Lin v Minister for Immigration and Multicultural Affairs

[2001] FCA 1914

FEDERAL COURT OF AUSTRALIA

Lin v Minister for Immigration & Multicultural Affairs [2001] FCA 1914

SEIN LIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1086 of 2001

MADGWICK J
13 DECEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1086 of 2001

BETWEEN:	SEIN LIN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	13 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1086 of 2001

BETWEEN:	SEIN LIN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	13 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter I am able to give a decision without needing to take time to consider the issues because I have had the advantage of able written submissions prepared by counsel.  I have also been assisted by Mr Zipser’s well thought out oral submissions.

2. This is an application for a limited form of judicial review available to this applicant but apparently since considerably restricted by Parliament in relation to later applicants.  The application for review concerns a decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the refusal of a delegate of the respondent Minister to grant the applicant a protection (Class AZ) visa under the Migration Act 1958 (Cth) (“the Act”). The question as to whether the applicant was entitled to such a visa depends upon whether he was a refugee according to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).

3. The applicant is a citizen of Burma (Myahmar), run by a military junta.  He came to Australia on 24 March 1996 and lodged his application for a protection visa on 12 June 1996.  His account has been that he attended Rangoon University from 1976 to 1980 and from 1983 to 1987 was self-employed as a “real estate broker”.  He is of Chinese ethnicity and has claimed that he is a refugee on account of his political opinion and activities in Burma and Australia and because of his race.

4. In 1988, as is well known, there were widespread demonstrations in Burma, initiated by students.  The applicant claimed that, although no longer a student, he participated in a number of political activities, claiming indeed to have played something of a minor leading role, which brought him to the adverse attention of the authorities on a number of occasions.  As to the claims of feared persecution on account of political opinion, the Tribunal rejected his story of having been an activist, pointing to a considerable number of self-contradictions and contradictions of his account by reference to the available independent historical accounts of what happened in Burma during this period.  The Tribunal did not accept that he was politically active in such a way that, eight years later, he would be of any continuing interest to the Burmese authorities.  Likewise, in relation to his claim to be a refugee sur place, the Tribunal member took the view that the level of his political involvement in Australia would not cause him problems back home. 

5. In relation to his Chinese ethnicity, the view was taken by the Tribunal member that, whereas there was discrimination against Chinese people in Burma, any such discrimination that he might face fell far short of a well-founded fear that he might face persecution.

6. The case, as pressed before me, depends upon two criticisms of the Tribunal member’s reasoning.  A third criticism set out in the Amended Application for review was not pressed by Counsel for the applicant.  The first criticism concerns the applicant’s claim that on 2 August 1988 he gave a public speech.  In a statutory declaration of 3 October 1996 the applicant said that he:

   “gave a speech about how the government was ruthless about detaining and killing the students and how unfair the government had been in demonetisation ..... matters and how the government had suppressed the people and kept them under pressure.”

7. According to the Tribunal member, at the hearing the applicant told her that he gave a public speech and “persuaded people to take part in the uprising”.

8. The Tribunal member rejected his claim that he gave any anti-government speech.  She did so, relying on changes in his story, as to the number of people present (his claims ranged from 100 people to only 40 to 50 people) hardly, one would think, a reason to reject a putative refugee’s story and changes as to “the nature of his speech”.

9. In my opinion, counsel for the applicant is correct to say that there is no legally-sustainable basis for the Tribunal’s conclusion that there was any change in story as to the nature of the speech given by the applicant. However, at best, this matter would point to the applicant having played quite a minor leadership role, doing no more than organising a handful of people to meet, making an anti-government speech and persuading them to take part in a future demonstration. Even if it is assumed that the Tribunal member has erred within the meaning of s 476(1)(g) of the Act as amplified by s 476(4), it is inconceivable that this error is material to the Tribunal member’s decision.

10. There are several reasons for this conclusion.  Firstly, the Tribunal member found so many other reasons to disbelieve the applicant that it is inconceivable that her conclusion as to his credit would have been different had she believed him about this particular matter.  Secondly, she relied on a substantial amount of evidence which indicated that the Burmese authorities had no continuing interest in people who had taken part in the 1988 protests, even those who had played leadership roles, unless there was evidence of continuing participation in anti-government activities.  There is nothing legally assailable about the conclusion that the times in Burma and the Burmese authorities’ interest in former dissidents have changed.

11. The second supposed error touches on a matter of rather greater importance concerning the events that occurred on 8 August 1988.  In putting his case to the respondent’s department, the applicant claimed that, on that day, he had led a group of people from his suburb into the city, and that as the group marched along he had held aloft the student flag displaying a peacock emblem.

