FEDERAL COURT OF AUSTRALIA
Oo v Minister for Immigration & Multicultural Affairs [2001] FCA 348
MIGRATION – refugee- application for review of decision of Refugee Review Tribunal – whether Tribunal erred in law in not finding that applicant was a refugee having regard to the findings that it made in his favour – finding that there was a real chance applicant would be subject to monitoring for a period if he were to return to his country of nationality – whether absence of freedom of expression of political views constitutes, or can constitute, persecution
Migration Act 1958 (Cth) s 476(1)(e)
Minister for Immigration & Multicultural Affairs v Zheng [2000] FCA 50 referred to
Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 referred to
Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663 referred toTHAN ZAW OO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1084 OF 2000
LINDGREN J
3 APRIL 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1084 OF 2000
BETWEEN:
THAN ZAW OO
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
3 APRIL 2001
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 1084 OF 2000
BETWEEN:
THAN ZAW OO
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
LINDGREN J
DATE:
3 APRIL 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
Section 29 of the Migration Act1958 (Cth) (“the Act”) provides that subject to the Act, the respondent (“the Minister”) may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, to remain in Australia, or to do both.
The applicant (“Mr Oo”) applies under subs 476(1) of the Act for review of a decision of the Refugee Review Tribunal (“RRT”) affirming a decision of the Minister’s delegate (“the Delegate”) not to grant him a protection visa permitting him to remain in Australia. It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.
Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951,…
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Details
- Case
- [2001] FCA 348
- Decision Date
CaseChat Overview and Summary
In the case of Oo v Minister for Immigration & Multicultural Affairs, the applicant, Mr Oo, a Burmese national, sought a protection visa from Australia, claiming he had a well-founded fear of being persecuted for his political activities if he were to return to Burma. The Refugee Review Tribunal (RRT) conducted a hearing and subsequently denied the application. The case reached the Federal Court, where Mr Oo sought judicial review of the RRT's decision.
The primary legal issues before the court were whether the RRT had erred in law by failing to investigate Mr Oo's claims thoroughly and whether the RRT's findings were unreasonable in the circumstances. Specifically, the court needed to determine whether the RRT had a duty to investigate beyond the claims made by Mr Oo and if its findings were supported by the evidence presented.
The court examined the RRT's approach to the investigation and concluded that there was no legal requirement for the RRT to extend its investigation beyond the scope of Mr Oo's claims. The court found that the RRT had considered the evidence provided by Mr Oo, including his personal statements and documentary evidence, and had made findings based on that evidence. The RRT's determination that Mr Oo had not been an active dissident since his release from prison in 1989 did not necessarily contradict the claim he made. Therefore, the error of law ground was not substantiated.
Consequently, the court dismissed Mr Oo's application for judicial review, holding that the RRT had not erred in law and that its findings were reasonable. The court ordered that the application be dismissed with costs to be paid by the applicant.
In summary, the Federal Court upheld the RRT's decision, finding no basis for the claimed errors in the tribunal's approach or findings. The applicant's application for review was dismissed, and he was ordered to pay the respondent's costs.
The primary legal issues before the court were whether the RRT had erred in law by failing to investigate Mr Oo's claims thoroughly and whether the RRT's findings were unreasonable in the circumstances. Specifically, the court needed to determine whether the RRT had a duty to investigate beyond the claims made by Mr Oo and if its findings were supported by the evidence presented.
The court examined the RRT's approach to the investigation and concluded that there was no legal requirement for the RRT to extend its investigation beyond the scope of Mr Oo's claims. The court found that the RRT had considered the evidence provided by Mr Oo, including his personal statements and documentary evidence, and had made findings based on that evidence. The RRT's determination that Mr Oo had not been an active dissident since his release from prison in 1989 did not necessarily contradict the claim he made. Therefore, the error of law ground was not substantiated.
Consequently, the court dismissed Mr Oo's application for judicial review, holding that the RRT had not erred in law and that its findings were reasonable. The court ordered that the application be dismissed with costs to be paid by the applicant.
