WALN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1704

FEDERAL COURT OF AUSTRALIA

WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1704

MIGRATION – protection visa – application for review of Tribunal’s affirmation of delegate’s decision not to grant visa – applicant from Myanmar – no failure to determine relevant question as put by applicant – no failure to take into account relevant country information – country information not specific to applicant – adverse country information not unfairly put to applicant at hearing – errors in interpretation not vitiate hearing

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 91R, 91R(3), 422, 424A, 424A(3)(a), 425, 474, 475A

Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 considered
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 considered
Re Minister for Immigration & Multicultural Affairs; Ex parte A (2001) 185 ALR 489 referred to
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 considered
Singh v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 1 referred to
Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168 referred to
VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 168 referred to
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 distinguished
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 referred to

WALN V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
WAD 7 of 2005

NICHOLSON J
28 NOVEMBER 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 7 OF 2005

BETWEEN:

WALN
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

NICHOLSON J

DATE OF ORDER:

28 NOVEMBER 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The application for review be dismissed.

2.The applicant pay the respondents’ costs of 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
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 7 OF 2005

BETWEEN:

WALN
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	NICHOLSON J
DATE:	28 NOVEMBER 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant brings a further amended application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 22 November 2004. The Tribunal affirmed a decision of a delegate of the first respondent not to grant to the applicant a protection (class XA) visa. Leave was granted at the hearing of the application to again amend one of the grounds of claim. The application is brought in reliance s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) (‘the Act’). (The second respondent has stated through the first respondent that it will abide by the decision of the Court.)

2. The applicant’s amended application was supported by an affidavit of Ms Khin Myo Myint, a Burmese interpreter.  The first respondent’s case was supported by an affidavit of Ms Laila McPherson, a solicitor of the first respondent, attaching the transcript of the hearing before the Tribunal. 

3. The decision of the Tribunal is a privative clause decision in the absence of the establishment of jurisdictional error in the making of it: s 474 of the Act.

   BACKGROUND CIRCUMSTANCES

4. The applicant is national of Myanmar (previously called Burma). He arrived in Australia on 23 June 1997 on a student visa for stay in Australia until 3 August 1998. He was issued with further subclass 560 student visas on 30 July 1998, 1 July 1999 and 17 July 2000. His last visa was due to expire on 30 July 2003. On that date the applicant applied for a protection visa under the Act. He was granted a bridging visa A while his claims for a protection visa were considered.

5. The applicant was born on 26 December 1972.  He is single.  In his application he provided a history of his education that shows he attended various schools between 1978 to 1991.  It also stated that he attended the University of Yangon (then Rangoon) between the period of June 1992 to June 1996.  His parents continued to reside in Myanmar and he has a sister who resides in the United States of America as a refugee. 

6. The applicant’s claims for a protection visa were articulated as follows.  In his visa application he stated that he was 16 years old when the 8 August 1988 demonstrations broke out in Myanmar.  He claimed that during that time he joined friends in demonstrating against the ruling government in his home town.  He said he was scared to voice his opinions about the ruling government and could not live like that so his parents sent him away for further education. 

7. He also stated that he feared he would be questioned very roughly by the Intelligence Agency about the people he was associated with in Australia if he had to return to Myanmar.  He claimed to have taken part and participated in demonstrations held in Australia, organised by refugee welfare and support groups.  He listed and named six pro-democratic organisations.  He said that Myanmar Military Intelligence was present in Australia and he knew that reports were sent back to Myanmar by some Myanmarese people for personal gain.  The applicant also claimed that his association with pro-democracy groups would hurt his parents.  He further claimed that if he returned to Myanmar the State Peace and Development Council would authorise his interrogation.  He said he could not be adequately protected in Myanmar because the Government would not protect anyone who was against its ideology. 

8. In his application to the Tribunal for review he claimed that since the ‘Tabayin killings’ of 30 May 2003, his parents had sent him messages through others not to return.  He claimed that since his school days, together with his parents and elder sister, he was against the military regime.  However he and his family remained silent for fear of the Military Intelligence. 

9. Additionally he claimed that he had sent his passport to the Myanmar Embassy in Canberra some time in July 2001.  He claimed that he had not received his passport or heard anything from them.

10. In support of these claims the applicant provided the Tribunal with a number of documents.  One such document was a report prepared by the Burma Action Group (SA Inc) on 15 January 2004 on the Tabayin killings of members and supporters of the National League for Democracy (‘NLD’).  Another was a document prepared by Amnesty International released on 30 July 2003 expressing concern about the Tabayin attack and the arrest of NLD members and supporters since 30 May 2003.  The applicant also provided photographs of his participation in street demonstrations on 19 June 2004 in Australia. 

11. The claim of the applicant for a protection visa was therefore that he had a well-founded fear of persecution for reasons of his political opinion. 