12. By contrast, at the hearing before the Tribunal, the applicant said he had not actually marched with the group but had travelled around in a car to remain in touch with other interested persons to arrange a later rendezvous.  The Tribunal member found that, on account of those inconsistencies, his claim that he led the people from his suburb had been fabricated.  The applicant’s claim as to events on the day as set out in his statutory declaration continued as follows: 

    “at around 9pm I was involved with a group of people going on a hunger strike in the front of city hall.  The army soldiers came and began to shoot into the crowd.  Those in the crowd became frightened and began to run in all directions.  As I ran from the scene I fell into a big drain.”

13. However, the applicant in his evidence to the Tribunal apparently said, as the Tribunal summarised it, that:

    “when the army arrived about 10.00pm orders were given for the crowd to disperse and he had to run away because the soldiers started to enter the crowd and beat people.  The applicant claimed he hurt his leg when he ran away but saw a rickshaw which took him home.”

14. The Tribunal member, it would seem:

    “indicated to the applicant that [she] had difficulty with his story as it was inconsistent with eye witness accounts recorded by Linter [a historian, apparently of the popular type] which indicated [that] when the troops arrived at City Hall at 11.30pm they started shooting into the crowd and people fell in droves as they were hit.”

15. According to the Tribunal member, the applicant’s response was that he “claimed that could have happened on the other side of the building”.  Under the heading, “Findings and Reasons”, the Tribunal member dealt with this matter by reciting the version which the applicant had given to her at the hearing, as distinct from that which was given to the department by way of the applicant’s statutory declaration.  The Tribunal member set out the quotation from Linter as follows:

    “at 11.30 trucks loaded with troops roared out from behind City Hall their machine guns pointed straight in front of them.  The sound of the machine guns reverberated in the dark and people fell in droves as they were hit.  The streets turned red with blood.”

16. The Tribunal member continued:

    “The Tribunal believes that if the applicant had been present at City Hall the horror of hundreds of people being shot around him as he ran away would have featured in his story at the hearing.  The Tribunal does not accept the applicant was present at City Hall on 8 August 1988.”

17. The complaint is that the Tribunal member “ignored the applicant’s explanation in the course of finding that he was not present at City Hall on 8 August 1988”.  Where the Tribunal “ignores relevant material … in such a way as affects the exercise of its power, this constitutes jurisdictional error, as well as reviewable error under s 476(1)(b) and (c) of [the Act] and possibly s 476(1)(e)”:  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 22. It is argued that, as this was the applicant’s explanation of how his recollection differed from the account of events quoted from the historian, this was necessarily, in the meaning of that legal concept, relevant material.

18. This matter has to be viewed realistically.  The applicant, in his statutory declaration, had referred to the soldiers shooting into the crowd in an unrestrained way.  That an event of this kind occurred is indisputable, as indicated by the quoted material.  Even in oppressed Burma, it would defy the imagination that for soldiers of a country to have mown down their own people with machine guns would not have entered general public consciousness as rank infamy.

19. When the Tribunal member reminded the applicant that his story, that all that happened was that soldiers had entered the crowd and beaten people, was inconsistent with Linter’s account, the applicant responded that the appalling attack by Burmese troops upon Burmese people “could have happened on the other side of the building” as an explanation as to why the applicant either was not aware of the shootings or they were not present in his mind when he gave oral evidence to the Tribunal member.  Such an explanation must have simply struck the Member as fantastic.  At the very least, one can say, it is an explanation so unlikely to find favour with any sensible fact-finder that a failure to explain why it was not regarded as vindicating the applicant’s truthfulness hardly amounts to a legal let alone jurisdictional error on the part of the Tribunal member.

20. The way the Tribunal member dealt with the matter was restrained and, with respect as to this incident, if not all others, compelling. 

21. In part, the rejection of the extent to which the applicant was involved in any political activity in 1988, was one of the most important reasons for the Tribunal member not accepting his claim.  In my opinion, the lack of legal error in dealing with the shooting incident indicates that the broader finding was not attended by legal error. 

22. It is true, that based on the rejection of his 1988 claim, the Tribunal member rejected some evidence that in 1993 he was again politically active.  As the rejection of the 1988 claim was not in my opinion tainted by reviewable error neither was rejection of the 1993 claim. 

23. In any case, it seems to me that, because of the Tribunal member’s findings about the changed circumstances in Burma, if I am wrong about the City Hall affair and the Tribunal member did approach this matter in a legally flawed way, it would not have resulted in an error that could have altered the outcome of the review by the Tribunal in the applicant’s favour. 

24. For these reasons, in my opinion, the application for judicial review should be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             18 February 2002

Counsel for the Applicant:	Mr B Zipser
Solicitor for the Applicant:	Ong & Co
Counsel for the Respondent:	Mr M Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 December 2001
Date of Judgment:	13 December 2001