NABX/02 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 661

FEDERAL COURT OF AUSTRALIA

NABX/02 v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 661

MIGRATION – application for review of a Refugee Review Tribunal decision – whether Tribunal overlooked evidence that was central to the applicant’s claim – where evidence emerged at the hearing and was not mentioned in the written application.

Migration Act 1958 (Cth)

NABX/02 AND NABY/02 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 87 of 2002

MOORE J
27 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 87 of 2002

BETWEEN:

NABX
FIRST APPLICANT

NABY
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	MOORE J
DATE OF ORDER:	27 MAY 2002
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	N 87 of 2002

BETWEEN:

NABX
FIRST APPLICANT

NABY
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	MOORE J
DATE:	27 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an application for constitutional writs arising from a decision of the Refugee Review Tribunal (“the Tribunal”) of 9 January 2002, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), refusing to grant the applicant a protection visa.  The criterion for the grant of such a visa is based on whether the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).  The applicant and his wife (“the second applicant”), who are citizens of Burma, arrived in Australia on 8 May 2000.  On 12 May 2000 they lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”). On 1 June 2000 a delegate of the Minister refused the grant of a protection visa and on 22 June 2000 the applicant applied to the Tribunal for review of that decision.

   The Tribunal’s reasons

2. In a section in its reasons for decision headed “Claims and Evidence”, the Tribunal summarised the claims made by the applicant in support of his application.  The following is drawn from that summary but focusing on matters relevant to these proceedings. 

3. From the departmental file, the following emerged.  The applicant was born in Gyobingauk, Burma, on 25 December 1939.  He qualified as a medical doctor in 1964, and married in April 1965.  In 1985 he obtained a Masters degree from the University of Singapore, and thereafter worked as a Medical Officer in a number of different countries during the years 1969 to 2000.  He and his wife have three children (two daughters and a son) who now live in Canada, Australia and Burma.  He worked as a Medical Officer in Western Samoa from 1985 to 1987 and Fiji from 1987 to February 2000.

4. In 1985, when studying in Singapore, he did not renew his passport when it was due to expire as he feared he would be ordered to return to Burma.  He ultimately did approach the Burmese authorities to renew his passport, and was instructed by consulate staff to return to Burma.  When he did, he was taken away by the authorities and physically mistreated for not renewing the passport in Burma and for completing the Masters degree in Singapore.  From 1987 to 2000 when living and working in Fiji the applicant paid a 10% tax to the Burmese government which was required of him.  His daughters and wife, but not his son, were with him in Fiji.  In Fiji the applicant had contact with other Burmese nationals resident there.  He was invited by them to attend meetings they held and was asked questions relating to his circumstances, including the salary he was then receiving.  He was told that if he did not attend he would have his property confiscated.

5. In February 2000 the applicant returned to Burma with the intention of persuading his son to leave the country.  On arrival, however, he was asked to provide receipts as proof of his having paid the compulsory 10% tax that Burmese citizens living overseas were expected to pay.  He was unable to locate one of the receipts, and was accused by the authorities of not having paid the tax.  He and his wife were then detained, with his wife being released after intervention by their son while the applicant remained in custody for the day.  He was then released but six weeks later was again detained and taken to a police station.  Three officers assaulted him and questioned him about his daughters, demanding to know their whereabouts.  The applicant informed the officers that his daughters had abandoned him.  He was eventually told by the officers that he would only be able to leave the country if he provided half, rather than 10%, of his salary when he returned to Fiji.  He accepted the conditions dictated by the officers and left Burma with his wife in May 2000.

6. Having summarised the account given by the applicant found in the departmental file, the Tribunal then summarised what the applicant had said at the hearing before the Tribunal.  The relevant parts of its summary are as follows:

   “The applicant stated that before he and his family left Burma for Fiji, in 1987, he was interrogated by the military because his daughters participated in demonstrations against the government.  He stated that when he returned to Burma in 2000 he was detained and questioned regarding his daughters’ circumstances and where they lived.  The applicant stated that he told the authorities that he had no contact with his daughters.  He stated that they only released him after he agreed to pay the government 50% of his salary.  The applicant indicated that the interrogation took place six weeks after he arrived in Burma, at the end of March 2000, and he left Burma for Australia on 7 May 2000.  He stated that he had already arranged for a visa to Australia so he was able to leave the country.  The visa in the applicant’s passport indicates that it was issued on 3 February 2000 and was valid until 3 February 2001.  The applicant’s wife had the same visa issued in Suva.

