Kyaing v Minister for Immigration and Multicultural Affairs

The Tribunal's findings 12 The Tribunal had great difficulty with the fact that despite his claim of being so dedicated to the pro-democracy movement, the Applicant was nevertheless so slow in becoming formally engaged in such debate in Australia (see [5] above). After referring to various organisations that he joined and the subsequent demonstrations attended, the Tribunal was left with the impression of the Applicant being "opportunistic, notwithstanding that he had passed the FNLDA's credibility test in reason to the position of vice chairperson of its management committee", and further that "the photograph of the Applicant posing calmly for the camera in the Burmese Embassy grounds on 9 September 1999 added to such impression." Despite this finding, the Tribunal considered it necessary in light of his involvement with Radio Free Burma, the ABSDO, the 9999 Action Committee, the FBAC and the FNLDA, there was the chance that he might nevertheless have generated the appearance of being a threat or insult to the Burmese regime. 13 After considering the Applicant's role with Radio Free Burma and the evidence of his witness, Mr Haider, the Tribunal accepted that the A$100.00 fee for joining the same could provide a break for opportunists who would pay it, as well as those who demand it. Nevertheless, the Tribunal considered it imperative to determine whether there would be any potential implications of Burmese officials hearing the Applicant's name on the radio and hearing him reading the news designed to be of interest to people opposed to the Burmese government. By reason of his relatively junior and minor role in the radio station, the Tribunal was of the view that such involvement was not high in profile. This was particularly so, considering the rosters of the station which demonstrated that dozens of people line up for a small slot every few weeks to read the news. 14 In its reasons for decision, the Tribunal referred to a Report which provided as follows: "Burmese involved in demonstrations in Australia, whilst often known to the authorities are generally of little concern, even if they return to Burma. There would be a couple of exceptions: those who are repetitive demonstrators; active and high profile members of the ABSDF or the NCGUB and those ringleaders of the more violent attack on the Embassy in Canberra in September 1999. Other than these exceptions, any Burmese returning to Burma after a lengthy period in Australia (or elsewhere for that matter) would come to the attention of their local township authorities and their movements may be monitored for an initial period. Escorted deportations from Australia will result in a returnee being detained for questioning but unless they departed Burma illegally, have a recent "profile" in Burma or have been active with the ASBDF or NCGUB they are unlikely to face any problems." In light of this, the Tribunal identified three potentially critical factors that may affect an individual's profile with the Burmese authorities. Such factors, however, were not considered by the Tribunal to be "broadly applicable pass marks whereby the slightest resemblance between an applicant and any one of the three categories described in the report necessarily dictates a conclusion to the effect that he or she would face a real chance of persecution in Burma". In relation to the notion of "repetitive demonstrators", the Tribunal was of the view that the Applicant has repeatedly attended demonstrations convened by Burmese groups to express mass opposition to the regime in Burma. Nevertheless, the Tribunal was of the view that a "consideration of this notion and the potential implications of repetitive demonstration is not complete once a pattern of repetition has been observed." This is especially so, the Tribunal further found, "if the level of demonstration, as in the case of the Applicant, has been minor, so far short lived and perfunctory". Upon that footing, the Tribunal concluded: "Having given the Applicant's activities in Australia serious consideration, and not withstanding his role with coordination groups like the "9999 Action Committee" and the FBAC, the Tribunal is not satisfied that his career as a demonstrator in Australia would be of other than slight concern to the authorities in Burma. Even were these activities to attract a session of interrogation and admonition, or even of brief detention of the Applicant, such as some returning Burmese are reported to face either directly upon or soon after arrival in Burma …the Tribunal would accept that this were (sic) a form of harassment, but it would not be satisfied that it amounted to persecution, especially given the level and nature of the government's intrusiveness in the lives of all Burmese." 15 The Tribunal further considered the extent of the Applicant's involvement within the various organisations referred to above. In relation to the ABSDF and the NCGUB, which were referred to in the independent information, the Tribunal concluded that there was no evidence before it to suggest that the Applicant had any close involvement with such organisations. Nevertheless it was acknowledged that there still remained a potential significance of the Applicant's activities with other organisations, namely the ABSDO, the FBAC and the FNLDA. Despite his involvement with these three bodies, the Tribunal concluded that such would "not be regarded as significant, even if known to agents of the Burmese authorities". Thus the Tribunal was of the view that the Applicant did not face a real chance of persecution in Burma by reason of his membership and participation in the groups which it found he had participated in. 16 Finally the Tribunal referred to the incident at the notorious 9 September 1999 demonstration in Canberra, in which the Applicant participated by reason of his involvement with the 9999 Action Committee. Although the Tribunal accepted that the Applicant was one of many who had broken into the Burmese Embassy, he was not a ringleader of either the demonstration or the break in. As a consequence, so the Tribunal concluded, he would not be identified by Burmese officials as one of the persons who incited others to enter the compound. 