MZWDG v Minister for Immigration
[2005] FMCA 1451
•7 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWDG v MINISTER FOR IMMIGRATION | [2005] FMCA 1451 |
| MIGRATION – Application for protection visa – whether Tribunal failed to ask the question – whether Tribunal should have considered applicant modified behaviour to avoid persecution. |
Migration Act1958 (Cth)
| Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71, 203 ALR 112 |
| Applicant: | MZWDG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 180 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 4 May 2005 |
| Last Submission: | 4 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 7 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr O’Donoghue |
| Counsel for the Respondent: | Ms Burchell |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The application is dismissed.
The Applicant pay the Respondent’s costs fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 180 of 2004
| MZWDG |
Applicant
And
| THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Burma from the Mon State. He belongs to the Mon ethnic group and is a Buddhist monk. He came to Australia and lodged an application for a protection visa. He claims to have a well founded fear of persecution if he returns to Burma because of his support for the Mon ethnic group. His application for a protection visa has been rejected and that decision affirmed by the Refugee Review Tribunal.
The applicant relied on his activities, in both Burma and Australia, supporting the Mon ethnic group and opposing the Burmese government. The applicant argues that the Tribunal decided he would not face persecution in Burma if he returned because he would not act in such a way as to bring himself to the adverse attention of the authorities. If that is so, then the applicant argues the Tribunal asked itself the wrong question. It should have considered whether the applicant acted in that way in the past, and would act in that way if he returned because he feared persecution. The applicant argues that the Tribunal made a jurisdictional error of the sort described by the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71, 203 ALR 112.
Chronology
The applicant arrived in Australia on 16 May 2001 and lodged an application for a protection visa on 7 September 2001. The Minister’s delegate refused the application on 10 January 2002 and on 7 February 2002, the applicant applied to the Tribunal for review. On 5 January 2004, the Tribunal affirmed the delegate’s decision.
The Tribunal's decision
The Tribunal accepted the bulk of the applicant's claims about his life and experiences. In 1990 he joined the Mon National Democratic Front which had been registered as a legal party. It contested an election but not long after its registration was cancelled.
The applicant became involved in discreetly distributing magazines produced by the Thai based Young Mon party and the Mon New State Party based in the jungles close to the Burmese border. He assisted in distributing literature. He was called to the Military Intelligence Office, probably at the end of 1992, interrogated and discharged.
He was warned about distributing political material.
In 1993, he joined a Buddhist monastery and became a Buddhist monk. He studied at a university in Rangoon. He distributed literature for the Mon Literature group, passed on information when he went to Mon villages, talked to people and discussed his views of the Burmese dictatorship among the monks.
In 1999, he made a speech strongly criticising the Burmese regime's treatment of the Mon people, which was well-received by students who came from a Mon background. It was not a prepared speech. He became excited at the time and wanted to disclose the actions of the Burmese regime against the Mon people. Later that day, he learned a group of soldiers were looking for him and he fled across the Thai border.
He remained in Thailand for two years. An Australian, sympathetic to his situation, wrote a letter of support for him to obtain a visitor visa. He obtained a passport through bribery and returned to Rangoon on a fake public servant identity document. He travelled to Thailand and Singapore before coming to Australia in May 2001. In Australia, he became involved in political, social and cultural activities. They included fundraising and support for democracy in Burma. He participated in demonstrations outside the Burmese embassy in Canberra.
The Tribunal did not accept the applicant's claim that he was persecuted by the Burmese military for his political opinions and Mon ethnicity. It accepted that he could not study Mon culture and literature at school and that he may have been mistreated, threatened, harassed and snubbed when he dealt with Burmese authorities. The Tribunal referred to independent country information that suggests that the Burmese regime continues to discriminate against the Mon people.
The Tribunal considered that the applicant's claims of his mistreatment by Burmese officials, are general in nature. It accepted that the applicant may have been mistreated, but it said there is no sense of persecutory behaviour or causing serious harm towards the applicant. The Tribunal referred to the applicant's arrest and questioning in 1992 and about his involvement in distributing magazines for political groups. It noted that he was released after a couple of hours, not hurt in any way and, except for his claim that the military were looking for him after his speech at the monastery, he was not bothered again by Burmese officials before he left Burma.
The Tribunal accepted that the applicant was active in the Mon community and the monastery in discussing anti government matters. It noted that these discussions were not for wider consumption and were kept from Burmese authorities. The Tribunal referred to the one brief period of questioning by Military Intelligence in 1992 and said that the applicant had no profile with the Burmese authorities and gave no reason for him to be of interest.