    TRIBUNAL REASONING

12. The Tribunal accepted that the applicant was born in Myanmar and that he had 13 years schooling before attending Yangon University from June 1992 until June 1996 when he graduated with a degree of Bachelor of Science in Botany. 

13. The Tribunal accepted that in 1998 he may have been involved in demonstrations by students in that year and that he then ran away when the military broke up the demonstration.  However the Tribunal found that the applicant did not undertake any political activities after that in Myanmar.  Therefore it found the authorities did not have any adverse interest in him at the time of demonstrations in August 1988 or at any time thereafter.  In support they referred to his ability to enrol in 1992 at university and to complete his degree in 1996 as well as to obtain his passport in 1994 and to renew it in July 1996. 

14. The Tribunal took into account that the applicant did not attempt to leave Myanmar until he travelled to Australia in 1997 and that he did not claim protection in Australia in over six years in which he resided in the country.  The Tribunal said that had the applicant really been concerned for his life because of any activities (either in Myanmar or Australia) against the Government, he would not have waited three years to leave Myanmar when he had a legal passport and would have claimed asylum once he arrived in Australia or shortly thereafter. 

15. The applicant also made a claim for refugee status sur place basing his well-founded fear on events which have happened in Australia. This was to be understood in accordance with s 91R(3) of the Act which provides that any conduct engaged in by an applicant in Australia must be disregarded in determining whether he or she has a

    
    

    well-founded fear of being persecuted for one or more of the Convention reasons (being the Convention Relating to the Status of Refugees 1951 as amended by the 1967 Protocol Relating to the Status of Refugees, (collectively ‘the Convention’)) unless satisfying the decision-maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee with the meaning of the Convention. 

16. The Tribunal accepted that in Australia the applicant may have attended more than one peaceful demonstration and held a flag or poster; he may have also attended two or three anti-government speeches in 1997 and prior to 1999 and also some fundraising functions. The Tribunal additionally accepted that he had assisted in cooking for social functions held by pro-democracy supporters. It said that the independent country information established that Myanmar authorities, although monitoring opposition activities outside Myanmar, would only have an interest in repetitive demonstrators who are high profile members of certain identified organisations. It accepted that the applicant may be subjected to some questioning on his return to Myanmar but found that would not constitute persecution within the meaning of s 91R of the Act. It concluded that there was no evidence before it that the applicant has done anything more than carry on a role of a low level supporter and general enthusiast. Therefore, the Tribunal did not accept that the applicant was on a blacklist of the Myanmar military regime for his Australian political activities as he was not an active and high profile member of any of the high level organisations.

17. In these circumstances the Tribunal found that the applicant’s activities did not lead to a real chance of him being persecuted on return to Myanmar.  Further, it did not accept that he left Myanmar because he could not express his political opinion.  It said that in light of his low level activities in Australia it found he could be involved in the same activities when he returned to Myanmar and that these were not the type of activities that would make him a leader. 

18. The Tribunal, having considered all of the applicant’s claims cumulatively, was not satisfied that he faced a real chance of persecution on return to Myanmar now or in the reasonably foreseeable future for reasons of his political opinion or for any other Convention related reason.  It considered his fear of persecution was not well-founded.  Consequently, there was no obligation on Australia to grant him a protection visa. 

    WHETHER FAILURE TO DETERMINE RELEVANT QUESTION

19. The first ground in the applicant’s further amended application contends that the Tribunal failed to determine the relevant question arising from his claims, namely, whether as an active supporter of the NLD and other pro-democracy groups in Australia he had a well-founded fear of persecution on return to Myanmar in the aftermath of the Tabayin killings of NLD supporters on 30 May 2003.  This ground is particularised by stating that the Tribunal determined the applicant’s claim with reference to three factors.  The first was by incorrectly informing itself about the applicant’s history of student visa applications.  The second was that it failed to consider country information on the post-30 May 2003 attitude of the Myanmar Government to NLD and pro-democracy supporters both within Myanmar and returning to it.  Third, it considered irrelevant and outdated country information, the most recent of which was dated 19 June 2002. 

20. In relation to the first particular, the Tribunal found on the evidence before it that the applicant has applied for a fourth student visa to be applicable from the expiry of his visa in 2003 and the application had been refused.  However, the correct position has been now conceded by the first respondent following a notice to produce documentation, namely, that the applicant’s last student visa expired on 30 July 2003 and no further applications for a student visa were made.  The conclusion of the Tribunal, however, was not solely based on the consideration of what had occurred in relation to an application by the applicant for a further renewal of his visa.  In my view while the Tribunal made a mistake of fact, it was not of such materiality as to occasion irrationality in the decision.