In summary, the Federal Court upheld the RRT's decision, finding no basis for the claimed errors in the tribunal's approach or findings. The applicant's application for review was dismissed, and he was ordered to pay the respondent's costs.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Background
Background to the litigation
In terms of the Convention definition, Mr Oo’s case is that he is outside the country of his nationality, Burma (Myanmar), and is unwilling to return to it because of a well-founded fear of being persecuted for reason of political opinion.Procedural background Mr Oo arrived in Australia on 4 August 1995. On 4 September 1995, through his solicitors, McDonells, he lodged with the Department of Immigration and Multicultural Affairs (“the Department”) an application for a protection visa bearing date 30 August 1995. The application foreshadowed that Mr Oo would submit a “statement” which would address some of the questions in the form of application. On 29 January 1996 his solicitors wrote a lengthy letter to the Department enclosing a typewritten statement by Mr Oo dated 6 November 1995. Mr Oo’s wife arrived in Australia on 31 August 1996. On 16 September 1996 she lodged an application for a protection visa with the Department. On 30 March 1998 the Delegate refused to grant protection visas to Mr and Mrs Oo. On 16 April 1998 they applied to the RRT for a review of that decision. The RRT conducted an oral hearing on 3 August 2000 and on 25 August 2000 gave the decision in respect of which Mr Oo’s present application for review is made.Claims and evidence The RRT recounted Mr Oo’s “claims and evidence” based on his typewritten statement, submissions made on his behalf by his solicitors both to the Department and to the RRT, other documentary evidence supplied in support of his contentions and oral evidence which he gave before the RRT on 3 August 2000. The following account is generally based on Mr Oo’s claims and evidence as related by the RRT. Mr Oo was born on 10 August 1962. He is ethnically Arakanese and is a Buddhist. As noted earlier he is married. From June 1986 to August 1988, Mr Oo was a student at Rangoon University. A passport was issued to him in Rangoon on 20 February 1990. From July 1990 to August 1995 he resided in Thailand, where he was an “illegal refugee” and was employed initially as a cook. In April 1995 he applied at the Australian Embassy in Bangkok for a visa to enter Australia and was granted one on 4 April 1995. In April 1995, Mr Oo visited Japan. From there he went to Malaysia where he spent about three months. He was “seeking permanent protection” in Malaysia. He returned to Thailand on 3 July 1995 and travelled from there to Australia on 4 August 1995. Mr Oo reported his passport as lost to Burwood Police Station on 14 July 1997. In his statutory declaration dated 6 November 1995, Mr Oo made statements to the following effect:· He has two brothers in Singapore and his mother and three sisters in Burma.· He participated in the All Burma Students Union (ABSU) in early 1988 while a student at Rangoon University, prior to the official constitution of the ABSU in 1989. Mr Oo participated in demonstrations every week and was present at a large demonstration on 16 March 1988 in which 30 to 40 students were killed.· Following this, Mr Oo began to attend campus meetings and was present at student planning meetings. He distributed pamphlets about getting rid of the military dictatorship and advocating the punishment of those involved in the deaths of students earlier in the year. He helped to paste up posters. In June 1988 he became a “township organiser” for his suburb of Tamwe where he lived.· He participated in the mass demonstration and the early September 1988 hunger strike, before fleeing from Rangoon to Arakan, where ultimately he stayed with his aunt (his father’s sister) in Sittwe.· Mr Oo continued his political activity in Sittwe, Arakan, through the ABSU and the Arakanese Student Union.· He was in Sittwe for three months. He was arrested on 9 December 1988 while attending an evening meeting convened by the ABSU in Sittwe. All ten persons attending the meeting were arrested, taken to gaol and interrogated, one by one. Mr Oo, his head covered by a piece of cloth, was tortured and questioned about his political activity. He was stripped naked and burnt with cigarettes. Alcohol was poured over his body (it stung him badly and he has a scar on his shin from the burn).· Mr Oo was held in the Sittwe gaol for one month (including one week in solitary confinement) before being transferred to Insein prison on 14 January 1989. There he was interrogated and tortured again. He was beaten, given electric shock treatment and forced to walk barefoot over sharp gravel. The prison was crowded and filthy and there were rats and insects. Mr Oo considered committing suicide. He was released on 12 February 1989. At the same time, other students who had been involved in the demonstrations were also released. Prior to his release, Mr Oo signed an undertaking that he would not be involved in political activity.