VLAS v Minister for Immigration

[2003] FMCA 512

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VLAS v MINISTER FOR IMMIGRATION [2003] FMCA 512

MIGRATION – Application for review of Refugee Review Tribunal decision – whether the Tribunal considered the applicant's membership of a particular social group – no jurisdictional error.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)

Biyiksiz v Minister for Immigration and Multicultural Affairs (1998) 352 FCA
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) HCA 26
SBBS v MIMA (2002) FCAFC 361
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 498
SCAS v MIMA (2002) FCAFC 397

Applicant: VLAS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ130 of 2003

Delivered on: 14 November 2003

Delivered at: Melbourne

Hearing date: 12 November 2003

Judgment of: Hartnett FM

REPRESENTATION

Counsel for the Applicant: Ms De Ferrari

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Gilbert

Solicitors for the Respondent: Blake Dawson Waldron

ORDER

1. That the application be dismissed.

2. That the applicant pay the respondent's costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ130 of 2003

VLAS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application made pursuant to s 483A of the Migration Act 1958 (Cth) (the Act) and s.39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (the Tribunal) made on 8 November 2002 and handed down on 29 November 2002 affirming a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant. The applicant applied to the Federal Court on 23 December 2002. The matter was transferred to this Court by Marshall J on 7 February 2003.

2. The applicant seeks to review the decision of the Tribunal by way of amended application dated 1 July 2003. The applicant, who is a citizen of Burma, arrived in Australia on 13 November 1999 on a student visa. On 21 December 2000 she lodged an application for a protection (Class XA) visa. On 15 March 2001 a delegate of the respondent refused to grant the applicant a protection visa and on 17 April 2001 the applicant applied to the Tribunal for review of the delegate's decision.

3. The applicant claimed in her protection application to be of Shan and Karen ethnicity and Buddhist religion. She departed Burma on

   
   

   12 November 1999 on a passport issued in Rangoon on 1 September 1999 in her own name. In Burma she had, in 1987 obtained a Bachelor of Science degree at the University of Rangoon (Yangon). She had been gainfully employed throughout the 90s until her departure from Burma to travel to Australia. Her family constellation comprised father, mother and brother.

4. The basis of her protection application was as set out in the:

   additional statement in support of my application for a protection visa

5. In general terms the applicant asserted that she and her family had been involved in pro-democracy demonstrations in Burma since 1983 when she enrolled in Rangoon University as a student. She described her involvement with thousands of students in a number of pro-democracy demonstrations, especially during 1988. She claimed her father had led some of the staff under his administration in a show of freedom and democracy. She claimed he marched in downtown Rangoon practically every day and demonstrated in front of the city hall among thousands of people from all suburbs of Rangoon, shouting and giving speeches in addition to condemning the ruling regime for the prevailing woes in the country as a result of mismanagement by the ruling clique.

6. The applicant stated that after the military junta took control on

   
   

   18 September 1988 her father sold their home and that the family went into hiding in another part of Rangoon. She claimed that the family took a low profile to avoid arrest and possible imprisonment and that they moved from place to place within Rangoon. She claimed that her father from 1988 until his departure from Burma in April 1991 had been involved in hiding youths and university students from the Thai/Burma border who were involved in violent armed struggles against the elite.

7. The applicant stated that after a lengthy investigation her father was dismissed from his employment in March 1991 for his involvement in the popular uprisings and for harbouring armed elements. She said that after his dismissal the investigations concerning his activities continued for the purpose of building a case to imprison him. In April 1991 her father fled Burma, changing his identity in order to leave and:

   Since his departure, we have had no knowledge of his whereabouts or his well being.

8. The applicant stated that her mother was imprisoned in 1991 having been sentenced to ten years in prison. She remained imprisoned until February 1999. During this period the applicant gained employment and worked for a number of corporations until 30 October 1999. The applicant claimed that she was during her period of employment constantly under surveillance from the military authorities with the expectation that her father would somehow contact her. She said she was visited by special investigation officers and asked as to the whereabouts of her father and brother, her brother having in 1993 left for Thailand. Since that time the applicant claimed she had received no news from her brother.

9. The applicant stated that she refrained from leaving the country until such time as her mother had completed her prison sentence. Upon her mother's release she stated that she started to contemplate leaving Burma mainly due to her mother's wish that she find an appropriate life without being:

   under the constant surveillance of the military waiting to capture my father should he contact me

10. The applicant stated she could not apply for a passport herself and thus one of her workmates organised the obtaining of such passport.

11. The applicant described the harsh nature of the regime in Burma and the poor state of its economy. She stated her belief that she had no future in her country of birth presently ruled by a military regime which had been keeping a constant watch on her since her father left the country in 1991.

12. The applicant claimed that the military intelligence had been visiting her mother to ask about her whereabouts. She claimed very few people knew of her mother's imprisonment because of the great stigma which would have attached to her if her mothers whereabouts and the fact that her father had fled Burma were known.

