Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 | Case summary

ALLSOP J: 17 This is an appeal from orders made by a Judge of the Court dismissing the application of the appellant for review of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed a decision of a delegate of the Minister to refuse to grant the appellant a protection visa. 18 The appellant is a citizen of Burma. He was born in 1974. He is a single male and of Karen ethnicity. Karens comprise a minority ethnic group in Burma. The appellant arrived in Australia on 3 July 1999 and applied for a protection visa on 16 August 1999. 19 The complaints made by the appellant about the decision of the Tribunal before the primary judge were, essentially, that the Tribunal failed to deal with one aspect of his claim based on his Karen ethnicity, and secondly, that the Tribunal failed to engage in the requisite degree of consideration of the future should its findings about events be wrong. I have expressed those two matters somewhat generally. It will be necessary to be a little more precise in due course. 20 The primary judge found no error in the way the Tribunal had come to its conclusions. Also, as to the complaint that the Tribunal had failed to deal with the claim based on Karen ethnicity, the primary judge was of the view that the claim had not been raised and so could not have been the basis for any subjective fear of persecution. 21 The nature of the complaint, to the effect that part of the appellant's claim was not dealt with by the Tribunal, makes it necessary to recount in a little detail the history of the appellant's claims. The primary judge set this history out with some care. It is convenient to repeat what his Honour set out in paras [5] to [12] of his reasons: [5] In his application for a protection visa dated 16 August 1999 in answer to the question "Why did you leave that country [i.e. Burma]"? The applicant stated: "The situation is becoming worse in Burma and since my teens I have been helping my uncle Peter Maung Maung with his activities against the military regime. One of his activities is to uprise [sic] on 9.9.1999 together with other under ground movements. The military intelligence has begun to make enquiries about him, so I had to leave Burma." In answer to the question "What do you feel may happen to you if you go back to that country"? The applicant stated: "If I return to Burma and because I have been involved with my uncle, I would be arrested by the military intelligence and tortured and put into gaol for many years." In answer to the question "Who do you think may harm/mistreat you if you go back"? The applicant stated: "The military intelligence would harm and mistreat me." In answer to the question "Why do you think they will harm/mistreat you if you go back"? The applicant stated: "Since my teens I have assisted my uncle who was a student leader at Hledan University by distributing leaflets, putting out anti-government posters and reporting under ground activities. The military intelligence is following his activities and some students have already been arrested. If I remain in Burma I would also be arrested." In answer to the question "Do you think the authorities of that country can and will protect you if you go back? If not why not"? The applicant stated: "I do not think the Burmese government would protect me as I have been an activist most of my life against the military regime." [6] The applicant was not interviewed by the Delegate. In his application for review by the Tribunal dated 17 September 1999 in answer to the question "Your reasons for making this application". The applicant stated: "I was never called for an interview. Due to my participation with Karen community and political groups I have made a number of friends, some of whom are members of the Karen National Liberation Army. In the community there are spies who keep watch on all pro-democracy groups and those who apply for protection visas." [7] The applicant provided various materials to the Tribunal. One document was the Amnesty Asia Pacific Regional Country Report for 1999 on Burma. This included the following statement: "Members of ethnic minorities continued to suffer human rights violations, including extrajudicial executions, torture, ill-treatment during forced portering, and other forms of forced labour and forcible relocations. Six political prisoners were sentenced to death. No executions were known to have taken place." [8] Later in dealing with forcible relocations "apparently carried out solely because of ethnic origin or perceived political beliefs" the document stated: "Thousands of Karen villagers were reported to have been forcibly relocated during June and July in Pa'an District, the Kayin (Karen) State. Mon, Karen, Shan and Karenni people continued to be subjected to forced portering and other forms of forced labour amounting to cruel, inhuman or degrading treatment. They were also detained solely on grounds of their ethnicity." [9] On 1 November 1999 the applicant provided further information to the Tribunal of his involvement with Tribal Refugee Welfare of WA Inc (TRW) and the National Ethnic League of Burma including photographs of him taken with the Chairman of the Overseas Burma Liberation Front and the Chairman of Karen Welfare Association of WA on 10 October 1999 and at the TRW office with a former soldier from the Karen National Liberation Army on 19 September 1999. The National Ethnic League of Burma was an organisation in the process of formation in August - November 1999 to combine various ethnic groups in line with the National Democratic Front. [10]On being advised by the Tribunal that his application was listed for hearing on 28 April 2000 the applicant provided further information in the form of photographs and documents. The photographs included one of the applicant with the Chairman of the Karen Welfare Association, a Lieutenant Colonel from the Karen National Liberation Army, the Chairman of the Australian Karen Organisations, the Overseas Burma Liberation Front and Ethnic National