· After his release from Insein prison, Mr Oo was not permitted to leave Rangoon, and was required to report at the police station weekly. He was ill following his time in gaol, having contracted malaria in Sittwe.· He then became involved with the National League for Democracy (NLD) and planned demonstrations and distributed leaflets in Rangoon, until he was arrested on 5 May 1989. Mr Oo was taken again to Insein prison where he was interrogated, tortured and sexually assaulted twice. He was released on 23 July 1989.· Upon his release Mr Oo consulted a doctor who advised him to rest in order to recover. He had lost a lot of weight and had scars from being burned with cheroots. It took him about one and a half to two months to recover. Then he went on a nine day retreat to a Buddhist monastery ‘to cleanse [his] soul”. In January 1990 he married.· Mr Oo’s parents advised him to leave Burma and at the end of December 1989 he paid an agent to obtain a passport for him. He had to pay additional money to the agent in March 1990 when the agent learned that Mr Oo had been involved in political activity. The agent gave him the passport in March 1990.· Mr Oo left Burma on 14 July 1990 and went to Thailand, where he stayed with an uncle. In Thailand he became involved in Burmese dissident student activity and in demonstrations and in selling books. He attended a meeting with Burmese refugees for two days at the Thai-Burmese border in October 1990. He became a member of the Arakanese Liberation Party (ALP) in Bangkok and was involved in fund raising and attended some meetings. The fund raising was for the All Burma Students Democratic Front (ABSDF) and the Overseas National Students of Burma (ONSB) organisation.· Mr Oo was unable to “regularise [his] status in Thailand” as that country is not a party to the Convention. He was fearful of remaining in Thailand because the Thai authorities commonly return dissidents to Burma. Therefore he applied for a visa to enter Australia and it was issued on 4 April 1995. Prior to travelling to Australia, however, Mr Oo visited Japan and Malaysia. He assisted in fund raising activities in Japan where he was sent by the ALP and where Burmese dissidents were living illegally. He stayed in Japan for one week and collected funds. He also went to Malaysia for two and a half months where he made contact with dissidents and raised funds as he had done in Japan.· Mr Oo has been actively involved in political activity since arriving in Australia on 4 August 1995. He became a member of the All Young Burmese League Inc very soon after his arrival. The League is largely a social and cultural organisation.· Mr Oo believes that if he returns to Burma he will be arrested and imprisoned. His political activities in Burma, Thailand and Australia would have been noted by the SLORC administration. He fears being interrogated and tortured.
Evidence
Evidence Before The Court
The RRT conducted an oral hearing on 3 August 2000 and on 25 August 2000 gave the decision in respect of which Mr Oo’s present application for review is made.Claims and evidence The RRT recounted Mr Oo’s “claims and evidence” based on his typewritten statement, submissions made on his behalf by his solicitors both to the Department and to the RRT, other documentary evidence supplied in support of his contentions and oral evidence which he gave before the RRT on 3 August 2000. The following account is generally based on Mr Oo’s claims and evidence as related by the RRT. Mr Oo was born on 10 August 1962. He is ethnically Arakanese and is a Buddhist. As noted earlier he is married. From June 1986 to August 1988, Mr Oo was a student at Rangoon University. A passport was issued to him in Rangoon on 20 February 1990. From July 1990 to August 1995 he resided in Thailand, where he was an “illegal refugee” and was employed initially as a cook. In April 1995 he applied at the Australian Embassy in Bangkok for a visa to enter Australia and was granted one on 4 April 1995. In April 1995, Mr Oo visited Japan. From there he went to Malaysia where he spent about three months. He was “seeking permanent protection” in Malaysia. He returned to Thailand on 3 July 1995 and travelled from there to Australia on 4 August 1995. Mr Oo reported his passport as lost to Burwood Police Station on 14 July 1997. In his statutory declaration dated 6 November 1995, Mr Oo made statements to the following effect:· He has two brothers in Singapore and his mother and three sisters in Burma.· He participated in the All Burma Students Union (ABSU) in early 1988 while a student at Rangoon University, prior to the official constitution of the ABSU in 1989. Mr Oo participated in demonstrations every week and was present at a large demonstration on 16 March 1988 in which 30 to 40 students were killed.· Following this, Mr Oo began to attend campus meetings and was present at student planning meetings. He distributed pamphlets about getting rid of the military dictatorship and advocating the punishment of those involved in the deaths of students earlier in the year. He helped to paste up posters. In June 1988 he became a “township organiser” for his suburb of Tamwe where he lived.