M257 of 2003 v Minister for Immigration & Anor [2006] FMCA 131

The applicant is a citizen of Burma. She arrived in Australia on

15 March 1999.

On 23 April 1999 the applicant lodged an application for a protection visa with the first respondent. In her application, she claimed that she could not return to Burma as she fears persecution owing to her ethnicity and political opinions.

On 10 March 2000 a delegate of the first respondent refused to grant the applicant a protection visa. On 28 March 2000 the applicant applied for a review of the first respondent's decision with the second respondent.

On 20 August 2002, the second respondent affirmed the decision of the first respondent's refusing to grant the applicant a protection visa.

In its findings and reasons, the tribunal accepted that the applicant participated in pro-democracy activities in Burma and participated in a demonstration in 1998 when she was hit on the head and rendered unconscious. The tribunal also accepted that Burmese military intelligence had the activities under surveillance and noted that she was not apprehended by the authorities at any time during her activities in Rangoon in 1998.

The tribunal also accepted that the applicant's political activities continued until 1990 when she campaigned for the NLD during the elections in that year. After that she focused upon her studies and did not take further part in political activities. She completed a physics degree as well as a diploma under another private course but was unable to obtain employment. She says that she resumed her involvement with the NLD in 1998 travelling to the countryside and giving speeches.

It seems from page 17 of the decision that the tribunal did not accept her resumption of political activities in 1998. The applicant also claimed that she was at risk because she had been involved in political activities in Australia and claimed that demonstrations involving Burmese are monitored were by Burmese authority.

In finding that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention, the tribunal concluded:

The Tribunal accepts that the Burmese authorities take an interest in political activities in Australia and have them under surveillance. However, the Country Information available to the Tribunal indicates that the Burmese authorities are only interested in those people who are organisers or leaders of the demonstrations, or have links to particular organisations. The applicant is not a leader or an organiser of anti-Burmese government activities in Australia. She had little understanding of the issues involved in these movements. She did not know who the NCGUB was, which is the organisation that was formed by NLD members in exile in 1990 and continues to this time. She did not know who the ABSDF were, which is one of the major pro-democracy groups. The tribunal finds that although she has been involved in political activities in Australia, her involvement has been of a minor nature. Based on the country information the Tribunal finds that the applicant has not been involved in activities in Australia that have led to her having a profile that would warrant the attention of the authorities on her return. The Tribunal finds that there is no real chance that she will be persecuted in the reasonably foreseeable future for reasons of her activities in Australia and her fear of persecution is not well-founded.

The applicant relied on three separate grounds for review.

The first ground relied upon by the applicant is that the tribunal misconstrued her claim and thereby identified the wrong issue, asked itself the wrong question, and relied upon irrelevant material or ignored relevant material. In support of this ground the applicant points to a number of aspects of the tribunal decision which she believes to contain reviewable errors.

Firstly, the applicant seeks to have the Court take a different view of the interpretation given to the various country information. At issue is whether the activities that the applicant participated in in Australia would bring her within the meaning of "Those who are repetitive demonstrators" or other terms used within the country information. This appears to be a question of fact finding for the tribunal and is not a question for judicial review.

It is secondly argued that the transcript clearly demonstrates that the tribunal's assertion that the applicant did not know who the ABSDF and NCGUB were was not borne out. The relevant passage that appears in the transcript that forms the supplementary Court book is as follows:

MEMBER: Are you a member of the NLDLA?

[APPLICANT M257]: No.

MEMBER: What about the ABSDO?

[APPLICANT M257]: Pardon?.

MEMBER: The ABSDO, are you a member of that?

[APPLICANT M257]: No. ABS. I'm a member of ABS, not the ABSDO.

MEMBER: Do you know who the NCGUB are?

[APPLICANT M257]: Yeah, I know.

MEMBER: Who are they?

INTERPRETER: A group of (indistinct)

MEMBER: Sorry, they're a group?

INTERPRETER: A group of (indistinct)

MEMBER: What about the ABSDF? Do you have any involvement with that group?

[APPLICANT M257]: ABSDF, yes. I know something but I'm not involved in that. Yes, I know one man, he is from there.

