SZFEH v Minister for Immigration - [2005] FMCA 963

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFEH v MINISTER FOR IMMIGRATION

[2005] FMCA 963

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Burma (Myanmar) – whether the RRT considered the applicant’s claim that the very act of applying for a protection visa would place the applicant at risk of persecution.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
NABE and SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 263
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 120
Alexandre Vassilyevich Bouianov v Minister for Immigration and Multicultural Affairs [1998] 1348 FCA

Applicant:

SZFEH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3557 of 2004

Delivered on:

1 July 2005

Delivered at:

Sydney

Hearing date:

29 June 2005

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Karp

Solicitors for the Applicant:

Hense Lawyers & Conveyancers

Counsel for the Respondent:

Ms McNaughton

Solicitors for the Respondent:

Phillips Fox

ORDERS

That an order in the nature of certiorari issue bringing into this Court to be quashed the decision of the Refugee Review Tribunal made on
6 October 2004 and handed down on 29 October 2004 affirming the decision of a delegate of the Respondent Minister not to grant the Applicant a protection visa.
That an order in the nature of mandamus issue remitting the Applicant’s application to the Refugee Review Tribunal for consideration according to law.
That the Respondent is to pay the Applicant’s costs fixed in the sum of $6,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3557 of 2004

SZFEH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 6 October 2004 and handed down on 29 October 2004. The decision of the Tribunal was to affirm the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant is a citizen of Myanmar, formerly Burma, who arrived in Australia on 9 June 2002. On 19 July of that year he applied for a Protection (Class XA) Visa, claiming well-founded fear of persecution for reasons of his membership of a particular social group, his family, which included his elder brother who had been involved in political activity, and for an imputed political opinion due to his association with Than Myint.
The Applicant's application for a protection visa took some time to be considered and was not in fact refused until 22 April 2003. On 13 May of that year he applied for a review of that decision. The Refugee Review Tribunal wrote to the Applicant indicating that it did not consider that it could hand down a decision favourable to the Applicant on the material before it alone and invited him to attend a hearing. The Applicant did in fact attend and the decision was made on 6 October and handed down on 29 October. The Applicant was in fact accompanied by his adviser.
On 8 September 2004, after the hearing on 18 August, the Applicant's solicitor and migration agent, Mr Hense, forwarded a lengthy and detailed submission to the Refugee Review Tribunal relating to matters concerning his client. The submission attached a number of documents including a statutory declaration of Mr Tin Maung Kyaw, together with a certified copy of his certificate of Australian citizenship; a certified copy of a cash receipt for a donation to the Committee for the 16th Anniversary of the 8.8.88 Memorial Ceremony and a certified copy of a receipt for annual membership of the Tribal Refugee Welfare of Western Australia (Inc).
The Applicant's solicitor commented in some detail on a paper delivered by Andrew Selth and Alison Tate on 2 June 2002, Members Professional Development Programme, relating to events in Burma. He also commented on a variety of other pieces of independent country information. The Applicant's solicitor covered a variety of matters and particularly related to the Applicant's sur place activities and the bona fide nature of those activities. That part of the submission commences on page 223 of the Court book. The submission goes on to refer at page 225 to the effect of the Applicant's sur place activities on the Burmese government and then goes on to refer to a variety of other matters such as judicial guidance on the expression "well-founded fear of persecution", country information, et cetera.
It is in that latter passage that begins at page 227 of the Court book that certain parts of the submission which are relevant to the application before the Court today are contained. In my view, they are found on pages 228 and 229 of the Court book. I will return to that material shortly.
At this stage it should be said that the detailed and extensive submission did not apparently satisfy the Refugee Review Tribunal because the decision handed down was to affirm the decision of the delegate not to grant the Applicant a protection visa.
The Applicant has sought a review of the decision with this Court. At the hearing on Wednesday, 29 June, Mr Karp of counsel for the Applicant submitted that in effect there was one main point which went towards jurisdictional error on the part of the Tribunal. That submission was that the Tribunal had not considered a specific but relevant and indeed important part of the Applicant's case. That part of the Applicant's case relates to his pro-democracy activities whilst he has been in Australia. The Tribunal did consider material under the general heading of the Applicant's sur place claims, but relied on section 91R of the Act so as to disregard what the Tribunal saw as that activity.