· He participated in the mass demonstration and the early September 1988 hunger strike, before fleeing from Rangoon to Arakan, where ultimately he stayed with his aunt (his father’s sister) in Sittwe.· Mr Oo continued his political activity in Sittwe, Arakan, through the ABSU and the Arakanese Student Union.· He was in Sittwe for three months. He was arrested on 9 December 1988 while attending an evening meeting convened by the ABSU in Sittwe. All ten persons attending the meeting were arrested, taken to gaol and interrogated, one by one. Mr Oo, his head covered by a piece of cloth, was tortured and questioned about his political activity. He was stripped naked and burnt with cigarettes. Alcohol was poured over his body (it stung him badly and he has a scar on his shin from the burn).· Mr Oo was held in the Sittwe gaol for one month (including one week in solitary confinement) before being transferred to Insein prison on 14 January 1989. There he was interrogated and tortured again. He was beaten, given electric shock treatment and forced to walk barefoot over sharp gravel. The prison was crowded and filthy and there were rats and insects. Mr Oo considered committing suicide. He was released on 12 February 1989. At the same time, other students who had been involved in the demonstrations were also released. Prior to his release, Mr Oo signed an undertaking that he would not be involved in political activity.· After his release from Insein prison, Mr Oo was not permitted to leave Rangoon, and was required to report at the police station weekly. He was ill following his time in gaol, having contracted malaria in Sittwe.· He then became involved with the National League for Democracy (NLD) and planned demonstrations and distributed leaflets in Rangoon, until he was arrested on 5 May 1989. Mr Oo was taken again to Insein prison where he was interrogated, tortured and sexually assaulted twice. He was released on 23 July 1989.· Upon his release Mr Oo consulted a doctor who advised him to rest in order to recover. He had lost a lot of weight and had scars from being burned with cheroots. It took him about one and a half to two months to recover. Then he went on a nine day retreat to a Buddhist monastery ‘to cleanse [his] soul”. In January 1990 he married.· Mr Oo’s parents advised him to leave Burma and at the end of December 1989 he paid an agent to obtain a passport for him. He had to pay additional money to the agent in March 1990 when the agent learned that Mr Oo had been involved in political activity. The agent gave him the passport in March 1990.· Mr Oo left Burma on 14 July 1990 and went to Thailand, where he stayed with an uncle. In Thailand he became involved in Burmese dissident student activity and in demonstrations and in selling books. He attended a meeting with Burmese refugees for two days at the Thai-Burmese border in October 1990. He became a member of the Arakanese Liberation Party (ALP) in Bangkok and was involved in fund raising and attended some meetings. The fund raising was for the All Burma Students Democratic Front (ABSDF) and the Overseas National Students of Burma (ONSB) organisation.· Mr Oo was unable to “regularise [his] status in Thailand” as that country is not a party to the Convention. He was fearful of remaining in Thailand because the Thai authorities commonly return dissidents to Burma. Therefore he applied for a visa to enter Australia and it was issued on 4 April 1995. Prior to travelling to Australia, however, Mr Oo visited Japan and Malaysia. He assisted in fund raising activities in Japan where he was sent by the ALP and where Burmese dissidents were living illegally. He stayed in Japan for one week and collected funds. He also went to Malaysia for two and a half months where he made contact with dissidents and raised funds as he had done in Japan.· Mr Oo has been actively involved in political activity since arriving in Australia on 4 August 1995. He became a member of the All Young Burmese League Inc very soon after his arrival. The League is largely a social and cultural organisation.· Mr Oo believes that if he returns to Burma he will be arrested and imprisoned. His political activities in Burma, Thailand and Australia would have been noted by the SLORC administration. He fears being interrogated and tortured.
Decision
Reasons for decision
LINDGREN J
Although the RRT may be required in particular circumstances to make an investigation extending beyond the limits of the claim made by an applicant, there is no reason to think that it was bound to do so in the present case. Accordingly, the error of law ground relied on is not established. (I note that the RRT’s finding that Mr Oo had not been an “active dissident” since his release from prison in 1989 is not inconsistent with his not having made the claim postulated.)Conclusion For the above reasons, Mr Oo’s application should be dismissed with costs.
Ratio Decidendi
Legal Principle Established
Established by: LINDGREN J
Full text does not contain this section.