The Tribunal said that there is no evidence, apart from his political speech in 1999, that he was of adverse interest to the Burmese officials. Apart from the applicant's claim of the friend telling him about the approach of Burmese military after his speech, the Tribunal said there is no evidence that the military had any particular interest in the applicant.
The Tribunal considered the applicant's sur place claim to be a refugee because of activities he has engaged in while in Australia. The Tribunal accepted independent advice that the Burmese embassy is interested in its citizens in Australia. The Tribunal said that it is possible that the applicant's activities in Australia have been recorded by Burmese officials.
The Tribunal then considered other country information. It said that the applicant has been involved in political demonstrations in Australia, but his activities have been peaceful. The Tribunal did not consider that the applicant would be regarded by Burmese officials as having attained the profile of an active and high-level demonstrator. It was not satisfied that the applicant's activities in Australia would cause him to be persecuted on return to Burma.
The issue of modified behaviour
The applicant's argument is that the Tribunal failed to consider whether he modified his behaviour in Burma in the past, and would continue to modify it in the future because he feared persecution if he did not. Central to the argument is this paragraph from the Tribunal's reasons:
In all, the Tribunal is not satisfied that the applicant's activities in Australia would cause him to be persecuted on return to Burma. Nor is it satisfied that the applicant had a profile in Burma which brought him to the adverse interest of officials in Burma. Even considered cumulatively, the Tribunal is not satisfied that the applicant will have an adverse profile with Burmese authorities. If he returns to Burma, the Tribunal is satisfied that the applicant, who knows and understands the political situation there and who does not have a record of consistent political activity in Burma, will not act in such a way as to bring himself to the adverse attention of those authorities.
The applicant set out in a statutory declaration that in Burma he had very little opportunity to express his political beliefs and what opportunity he took got him into serious trouble. In Australia, he found that he could be himself and express his beliefs locally and work with groups committed to the struggle for democracy in Burma. The Tribunal referred to these claims in its reasons.
The Tribunal did not consider whether the applicant modified his behaviour because he feared persecution. The issue is whether, in the way he put his claim and the evidence before the Tribunal, the question of modified behaviour was there for consideration.
The applicant says in a statutory declaration, that in Burma he had little opportunity to express his beliefs. The Tribunal described what is in the applicant's written material and his evidence. That does not show that restriction was because he modified his behaviour through fear of persecution.
Evidence that the Tribunal sets out shows that the applicant's claim that he had little opportunity to express his beliefs was because of the conditions under which he was living. It was not because he feared persecution. The Tribunal was prepared to accept that there were restrictions on the applicant's studies and he was mistreated, threatened, harassed and snubbed when he dealt with Burmese authorities. It accepted that he was active in the Mon community, and then the monastery, in discussing anti government matters. It noted that his discussions were not for wider consumption and were kept from Burmese authorities. It found that none of this amounted to persecution, and that finding is not challenged. There is nothing in this evidence to suggest that the applicant modified his behaviour because he feared persecution.
A fair reading of the Tribunal's finding that the applicant, if he returns to Burma, will not act in such a way as to bring himself to the adverse attention of the authorities, is that it is a finding that he would continue to live in the way he had in the past. The Tribunal found that his past activities did not make him of adverse interest to the authorities. It is not a finding that the applicant will modify his behaviour because of fear of persecution. It is a finding based on what has occurred in the past.
A claim by the applicant that he had modified his behaviour because of fear of persecution was not apparent in the evidence for the Tribunal to consider. It did not ask the wrong question. There is no jurisdictional error.
The applicant's written contentions put forward three grounds of alleged error:
i)The Tribunal failed to inquire into the political activities that the applicant might pursue should he return to Burma;
ii)The Tribunal failed to consider the applicant's case cumulatively and as a whole in its assessment of the applicant's sur place claims;
iii)The Tribunal failed to properly apply s.91R of the Migration Act and/or consider the applicant's case.
At the hearing, the argument was put as already described. It was largely a refinement of what is contained in the written contentions. The first ground, a natural justice ground is not made out. The finding the Tribunal made that the applicant's activities, if he was to return to Burma, would not lead to persecution, was based on the evidence of his behaviour in the past. There was no obligation on the Tribunal to make the type of inquiry described.
The second ground, the claim that the Tribunal did not consider the case cumulatively in assessing the sur place claim, is not correct. The Tribunal's finding was based on an assessment of the applicant's activities in Burma and in Australia combined with consideration of country information.
The third ground, a failure to properly apply s.91R or give the case proper consideration, appears to be an allegation based on the cumulative effect of the other alleged grounds of error. It is not made out.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Phipps FM
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