17 In light of the above, the Tribunal ultimately concluded that despite the fact that the Applicant had maintained some degree of involvement with pro-democracy movements in the last two and a half years since the lodgment of his primary application, the Applicant "has not been a devoted supporter of the pro-democracy movement and certainly not the kind he claims to have been … the Tribunal is overwhelmingly convinced that the Applicant is not a reliable witness in the present matter. It is not satisfied that he faces a real chance of Convention-related persecution in Burma. He is not a refugee." The Applicant's legal contentions 18 Central to the Applicant's argument lies the submission that the Tribunal found that the Applicant was a "repetitive demonstrator", so as to fall within those class of persons who, in accordance with the Report, identified in [14] above, would face problems from the Burmese authorities upon their return to Burma. As a consequence, the Tribunal is argued to have committed an error of law in finding that the Applicant would only be of "slight concern" to the authorities. 19 The Report, which is extracted at [14], contains material to the effect that Burmese involved in demonstrations would be of little concern to the authorities. As I noted in [14] above, the Tribunal accepted that there were three critical exceptions to this view, including the case of "repetitive demonstrators". It is quite apparent from the Tribunal's reasons that it thereby found that the Applicant was not a 'repetitive demonstrator'. Although the Tribunal accepted that the Applicant had attended a number of demonstrations, it considered that it did not automatically follow that he fell within the notion as described in the report. Evidently the Tribunal was of the view that a consideration as to whether an applicant is a repetitive demonstrator is a question of fact and degree. As part of its function of making findings of fact, it was open to the Tribunal to assess whether, in spite of the Applicant establishing a pattern of repetition, his participation in the demonstrations was such that it may or may not generate adverse attention on the part of Burmese authorities. The Tribunal concluded on the material before it that repetitive demonstration is not complete, "especially if the level of demonstration, as in the present case, has been minor, so far short-lived and perfunctory". Accordingly, it was open to the Tribunal to conclude that the Applicant's activities would not provide Burmese government spies with enough opportunities to mark him out as a repetitive demonstrator as described in the Report. No error of law arises in this respect. 20 Turning to the second and third grounds of the amended application (see [2] above), the same are based on the footing that the Tribunal found that the Applicant was a repetitive demonstrator. Since I have already concluded that this is not what the Tribunal found, these two grounds must fail. Nevertheless, it is appropriate that I briefly outline why this is so. The gravamen of the Applicant's complaint in this respect lies in the proposition that if the Tribunal found that the Applicant was a repetitive demonstrator, then he would fall outside those categories of person who would be of slight interest to the authorities (see [14] above). Accordingly, the Applicant would face a situation quite unlike those persons who would simply attract a brief session of interrogation or detention or a short period of monitoring, by the authorities upon their return to Burma. In this way the Applicant contended that it was not open to the Tribunal to draw the inference that he would only be subject to the above- mentioned treatment upon his return to Burma. 21 In my view, the Tribunal was entitled to conclude that in light of the finding that the Applicant was merely of slight concern to the authorities by reason of the Applicant not falling within the exceptions outlined in the Report, the Applicant would only be subject to such actions of authorities as were described in [20] above, as distinct from any harsher form of punishment. 22 Finally, it was argued that the Tribunal's observations that even if the Applicant was to attract interrogation, detention or monitoring, such experiences would not amount to persecution, "especially given the level and nature of the government's intrusiveness in the lives of all Burmese" was such as to give rise to an error of law. Doubtless tribunals would normally ensure that when persons of a particular nationality are subject to a regime that operates harshly in terms of deprivation of human rights, the bar is not simultaneously raised in terms of assessing what constitutes persecution. It seems to me, however, that what the Tribunal found in the present case was that if the Applicant was to be subjected to such intrusive behaviour on the part of the authorities, whether by reason of interrogation, detention or monitoring, being conduct which coincidentally happens to be commonplace in Burma, any such subjection would not constitute persecution. Therefore I conclude that the Tribunal did not in the course of its reasoning impose a higher standard than is justifiable as to what amounts to persecution. It follows that this ground must also fail. 23 I order that the application be dismissed and that the Applicant pay the costs of the Respondent. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 24 October 2001 Counsel for the Applicant: Mr B Zipser