League of Burma in January 2000. There was also a photograph of him farewelling executive members of TRW at Perth airport on route to Bangkok for a fact-finding mission and photographs of the applicant at a demonstration on 3 February 2000 outside the Thai Consulate in Perth against the killing of God's Army Freedom Fighters (Karen tribesmen). There was also an extract from [a] University paper describing the thousand members of the Karen community in Perth. This report stated that refugees had "formed their own organisations in their new countries both to promote knowledge of the plight of the Karen back in Burma and to provide support for them in the way of economic and other assistance and the sponsoring of more Karen refugees for migration." [11]On 8 June 2000 the applicant sent documentation to the Tribunal including photographs taken at a 24 hour hunger strike in May 2000 in which he participated together with eight others. He also submitted a statutory declaration from Constance Allmark, the honorary secretary of TRW dated 8 June 2000. This stated: "The people in Burma continue to live under a highly repressive, authoritarian military regime. The international community widely condemns that regime for its serious human rights abuses. The State Peace and Development Council (SPDC), Burma's ruling military junta since 1997, has made no significant changes in the governing policies of its predecessor, the State Law and Order Restoration Council (SLORC) which seized power in 1988. I have known Mr Thet Naing Htun since August 1999 when he applied for a protection visa. Due to his circumstances we are very concerned for his welfare should he be forced to return to Burma. The regime has made no progress towards greater democratisation. To the contrary, conditions have worsened and we fear for Thet Naing Htun's life." [12]On 13 June 2000 the applicant sent to the Tribunal a three page typed statement described as his "Personal Autobiography". A covering letter stated that it was in support of his application for refugee status. Included in the statement is an account of the applicant aged sixteen trying to join the NLD but being refused membership as too young. Nevertheless he handed out pro-democracy leaflets and put up party posters for the forthcoming elections. He was taken under the guidance of his uncle Peter Maung Maung who was a member of NLD. Since then he had been continually involved in many ways with the NLD. During this time to date four personal friends of his have been arrested for activities such as his. In 1998 his uncle and fellow party members started to organise a rally in remembrance of the tenth anniversary of the 1988 riots. However news leaked to junta intelligence and the majority of the organisers were arrested during a midnight raid. It is stated that it is "certain" that the intelligence service of the military have documentation of the applicant's involvement with the pro-democracy movement. His uncle was told "through the grapevine" that the applicant would be arrested in the near future. He decided to flee the country and contacted his sister who lives in Perth. He engaged an agent to obtain a passport with a bribe. It took a further five months to clear the country and he spent more money on bribing authorities for police clearances and a departure permit. He had to bribe immigration authorities at the airport. Since his arrival in Perth he has worked with organisations assisting refugees and in doing so puts himself at risk with the present military junta in Rangoon. Informers here feed back information of activities. If he has to return to Burma it will be discovered that he has claimed refugee status while in Australia. In January 2000 he learnt that his uncle and six others were arrested for political activities. He has not heard of their fate. In conclusion it is stated: "Due to the above facts and well documentation of human rights abuse, no rights of self expression, freedom of speech for different political points of view, actively taking part to have the fair and democratically elected party to govern a country would cause [sic - presumably "me"] to be incarcerated without a fair trial. I find myself vulnerable to the local authorities on my return. Thus, I genuinely fear for my life, safety and well-being, if I am forced to return to Burma. I only ask that my case be looked upon with the true facts that have been presented to this Tribunal. I seek the right that any individual has, in a democratic society, which has been denied to me as well as many of my fellow country people. I seek the right to speak without fear of prosecution or to express one's point of view, be it in politics or religion, or to make statements of any beliefs that one has and the right to demonstrate peacefully - no more, no less." 22 It should be noted that the delegate, in refusing the appellant's application, described part of his claims and the supporting evidence in the following way: … The applicant is a 25 year old Roman Catholic Burmese citizen of Anglo-Karen ethnic group, who arrived in Australia on 3 July 1999 as a visitor. He lodged his application for a Protection visa at the Department office in Perth on 16 August 1999. The applicant fears that if he returns to Burma he would be arrested by the military intelligence, tortured and imprisoned for many years because he was involved with his uncle who has been active in his anti-government activities. "Since my teens", the applicant stated in his application, "I have assisted my uncle who is a student leader at Hledan University by distributing leaflets, putting up anti-government posters and reporting underground activities." Some students have been arrested and the military intelligence "is following (the uncle's) activities", said the applicant. "One of his (uncle's) activities," according to the applicant, "is to uprise on 9.9.99." There is no evidence that the applicant had any problems with the Burmese authorities, in spite of the claim of his activities against the government. It remains unclear why would the