21. The applicant also submits that in relation to the Tribunal’s consideration of country information it only referred to the Tabayin killings of 30 May 2003 in reciting the applicant’s claim.  It is submitted that no mention is made in the Tribunal’s reasons for decision of the applicant’s support of the NLD.  Further, the Tabayin attack, the country information provided by the applicant in relation to it and the aftermath to the attack for NLD and pro-democracy supporters as set out in the Amnesty International and US State Department reports were not assessed or mentioned in the Tribunal’s reasons. 

22. It is further submitted that the Tribunal assessed the applicant’s claims on the basis that country information of 19 June 2002 indicated he was a low profile pro-democracy supporter.  It is said the Tribunal relied on dated information and did not assess the current position for NLD and other pro-democracy supporters in Myanmar.

23. I agree with the submission for the first respondent that apart from explaining why he applied for protection so late after arriving in Australia, the applicant did not express his claim as in any way specifically related to the Tabayin killings.  His claim was not one that his well-founded fear of persecution was based on a claim he was a member of any particular social group, including the NLD or any of the other pro-democracy groups.  His claim was that he would be detained by the authorities in Myanmar upon return there because they would know of his involvement in activities in Australia.  The Tribunal understood and dealt with that claim.  In relying on material from 2000 and 2002, it did so in circumstances where there was nothing to suggest that country information had been superseded or was out of date or otherwise inaccurate.

24. The Tribunal did not ignore the Tabayin killings in its reasons.  It referred to the applicant’s claims regarding the Tabayin killings and the material he had supplied in support of his application.  It quoted from the US Department of State report speaking of the Tabayin killings. 

25. The Tribunal’s finding that the applicant had done no more than carry on a role as a low-level supporter and general enthusiast supported its further finding that the applicant would not face a real chance of persecution on return to Myanmar.  Consequently, I do not accept the submission for the applicant that the Tribunal failed to take into account relevant material or relied on irrelevant material so as to effect the exercise of its statutory power and cause it to exceed those powers:  Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] and [83].

26. Therefore, I do not consider that this was an instance where the Tribunal failed to assess the case put by the applicant as a result of changed circumstances in Myanmar in relation to his well-founded fear of persecution on return there after 30 May 2003.  It was entirely its assessment of the nature of the foundation of his alleged well-founded fear, namely, the level of his activities in Australia, which governed the Tribunal’s approach.  This was not like the situation addressed in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] per Hill, Sundberg and Stone JJ. Also in that paragraph their Honours said ‘whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document’.

    WHETHER FAILURE TO COMPLY WITH s 424A OF THE ACT

27. It was decided by the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 that the obligation to comply with s 424A of the Act is mandatory and failure to comply in writing is jurisdictional error invalidating the Tribunal decision: see at [77] per McHugh J, at [136] per Gummow J, at [173] per Kirby J and at [208] per Hayne J. However, the question of whether country information is excluded from the operation of the section by s 424A(3)(a) remains a live issue: see SAAP at [50] per McHugh J and at [117] per Gummow J and see also Re Minister for Immigration & Multicultural Affairs; Ex parte A (2001) 185 ALR 489 at [48] per Kirby J.

28. The applicant acknowledges that there are decisions of the Full Court, such as VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 168 at [20] which support the Court holding that the country information relied upon by the Tribunal in a case such as this falls within the exemption of s 424A(3)(a) because the information is about a class of persons of which the applicant is a member, being supporters of pro-democracy in Myanmar. However, as the treatment of the exemption remains a live point, the applicant makes the formal submission that the exemption should be construed strictly and given a narrow construction. Further, it is submitted by the applicant that the country information relied on here was about the political conditions in Myanmar generally and was not about a class of persons of which the applicant was a member. Accordingly, the Tribunal, it is said, was not exempted from complying with s 424A and its failure to give the applicant in writing particulars of the country information which the Tribunal considered would be part of the reason for affirming the delegate’s decision was a breach of the mandatory requirement for a valid decision.

29. In my opinion there is nothing in the character of the ‘selected adverse country information’ relied upon by the Tribunal in this instance (as identified below) to make the exemption in s 424A(3)(a) inapplicable. Therefore the ground cannot succeed.

    WHETHER OPPORTUNITY TO COMMENT PROCEDURALLY UNFAIR

30. The next ground contends that the Court Book and Tribunal’s reasons indicate that the applicant was unrepresented and during the hearing the Tribunal confronted him for the first time and for his immediate comment with selected adverse country information which was then relied upon by the Tribunal to make adverse findings against the applicant.  It is submitted the opportunity to comment was inadequate in the circumstances, including the failure of the interpreter to convey the Tribunal’s invitation to comment. 