   The Tribunal asked the applicant if either he or members of his family had participated in any political activities against the government of Burma since they left the country in 1987.  The applicant stated that he did not know if his children were involved in political activities but he was not involved in such activities.  He stated that he supported the NLD but did not actively demonstrate his support.  The Tribunal commented that during the hearing he made frequent references to his political opinion, and his support of the NLD, but in his written statement to the Department he did not present those claims.  The applicant replied that he did support the NLD, and he was opposed to the military regime in Burma, but he did not present those claims in his written submission because he had not been involved in any activities to demonstrate his political beliefs.”

7. The Tribunal then proceeded to deal with the application.  It set out its findings in a section of its decision entitled “Findings and Reasons”.  It commenced with a consideration of the applicant’s credibility under a sub-heading “credibility issues”.  First, it referred to texts and authorities which indicated an overly stringent approach should not be adopted in considering the credibility of an asylum seeker.  It then turned to consider the credibility of the applicant.  It said:

   “The applicant claims that he was harassed by the authorities in Burma due to his political opinion.  However, after discussing these matters with the applicant at the hearing, the Tribunal has decided that the applicant’s difficulties with the authorities in Burma relate to tax matters, that is whether he and his daughters paid tax owed to the government of Burma, rather than the applicant’s or his daughter’s political opinion.  In reaching this conclusion, the Tribunal noted that the applicant has actively avoided political activity throughout his life, took measures to ensure that members of his family also avoided political activity, and his discussions with the authorities in Burma did not relate to political activities.  …  It is the Tribunal’s view that the applicant fabricated this claim to enhance his protection visa application.”

8. The Tribunal then considered the applicant’s claims concerning persecution because of political opinion.  It said:

   “The Tribunal considered the applicant’s claim that he will be at risk of suffering persecution in Burma due to his political opinion and the political opinion attributed to him by the authorities in Burma.  The applicant claims that he was harassed and assaulted in Burma in 1987 and March 2000, because of his views against the regime in Burma.  The applicant claims that his decision to resettle his daughters overseas, the expiry of his wife’s passport, his application for refugee status in Australia, will be seen as expressions of opposition to the regime in Burma and he will consequently risk persecution by the authorities if he returns to Burma.

   The Tribunal has already decided that some of the applicant’s claims lack credibility and on that basis those claims have not been accepted by the Tribunal.  Nevertheless, the applicant claims that he is opposed to the regime in Burma and the Tribunal has considered whether having such a political opinion places the applicant at risk of persecution.”

9. Later it said:

   “The Tribunal notes that the applicant has never been actively involved in any political activities against the government of Burma.  He states that he does not support the regime but he has chosen not to express his views.  In Australia the applicant has not participated in any political activities against the government of Burma even though there are many opportunities for such activities.”

10. Even later it said:

    “The applicant claims that an adverse political opinion will be attributed to him by the authorities in Burma because of a series of activities, including non payment of tax since he arrived in Australia, his application for a protection visa, the expiry of his wife’s passport, and his daughters’ resettlement overseas.  The applicant stated that cumulatively the authorities in Burma will interpret these activities as expressions of his political opinion against the government.  However, it is the Tribunal’s view that as the applicant has been a law-abiding citizen of Burma throughout his life, and he has actively avoided expressing his political opinion, he will not be of interest to the authorities in Burma due to real or imputed political opinion.”

11. The Tribunal ultimately concluded that it was not satisfied that the applicant had a well-founded fear of suffering persecution in Burma due to his political opinion.

    Issues in the application

12. Counsel for the applicant based his submission on essentially one point.  It was that during the hearing the applicant gave evidence concerning his political opinions.  That evidence was to the effect that when the applicant had been in Fiji he had expressed opinions critical of the National League for Democracy (“NLD”) and that the authorities in Burma had come to know of his views.  That was made apparent to him as a result of things he was told when arrested on his return in 2000.  It was submitted that the Tribunal overlooked this evidence and it was central to his claim.  It followed, it was submitted, that this constituted a failure of the Tribunal to exercise its jurisdiction.  Reliance was placed, in particular, on the recent Full Court judgment in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379.

13. The particular passages in the transcript were as follows:

    ·    “Tribunal:      And you say you suffered harassment as a result of your

    children’s activities.  So tell me about that.  When did
      that harassment happen?

    Interpreter:     So and when my daughter was involved in political

    activities the government asked and interrogated me

    and accused me ‘Oh you don’t … look after your daughters and why did you let your daughter go into political activities’.  And such a thing happened … twice when my daughter joined university students and later and because of my opinions, my opinions supporting the NLD.

    ·    Tribunal:        All right so when you went back [in 2000] did the

    authorities show any interest in your political opinion
               or harass you in any way?