military intelligence arrest him, torture him and put him in jail for many years. There is also no evidence that the uncle of the applicant has ever been arrested or had attracted any attention of the authorities in spite of him being, as claimed, a student leader. … 23 After setting out the factual background, the primary judge dealt with the Tribunal hearing. He said the following at para [13]: [13]The transcript of the hearing before the Tribunal was in evidence. It contains no reference to fear based on Karen ethnicity. The applicant was given every opportunity to state what his fear was. For example, after relating his connection with his uncle substantially along the lines already mentioned the applicant was asked: "Q Apart from your uncle is there any other reason why you are fearful of going back to Burma? A Yes, I have." "Q.Why else? A As soon as I arrived in Australia I took part in the anti-government activities. For example I participated at the refugee week activities. I also helped TRW to welcome the people from border-Bangkok border. I also took part in the activities for this God's Only Movement during February. I always took part in hunger strike and Aung San Sue Kyi's support parties." Then at the end of the hearing: "Q.Is there anything else that you want to make sure that you told me today:? A I want to say something. Yes. When you consider my application, please may I request - firstly I'm one of the persons wanted by the MIs (Military Intelligence) from Burma; secondly, the MIs will definitely know that I am actively involved in anti-government activities in Australia and I am sure that my activities, involvement with TRW, God's Only will be photographed by the informer and they will definitely have those information." 24 The following matters should be noted about the above factual background. First, in his application for review to the Tribunal referred to by the primary judge in his reasons at [6] the appellant not only referred to his activities in Australia with the Karen community and political groups, but he also referred to friendships he had made in Australia with people, some of whom were said to be members of the Karen National Liberation Army (KNLA). Secondly, the material provided by the appellant to the Tribunal included photographs of him with present and former officers of the KNLA. Thus, there appeared to be some objective material which might support his assertion in his application that he had befriended members or former members of the KNLA. Thirdly, the "God's Only Movement" referred to by the appellant at the Tribunal (see para [13] of the reasons of the primary judge) was a reference to "God's Army" which was a Karen guerilla organisation which carried out violent armed activities in Burma and Thailand. 25 The Tribunal related what it saw as the claim and the evidence of the appellant at pages 4 to 7 of its decision. At pages 4 to 6 the Tribunal described the appellant's claims covering his life in Burma which included the following: The Applicant stated that from the time he was a teenager he had been aware of the oppression under which Burma suffered. He had attended political rallies and listened to speeches by opposition politicians. Some of the latter had been members of the democratically elected parliament pre the 1962 coup. The Applicant stated that he had tried to join the National League for Democracy (NLD) but since he was so young he was refused membership. He had to be 18 years of age to join. However, he helped in other ways, by handing out leaflets and putting up election posters. He claimed that his uncle, Peter Maung Maung, was a member of the NLD and he had guided him in various ways. He claimed that four of his friends had been arrested for activities of the same sort as he carried out. It was simply good luck that he had not been arrested also. He had changed his address to avoid this. The Applicant was asked about the structure of the NLD, including the situation of the NLD in his particular section of Rangoon. He stated that his uncle, Peter Maung Maung, tried to keep him away from overt politics so that he did not know much about it. His uncle did not want him to become known as a political person. He was asked specific questions about his activities. He stated that he helped his uncle in distributing pamphlets. Some of these pamphlets were smuggled in from abroad but he did not know from where. They were about the stability of the country, about democracy and about investment in Burma. He was asked how they were distributed. He claimed that they were distributed to celebrities like film stars and writers. He distributed them in Ohkan. He would go to the local video show where lots of people gathered and he would then surreptitiously hand these to his friends and to others. He would wait until the police and military were not there. He told the Tribunal that he had never actually accompanied his uncle on any political occasion. He knew his uncle tried to organise people to become members of NLD. He himself also sent information back to his uncle from Ohkan, for example on the condition of the peasants and forced road labour. He had never had to undertake forced labour himself as he was not a resident of Ohkan. He stated that his uncle and fellow NLD members had tried to organise a 10th anniversary rally of the 1988 riots. Unfortunately news of this was leaked to the military junta and most of the organisers were arrested during the night. He claimed that his uncle told him he had heard that the Applicant was to be arrested and that was why he decided to flee. His sister, resident in Perth, helped him. He claimed that after he arrived in Australia he had heard that his uncle and six others had been arrested for their political activities. He was told the Tribunal could not find his uncle's name on any arrest list compiled by international agencies and observers. He said that such things could be kept secret and it was difficult to get information out of Burma. He did not know the names of any others who were arrested. He was told about the arrests in a telephone call. He told the Tribunal he feared that his uncle could have broken under torture and told the authorities about his, the Applicant's, activities. He was asked why, if this was the case, his uncle had not informed on him when he was arrested in 1998. He responded that his uncle was taken by the police at that time, not by the Military Intelligence. In October 1998 he applied for a passport but he was afraid to personally approach the Ministry so he engaged an agent to lodge the application. It cost him 50,000 kyats to bribe the necessary officials. He claimed that he also had to pay bribes to the migration officers at the airport. However, he had no other problems in leaving his country. 