U v Minister for Immigration and Multicultural Affairs

[2001] FCA 364

FEDERAL COURT OF AUSTRALIA

U v Minister for Immigration and Multicultural Affairs [2001] FCA 364

MOE U v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V941 of 2000

NORTH J
16 MARCH 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V941 OF 2000

BETWEEN:	MOE U APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	16 MARCH 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent's cost of and incidental to the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V941 OF 2000

BETWEEN:	MOE U APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	16 MARCH 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 23 October 2000.  In that decision, the Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse to grant a protection visa to Mr U, the applicant. 

   BACKGROUND AND CLAIMS

2. The applicant is a citizen of Burma who arrived in Australia on 26 March 1999.  He made various claims of a fear of persecution for reasons of political opinion, based upon what he claimed was his active opposition to the military dictatorship in Burma.  In a comprehensive decision, the Tribunal rejected that part of his claim based on his alleged activities in Burma prior to his entry into Australia.

3. It is not necessary for the purposes of this application to traverse the lengthy claims and evidence considered, and the conclusions reached, by the Tribunal in respect of all the issues.  It suffices to say that the Tribunal found the applicant to be an unsatisfactory witness and rejected the evidence which he gave. 

4. This review, however, is centred upon a different aspect of the applicant's claim.  Before the Tribunal he also claimed that he would face persecution because of political activities undertaken since his arrival in Australia.

5. There was evidence before the Tribunal that the applicant had attended approximately six demonstrations in Canberra and Sydney (including a demonstration outside the Burmese Eembassy mbassy in Canberra in September 1999), that he had handed out pamphlets at a street stall in Sydney in July 2000 and that he had read the news at the Burmese community radio station.  He also claimed to be a member of the Friends of the National League for Democracy in Australia (FNLDA), a member of a FNLDA subcommittee, a member of the Free Burma Action Committee and a member of the Burmese Community Broadcasting Group. 

   THE TRIBUNAL’S DECISION

6. The Tribunal ultimately rejected the applicant's claim that he would suffer a real chance of persecution in Burma due to his political activities in Australia.  In its decision, it set out some country information in a section headed “Claims and Evidence”.  Under the heading “Treatment Upon Return to Burma” there appeared the following information:

   “DFAT has commented on the treatment of people returning to Burma in its Country Profile: Myanmar 1996:

   3.8.2.5.  To the knowledge of the Australian Embassy in Rangoon, those known to the government simply because of their involvement in demonstrations or with the NLD have neither been censured or punished on their return to Myanmar.  The Embassy is aware of several students and senior opposition figures who fled into Thailand or the border areas and have subsequently returned.  There have been some complaints of low-level harassment and observation but no punishment or censure…

   In relation to political activities in Australia the same document states:

   3.8.3… The Myanmar authorities do seek to monitor the activities of the Myanmar opposition abroad and are generally aware of what happens within the Myanmar opposition community in Australia.  If over a period of several anti-SLORC demonstrations particular individuals reappeared again and again - and were identified as being active opposition leaders - they would probably face questioning and surveillance if they were to return to Myanmar.  Possible consequences for someone identified at one demonstration would not amount to much more than a warning if they were to return to Myanmar.

   In January 2000, DFAT stated:

   Burmese involved in demonstrations in Australia, whilst often known to the authorities, are generally of little concern even if they return to Burma.  There would be a couple of exceptions:  those who are repetitive demonstrators; active and high profile members of the ABSDF or the NCGUB and those ringleaders of the more violent attack on the embassy in Canberra in September 1999.  Other than these exceptions, any Burmese returning to Burma after a lengthy period in Australia (or elsewhere for that matter) would come to the attention of their local township authorities and their movements may be monitored for an initial period. 

   Escorted deportations from Australia will result in the returnee being detained for questioning but unless they departed Burma illegally, have a recent profile in Burma or have been active with the ABSDF or NCGUB, they are unlikely to face any problems. (DFAT, CIR No.55/00 28 January 2000 CX39784)

   This advice was repeated in March 2000, when DFAT stated:

   Escorted deportations from Australia will result in the returnee being detained for questioning but unless the person has departed Burma illegally, has a recent ‘profile’ in Burma, or has been active with the All Burma Student Democratic Front (ABSDF) or the National Coalition Government of the Union of Burma (NCGUB), they are unlikely to face any problems. (DFAT, CIR No.111/00 ‘Treatment of returnees to Burma’, 15 March 2000 CX41130)”

7. In light of the facts before the Tribunal and the country information set out, the Tribunal addressed the question of whether the applicant has a well-founded fear of persecution arising out of his political activities in Australia.  It said:

   “I accept that since arriving in Australia, Mr U has joined three organisations, attended several demonstrations and meetings and read the news on a number of occasions.  The independent evidence before me, which I accept, indicates that whilst the Burmese authorities monitor opposition activities outside Burma, their only really [sic] interest is in active opposition leaders.  On his own evidence, Mr U is not a leader.  In relation to those involved in the demonstration in Canberra in September 1999, the independent evidence indicates that the Burmese authorities only have an adverse interest in ringleaders of the violence associated with that demonstration.  Mr U indicated at the hearing that he was not involved in violence at that particular demonstration.  Furthermore, whilst Mr U has read the news on Burmese radio on several occasions, he is not involved in an editorial capacity with the broadcasts.  I am of the view that the chance that the Burmese authorities would take an adverse interest in Mr U merely because he has read out what someone else has written on a handful of occasions is remote. 