MEMBER: I did say the NCGUB, didn't I, not the NCBUG?

INTERPRETER: The NCGUB.

MEMBER: I just want to make sure that it's round the right way. I just want to also ask you, why to you think you were at risk at the time you left Burma?

INTERPRETER: As I was helping out, they were starting to arrest people, and people like myself who has been helping out NLD in different ways, they probably arrest me. I have to tell them what I've been doing at the office and for a girl to go into prison is not a good thing because anything could happen. They could rape me or they could put me away for 10 years at (indistinct) where they could brainwash people so that anarchy cannot be resurrected once again. Since I was young, I had all these difficulties. I don't want to be re-arrested again, I don't want to be put into jail. That's why I came over here.

It is difficult to form a clear view as to precisely what information the applicant was able to provide on these organisations at the time of the interview from the transcript. If the applicant did know of the NCGUB, her answers as reported were certainly not detailed in comparison with a number of the other answers (all through an interpreter) which run for many lines in the transcript.

I am not satisfied that this demonstrates an error on the part of the tribunal. It appears to me that it was open to the tribunal member to form the conclusion that she did in this regard.

The applicant also claims that the tribunal erred in asking the following question contained at page 24 of the transcript:

MEMBER: In the statement that you provided to the tribunal you've said that between June and August 1988 you attended daily demonstrations whereas today you told me you didn't attend any demonstrations at that time.

This appears to have been the opposite to a statement that the applicant had made in writing in an earlier statutory declaration affirmed on

19 July 2002 in the following terms:

22. Immediately the authorities declared MC (1), Dental College and all schools closed effective June 22, 1988. With the schools closed as publicised I remained at home till August 8, 1988. The students of the higher learning institutes continued the task of antagonising the authoritarian rule and demanding justice. They even went further to the point of full-scale rebellion against the regime. As per grapevines and clandestine news from my old colleagues and senior students I learned that the students of the higher learning institutes were conspiring to affect a nationwide uprising against the BSPP ruling body. They were even contemplating to bring it down to heel once and forever and restore freedom and democracy in the country.

This appears to have been a clear error of fact by the tribunal member.

When interviewing a witness (page 26 of the transcript) the tribunal member told the witness:

I don't want to know about your involvement. But you've come along here as [Applicant M257]'s witness and I want to know what you want to tell me, except you don't need to tell me about her role in demonstrations.

This was with respect to demonstrations in Australia with a witness who had previously stated that she had some distance between her and the applicant and that she saw the applicant "at big demonstrations, the political activities."

The respondent says that the tribunal member was simply directing the witness to matters she had not given evidence about as she had previously said that the applicant distributed pamphlets and shouted slogans at demonstrations. There is no evidence before me that the witness would have been able to provide any further details than that which she had already recounted. I do not accept that this, of itself, is a ground for judicial review.

All of these matters relate to the applicant's first ground. Either singularly or taken together, I am not satisfied that they show a ground for judicial review. Rather, they are part of the fact-finding process of the tribunal. While disconcerting, the errors of fact do not appear to be judicially reviewable.

The second ground alleges that the findings of the tribunal were not supported by probative material or logical grounds and that an unreasonable person acting within jurisdiction and according to law could not have reached these conclusions: effectively a claim of Wednesbury unreasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223 and Attorney General v Quin [1990] HCA 21; (1991) 70 CLR 1 at 35.

In this respect the applicant says that the tribunal records that:

Her evidence was that after the election, she took no further part in any political activities and concentrated upon her studies.

The applicant says that this is contrary to her statutory declaration declared on 22 April 1999 where she states:

14. Following my graduation in 1995 it was not possible for me to find employment on account of the black mark against my name from the authorities. As our family had some money, my parents paid for me to attend an accounting course at private college. I passed a diploma in accounting and management at this college but was unemployed until I left Burma. I was not an active NLD supporter after my graduation as the political climate was becoming tougher each year. The main problem in Burma is the fact that there are many people who have very strong political views but who are harassed and intimidated and pressured by the authorities not to become active politically. The authorities have many means of keeping people under surveillance and preventing them from openly expressing their views. All of my generation of students have had a taste of democracy in 1988 and also when we were campaigning for NLD in 1989 and 1990, but we have been prevented from expressing our opinions openly since this time. It is very hard to live in such a society.

