SZGEM v Minister for Immigration

[2006] FMCA 1867

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGEM v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1867

MIGRATION – Review of Refugee Review Tribunal decision – no reviewable error – application dismissed.

Migration Act 1958 (Cth)

Applicant: SZGEM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1108 of 2005

Judgment of: Turner FM

Hearing date: 27 November 2006

Date of last submission: 27 November 2006

Delivered at: Sydney

Delivered on: 27 November 2006

REPRESENTATION

The applicant appearing in person

Counsel for the Respondent: Mr Potts

Solicitors for the Respondent: Ms A. Mansour of Clayton Utz

ORDERS

1. That the application be dismissed.

2. That the solicitors for the first respondent prepare a draft of these orders and send them to my chambers by email.

3. That the Refugee Review Tribunal be joined as a second respondent to these proceedings.

4. That the name of the first respondent be amended as requested, to read the “Minister for Immigration and Multicultural Affairs”.

5. That the applicant pay to the first respondent the sum of $5000, which are the first respondent’s costs in this matter.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1108 of 2005

SZGEM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 29 April 2005 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.  The applicant filed an amended application on 13 July 2005. 

2. The applicant was born on 3 January 1968 and claims to be from Burma and of Rakhine ethnicity and Buddhist faith (“the applicant”). 

3. The applicant was married in March 1996.  His wife remains living in Burma and has done so since the applicant left for Australia in December 1996.  There are no children of the marriage.

4. The applicant arrived in Australia on 17 December 1996 on a student visa which had been issued in Yangon, Burma on 11 December 1996.

5. The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 15 May 1997.  In this application he claimed his involvement in student protests and other anti-government campaigning had led to his imprisonment.  He claimed that a number of his friends had also been injured or killed during these protests and another had since been picked up and questioned by the authorities.  He also contended that the authorities had questioned his wife in relation to his whereabouts after he left the country.  The applicant feared he would be arrested and that he would also face imprisonment and be mistreated if he were to return to Burma.

6. The application was refused by a delegate of the first respondent on 19 August 1997. 

7. On 27 August 1997 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal.  The applicant gave oral evidence before the Tribunal on 11 February 1999, at which time he maintained the claims made in his original protection visa application. 

8. On 31 May 1999 the Tribunal handed down its decision, dated 28 May 1999, affirming the decision of the Minister’s delegate, refusing to grant the applicant a protection visa.

9. In considering the applicant’s claims the Tribunal found as follows:

   I am aware that Burma has a shocking record of human rights abuses.  The evidence indicates the Burmese government and its officers are responsible for a litany of human rights abuses, including arbitrary detention, killings, torture and disappearances.  Country information indicates these abuses have been occurring over a long period and that during the term of the present regime there has been no period during which the level of abuses has decreased significantly.  These are matters of grave concern, and I must consider the applicant’s claim in this context.

   Nicholson J observed in Chen He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, 23 November 1995): “It is not the case that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal.  Rather, it was for the Tribunal to decide the facts it found on a consideration of all the evidence, subjective and objective…”. I must consider all the evidence provided by the applicant, including that which is inconsistent with other sources, and determine what evidence I find credible (Supplementary Court Book (“SCB”) page 13).

10. The Tribunal continued:

    I am satisfied that the applicant’s involvement in 1987 in protesting the demonetisation of kyat notes created no Convention related difficulties for him.  After the protest he was admonished for being in the student hostel without authorisation.  There is no evidence to suggest that his involvement in the demonetisation protest was raised again by the authorities.

11. Crucially, the Tribunal then made this finding:

    I find the applicant is not a credible, plausible or truthful witness and that much of his claim is fabricated.

12. The Court continues the quote:

    The applicant claims he played a considerable and high-profile role in politics before he left Burma.  He claims he was, amongst other things, involved in discreetly forming a student political group within RIT, preparing and distributing anti-government posters and cartoons, assisting wounded students, organising and making demands on the government, attending the Rector’s office with fifteen others seeking his support for demands, joining the executive committee of an underground unit and in that unit taking responsibility for propaganda, organisation and supply of food, discipline, transport, the public address system and ensuring funds were received.  He claims that he was in charge of printing pamphlets, meeting with heads of student unions, organising the district’s students and seeing to their welfare.  He claims he was involved with a political party in 1990.