13. The applicant stated that if she should return to Burma they would put her in prison and the authorities would continue to pressure her to tell them where her father was. She stated that she was worried about her mother's life and that her mother was being cared for at the time by her aunt who would lose her job and pension entitlements if the true situation pertaining to her mother (that is, her imprisonment) were known.

The Tribunal hearing

1. In her application for review to the Tribunal, the applicant attached a statement in support of her application for review. She provided a statutory declaration dated 8 October 2002 and written submissions were made on her behalf (dated 15 October 2002) by the solicitor acting for the applicant. Country information was also before the Tribunal at the time of hearing and oral evidence was given by the applicant. The applicant was assisted by an interpreter in the Burmese language.

2. In essence the applicant claimed she feared persecution by reason of:

   a)imputed political opinion predominantly as a result of her membership of a particular social group, namely her father and her mother, and/or her suspected contact with her father;

   b)political opinion, because of her political activities in Australia against the government in Burma;

   c)membership of a particular social group, being an unmarried pregnant woman (who has since given birth to a baby boy), which would expose her to discrimination in Burma.

3. The Tribunal set out the claims of the applicant including that she and other family members were often questioned concerning the whereabouts of her father; her political involvement in Australia; and her pregnancy.

4. The applicant's actual political opinion was said to be evidenced by her membership of the All Burma Students Democratic Organisation in Melbourne and her frequent involvement in Burmese human rights activism over the preceding, (October 2002) 28 months.

5. Her imputed political opinion was said to be predominantly the result of her membership of a particular social group, namely close family members of her father and her mother.

6. The applicant claimed that only after lodging her application for review with the Tribunal her mother called to inform her that she was then in Thailand. She said her mother had left Burma to travel to southern Thailand in November 2000. She claimed her mother believed the Burmese authorities would continue to harass and persecute her as to the whereabouts of her daughter and husband and that her mother had been subjected to rigorous questioning at an interrogation centre many times.

7. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal:

   i)accepted that the applicant had been involved in pro-democracy activities in 1988 and that she was not involved with any political group in Burma after 1991;

   ii)accepted that her father was dismissed from his employment in 1991 but was not satisfied that this dismissal was due to any Convention reason:

   It is improbable if the applicant's father came to the adverse attention of the authorities due to involvement with rebel groups that, especially given the prevailing political circumstances … their initial reaction to such a serious matter would be merely dismissal from employment rather than arrest and imprisonment.

   iii)noted that the applicant made no attempt to trace her father until just after she applied for a protection visa;

   iv)noted that the applicant did not encounter serious harm whilst claiming she was amongst those who were questioned about her father's political involvement;

   v)found that she was permitted to travel to Australia, a fact which made it “improbable” that her mother would be questioned after her departure about her reasons for being in Australia. Similarly, the Tribunal found it "implausible" that her mother would be questioned as if she were a reliable informant regarding any political involvement by the applicant abroad;

   vi)in light of the significant delay by the applicant in making her claims for asylum and the absence of any satisfactory explanation for such delay together with a consideration of the lack of detail concerning the actual political activities of her father was not satisfied that her father was a high level operative for the NLD;

   vii)noted that the applicant herself did not encounter serious harm in relation to any of the alleged activities or profile of her father;

   viii)found that Country Information contradicted the applicant's claims regarding her mother's imprisonment by reason of her imputed political opinion and in particular noted that the amnesty of 1992 was a general one which applied to a whole range of prisoners not just political leaders as claimed by the applicant. The Tribunal found that the claim of imprisonment of the applicant's mother was a "fabrication" and found that the "release certificate" produced by the applicant as to her mother's imprisonment was not genuine;

   ix)did not accept that the political activities in which the applicant had engaged in Australia exposed her to a real chance of persecution by reason of her actual or imputed political opinion;

   x)found the applicant to be “vague” in the evidence given about her mother's situation in Thailand and her claim that her mother did not bother to tell her of her escape until some six months later “implausible”;

   xi)did not accept that the applicant's mother had entered Thailand illegally through a land border or that any presence of the applicant's mother in Thailand nowadays indicated a real chance of persecution of the applicant for a Convention reason;

   xii)rejected the applicant's claim that she delayed her departure from Burma because her mother was in prison;

   xiii)found the claim by the applicant as to the circumstances of her mother's departure from Burma to have been:

   fabricated in order to bolster false claims to refugee status concerning the family's alleged political profile

   xiv)recited country information regarding bribes paid and checks done in relation to passport applications in support of a finding that the applicant was able to depart Burma because she was not wanted by the authorities for any reason; and

   xv)noted that no information was presented to suggest that a single mother would face persecution and noted that country information suggested the contrary.

Consideration

1. The claim of –

   single pregnant women or women who attempt to raise illegitimate children in Burma

   was abandoned.

