Cho v Minister for Immigration and Multicultural Affairs

[1999] FCA 1738

FEDERAL COURT OF AUSTRALIA

Cho v Minister for Immigration & Multicultural Affairs [1999] FCA 1738

MIGRATION – application for order of review of decision of the Refugee Review Tribunal affirming decision not to grant applicant a protection visa – whether Tribunal incorrectly applied the law to the facts as found – whether Tribunal incorrectly applied meaning of “persecution” – whether Tribunal failed to consider whether there was a real chance of persecution on applicant’s return to Burma, having regard to the events that occurred prior to the applicant’s departure

Migration Act 1958 (Cth), s476(1)(e)

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, cited
Nagaratnam v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 569, considered

HNIN HNIN CHO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N652 OF 1999

EMMETT J
9 DECEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N652 OF 1999

BETWEEN:	HNIN HNIN CHO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	9 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N652 OF 1999

BETWEEN:	HNIN HNIN CHO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	9 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Burma (Myanmar).  She arrived in Australia on 8 January 1996 and applied to the Department of Immigration & Multicultural Affairs for a protection visa on 7 June 1996.  A delegate of the Minister refused the visa on 19 March 1997.  The Refugee Review Tribunal (“the Tribunal”) affirmed the delegate's decision on 14 April 1998.  However, on 25 January 1999, the Court, with the Minister’s consent, ordered that the decision be set aside and the matter be remitted to the Tribunal.  The matter again came before the Tribunal, differently constituted, and, on 27 May 1999, the Tribunal affirmed the decision not to grant a protection visa.

2. The criterion for a protection visa is that, at the time of the decision, the decision maker is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (“the Convention”).  A refugee is a person who

   “owing to a 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.”

   The Tribunal, having considered the evidence, was not satisfied that the applicant is a person to whom Australia has protection obligations as a refugee within the terms of that definition. 

3. In her protection visa application, made in June 1996, the applicant said that she was then 23 years of age and was a Buddhist of Chinese ethnicity.  She had been born in Rangoon and spoke Burmese and English.  She had had 17 years of education, including a five year degree from Yangon University which she completed in September 1995.

4. The applicant said that her parents and grandparents had suffered from being ethnic Chinese in Burma.  Their status as foreign registered cardholders had deprived them of proper education and the ability to buy goods at subsidised shops. 

5. The applicant said that, in 1987, as a school student, she had taken part in the Phone Maw demonstration at Rangoon Institute of Technology.  When police entered the campus, she had been arrested with other students.  She had been asked to name the organiser of the demonstration and had been tortured.  She said she had been in detention for a month.

6. The applicant also said that she had been engaged in some political demonstrations in Australia since her arrival here.  She joined an annual Independence Day protest in front of the Burmese Embassy in Canberra and also joined the candlelight vigil in August 1998.  She says that, at those encounters, she had expressed an opinion against the Burmese Government and had donated money and supplied food. 

7. The Tribunal observed that is was difficult to get a responsive answer from the applicant as to her political activities after 1988 in Burma.  She wavered between saying that she did not take part in any political activities, to saying that she did not do anything conspicuously.

8. The Tribunal had information before it from the Australian Embassy in Rangoon to the effect that it is very common for people to be arrested frequently in Burma.  By all accounts, people are not generally physically tortured.  However, they are deprived of food and sleep and interrogated for long periods and forced to sign confessions.  That is done to obtain information and Burmese live under a constant threat of being arrested.  However, there is no stigma in Burma about having been arrested, particularly if it was for political reasons.  The Tribunal also had information from the Australian Embassy that, in 1988, many millions of Burmese were involved in the uprisings and it would be unlikely that such participation would lead to any adverse consequences.  The Embassy reports that it is all a matter of degree and of perceived hostility towards the Government.  If the military considers someone to be hostile towards them, they will arrest them.  The Embassy noted that army units and air force units all marched in the democracy rallies in 1988.

9. The Tribunal found, in the light of the applicant's concessions that her Chinese ethnicity did not pose problems for her, that she is not at risk of persecution over her race.  When she began her university career she would have been unable to study medicine, as this option was limited to citizens.  However, if she wants to, she can pursue medical studies now.  The Tribunal did not consider that the current lack of medical qualifications constituted hardship amounting to persecution under the Convention.

10. When the application was originally filed in this court, there were six grounds.  When the matter was called on today, counsel for the applicant was given leave, without opposition, to file an amended application which included two extra grounds.  Only those grounds are relied on, the other six having been abandoned.  The grounds are as follows:

    “3.7     The decision involved an error of law in that the RRT incorrectly applied law to the facts with respect to the meaning of ‘persecution’ for Convention reason.

    Particulars

    (a)the RRT found that the applicant had been detained on both occasions in 1987 and 1988 political demonstrations;

    (b) the RRT found that the applicant possibly suffered injuries from those detentions.

    (c) the RRT accepted independent evidence that the probable consequence of such detention was not torture generally, but deprivation of food and sleep and interrogated for long period [sic];

    (d) the RRT concluded that the applicant was not persecuted for any Convention reason.

