioning of the applicant upon her return to Burma, does not elevate the fact of monitoring and questioning into persecutory conduct. 

46                  In oral submissions counsel for the applicant argued that government actions such as monitoring or questioning which would not impact adversely on a person in a normal mental state could amount to persecution in relation to a person in the applicant’s fragile psychological condition.  As was pointed out in the respondent’s submission, this argument reflects to some extent the views expressed by Gaudron J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 415 where her Honour said:

‘ The definition of “refugee” looks to the mental and emotional state of the applicant as well as to the objective facts.  It is a commonplace, encapsulated in the expression “once bitten, twice shy”, that circumstances which are insufficient to engender fear may also be insufficient to ally a fear grounded in past experience.  Although the definition requires that there be “well-founded fear” at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant’s own past experiences.’

47                  In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 658 Gummow J said:

‘It is established by what was said by Mason CJ, Dawson J, Toohey J and McHugh J in Chan that the Convention definition of “refugee” involves mixed subjective and objective elements.  In particular, there must be a state of mind, a fear of being persecuted, and a basis for that fear which is well founded.  Without a real chance of persecution there cannot be a well-founded fear of persecution and the objective facts are not confined to those which induced the applicant’s fear.  The view of Gaudron J in Chan that, if the experiences of the applicant produced a well-founded fear of being persecuted, “then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality” does not represent the view of the Court in Chan.’

48                  The majority of the Full Court in WAHK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 12 accepted what Gummow J said in Eshetu and said (at [14]):

‘The relevant question is whether, as at 29 May 2002 [the date of the RRT decision], the objective facts establish that the appellant had a well-founded fear of persecution.  This is to be assessed on an objective basis, and not on the basis that the fear of a reasonable person in the position of the claimant would not be allayed by knowledge of subsequent changes in the country of nationality.  The reference to a “well-founded fear” is a reference to the objective factual position at that time.’

49                  In my opinion this ground cannot succeed because it does not point to any objectively based apprehended persecutory action on the part of the government or any other agencies. It relies upon the fragility of the applicant’s psychological state and the impact upon that mental state of non-persecutory questioning associated with her return.

Whether the Tribunal erred in assessing risk of persecution by reference to the likely behaviour of the applicant upon her return

50                  The second ground of review relied upon by the applicant was ground 1 in the amended application, which was in the following terms:

‘1.1      The Tribunal accepted:

            (a)        the Applicant’s interest in politics and involvement in the 1988 student demonstrations (Reasons 22.2);

            (b)        the Applicant was detained at Insein Prison for 3 weeks and was beaten and raped by prison authorities (Reasons 22.3);

            (c)        the Applicant was dismissed from her employment over answers she gave regarding her politics (Reason 22.9);

            (d)        the Applicant had been associated with, and acted on behalf of, an opposition political group in Australia, Tribunal Refugee Welfare (“TRW”) which has a relatively militant profile (Reasons 26.6);

            but nonetheless the Tribunal found a reason, or part of a reason, for deciding she would not be at risk of persecution on return to Burma was because:

            (e)        it was satisfied that the Applicant would not become involved in anti-government activities and “would not be motivated to be involved in anti-government activities in Burma in such a way as to put herself at risk with the Burmese authorities” (Reasons 29.3).

1.2       The Tribunal erred in that it asked itself the wrong question in that to determine whether the Applicant had a real chance of persecution it was required to determine whether the modified conduct of the Applicant would be influenced by the threat of harm and if the modified conduct was in consequence of the threat of harm the Applicant comes within Article 1A(2) of the Refugees Convention (Appellant S395/2002 v MIMA (2003) 203 ALR 112 at 123 [para 43]).

1.3       The Tribunal erred in that it did not invite the Applicant to comment upon whether or not she would be motivated to be involved in anti-government activities if returned to Burma, when the Tribunal’s conclusion formed part of the reason for deciding that she would not be at risk of persecution for a convention reason.

1.4       The Tribunal misdirected itself in law and failed to accord the Applicant natural justice by contravening s 424A of the Migration Act 1958 (Commonwealth) (“the Act”) and/or contravening the common law and thereby the Tribunal made jurisdictional errors so that the decision cannot be properly described as “a decision ... made under this Act” and is therefore not a “privative clause decision” as defined in ss 474(2) and (3) of the Act (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24).’

51                  The key passage in the Tribunal’s reasons for decision relied upon in support of this ground of review was in the following terms:

‘If the applicant were to return to Burma the Tribunal is satisfied that she would not become involved in anti-government activities.  She has a brief record of such involvement while in Burma – and one for which the applicant paid dearly – to which she had not added substantially while in Australia.  The Tribunal is satisfied that the applicant would not be motivated to be involved in anti-government activities in Burma in such a way as to put herself at risk with Burmese authorities.’