13. The Tribunal continued:

    Research (request number BUR20403 27/06/1995) indicates an undercurrent of discontent existed in Burma and an open protest movement emerged in 1987 and became widespread in 1998.  In 1998 protests were so pervasive that at one point there were strike centres in 92 townships throughout Burma.  (Amnesty International, December 1988, p.6; also Amnesty International Reports 1987, 1988; Amnesty International December 1989, p.11) The wave of demonstrations in 1988, (summarised in the research request), indicates there were demonstrations involving thousands of students in Rangoon. A 60 day ban on public gatherings was defied in June. The nationwide strike on August 8 attracted widespread support; large street demonstrations occur in all major cities and towns in the country. In September mass demonstrations continued.  Many thousands of students, soldiers, public servants and ordinary citizens were involved in massive prodemocracy demonstrations in 1988 and afterwards. I accept the applicant, like thousands of others, may have been involved in some political action as this is consistent with country information. However, I do not accept the applicant played a leadership role or that he developed a profile with the Burmese authorities as he claims. I do not accept he had the profile he claims because his involvement in politics did not interrupt his studies or employment because he completing [sic] his studies without significant difficulty and immediately afterwards commenced work. And I do not believe he was in jail.

    I accept that the applicant signed an undertaking not to participate in political activity as he claims in his statutory declaration. He claims he did this to ensure he could complete his university studies. All students were required to sign such a document before continuing their studies. I reject his claim that he had to do this every day for six months after release from jail because I do not believe he was in jail and he made no mention of this onerous reporting task in his original and detailed statutory declaration. I am satisfied that signing such an undertaking had no substantial effect on the applicant and that it does not now give rise to a well founded fear of persecution.

    I am satisfied that the applicant did not have a high or significant profile because I do not believe that he was sentenced to imprisonment or that he was detained in a prison. I make this finding because he did not know the details of the charge upon which he was sentenced and he could not explain why his sentence was so light compared with the sentences of others charged under the same section. And he did not mention this sentence in his DIMA application form. He claims he specifically told his solicitor not to include his conviction because it was not criminal even though the form clearly includes offences other than criminal. I do not accept that his solicitor would do this as it would be a clear and knowing deception that would harm and weaken the applicant’s claim. And he could not explain why he could obtain treatment for a minor ailment when others could not and he provided contradictory evidence in relation to whether he was in solitary confinement. I am satisfied he was not detailed in a specific prison for reason of his political opinion or for any other reason. I find his evidence in relation to his claimed stay in prison is not truthful because of the inconsistency of his evidence with the country information and his own evidence.

    I find he is not a truthful witness in his evidence about whether he discussed details about his application for a protection visa with others. The applicant said he thought this question was about people in Sydney but not those in his own house. The applicant later said he had discussed claims and events, politics and other things with several flatmates who he knew also applied for a protection visa. I find that his evidence is not credible because he was inconsistent in his response to questions about whether he discussed details of his application and his explanation for his inconsistent answer was implausible. I do not accept his claim that he alone is responsible for all the content of the statement he presented to the Tribunal.

    Between 1991 and 1994 the applicant makes no claim that he encountered any difficulty apart from receiving a reprimand for involvement in making a memorial book. I am satisfied that this was not persecutory nor does it now give rise to a well founded fear of persecution. The applicant claims he was not interested in working in a government position and obtained employment with a private company without difficulty after his graduation. He married and acquired a passport without difficulty. He acquired his visa and came to Australia soon after the visa was issued. I note the Department of State report referred to above indicates “The Government carefully scrutinized prospective travel abroad” and “All college graduates who obtained a passport (except for certain government employees) were required to pay a special education clearance fee to reimburse the Government for the costs of their education up to matriculation”. The applicant said he paid all his fees before he left Burma. I do not accept the applicant had any difficulty departing Burma nor do I accept he was wanted by authorities at the time of his departure because of the ease with which he was able to depart. I am satisfied that he completed all departure formalities without difficulty.

    The applicant claims he played an ongoing role in student politics after he had left the campus. A friend was taken away [by] the authorities, his wife and parents became worried about his safety so he obtained a visitor’s visa to Australia and left the country without the slightest difficulty. I do not accept that he has a friend who was arrested as he has done nothing to make known the plight of his friends since arrival in Australia. He claims he has called for the release of all political prisoners but has made no specific effort to assist his friend.

