SZFKY v Minister for Immigration
[2006] FMCA 241
•23 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFKY v MINISTER FOR IMMIGRATION | [2006] FMCA 241 |
| MIGRATION – Application to review a decision of the Refugee Review Tribunal – whether the Tribunal failed to address the applicant’s evidence – issues of whether the Tribunal believed the applicant – whether the Tribunal considered irrelevant facts in reaching its decision – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B |
| SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 Herijanto v Refugee Review Tribunal [2000] HCA 49 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 R v Australian Broadcasting Tribunal; ex parte Fowler and Ors (1980) 31 ALR 565 |
| Applicant: | SZFKY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 58 of 2005 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 21 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 58 of 2005
| SZFKY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under s.39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 7 July 1998 and handed down on 8 July 1998 affirming a decision of a delegate of the respondent to refuse the grant of a protection visa to the applicant. Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 it is appropriate that the Tribunal be joined as a party to these proceedings.
The applicant, a citizen of Burma, arrived in Australia on 7 October 1996. He lodged an application for a protection visa on 15 January 1997. A delegate of the respondent refused the application on 30 April 1997. An application was made to the Tribunal on 13 May 1997.
On 10 September 1998 the applicant joined the class action in Herijanto v Refugee Review Tribunal [2000] HCA 49 (later the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 class action). That proceeding was remitted to the Federal Court of Australia by order of Gaudron J on 25 November 2002 and was subsequently dismissed by Emmett J on 20 February 2004 in S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289.
The applicant relies on his amended application filed 18 April 2005, his affidavit filed 7 February 2006 annexing a transcript of the Tribunal hearing dated 11 March 1998 and further submissions filed 18 October 2005 which annexed a lengthy report entitled ‘Threat to the Peace: A Call for the UN Secretary Council to Act in Burma’ and dated
20 September 2005.
The applicant’s claims and Tribunal decision
The applicant’s claims before the Tribunal were set out in writing dated 16 February 1998 and submitted on behalf of the applicant by
his solicitor. The applicant’s claims were summarised in those submissions as follows:
He has been an active participant in the pro-democracy movement since becoming a university student in 1986, and has faced persecution for his political opinions including arbitrary detention without charge or trial, interrogation, harassment and intimidation. The threat of continuing persecution became heightened just prior to his departure from Burma in late 1996. At the time of his departure he possessed a well-founded fear of persecution. There has been no change in the state of affairs in Burma such that the Tribunal could conclude that the grounds for such fear have dissipated and he is therefore a refugee. Moreover, whilst in Australia, the applicant has become actively involved with Burmese pro-democracy groups and clearly continues to hold political opinions opposed to the Burmese Government. Given these political opinions, his previous persecution, the level of human rights abuses occurring in Burma and the degree of interference and monitoring of citizens by the Burmese authorities, there is clearly a real chance that the applicant would face further persecution in the future if he returned there. Further, the applicant will not be able to express his political opinions if returned to Burma. This would amount to a denial of a fundamental human right. If he was to do so he would face a real chance of persecution.
The Tribunal found on the basis of accepted country information, that any difficulty the applicant faced in 1988 did not now give rise to a well founded fear of persecution.
The Tribunal found that as the applicant had been readmitted to university and obtained good academic results there was no evidence of discrimination against him as a result of any involvement in political activities in 1988 or thereafter. The Tribunal found that there was nothing to suggest that the applicant encountered difficulties during his university studies.
The Tribunal noted that although the applicant was detained in detention for a lengthy period he was not considered a student leader by the authorities.
The Tribunal did not accept that the applicant kept a diary in Burma because the applicant did not mention it prior to the Tribunal hearing and provided contradictory evidence on the issue.
The Tribunal was not satisfied that the authorities were aware of the applicant’s claimed political involvement after 1988 as his political activities did not appear to have any effect on his university career.
The Tribunal relying on country information found that the enquiries made by the authorities at the applicant’s boarding house were quite commonplace in Burma and did not relate to his claimed political activities.
Further, the Tribunal relying on country information as to exit procedures from Burma placed reliance on the fact that the applicant was able to obtain a passport, renew it twice, endorsed by Australia and extended until 1999 as evidence that the authorities had no interest in the applicant.
In relation to the applicant’s sur place claims of pro democracy group involvement in Australia the Tribunal found that the extent of the applicant’s involvement in these groups was not sufficient to suggest that he would face adverse consequences amounting to persecution should he return to Burma.
The application
In his amended application the applicant alleges that the following amount to jurisdictional error:
a)The Tribunal failed to address evidence that he was an active member of an antigovernment organization and was jailed by the State Law and Order Restoration Council (SLORC);
b)The Tribunal failed to believe the truthfulness of his claims because they had not been raised before; and
c)The Tribunal considered irrelevant facts in reaching its decision.