2. The applicant contends the Tribunal committed jurisdictional error by failing to consider one of the claims made by the applicant, namely the claim that she would be persecuted if she were to return to Burma by reason of her membership of a particular social group, that being close family of the applicant's father in respect of which family members the Burmese authorities had been trying and would continue to try to extract information as to the whereabouts of her father. It was put by the applicant that the Tribunal had considered a different claim, namely whether she would be persecuted by reason of a political opinion imputed to her because of her father's political activities and profile. It was asserted that the Tribunal had misstated and failed to deal with the case the applicant presented to it and the authority relied upon by the applicant was the High Court decision in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) HCA 26.

3. Both in its contentions of fact and law and in submissions made before the Court, the applicant sought to ignore the factual findings made by the Tribunal. At its core it is these factual findings that gave rise to the ultimate decision of the Tribunal. The Tribunal rejected the applicant's claims that her father was a high profile political dissident and likewise rejected the claims made by the applicant regarding the imprisonment of her mother. The factual findings made by the Tribunal were expressed in strong terms. The Tribunal was presented with evidence that included that the applicant had lived and worked in Burma for more than eight years when her father was allegedly on the run; that her father had been dismissed from his employment rather than arrested or imprisoned and that the applicant had not made any attempt to locate her father until 13 months after she arrived in Australia when she made an application for a protection visa.

4. The Tribunal very clearly addressed the applicant's claims as set out in the submissions provided by her solicitor. Those submissions included that it was plausible that the Burmese authorities would impute to the applicant a dissident political opinion and/or seek to persecute her because of her suspected contact with her father. The Tribunal considered precisely this case as put by the applicant. The submissions put by the applicant's solicitors did not articulate the claim in the narrow manner that was set out in the contentions before the Court upon judicial review

5. The Tribunal did canvass with the applicant her claim that she had been questioned regarding the whereabouts of her father and this aspect of possible persecution was clearly encompassed by the Tribunal's finding that she would not suffer any persecution within the meaning of the Convention as a result of her father or family generally.

6. The Country Information examined by the Tribunal was referable to both political opinion and particular social group. The Tribunal made credit findings adverse to the applicant. The Tribunal considered any past persecution of the applicant and found there to be none and likewise considered possible future persecution and found there to be none.

7. It is implicit in the findings of the Tribunal that the potential for the applicant to suffer persecution because of her father was rejected because the Tribunal found that the father was not a person of sufficient political profile to engender the persecution of family members either because of imputed political views or for the purpose of locating him.

8. Essentially the Tribunal did not accept the threshold of the applicant's claim in that the factual, fundamental features of the applicant's case were not accepted. The Tribunal did not accept the alleged activities and profile of the applicant's father.

9. The applicant's claimed fear of being questioned regarding the whereabouts of her father does not of itself create a social group but it forms part of the claim made by the applicant.

10. Country Information quoted by the Tribunal included that:

    It is possible that family members may be questioned for information about spouse/relatives' political activities. It is likely they would be monitored and pressure could be brought to bear to inform on spouse activities….

11. The Tribunal thus included the issue now identified by the applicant but found:

    Accordingly, even if some members of the applicant's family have been politically involved and were to encounter from the authorities the problems she has claimed, the Tribunal concludes they do not indicate that the applicant would herself encounter persecution as a consequence.

    – and further:

    In weighing all of the foregoing the Tribunal concludes that any political activity by the applicant's father did not create for the applicant herself a real chance of persecution for a Convention ground.

12. The substance of the reasons demonstrates the Tribunal understood the case put by the applicant in the proceedings before it and rejected the evidence that may have given rise to a claim. The finding of facts is a matter for the Tribunal. The Tribunal did consider the claims as put by the applicant before it, as can be seen by an examination of the substance of its reasons rather than necessarily an analysis of the reasons:

    with a fine tooth comb to find error

    which is a function that this Court should not engage in (see Mansfield J in Biyiksiz v Minister for Immigration and Multicultural Affairs (1998) 352 FCA).

13. The Tribunal made significant adverse credit findings against the applicant from which its other deliberations followed.

14. It has not been established by the applicant that the Tribunal failed to consider the claims made by the applicant in the proceedings before it, nor that the Tribunal considered claims not put. No jurisdictional error is apparent.

15. The decision is a privative clause decision. It has not been established that the decision maker did not make a bona fide attempt to exercise power. Such an allegation is a serious matter involving personal fault on the part of the decision maker (see SBBS v MIMA (2002) FCAFC 361). In this case I am satisfied that the decision maker made an honest and genuine attempt to undertake the task (SCAS v MIMA (2002) FCAFC 397). There is nothing to suggest that the other “Hickman” provisos are not met. Accordingly, the application must be dismissed. As the applicant has been wholly unsuccessful it is appropriate that she meet the respondent's costs.

I Tracey Jones certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:  T. Jones

Date:  14 November 2003