52                  The applicant cites the decision of the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.  In that case two male citizens of Bangladesh had applied for protection visas on the basis of a well-founded fear of persecution by reason of their homosexuality.  The Tribunal accepted that it was not possible to live openly as a homosexual in Bangladesh.  However it found that the applicants had clearly conducted themselves in a discreet manner and that there was no reason to suppose they would not continue to do so if they returned home.  The applicants contended that the Tribunal had, in effect, imposed upon them a requirement that they live discreetly in order to avoid persecution.  The Court found that the Tribunal had not imposed such a requirement.  However it held, by majority, that the Tribunal had erred by failing to consider why the applicants would live discreetly and whether that was a voluntary choice uninfluenced by the fear of harm if they did not do so.  In their joint judgment McHugh and Kirby JJ said (at [43]):

 ‘The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality.  This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group.  In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future.  The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted.  In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm.  In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm.  It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct.  To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.’

53                  Similarly in the joint judgment of Gummow and Hayne JJ at [80] their Honours observed that:

‘If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief.  But is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question.  And to say to an applicant that he or she should be “discreet” about such matters is simply to use gentler terms to convey the same meaning.  The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.’

And further (at [88]):

‘The Tribunal did not ask why the appellants would live “discreetly”.  It did not ask whether the appellants would live “discreetly” because that was the way in which they would hope to avoid persecution.  That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention.’

54                  It was submitted on behalf of the applicant that it may be inferred from the Tribunal’s reasons that it concluded the applicant would not become involved in anti-government activities because she had already ‘paid dearly’ and would not be ‘motivated’ to be involved ‘in such a way as to put herself at risk’.  In so saying, it was argued, the Tribunal indicated that it considered the brutal treatment meted out to the applicant would deter her from further anti-government activities.  Where a tribunal considers the ‘modified behaviour’ as attributable to a threat of harm by the persecutor the applicant may well qualify as a refugee. 

55                  Counsel for the respondent argued that the Tribunal’s finding that the applicant would not be motivated to be involved in anti-government activities did not show that the Tribunal misdirected itself in the manner discussed in Appellant S395/2002.  The respondent argued that the Tribunal found that on return the applicant would not be involved in the type of activities that would make her of any interest to the authorities now or in the reasonably foreseeable future.  Its reasoning in that regard was said to be consistent with the reasoning of the majority in Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1.   Reference was made to the joint judgment of Hayne and Heydon JJ at [168]:

‘At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded.  It did not ask (as the tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran.  Based on the material the tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practice his faith in the way he chose to do so, there was not a real risk of his being persecuted.’

56                  The Tribunal made a number of findings adverse to the applicant in respect of her profile in Burma and in Australia as an anti-government, or perhaps better put, a pro-democracy activist.  It found her not to have been an organiser or a person with a prior career of significant political activism which was the profile which DFAT advice suggested as putting a person at risk if returned. 

57                  Where a tribunal considers, by reference to the previous activities of a person in the country which they have left, that the person was not a political dissenter at a level likely to attract persecution and that the person is unlikely to become a political dissenter upon return to the home country, it engages in an entirely legitimate exercise.  Otherwise every applicant for a protection visa, however bland their history of activity in the country from which they have come, would have to be considered for a protection visa on the hypothesis that upon return such a person could become a political activist of a kind likely to be persecuted by the authorities of the home country.

58                  If the Tribunal had simply approached its consideration of the applicant’s likely conduct on return by a process of extrapolation based on her pre-departure history in Burma and her subsequent history in Australia, it would not have erred.  In this case however, in the passage to which counsel has drawn attention, it seems to have gone further.  The Tribunal accepted that the applicant’s brief record of anti-government activity while in Burma was one for which she paid dearly.  Its satisfaction that she would not be ‘motivated to be involved in anti-government activities in Burma in such a way as to put herself at risk with Burmese authorities’ implied a finding that fear of persecution would prevent her from being involved in such activities.  If that is so, then the Tribunal appears to have overlooked a subjectively and objectively based fear of persecution on the part of the applicant for a Convention ground.

59                  Although the established acts of persecution occurred some 17 years ago, their horrific and life altering nature, given the Tribunal’s findings, should not be understated by the brief formulation reflect in the words ‘for which the applicant paid dearly’.  She was imprisoned and subjected to multiple rapes as a direct result of her political activity in a student demonstration.  The effect of this upon her life and her attitude to political activities within Burma must have been substantial and indeed the Tribunal seems to imply as much in the passage cited.

60                  In my opinion the Tribunal has committed jurisdictional error in failing to properly address the question whether the applicant had a well-founded fear of persecution on account of her political opinions if returned to Burma.  The fact that her past history may have engendered such fear as to deter her from taking part in political activity before her departure and upon her return to Burma does not negate her qualification as a refugee within Article 1A(2) of the Refugees Convention.

Conclusion

61                  For the preceding reasons there will be an order in the nature of certiorari quashing the Tribunal’s decision and an order in the nature of mandamus remitting the matter to the Tribunal for reconsideration according to law.  The respondent will be ordered to pay the applicant’s costs of the application.

Associate:

Dated:              2 August 2005