The passage from the Tribunal decision relating to the sur place activities begins at the bottom of page 265 of the Court book and goes through until page 267. On page 266 the second paragraph begins:
The Applicant claimed he had a well-founded fear of persecution due to his political activities in Australia.
The Tribunal then set out the date of the Applicant's arrival in Australia and the Applicant's involvement in demonstrations and membership of organisations that were opposed to the current government in Myanmar. The Tribunal considered those matters, but at page 267 after quoting section 91R(3) said:
On the basis of the Applicant's low level involvement prior to being rejected for refugee status and the escalation of his activities, the fact that at least some of his documents appear to be backdated and the fact that he was unable to articulate the political aims or activities of the groups he purports to have been involved in, the Applicant has not satisfied the Tribunal that he engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee within the convention. Accordingly, the Tribunal will disregard the conduct he has engaged in Australia when determining whether he has a well-founded fear of persecution if he returns to Burma.
What the Applicant submits is that the Tribunal has not considered a part of the claim about the Applicant's sur place activities that is contained in the Applicant's solicitor's submission to which I have previously referred; that is, that the very act of applying for a protection visa in Australia can lead to a risk of persecution of an unsuccessful Applicant upon returning to Myanmar. The submission is that the government of Myanmar through its embassy in this country takes note of anti‑government activity which may be reflected in demonstrations or membership of particular organisations, but can also be demonstrated by applying for a protection visa. Thus, the claim is that the Tribunal has not considered whether the application for refugee status in itself could have grounded a well-founded fear of persecution.
In submissions in reply on behalf of the Respondent Ms McNaughton of Counsel attacked this submission full on. In paragraph 4 of her submission she said:
In order for the Applicant to succeed he must show that he sufficiently raised the claim before the Tribunal,
Referring to the judgment of the late Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 18 which was cited with approval in NABE and SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 263 at 60 -
and that the claim clearly arose from the materials before the Tribunal. In making these subjective assessments a Court is entitled to take into account as a relevant factor whether or not an applicant was represented.
Ms McNaughton went on to cite the decision of Branson J in Alexandre Vassilyevich Bouianov v Minister for Immigration and Multicultural Affairs (1998) 34 FCA dated 26 October 1998 where her Honour says:
In appropriate cases a decision-maker such as the RRT may be required to give consideration to whether evidence in fact given by an applicant might support an application on a basis not articulated by an applicant. This will more likely be found to be the case where an applicant is unrepresented, as the present applicant was before the RRT. I turn therefore to consider the evidence which was before the RRT.
Ms McNaughton went on to submit that the subjective fear held by an Applicant must be apparent from the material relied on. She referred to the decision of Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 120 at 19.
To my mind, this case turns on whether the Applicant who was represented sufficiently made clear to the Tribunal that this claim was a part of his sur place claim for refugee status. The essential parts of Mr Hense's submission are found at pages 228 and 229. He refers to the Department of Foreign Affairs and Trade Report CX 28959 of 6 March 1998 which at page 227 of the Court book says:
Very few persons who have been involved in pro-democracy movements in Australia or elsewhere abroad choose to return to Burma.
He refers also at page 228 to a paper entitled Notes on Burma Seminar RRT Melbourne 28 May 2003 by one Angela Parker where Ms Parker was quoted as saying:
At the very least repatriated unsuccessful asylum seekers who remain of interest to the Myanmar authorities face employment and educational strictures, continued threat of harassment and arrest and often internal exiles from family and community support networks.
The submission goes on to refer to what happens to returnees, that generally most returnees attempt to lie low and conceal their identity status affiliation in order to avoid detention and harassment. No research has yet been conducted to monitor how many returnees were subjected to detention, torture and harassment.
The paper referred to by Mr Hense also states that it is possible for the Myanmar authorities to find out that a person had applied for asylum in Australia with the assumption that damning things would have been said to the authorities in Australia about the Myanmar situation. The submission goes on to point out the pervasive nature of the security apparatus of Burma and again refers to the paper by Andrew Selth and Alison Tate. At page 229 the submission points out that the Applicant may also be especially targeted given he is a dissident in Australia. The submission again quotes from Andrew Selth and Alison Tate about people having been confronted with extensive dossiers prepared by intelligence agencies and their surprise at the length of the dossier and the amount of material relating to their activities where the authorities of Myanmar did not take action at the time. Mr Selth is reported as saying:
Something may not be done at the time if they have been outside the embassy, but as Alison said, in certain circumstances if it coincides with a number of other factors like their family are known as dissidents or, you know, the father was sacked for some reason or the brother was arrested for something, it can all be brought together in these extraordinarily complex diagrams that the intelligence agencies draw up for some time showing interconnections between people and ultimately held against them.
The submission further quotes Mr Selth as saying:
And the other thing also is that some countries are deemed to be more dangerous, if you like, than others. The Burmese communities in some countries are seen to be more anti-government, more threatening than in other countries and it is my belief that Australia probably rates up there with the UK and the US and Thailand as a country which harbours Burmese who are generally threatening to the regime and therefore require closer surveillance and who therefore can be deemed, once identified, perhaps more potentially dangerous than people who have demonstrated somewhere else.
To my mind, the question on which this application turns is whether that submission and the material to which it refers squarely brings to the Tribunal's attention the possibility of a person – and in this case the Applicant – being persecuted by reason of having applied for refugee status in Australia.
Ms McNaughton submitted that the quote from Angela Parker on page 228 of the Court book contains the condition, whereas Ms Parker is reported as saying:
At the very least repatriated unsuccessful asylum seekers who remain of interest to the Myanmar authorities face difficulties.
Ms McNaughton pointed out, not unreasonably, that the particular statement by Ms Parker does not necessarily refer to all unsuccessful asylum seekers, but only those who remain of interest to the Myanmar authorities. The Tribunal had considered whether or not the Applicant otherwise remained of interest to the Myanmar authorities and formed the view that he did not.
In my view, that is, with respect, almost a hair-splitting judgment. The material cited by Mr Hense in his extensive submission raises a very strong inference that the very act of applying for refugee status, certainly in this country, (1) is likely to come to the attention of the Myanmar authorities and (2) contains the likelihood that critical comments would be made to the authorities in Australia, particularly the Refugee Review Tribunal, about the situation in Myanmar. It must surely follow that no genuine applicant for a protection visa would apply for asylum and say that the situation was well and there were no threats in his or her country of origin. There would be no point in applying for asylum.
There is certainly evidence quoted in the submission that the authorities take note of this information, assume that there are going to be critical comments made, that people who make applications in Australia are more likely to be regarded as people applying in a more dangerous country than people who apply in some other country, and that there are extensive dossiers kept in which information is recorded and is held for a considerable period of time and is not necessarily acted upon at the time. To my mind, the submission has made it quite clear that there is a likelihood of persecution if the Applicant is unsuccessful in his application for a visa and he is returned to Burma. The likelihood of that arises from the very act of applying for refugee status. To my mind, this was before the Tribunal, it was placed before the Tribunal in Mr Hense's extensive and detailed submission. In my view, the Tribunal has not considered that.
It is a significant part of the Applicant's case. Failure to consider that part of the Applicant's case, to my mind, stands as a jurisdictional error which leads me to the conclusion that the application must succeed.
I note that the costs that are sought exclude the earlier appearance, which is the point made quite properly by Ms Koya and I note that the figure sought by Mr Hense again quite properly excludes that figure.
Costs orders are made in a lump sum usually in this Court. It is very rare that the Federal Magistrates Court makes an order for costs to be agreed or taxed, unless the parties are very close to agreement. Costs are calculated according to the scale of costs in Schedule 1 of the Federal Magistrates Court Rules. This was clearly a matter where it was appropriate on each side for counsel to be briefed and indeed counsel on each side provided the Court with focussed, sensible submissions which were of assistance to the Court. I would comment that the Court relies heavily on counsel who practice in this area to produce focussed and short and to the point submissions to assist the Court to deal with its heavy workload. Counsel involved in this case certainly did this.
I take those matters into account. I am of the view that the costs figure is perhaps a little bit on the high side.
I require a transcript of my reasons for this decision. The application is otherwise removed from the list of cases awaiting finalisation.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 12 July 2005