26 The Tribunal correctly characterised these claims as based on political opinion. At pages 8 to 10 of its decision the Tribunal rejected his claimed fear of persecution based on what had happened in Burma. It rejected his claim that he had engaged in any significant political activity in Burma. It found that he had undertaken minimal and very general activity. He could not name NLD politicians. (The NLD being the political party with which he said his uncle was involved.) He knew nothing of the NLD structure. It found it implausible that someone involved to the extent that he said he was would not know of such matters. It rejected his claims of helping his uncle. It was not satisfied that the authorities would associate him with the NLD or that he was at any risk from any association with his uncle's activities. It found some of his evidence about distributing pamphlets unconvincing. The Tribunal rejected the likelihood that his uncle (who it accepted may be an NLD organiser) would name him as a opposition activist if he were to be interrogated. It could not find his uncle's name on any list of NLD-linked detainees. The Tribunal found it implausible that someone said to be close to an activist (his uncle) and supposedly actively supporting him would not have been familiar with certain recent events reported by an organisation called Human Rights Watch. His lack of familiarity with these events was displayed, the Tribunal said, by the fact that he did not refer to them. 27 The primary judge found no error in the approach of the Tribunal to its treatment of the appellant's claims arising out of his life in Burma. The complaint before the primary judge about this part of the decision was set out in ground 3 of the "amended grounds of application for an order of review" which was directed at an alleged failure by the Tribunal to engage in the requisite degree of speculation about its findings and the risk of persecution. The ground was in the following terms: 3. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by it. Particulars (a) In considering the ultimate question (namely whether it was satisfied that the applicant is a person to whom Australia has protection obligations by reason of his having a well-founded fear of persecution for Convention reasons) the Tribunal was obliged, if it had found that although the probabilities were against any particular claim made by the applicant, it might be true, to take into account the possibility that the claim was true, if that particular claim was of enough significance to the ultimate question. (b) The tribunal found that the probabilities were against each of the following claims made by the applicant: (i) That he had handed out leaflets and put up election posters; (ii) That he is at risk for reasons of support for his uncle's activities. (c) The Tribunal did not make any explicit findings with regard to the following claims: (i) That four of his friends had been arrested for activities of the same sort as he had carried out; (ii) That he had changed his address to avoid arrest; (iii) That his uncle had told him that he had heard that the applicant was to be arrested and that was why he decided to flee. (d) The Tribunal failed to take into account the possibility that any or all of the claims set out in paragraphs (b) and (c) above were true. (e) In the circumstances such failure constituted a failure to undertake the required reasonable speculation in deciding whether there is a real chance of persecution or a real substantial basis for the applicant's claimed fear of persecution. 28 The primary judge dealt with this part of the claim at para [16] of his reasons as follows: The Tribunal noted there was no doubt that the Burmese government resisted international and internal pressures for reform. NLD politicians in particular continued to be at risk of serious harm by the military regime. The passage from the Amnesty International Report was quoted. However, the Tribunal was unable to accept the applicant's claim that he had any significant political activity in Burma. At the hearing he was given opportunities to provide some of the details which could be expected from someone who took part in risky activities in a country where the level of surveillance is very high. The Tribunal's assessment was that his knowledge was "minimal and general". There was no point at which a detail emerged which could encourage the Tribunal to accept his claims and he could not name any local NLD politicians. He knew nothing of the NLD structure nor of its situation as he left the country. The Tribunal thought it implausible that anyone taking the risk of being in opposition to the government would not know such basic information. The Tribunal was not satisfied with his particular claim that he was at risk for reasons of support for his uncle's activities. His lack of specific political knowledge was a feature of his answers to the Tribunal's questions. For example, his responses on the source, nature and distribution methods of the pamphlets were unconvincing. The Tribunal considered his claim that his fear arose from the possibility that his uncle had named him as an opposition activist. The Tribunal had been unsuccessful in its attempts to locate his uncle's name on the list of known activists or detainees from the period of 1988 onwards. There was not satisfactory evidence that the applicant himself was an activist and needed to fear implication by his uncle. 