31. The items which were put to the applicant by the Tribunal and which it was said were unfair or oppressive in terms of country information were as follows:

    ‘Persons who participated in the 1988 pro-democracy movement and have not engaged in political activities since then do not face harm solely because of their involvement in those events.’

    ‘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; those who are also 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.’

    ‘…it would depend on the nature of the organisation to which an individual belonged, the nature of the individual’s activities and the prominence they have assumed within those organisations.  For example, those involved in peaceful demonstrations may be subjected to some questioning upon return, but not long term harassment. …’

    Each of these were said to have come from country information provided by the Australian Department of Foreign Affairs and Trade, the latter being dated June 2002. 

1. The first respondent points to s 422 of the Act which provides that Div 4 in which it appears (and in which s 424A(3)(a) appears) is taken to be an exhaustive statement of the requirements of natural justice in relation to the matters it deals with. The ground therefore would not appear to add to the issues raised by the ground based on s 424A.

2. In any event, given the limited nature of this information which was put, it was not unreasonable to expect an applicant to be able to comment on that information put to him in that way.  In reaching that view I take into account that the applicant was unrepresented.

3. The alleged mistranslation of the opportunity to comment was of the phrase ‘do you want to comment on any of that?’ by the words ‘what more do you want to say?’.  I again agree with the first respondent that this is not a material mistranslation and that the effect of this and related phraseologies do not change that position. 

   WHETHER TRIBUNAL PROCEEDING VITIATED BY INTERPRETATION ERRORS

4. Two grounds contend that the interpretation assistance provided by the Tribunal to the applicant was a departure from the required standard of interpretation.  It is submitted by the applicant that such departures related to matters of significance to the application for review.  It is said they covered not only the oral invitation to comment on country information but also the applicant’s evidence about the number of times he contacted the Myanmar Embassy; the number of pro-democracy activities in Australia in which he participated and their dates; his reason for not continuing active participation in the pro-democracy movement in Myanmar; the circumstances of his decision to leave Myanmar; the time lag before he applied for a protection visa and the worsening situation in 2003; and his fear that on returning to Myanmar he would not be allowed to work or would be restricted in the work he could do and in his movements. 

5. The applicant submits that accuracy and competency are criteria for the required standard of interpretation in tribunal hearings so that an applicant is not prevented from giving evidence on matters relevant to his or her application for refugee status:  Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 at [28] per Kenny J and WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at [66] per Lee, Hill and Carr JJ. It is submitted that the interpretation in the tribunal must express in one language as accurately as that language in the circumstances permit, the idea or concept as it has been expressed in the other language: Perera at [29].

6. The submission for the applicant continues that it is clear from a myriad of interpretation errors set out in the affidavit of Ms Myint, and addressed in written submissions that the interpreter did not generally during the hearing accurately record in English what the applicant said.  It is submitted that deficiencies in accuracy and completeness were of such frequency and of such importance that the applicant was prevented from giving an effective account to the Tribunal of his case during the hearing. 

7. Further it is submitted that the departures related to matters of significance and that they were significant in informing the Tribunal of his claims and the basis of his fear of persecution on return to Myanmar. 

8. The first respondent submits that the applicant must establish that the standard of interpretation at the hearing was so inadequate that the applicant was effectively prevented from giving evidence:  Singh v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 1 at 6, at [27] and Perera at 22, at [38]-[41]. Alternatively, it is said that the applicant must establish that material errors occurred in the interpreting of the applicant’s statements and therefore the miscarriage in the decision-making process had occurred: Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168 at [18]. The authorities are discussed in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 and WACO at [63]-[68].

9. The first respondent submits that examination of the affidavit of Ms Myint does not establish either of those bases for setting aside the decision of the Tribunal. It says that the affidavit fails to identify errors which individually or in combination would lead to the conclusion that the applicant was denied a hearing under s 425 of the Act or was otherwise denied natural justice.

10. I have examined the affidavit and the material of Ms Myint and the materials to which it relates, including the transcript.  I have done so in the light of what the applicant claimed and what was material to resolve his claims.  I am in agreement with the first respondent’s submission.  In terms of the reasoning in Perera at [41]-[42] I do not consider the mistranslations had the effect of effectively preventing the applicant from giving his evidence and having his case comprehended. The present is not a case where the mistranslations materially challenged the progress of the hearing or occasioned his evidence to become unresponsive and incoherent. In terms of P119/2002 at [17]-[18], the appellant was not effectively prevented from giving evidence and the errors were not material to the matters decided adversely to the applicant.

    CONCLUSION

11. For these reasons I consider that the application for review does not succeed and must be dismissed. 

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:             28 November 2005

Pro Bono Counsel for the Applicant:	LB Price
Counsel for the Respondents:	JD Allanson
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	15 August 2005
Date of Last Written Submissions:	19 August 2005
Date of Judgment:	28 November 2005