    3.8      The decision involved an error of law in that the RRT did not take account of the possibility that the events in paragraphs 3.7(a) and (b) above in assessing whether there may have been a real chance of persecution in the future. 

    Particulars

    (a)the applicant repeats 3.7(a) and (b) above.

    (b)the RRT considered only the applicant's intention not to get involved in politics on return to Burma in assessing future risk of persecution.

    (c)the RRT had not taken account of the possibility that detention and physical injuries may occur in the future in assessing future risk of persecution.”

11. Council for the applicant relied on the observation by McHugh J in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 259 in the following terms:

    “A punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason.  Nevertheless, Governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow.  Punishment for expressing such opinions is unlikely to amount to persecution.  Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution.  It will certainly do so when the Government in question is so oppressive that by the standards of the civilised world it has so little legitimacy that its overthrow, even by violent means, is justified.”

12. The Tribunal accepted that the applicant took part in the 1987 and 1988 demonstrations in Burma, along with the millions of others that took to the streets at that time.  The Tribunal considered that it was unlikely that the authorities would have chosen to detain her, a schoolgirl at the time, when they would have had their hands full in questioning leading activists and those protesters who belonged to sensitive professions, such as the military.  However, the Tribunal was prepared to give the applicant the benefit of the doubt on that point and accept that she had been briefly detained on both occasions.

13. The Tribunal accepted that she might have had some injuries of the sort suffered by anyone in the process of demonstrating, being arrested, cautioned and subjected to rough handling.  The Tribunal acknowledged that that would have been distressing to a young girl.  However, the Tribunal did not accept that the applicant would have been detained for several weeks on either occasion as alleged, or that she had been tortured, as that treatment is quite out of proportion to the applicant’s avowed level of activism.

14. The Tribunal considered that, at a time of high crisis with the security forces' resources stretched thin, the authorities would not have wasted time on a young girl with no political profile, no leadership role in the protests and no record of violence.  Given her lack of profile in leadership, the Tribunal considered that the applicant would have had minimal knowledge about the top leaders of the protests or their strategies and that the Burmese authorities would have behaved accordingly towards her.  In other words, the Tribunal considered that the Burmese authorities picked her up in a general sweep of demonstrators and let her go shortly afterwards, after perhaps some brief questioning.

15. The Tribunal did not accept that she would have been kept for weeks and tortured to extract information.  The Tribunal's conclusion in relation to that matter was that her peripheral part in the massive demonstrations in 1988 and her very minor level of political activity since, singly and cumulatively, did not support her claims to be at risk of persecution.  It may be, as McHugh J says, that, in some circumstances, punishment of a person for advocating violent overthrow of the government may amount to persecution.  That, however, is not the finding in this case.  There is no finding that the demonstrations in 1987 and 1988 were against a government that was so repressive that, by the standards of the civilised world, it had so little legitimacy that its overthrow, even by violent means, was justified.

16. I was also referred to observations made by the Full Court in Nagaratnam v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 569 at 579. Those observations were to the effect that, when those who detain persons in accordance with a law or government policy are aware that the probable consequence of such detention will be physical mistreatment, even though those detained are not selected for such physical mistreatment by those who administer the physical mistreatment for Convention reasons, nevertheless, there may be persecution involved in the act of detaining, given the knowledge of such mistreatment.

17. Again, however, I do not consider that there is any finding that justifies the application of those principles.  In other words, the Tribunal found that the treatment that was meted out to the applicant, on her own case, was no more than would have been the consequence of her being picked up in a general sweep of demonstrators.

18. The applicant claimed to have been ordered to report to the police every month for several years and then every two months.  The Tribunal was not satisfied with the credibility of such a claim or with the emphasis that the applicant gave to that evidence.  The Tribunal considered that, if she had had to report to police, that would have been due to some general administrative or law and order requirement and that the requirement was not as protracted as she claimed.  If she had had to report, the Tribunal considered that it would have been a requirement in common with the millions of others who demonstrated in the mass in 1988, not as a selective measure of punishment and surveillance experienced by activists with a strong profile.

19. Nor was the Tribunal satisfied with the credibility of the applicant's claim that the police came around to her house recently because of her 1988 activities.  The Tribunal concluded that the applicant's description of her activities from 1988 to 1996 shows her to have been little involved in politics.  The Tribunal accepted that, in wearing black on one occasion, she would have been sending out a political signal.  However, there is nothing to show that she was arrested or questioned in relation to that conduct and the Tribunal therefore surmised that the authorities were prepared to condone such subtle acts of activism by university students.

20. The Tribunal attached some significance to the applicant’s failure to mention, in describing her political activities, what was characterised by the Tribunal as being the “defining event of modern Burmese democratic politics”, namely the 1990 election.  While mass demonstrations were stifled in 1990, the Tribunal considered that the applicant’s apparent attitude that nothing of importance happened after 1988 was startling.  Reference was made to independent material before the Tribunal that, by any standards, the 1990 general election (Burma’s first multi party vote in three decades) was extraordinary.