I propose to consider those three grounds in turn.
Failure of the Tribunal to take into account the applicant’s evidence
The first ground raised by the applicant alleges that the Tribunal failed to address evidence that he was an active member of anti government organisations and jailed by SLORC. In support of this ground the applicant refers the Court to pages 26, 27, 28, 34 and 47 of the Court Book. Pages 26, 27 and 28 contain the applicant’s statutory declaration dated 6 February 1998. The applicant stated:
I have also kept a diary of some of the political events in which I have been involved in 1997.
On 5 April 1997, Minn Aung Myint, coordinator of Burma Office, organised a demonstration outside of Peregrine Travel Company to lobby for a boycott of travel to Burma in Visit Burma Year. I was amongst about 30 people who demonstrated outside the office (campaign letter from Burma Office attached).
On May Day (4 May 1997), a grouping of many Burmese organisations calling themselves the Burmese Working Committee for May Day, organised a demonstration of Burmese people in Australia, distributing pamphlets calling for sanctions against Burma and highlighting the evils of slave labour. I helped organise this event with about 20 others at a meeting in Strathfield, participating in my capacity as a member of Burma Family (Sydney) (photographs of event attached).
On 15 May 1997, the Thai Prime Minister visited Burma. We protested against his visit by demonstrating outside the Thai Consulate in Sydney. I went in my capacity as a Burmese Family (Sydney) member, and helped to distribute leaflets (see photograph attached). Again, I had participated in a preparatory meeting in which we discussed what we should do.
On 27 July 1997, I went to the Malaysian Consulate to protest the push to allow Burma to become a member of ASEAN. We decided to protest outside the Malaysian Consulate in Sydney, as there was a preliminary meeting happening in Malaysia. There were not may people at this event. I went in my capacity as an individual Burmese person. This was more an ad hoc meeting, where people got together without much planning (see photographs attached).
On 8 August 1997, I went to protest outside the Burmese embassy in Canberra on the anniversary of 8 August 1988 in memory of the students killed on that tragic day. I went as a member of the BF(S) (see photographs attached). There were many people at this event. The ABSDF organised for three coach-loads of people to come from Sydney.
On 24 August 1997, there was a major Public Meeting held. Two people from, the Thai-Burma border were here – Sai Myint Thu (the secretary of the ABSDF) and one other. Sai Myint Thu was a third year student at the Rangoon Institute of Technology when I was in my second year there, and I knew him at that time. We went before hand to the Burmese centres to distribute the notices. I also went to the Public Meeting itself. It was an open forum, where the ABSDF explained what they and the National League for Democracy (Liberated Area) do and have done, and asked for support from all the groupings for democracy in Burma, including monetary support for the refugees in the border who are facing terrible hardships (promotional leaflet for event attached).
Since this last event, I have continued to attend fundraising functions for the Burmese Family (Sydney), and have helped to sell tickets, the profits from which is sent to support the ABSDF at the border. I have also attended functions where a broader spectrum of groups participate. For instance, on 4 January 1998 I went to Strathfield Town Hall to join with people from the ABSDF, NLD, and BF(S) to celebrate Burma’s Independence and to call for Democracy (see houndout enclosed). I attended the meeting in which this function was planned.
On 5 January 1998, I joined with members from several Burmese organisations in going to a demonstration in Canberra. Diplomatic missions had been invited to send representatives to celebrate Burmese Independence Day at a special dinner. We demonstrated outside the International Press Club where the dinner was held, urging people not to support the current regime by attending the dinner. This event was planned rather suddenly as soon as we heard about the dinner. San Lin helped organise the coach, and I helped by calling people to inform them about the event and to tell them where to catch the coach.
My commitment to the cause of democracy remains passionate and strong. And although I know that the Burmese authorities must know about my activities in Australia and will punish me for them if I am forced to return, I also believe that I must work for democracy nonetheless. And if I am returned to Burma, I know that I will have to remain politically active, as I must act on my convictions.
Page 34 of the Court Book is a letter dated 6 May 1997 signed by an Australian Representative of the Burma Student Democratic Front (ABSDF). The letter states that the applicant is a member of the All Burma Student’s Federal Union and that he has been involved in the democracy uprising in Burma in 1988. It also states that the applicant, on arrival in Australia joined the ABSDF and that he has been involved in all the anti- SLORC action.