29 The complaint on appeal about this part of the case is found in grounds 2 and 4 of the proposed amended grounds of appeal filed on 26 November, which were in the following terms: 2. The Learned Trial Judge erred in law by failing to hold that the decision of the Tribunal involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by it. Particulars (a) In considering the ultimate question (namely whether it was satisfied that the appellant is a person to whom Australia has protection obligations by reason of his having a well-founded fear of persecution for Convention reasons) the Tribunal was obliged, if it had found that although the probabilities were against any particular claim made by the appellant, it might be true, to take into account the possibility that the claim was true, if that particular claim was of enough significance to the ultimate question. (b) The Tribunal found that the probabilities were against each of the following claims made the appellant: (i) that he had handed out leaflets and put up election posters; (ii) that he was at risk by reason of his support of his uncle's political activities. (c) The Tribunal did not make any explicit findings with regard to the following claims: (i) that four of the appellant's friends had been arrested for activities of the same sort as he had carried out; (ii) that he had changed his address to avoid arrest; (iii) that his uncle had told him that he had heard that the appellant was to be arrested and that was why he had decided to flee. (d) The Tribunal failed to take into account the possibility that any or all of the claims set out in paragraphs (b) and (c) above was or were true. (e) In the circumstances such failure constituted a failure to undertake the required reasonable speculation in deciding whether there is a real chance of persecution or a real substantial basis for the appellant's claimed fear of persecution. … 4. The learned trial judge erred in law in failing to make a determination in relation to Ground 3 of the Amended Grounds of Application dated 24 June 2001. 30 I think that it is fair to say that the primary judge really does not appear to have dealt with ground 3 before him (see [27] above). Ground 3 before the primary judge is repeated in ground 2 of the Amended Notice of Appeal before us ([29] above). It was said on behalf of the respondent that the ground was abandoned before the primary judge. I will return to this later. 31 After having dealt with the appellant's claims about his activities in Burma, the Tribunal turned to what was claimed about what had occurred in Australia since the appellant's arrival. The findings of the Tribunal in this regard were contained on pages 10 to 12 of the decision and were in the following terms ( I have numbered the paragraphs for ease of reference): 1. The second major claim of the Applicant relates to his activities in Australia. The Tribunal accepts his evidence that he had been associated in Western Australia with the organisation Tribal Refugee Welfare (TRW) and that he has participated in its welfare, social and political activities. The question then is whether this is sufficient to cause the authorities to take action against him and cause him harm in the foreseeable future. 2. The Tribunal is not so persuaded. It accepts that there is an informer's network and that the Burmese government tries to keep a close surveillance on what its citizens do overseas. However, the Tribunal has accepted the advice of DFAT 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 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 anywhere else for that matter) would come to the attention of their local township authorities and their movements may be monitored for an initial period." 3. On a number of occasions, the Tribunal has sought further information on the treatment of those who return from Burma after a stay in Australia. Responses to this question from the Burma desk of DFAT stated that the Australian Embassy was in contact with a number of returnees. "Of those with whom we have contact, there has been no evidence of harassment or other negative treatment even of those known to be politically active in Australia and on information gathering exercises in Burma. Nor have we heard any claims of others being harassed" (Response to RRT inquiries, 4 June 1998) 4. The Tribunal has sought information on whether the Applicant's association with TRW in particular would face him with a real chance of persecution on his return to Burma. There is little specific information on the attitude of the Burmese authorities towards particular groups in Australia, and those groups are multiplying quite rapidly. There is more information on the situation of those who associate with clearly political (rather than welfare) organisations and particularly those who provide a platform for opposition politicians. In 1995 the SLORC First Secretary named the Karen National Union (KNU) and the Committee for Restoration of Democracy in Burma (CRBD) as among those groups involved in subversion against the government. DFAT reported that those involved in the 1999 demonstration which included an invasion of the Burmese Embassy grounds in Canberra will be of particular negative interest. It must be assumed that the Applicant's activities, although out of the East Coast mainstream, will have been noted by an informer and fed back to the authorities in Burma. The question then is what would or could happen to him if he returned to Burma. 