21. The Tribunal was therefore strengthened in its belief that the applicant could not be considered an activist in any meaningful sense of the word and that her level of political involvement and commitment was extremely low after 1988 and, concomitantly, that the authorities’ attitude towards her reflected that reality.  The Tribunal, therefore, rejected the applicant's claim that she had a political record of concern to the authorities.  The Tribunal supported that conclusion by the fact that the applicant was able to take up tertiary studies and gain a degree while known activists were prevented from either taking up or completing their studies.

22. In the light of the applicant’s lack of political profile and record, the Tribunal, therefore, did not accept as credible her claim that her political record had made it hard for her to obtain a passport.  The Tribunal did not accept that her activities support a conclusion that the authorities viewed her with concern.  The fact that the applicant had to pass a security check when getting her passport in 1994 and another one when it was reissued for her journey to Australia drew the Tribunal to the conclusion that the authorities did not believe her to be a person who would harm Burma's interests. 

23. For those reasons, the Tribunal found that the applicant did not have a well founded fear of persecution based on her political activity before leaving Burma for Australia.  The Tribunal concluded that her reason for leaving Burma was simply to visit her sister in Australia.  The fact that she did not apply for a protection visa for a year and a half after coming to Australia tended to support the conclusion that she did not believe that she requires protection in Australia from her activities prior to 1996. 

24. The Tribunal accepted that the applicant has sporadically attended Burmese gatherings in Australia but was not satisfied that an overall reading of her involvement with these gatherings would support a conviction that she was a political activist, let alone an activist whose behaviour was of concern to the Burmese authorities.  The Tribunal was therefore not satisfied that the applicant had a well founded fear of persecution based on her activities in Australia.  The Tribunal considered that the most the applicant would experience upon return to Burma would be some questioning by the authorities, perhaps at the airport or perhaps by local police, over her absence from the country since 1996 and her activities abroad.

25. The Tribunal did not consider that it was likely that such a politically low profile person would be put under surveillance and did not consider that her experiences amounted to persecution as understood under the Convention or that any such measures would have a persecutory motive.  The Tribunal accepted that the situation could alter if the applicant were to engage in significant political activity on her return to Burma.  However, on her own evidence, the Tribunal was not satisfied that she would do so. 

26. It is in the light of those findings that the Tribunal reached the conclusion to which I have already referred.  The Tribunal had regard to independent evidence which did not support a conclusion that the authorities' attitude towards a person with the applicant's profile would be persecutory.  I do not consider that the reasoning of the Tribunal exhibits a misunderstanding of the meaning of “persecution” as that term is used in the Convention.

27. The Tribunal accepted that the applicant was mistreated following her involvement in the demonstrations in 1987 and 1988.  However, the reasons do not suggest that it did not consider that to be “persecution”.  Nor do the reasons suggest that the Tribunal considered those matters to be irrelevant as a matter of law to the application of the test of whether there was a “real chance” of persecution.  The Tribunal merely found that, by virtue of the circumstances surrounding that mistreatment and the other facts and circumstances operating in the intervening period, the applicant did not face a real chance of persecution upon her return. 

28. I do not consider that the reasons demonstrate that the Tribunal incorrectly applied law to the facts as found.  Nor do I consider that the decision involves an error in failing to take account of the possibility that the events of 1987 and 1988 might give rise to the possibility of persecution.  They were analysed, considered and rejected as a basis for a conclusion that, if the applicant were to return to Burma, there was any risk of her being persecuted for Convention reasons.

29. In all of the circumstances, I am not satisfied that any of the grounds relied on is made out and accordingly the application should be dismissed.  I order the applicant to pay the respondent’s costs.

    NOTE

30. In addition, the Tribunal appears to have found that there is real doubt as to whether the applicant does in fact have such a fear of persecution.  The Tribunal’s observations in this respect were based on an alleged delay of a year and a half by the applicant between her arrival in Australia and her decision to bring an application for a protection visa.  However, the Tribunal’s reasons incorrectly record that the applicant did not apply for a protection visa until 7 May 1998.  In fact, the application was made by the applicant on 7 June 1996.  Therefore, contrary to the Tribunal’s observations, there was no delay of a year and a half. 

31. That apparent error was not drawn to my attention until after I had dismissed the application.  However, the Tribunal had already made findings that the applicant had no well-founded fear of persecution.  The comments made by the Tribunal on whether the applicant had a subjective fear of persecution, whether or not that fear was well-founded, were not essential to the decision reached to refuse to grant a protection visa.  The comments by the Tribunal on the alleged delay by the applicant in making her application for a protection visa do not appear to have been the basis for the Tribunal’s ultimate decision.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             15 December 1999

Counsel for the Applicant:	L.Y.K. Ma
Solicitor for the Applicant:	William Chan & Co
Counsel for the Respondent:	R.T. Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 December 1999
Date of Judgment:	9 December 1999