Page 47 of the Court Book is a photograph of what appears to be protesters captured on video. The Tribunal noted at page 58 of the Court Book that it viewed a video tape of a news service where the applicant was demonstrating with, according to the reporter, one hundred others, outside the Burmese Embassy in Canberra and later outside Parliament House. The Tribunal relied on DFAT which said that:
There is a high probability that the Burmese have photographed/videotaped demonstrations outside their embassy. If over a period of several demonstrations particular individuals reappeared again and again and were identified as being active leaders they would probably face questioning and surveillance if they were to return home. Further action would depend on how cooperative they were with authorities. Possible consequences for someone who had only participated in one demonstration would not amount to more than a warning if they were to return home.
The Tribunal at pages 69 to 70 of the Court Book considers the evidence submitted by the applicant at pages 26, 27, 28 and 34 of the Court Book. The Tribunal thus stated:
The Applicant claims that in Australia he has become involved in two Burmese pro-democracy groups, the All Burma Students Democratic Front (ABSDF) and the Burmese Family (Sydney) (BFS), helping to organise and attending several demonstrations, public meetings and fundraising functions. He said he is not a member of ABSDF although a letter from the Australian Representative he gave the Tribunal stated “Since he arrived in Australia he has joined our organisation….”. The Tribunal accepts that he is not a formal member of this organisation. The Tribunal does not accept that he has been particularly active nor that his has a prominent role as on his own evidence he does not have a leadership role. The Applicant has been involved in demonstrations in Australia but played no leadership role in any political group during the two years he has been in Australia. The Tribunal is satisfied that the Applicant has not been involved in political activities in Australia to such an extent that they would create difficulties for him upon return to Burma. Given the role he described the Tribunal is satisfied that he would not be treated other than as a normal member of “the community in Australia protesting outside the Burmese Embassy on 2 or 3 occasions” and while he may come to the attention of the authorities there is no evidence to suggest he would face adverse consequences that would amount to persecution in terms of the Convention upon return to Burma. The Burmese Family is not an organisation that has been targeted by the Burmese government and the Tribunal is satisfied that neither his activities with this group nor his appearance on the television news are of such significant that they raise his profile to such an extent that he would be considered a high profile leader and therefore of interest to the Burmese authorities upon return to Burma.
I am satisfied that the Tribunal at pages 66 to 68 of the Court Book considered the applicant’s claim to be an active member of anti government organisations and jailed by SLORC.
Failure of the Tribunal to believe the applicant’s claims because of delay in raising them
The second ground raised by the applicant alleges that the Tribunal failed to believe his claims because of a delay in raising them. He refered the Court to pages 63, 64, 65 and 69 of the Court Book in support of this contention. The Tribunal rejected the applicant’s claims essentially because it did not accept some of his evidence. The Tribunal’s rejection of the applicant’s claims is in accord with the responsibility of a primary decision maker par excellence (Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J). Therefore, so long as the Tribunal’s findings were reasonably open to it, no error is demonstrated (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558]-[559]; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69], per Tamberlin and R D Nicholson JJ). The Tribunal’s conclusions were clearly open to it for the reasons it gives.
The applicant sought to adduce new material on the situation in Burma and alleged that the Tribunal did not consider the real issue in Burma. The Tribunal did rely on country information about Burma and was entitled to refer to information it considered relevant. The weight it attached to that information is a matter entirely for the Tribunal to determine as part of its fact finding function (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11], per Gray, Tamberlin and Lander JJ).
Accordingly, the second ground must fail.
Whether the Tribunal considered irrelevant facts
The third and final ground raised by the applicant is that the Tribunal considered irrelevant facts in reaching its decision. The applicant argued that the DFAT cable (CX11549) which was referred to by the Tribunal at page 68 of the Court Book was material not available to him and material he did not understand. The material was used by the Tribunal to assist it in assessing the applicant’s evidence that he had paid bribes in order to travel to Australia.
The Tribunal is entitled to rely on country information and it is difficult to see what aspect of the information the applicant did not understand. I can see no error in this ground.
In any event even if jurisdictional error were apparent the application for review ought to be dismissed on discretionary grounds (M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 at [4], per Heerey, Dowsett and Bennett JJ following Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at [53], per Gaudron and Gummow JJ) given the lengthy and unexplained periods of delay between the Tribunal decision, the date the applicant joined the Herijanto class action and the further delay between the dismissal of that class action and the commencement of the present application. I note that the applicant has not provided any explanation for the delay and further has not shown that it would not be in the interests of justice for him to be granted relief (Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at [495]-[496], per McHugh J). An application can however be dismissed upon the basis of delay even if there is evidence of jurisdictional error (R v Australian Broadcasting Tribunal; ex parte Fowler and Ors (1980) 31 ALR 565 at [570]).
In reviewing the Tribunal decision I can see no jurisdictional error in the decision.
Accordingly, as no jurisdictional error is apparent the application must be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date: 23 February 2006
0
12
1