5. According to an officer of the Australia/Burma Council, it is difficult to monitor what happens to returnees, however, it must be assumed that the authorities know just what a person has done while in Australia. He cited evidence of his own activities being kept on file in Rangoon. It was his assessment that "In Burma, once you are back in your house you have to inform the office of Local Peace and Development Council authorities. You have to tell them your name, the day and the year you left Burma, each countries (sic) you have been to, the time you spent in each countries, the reason you stay and what you do in those countries, any involvement in anti government activities plus another about 20 questions you have to answer." (30 May 2000) 6. The writer believed that anyone returning was taking a "huge risk'. The Tribunal has considered this assessment, and the very different advice from the Australian embassy, quoted above, and it has given preference to the later. It acknowledges that the Applicant is likely to face questioning. This is 'usual' in Burma where all citizens are subjected to scrutiny of their activities. Security authorities enter houses at any time of the day or night; they stop and question citizens in a way which Australians would find offensive and intrusive (as Burmese also do). The Tribunal is not satisfied that such surveillance, while clearly an affront to citizens, amounts to persecution. In the Applicant's case, it is satisfied that he is not an organiser, a leader nor a person with a prior career of political activism. The Tribunal has taken into account that the Applicant has lived in Rangoon for most of his life. He has been 'available' to the authorities for all that time. He has never been a member of a political party nor has he been detained, questioned or arrested. It finds that his activities in Australia are not of a level to make him a person of concern to the Burmese authorities. It finds that he left Burma on a legal passport and that this is still valid for his return. In summary, it finds that he is not a refugee. It finds his fear of persecution for reasons of his political opinion not to be well founded. 32 A number of matters appear clear from the above. First, the Tribunal accepted that the Burmese authorities have a network of informers in Australia (para 2 above). Secondly, the Burmese government tries to keep a close surveillance on its citizens overseas (para 2 above). Thirdly, it must be assumed that the appellant's activities will have been noted by an informer and that the Burmese government will be aware of them (para 4 above); and that the Burmese authorities know just what the appellant has done while in Australia (para 5 above). Fourthly, the Tribunal dealt exclusively with the activities of the appellant while in Australia: see paras 1, 4 and 6. Fifthly, as noted by the primary judge at para [20] and as conceded by counsel for the Minister before the primary judge, clearly the Tribunal neither considered nor made any findings as to the existence of a well-founded fear of persecution based on ethnicity, either by itself, as constituting the race ground for Convention purposes, or as part of consideration of the political opinion ground. Sixthly, the Tribunal did not in terms deal with the friendships the appellant had said in his claim for review that he had made in Australia with the members and former members of the KNLA. 33 In paragraph 1 in [31] above the Tribunal posed for itself the question whether his participation in the welfare, social and political activities of the TRW ("this" in the last sentence of paragraph 1) "is sufficient to cause the [Burmese] authorities to take action against him and cause him harm in the foreseeable future." Of course, this is not the relevant question for the assessment of his status under Article 1A(2). However, I am prepared to accept that this was an expression used by the Tribunal in working through the facts to a more relevantly posed question later in the decision. 34 In paragraph 4 in [31] above, the phrase "TRW in particular" would indicate that the TRW was not the sole focus of consideration, though no other group was mentioned. However, in that paragraph the TRW is contrasted with what might be seen as subversive groups, such as the Karen National Union. 35 In paragraph 6 in [31] above, it is clear that the appellant's activities were not viewed by the Tribunal as of a level to cause concern. 36 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 requires that the decision of the Tribunal not be read over-finely, or with an eye too keenly attuned to the perception of error. A common sense approach as to what the Tribunal was saying is called for. In the passages referred to at [31] above only the TRW and the appellant's participation in its activities were referred to. What these activities were can be gleaned from an earlier paragraph in the Tribunal's reasons dealing with his claims and evidence: The Applicant submitted evidence of his participation in various Burmese activities while in Australia. A letter from the secretary of the organisation, Tribal Refugee Welfare, noted that he had been a volunteer in the office and had also helped by picking up Burmese refugees from the airport and helping to re-settle them. He also submitted a letter confirming that he had helped in an Austcare fundraising activity. He took part in opposition rallies, including a 24 hours hunger strike. He took part in a demonstration outside the Thai Embassy in support of the God's Army Movement. He was sure he would have been photographed there and that this information would make its way back to the Burmese authorities. He claimed that these activities put him at risk as there were Burmese people in Australia who supported the regime and fed back information to the authorities. He was asked if he knew any of these informants. He said that he did not but that there were rumours that they were in various organisations including TRW. 37 On my reading of the reasons these volunteer, fundraising and demonstration activities were the activities of the appellant later in the reasons ([31] above) associated with the TRW. That they were the only matters dealt with by the Tribunal is reflected in the confidence which the Tribunal was prepared to place in the DFAT advice referred to in paragraph 2 in [31] above. The Tribunal was simply able to "prefer" that advice (see paragraph 6 in [31] above) to the views of the officer of the Australia/Burma Council referred to in paragraphs 5 and 6 in [31] above, because given the nature of the types of activities in [36] above (volunteer work, fundraising and participation in some demonstrations) the matters in the DFAT advice appeared to be reflected by the appellant's conduct and activities in Australia. 