    The applicant claims that a week after arriving in Australia, he spoke to his wife on the phone and she told him that the security people had visited their home and questioned her. He claims they found a typewriter that he had used to type up political material and took this away. I do not accept this was the case as I do not accept he was involved in politics in Burma as he claims. The authorities may well have told his family that he is to report to them when he returned to Burma. This is consistent with the country information which indicates that Burmese government is pervasive and his local council would note his absence and expect him to notify them upon return but I do not accept he is wanted for reason of his political activity or other Convention reasons.

    I note he took several months to lodge his application for a protection visa even though he claims he came to Australia only because he was in fear of persecution. He said he first applied for aid, was then sent to solicitors, his solicitor checked when his visa expired and when it was about to expire it was submitted. His solicitors have been unable to confirm this was the case. I doubt that this is the case as his solicitor should have been aware that an adverse inference may be drawn from a late application. In any event I draw no adverse inference from the late lodgement of his application because the applicant is entitled to the benefit of the doubt.

    I find that the applicant is not a refugee sur place. He claims he has been active with two organisations, participated in demonstrations and assisted with fundraising. He claims his main contribution in Australia is demonstrating and shouting slogans. He is not on a committee and has no significant leadership role despite his claim to have been a high profile activist in Burma. I am satisfied that even though he may be “known to [the organisation]” and “closely associated with…[the organisation]” his own evidence is that he shouts slogans at demonstrations and attends meetings. I am satisfied that he does not have such a profile that he would be of interest to the Burmese authorities. He has never had direct contact with people at the Thai/Burma border either while he was in Burma or in Australia nor has he undertaken any significant leadership role that would develop his profile. I am satisfied that it is the level of profile of a person and their level of anti-government activities which could result in their being of adverse interest to the authorities. I am satisfied that he does not have a well founded fear of persecution for a Convention reason for reason of his activity in Australia.

    The applicant said he would be asked questions upon return to Burma because he has a bridging visa but I do not accept this gives rise to a well founded fear of persecution. It may be that he is asked questions in Burma about his time in Australia but his level of involvement is such that I am satisfied that his answers will  not give rise to a risk of persecution.

    Having considered all claims of the applicant and having considered the cumulative effect of the claims I am satisfied that there is less than a real chance that the applicants [sic] will attract the adverse attention of the authorities on his return. I am satisfied he has no well founded fear of persecution. (SCB pp.13-17).

14. The applicant then filed the application in this Court seeking judicial review of the Tribunal’s decision pursuant to the Migration Act 1958. In his application, the applicant set out one ground as follows:

    The reason I am applying for Federal Magistrates I was really involved in 1998 R.I.T. students demonstrations of the Burmese military attack R.I.T. campus killed one of the R.I.T. student named Phone Maw. Also I involved in Aug 1998 the whole Burma democracy activity with R.I.T. students organization. Some of my friends (R.I.T. student) they arrived in Australia a bit early than me and they approved granted visa. I involved with them in R.I.T. student demonstration. Why the same case why I am not get a grant a visa. That why I apply Federal Magistrate Court to review my case.

15. In his amended application the applicant set out the following grounds and particulars: 

    1. RRT did not consider “All of my claims”

    2. The RRT made the wrong decision failing to take into account the answers that I was able to provide to most of the question put to me.

    3. The RRT made its decision by depending on wrong information on Burma which was available to it and refusing to consider the truthful evidence presented by me.

    4. I cannot accept as legitimate the decision to reject my statement concerning what had happened to me in Burma, just because the tribunal considered it to be similar to other cases.

    5. Furthermore, documents I submitted were not taken into account in making the decision.

    6. The RRT did not believe my genuine convention-based refugee claim.

16. In reaching its decision, the Court has had regard to the content of the applicant’s document entitled “My rebuttal against the decision of the Refugee Review Tribunal”.  The basic complaint made by the applicant is that the Tribunal did not believe him as to matters of fact.  Findings as to fact and credibility are matters for the Tribunal and cannot be varied by this Court unless those findings were not reasonably open to the Tribunal.  The Court finds that there is nothing to indicate that the findings were not reasonably open to the Tribunal on the material before it.

17. The applicant complained that some documents provided by him to the Tribunal were not considered by the Tribunal.  That is clearly not so when the decision of the Tribunal is read.  It is the function of this Court to review whether the Tribunal made an error of law or failed to give the applicant a fair hearing.  The Court finds that no errors of law were made by the Tribunal, and that it gave him a fair hearing.

18. The application and amended application are dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Dian Neligan

Date:  15 December 2006