   I do not accept that Mr U had any recent profile with the authorities prior to his departure from Burma and in my view he does not fit the profile of the type of person that the Burmese authorities would be interested in because of his activities in Australia.  Notwithstanding the fact that Mr U has attended a number of demonstrations, I do not consider that this would have given him any particular profile with the Burmese authorities or would have distinguished him in any way from the general run of Burmese community members in Australia.  As I do not accept that Mr U would have any particular profile because of his activities in Australia I do not accept that he was recognised at demonstrations he has attended or that his father would have been shown a photograph of Mr U demonstrating outside the Burmese Embassy in 1999. 

   The independent evidence indicates that to the knowledge of the Australian Embassy in Rangoon, those known to the government simply because of their involvement in demonstrations or the NLD have neither been censured nor punished on their return to Burma.  The independent evidence suggests that Mr U may face some monitoring of his activities if he returns to Burma and he may be given a warning.  However, I do not consider that such treatment is serious enough to amount to persecution.”

   ARGUMENTS ON THE REVIEW

8. Arising out of this reasoning, the applicant puts only one ground of review before the Court. He relies upon the second limb of s 476(1)(e) of the Migration Act 1958 (Cth) (the Act) which provides that a Tribunal decision may be reviewed where:

   “s.476(1)
              …

   (e)       that the decision involves an error of law, being an error involving … an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;”

9. Mr Gibson of counsel, who appeared on behalf of the applicant, put a concise argument which focused on two particular parts of the Tribunal's decision.  First, he referred to the January 2000 DFAT cable (the DFAT cable) set out in par 6 above, in which it is said that:

   “Burmese involved in demonstrations in Australia, whilst often known to the authorities are generally of little concern even if they return to Burma.  There would be a couple of exceptions:  those who are repetitive demonstrators; active and high profile members of the ABSDF or the NCGUB; and those ringleaders of the more violent attack on the embassy in Canberra in September 1999.”

10. He then referred to the sentence in the Tribunal's decision which stated:

    “The independent evidence before me, which I accept, indicates that whilst the Burmese authorities monitor opposition activities outside Burma, their only really [sic] interest is in active opposition leaders.”

11. Mr Gibson argued that the Tribunal committed an error of law by misapprehending the evidence contained in the DFAT cable.  On his construction, the DFAT cable meant that there was a separate category of persons who would be of concern to the Burmese authorities, namely, persons who were repetitive demonstrators.  He therefore read the reference to repetitive demonstrators in the DFAT cable as separate from the reference to active and high profile members of the two named opposition groups. Contrary to this construction, in the conclusion expressed in the sentence referred to in par 10, the Tribunal found that the Burmese Government only had a real interest in active opposition leaders.

12. The central issue is therefore a narrow one.  Ms Kennedy, of counsel, who appeared on behalf of the respondent, contended that the conclusion of the Tribunal indicated no error at all.  She put this submission on two bases. 

13. First, she contended that the conclusion of the Tribunal that the government of Burma only had a real interest in active opposition leaders was the result of the Tribunal assessing all the evidence before it, including all of the country information, and the Tribunal forming an opinion as to the real interest of the Burmese Government.  She contended that the Tribunal had a selection of evidence before it and that its conclusion was a fair assessment of the general purport of that material.  It was thus open to the Tribunal to form the view which it did.

14. I accept Ms Kennedy's argument on this aspect of the case.  The DFAT country information allowed the Tribunal to come to a conclusion about who was of real interest to the Burmese authorities, and there are certainly statements in the country information which support the view reached by the Tribunal. 

15. Ms Kennedy put an alternative argument in relation to the absence of error in the Tribunal's reasoning.  She contended that, in any event, the conclusion reached by the Tribunal was the correct conclusion on the information which it set out. 

16. She argued that the DFAT cables relied upon by the Tribunal and set out in pars 6 and 9 above could be read so that the “repetitive demonstrators” referred to were repetitive demonstrators who also had the characteristic of being active and high-profile members of the two named opposition groups. 

17. There is much to be said for this approach to the DFAT cable.  The DFAT cable refers to “a couple of” exceptions, and reading the semi-colon as indicating some link between repetitive demonstrators and high-profile members of the two named opposition groups would give the sentence a structure which provided for two exceptions.  To read it in the way suggested by Mr Gibson creates three categories of exception.  Such a reading is therefore inconsistent with the opening words in which the DFAT cable’s author intends to state “a couple of” exceptions. 

18. Furthermore, the other information relied upon by the Tribunal supports the view that the Burmese authorities’ real interest is in people who are both repetitive demonstrators and active opposition leaders.  This is expressly stated in the 1996 Country Profile, set out in par 6 above, and is consistent with each of the other DFAT cables.  

19. In the result I am not persuaded that the Tribunal fell into error.  I therefore do not need to deal with the further arguments put by Ms Kennedy namely, that if there was an error, it was not an error of law, or that if there was an error of law that is was not, in any event, material. 

20. For those reasons the application for review must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             27 April 2001

Counsel for the Applicant:	Mr J A Gibson
Solicitor for the Applicant:	Armstrong Ross
Counsel for the Respondent:	Ms M E  Kennedy
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 March 2001
Date of Judgment:	16 March 2001