38 If the underlying facts of the appellant's claims of his imputed political opinion were restricted to the activities engaged in as set out in [36] above, in particular through the TRW, then one can understand why the Tribunal's consideration of the risks facing the appellant on his return and any appropriate assessment of the possibilities of persecution in the future (Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 at [34] to [67]) rested with its preference for the DFAT cable without any further expressions of confidence in these prospective findings. The activities described in [36] above can be seen as, and were seen by the Tribunal as, sufficiently innocent and low level as to fall within the terms of the DFAT advice and permit a reasonable level of confidence in the conclusion, even though it was expressed only as a preference for one piece of material over another. 39 On this basis, with the findings about his lack of political stature in Burma and the clear rejection of important parts of his evidence about his activities in Burma, the Tribunal was entitled to come to the conclusion it did, save for one thing. If the above accurately reflects its approach (which I think is the case) the Tribunal simply did not deal with all the claims of the appellant. The claims of the appellant included a claim for imputed political opinion. It is clear from what he put to the Tribunal that this claim was based on his activities in Australia and upon the identity of the people with whom he had become friendly in Australia. 40 The Tribunal came to the view, which was open to it, that his activities in Australia were sufficiently innocent not to be of a level as to make him of any concern to the Burmese authorities. 41 The Tribunal, on a fair and straight-forward reading of its reasons, did not deal with the claim made by the appellant in his application for review by the Tribunal and supported by objective evidence that: "Due to my participation with Karen community and political groups I have made a number of friends, some of whom are members of the Karen National Liberation Army." 42 The "participation in the Karen community and the political groups" could be said to have been dealt with by the Tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in Regulation 866 to the "claims" of the applicant eg 866.211, make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation - that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The Tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier. 43 If I am wrong in my reading of the Tribunal's reasons as described in [41] and [42] above and if the references to activities of the TRW and to the TRW are to be read as intended to include the appellant's friendships with officers and former soldiers of the KNLA then I think that there was a serious absence of assessment of the imponderables about the future as a required component of the assessment as to whether there was a real, as opposed to a remote, chance of persecution. The Tribunal itself recognised that the Burmese authorities recognise some Karen political groups as subversive: see paragraph 4 in [31] above. If the Karen National Union is subversive, as apparently recognised by the Tribunal, what then of the KNLA? The findings of the Tribunal reveal a confidence that what the appellant has done (and, on this hypothesis, including the friendships he has forged with such people) will be known to the Burmese authorities upon his return because of spies in Australia. In these circumstances, the mere preference for the DFAT advice over the views of the officer of the Australia/Burma Council barely begins the task of assessing the future risks of persecution. In its terms (on this hypothesis) the DFAT advice did not clearly cover the appellant's associations and friendships. The mere preference for the DFAT advice (reflecting it would seem a view of probabilities as opposed to weighing of possibilities) barely begins the task of assessing the risk of persecution, and whether a real chance of persecution would exist upon return, to someone who, though having engaged in low level political activities in Australia, has, to the likely knowledge of the Burmese authorities, become friends with officers of the KNLA. On this hypothesis there has been a failure to grapple with the test of a real chance of persecution and with any necessary assessment as to the future involved in it. 44 On either of these readings of the Tribunal's resasons, in my view, the Tribunal has failed to complete its mandated jurisdictional task. However, I incline to the view that the Tribunal was not referring, in its references to activities and the TRW, to the appellant's claimed friendships. That accords with my view that, in an otherwise careful and fairly expressed body of reasons, one integer of the claim made by the appellant was overlooked. 45 I agree with the primary judge that Karen ethnicity per se did not form part of the appellant's claim. What did however form part of his claim were his friendships (as a Karen) with officers and members and former members of a Karen group, the KNLA, quite likely, on the balance of the reasons of the Tribunal, to be seen as subversive. That was plainly raised. The Tribunal did not deal with it. The primary judge did not deal with it. 46 The notice of appeal was amended after the hearing of this matter to raise the above point. Properly and fairly the respondent took no objection. The point had, in essence, been raised before the primary judge, though mixed with the argument that the appellant's Karen ethnicity had been ignored. For example the appellant's legal representative before the primary judge (Ms Sheehan) said: No, I'll rephrase it, your Honour. The Tribunal's reasoning does not disclose that it understood that the TRW was a Karen organisation, firstly. The Tribunal's reasoning does not disclose that it understood that in addition to his association with the TRW, that the applicant was associated with other Karen groups that were more radical, such as the Karen National Liberation Army. It had photographs of him there with lieutenant generals - lieutenant colonels, I beg your pardon, from that army and he mentions his association with other people, and he mentions in his application to the tribunal - in the very first instance it's one of the things that he mentions - but there is nothing in the Tribunal's reasoning that indicates that the Tribunal understood those facts or took those facts into consideration. [Emphasis added.] 