    Interpreter:     Yes, I experienced.
    Tribunal:        Tell me about that.
    Interpreter:     So when I went back to Burma from Fiji and the
      Burmese authority detained me and they told me they
    had information from Fiji that I backed NLD and they
    asked, interrogated me again where, where my
      daughters are and at that time I was arrested and they
      put me in gaol.

    ·    Interpreter:     The reason I was arrested was political activities.

    Tribunal:        Whose political activities?

    Applicant:My daughters’ activity and my opinion and I’m also something taking part outside, outside my country and NLD, under the NLD …

    Interpreter:     My daughters’ political activities and mine as well and my political opinion supporting the NLD.

    Tribunal:        So how did you demonstrate your support of the NLD?

    Interpreter:     So my activities was mainly and mainly done in Fiji and in Fiji I talked to my friends how wrong is the government.  Is it – is it bad and bad for people and how human – how human – human, how situation is it, is it, is it unpleasant for citizens and mainly I talked these things in Fiji, not so much in Burma.

    ·Tribunal:        I’m interested in this matter about you and the NLD because in your statement to the Department, which is the only statement I have before me, the only written statement that I have before me, you actually don’t mention any kind of political activity, any, that you were involved in any political activity – Talk about some problems to do with paying of tax and being questioned about where your daughters are and what they’re doing but there isn’t anything in your statement to indicate either your own political activities or your children’s political activities were of concern to the authorities when you were back there in the year 2000.  So I am wondering why you neglected to mention that before and you are mentioning it now.

    Interpreter:     And I was harassed and harassed terribly and terribly harassed by government twice.  The first time was regarding the case of 10%.

    Tribunal:Right.  Maybe you misunderstood my comment.  There is no mention in your statement that you were ever either supportive of the NLD or that you worked for them or that you did, you know, you were involved in any political activities.  Doesn’t mention anything of that.  ‘About that’ I should have said.

    Interpreter:     That’s true.  The reason I didn’t mention about my political activities, and that’s true.  And my daughters having involved in political activities and in my heart I was also against the government but actually I was not involved in political activities then.  That’s the reason I did not mention in that document.

    ·Tribunal:        And you say you suffered harassment as a result of your children’s activities.  So tell me about that.  When did that harassment happen?

    Interpreter:     So and when my daughter was involved in political activities the government asked and interrogated me and accused me ‘Oh you don’t … look after your daughters and why did you let your daughter go into political activities’.  And such a thing happened … twice when my daughter joined university students and later and because of my opinions, my opinions supporting the NLD.”

14. Counsel for the applicant then developed a submission that this error was jurisdictional error and was an error of the type not protected by s 274.  Each of these contentions was put in issue by counsel for the Minister.  However, in my opinion, it is unnecessary to consider the various legal contentions advanced by counsel because the applicant has failed to establish what is effectively the starting point of the analysis advanced on his behalf.

15. I accept that the Tribunal’s summary of what was said by the applicant at the hearing set out at [6] above does not represent a complete account of the applicant’s evidence. However that does not, alone, justify the inference that the evidence given orally to the Tribunal was overlooked particularly if in later parts of its reasons the Tribunal apparently did refer to that evidence, even if only indirectly and in general terms. In the passage set out at [7] above the Tribunal discussed why it had rejected the applicant’s contention that he had been mistreated because of either a real or imputed political opinion. In doing so, the Tribunal appeared to be balancing, in its deliberations, the lengthy written statement made by the applicant when he first applied for a protection visa with the account he gave at the hearing of his interest in the NLD, his expression of that interest and the consequences of his having done so.

16. It was the statement (with its focus on tax issues and no reference to the NLD other than in a general opening paragraph about the political position in Burma) that the Tribunal put to the applicant in the fourth extract from the transcript set out at [13] above. The statement and his oral account are, on my reading of them, quite different in their emphasis. The Tribunal formed a view about the applicant’s credibility. It was, ultimately, that he had fabricated his claim of having been harassed because of his political opinion to enhance his protection visa application. It cannot be said, in my opinion, that the Tribunal overlooked the evidence the applicant had given at the hearing. It considered this evidence and reached a conclusion adverse to the applicant about whether the evidence should be accepted.

17. The later discussion of political opinion (set out at [8], [9] and [10] above) appears to be directed to the more general question whether the conduct of the applicant (and more generally that of his family) will result in the authorities in Burma imputing to him a political opinion which might expose him to harm in the future were he to return.

18. For these reasons the application should be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             27 May 2002

Counsel for the Applicants:	Craig Colborne
Solicitor for the Applicants	Siva Logan Solicitors
Counsel for the Respondent:	Jason Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 May 2002
Date of Judgment:	27 May 2002