47 Prior to the matter being heard on appeal the grounds sought to be argued concentrated upon the failure of the Tribunal to deal with the appellant's Karen ethnicity. However, after the discussion leave was granted to the appellant to file an amended notice of appeal. Relevantly, it now provides as follows: Minute of Further Grounds of Appeal 6. The learned trial Judge erred in law by failing to hold that the Tribunal exceeded its jurisdiction by both asking a wrong question and ignoring relevant material in relation to the appellant's imputed political opinion. Particulars (a) In his application to the Tribunal dated 17 September 1999 the appellant declared that: (i) due to his participation with Karen community and political groups he had made a number of friends, some of whom were members of the Karen National Liberation Army (the "KNLA")' (ii) there were spies in the community [in Perth] who keep watch on all pro-democracy groups. (b) The appellant provided to the Tribunal photographic evidence of his association with various officers of the KNLA (AP 80, 86). (c) The appellant gave evidence to the Tribunal of his involvement in Australia in anti-Burmese government activities (AP 188, 190). (d) The Tribunal accepted that the appellant had been associated in Western Australia with the organisation Tribunal [sic] Refugee Welfare ("TRW") and that he had participated in its welfare, social and political activities (AP 117). (e) The Tribunal further accepted that there is an informers network in Australia and that the Burmese government tries to keep a close surveillance on what its citizens do overseas (AP 117). (f) The Tribunal failed to consider the claims and evidence provided by the appellant to the effect that by reason of his participation in Australia with Karen groups and his friendship with members of the KNLA he would face on return to Burma a real chance of persecution on the basis of political opinion imputed to him by the Burmese government. 7. The learned trial Judge erred in law by failing to hold that the decision of the Tribunal involved an error of law, being an incorrect application of the law to the facts as found by it. Particulars (a) The Tribunal stated the "real chance" test briefly (AP 111). (b) In relation to the appellant's activities in Australia the Tribunal, having accepted his evidence, asked itself whether the accepted facts were sufficient to cause the authorities to take action against him and cause him in the foreseeable future. The Tribunal then announced that it was "not so persuaded" (AP 117). (c) The Tribunal referred to information on whether the appellant's association with the TRW in particular would face him with a real chance of persecution on his return to Burma. It stated that the question then was what would or could happen to him if he returned to Burma. (AP118). (d) The language and approach of the Tribunal leads to an inference that it failed to apply the "real chance" test to the facts as found by it, but rather applied a standard of balance of probabilities in deciding the level of risk of persecution of the appellant. 48 I referred in [27] to [30] above to the failure of the primary judge to deal with the question of whether the Tribunal adequately assessed the future risk of persecution arising from the matters concerned with the appellant's life and activities in Burma. The transcript before the primary judge reveals that the matter was not expressly abandoned. However, it is also fair to say that Ms Sheehan concentrated upon the ethnicity question when she said the following in answer to the primary judge's summary that it all "boiled down to ethnicity": Yes, and that the issue of race is a cumulative issue in relation to political opinion and the two cannot be considered separately. They have to be considered together. There are numerous lines of authority, your Honour, that say you take an applicant for refugee status and look at all their claims and access them as a whole. To divide up and miss out half the story of the applicant's identity is the problem. 49 In any event, it seems to me that the Tribunal's finding about what happened in Burma were made with sufficient confidence as not to display the kind of error as described in Rajalingam, supra at [34] to [67]. However, if one further matter is, or further matters are, to be considered by the Tribunal, being the appellant's friendship with members of the KNLA, that may call for the inclusion of the factual findings concerning the appellant's activities and associations in Burma in any cumulative consideration of the risks of persecution. 50 For the above reasons, in my view, the orders of the Court should be that the appeal be allowed, the respondent pay the appellant's costs and the matter be remitted to the Tribunal for reconsideration according to law. 51 In conclusion, I would like to express my appreciation to Mr Walker who appeared pro bono for the appellant and to Mr Jenschel who appeared for the respondent. Their careful and frank submissions greatly assisted in the disposition of the matter. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Htun v Minister for Immigration and Multicultural Affairs

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Judgment (7 paragraphs)

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