This also appears to be contrary to the delegate's findings:

3.1.5 Following her graduation in 1995, the applicant could not find a job because of her adverse profile with the authorities. The applicant was not as active in the NLD after her graduation because the political climate had worsened. Given the increasing repression exerted by the Burmese authorities, the applicant decided to depart Burma. Her father approached an agent and obtained a passport for the applicant by means of bribery.

The applicant also refers to paras 49 to 51 of her statutory declaration filed with the delegate on 19 July 2002:

49. I tried to find employment but to no avail. However, I enrolled in an accounting diploma course in the London Chamber of Commerce and Industry in 1997 and obtained the diploma in 1998. As I could not find work as a graduate I made up my mind to work for my country. I returned to the NLD office and resumed my work as an organiser. As a graduate I was assigned important jobs and soon I became a prominent member in the township office as most people came to know me. And almost all the leading figures in the township party office knew me. The ruling junta SLORC had changed its name to State Peace and Development Council (SPDC) in November 1997.

50. A ten-member body known worldwide as the Committee Representing People's parliament (CRPP) was formed on September 16, 1998, as authorised by 251 elected representatives of the 1990 elections and entrusted with the convening of a people's parliament to thrash out the country's woes wrought by the present ruling military junta. Soon after the formation of this highest authority in the land with a specific job to do - convene a people's parliament - the military junta started cracking down on the CRPP and NLD. The ruling junta arrested many NLD members and adherents and threw them into long-term detention on trumped up charges. Also, scores of elected members were thrown into government 'guest houses' where they were detained without charges. And members like me educated and efficient became targets for military intelligence. Many of my colleagues were hauled away and my presence in the precinct became precarious no doubt. Still, I continued with my work.

51. With the heat building up with the arrests my family became worried and we moved to Sanchaung township, Rangoon Division, from Yankin township, in October 1998, with a view to lessen the chances of my possible arrest by the military junta. It was a lucky and a smart move for me as I later learned. My close friends relayed word to me that the military intelligence people were inquiring of my whereabouts on the wake of my departure from Yankin. They had even boldly entered the party offices inquiring about me and threatening the people, who were close with me to divulge my whereabouts, on the pain of arrest and detention. Many were detained by the military regime.

Counsel for the minister referred to the evidence recounted at page 14 of the transcript in the following terms:

MEMBER: What was your involvement with the NLD after the election?

INTERPRETER: They have started to arrested people. Aung San Suu Kyi had been arrested. I want to go back to school and I didn't want to go back into prison, so I would go and listed to their speeches once a month.

MEMBER: Where were the speeches?

INTERPRETER: At the university area.

MEMBER: Did you have any other involvement in the activities of the NLD?

INTERPRETER: I finished school in 1995. I was not involved any further with NLD. After that I did the diploma in accounting through distance education from London. After that I looked for work but I couldn't get any work and I thought about going back to the NLD and work with them, and I did it in 1998.

MEMBER: What was your involvement in 1998 with NLD?

INTERPRETER: I went back to the office, having taken membership cards, just help them out, whatever is necessary. As I was graduate I would help them out writing letters on the computer, taking down records of the meetings and was working, like, an organiser. I would do odd jobs, collecting letters and so on.

It appears to me that the tribunal member has mis-stated the evidence of the applicant when saying that she took no further part in any political activities, even having regard to the section of transcript relied upon by counsel for the minister. Clearly the claim was put on the basis that she continued to have involvement by way of going and listening to speeches and had limited her involvement in that regard on the basis of not wanting to go back into prison.

Counsel for the minister referred to the comments of Kenny J in Minister for Immigration v Rajalingam (1999) 83 FCR 220 at 146 where her Honour said:

146. A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon doubtful basis, or because it adopts unsound or questionably reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197 CLR 611 at pars 40, 44, 45 per Gleeson CJ and McHugh J, 138 per Gummow J and ff par 159 per Hayne J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey J and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] VicRp 70; (1995) 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999( 160 ALR 543 (FC)...

I agree with the remarks of Katz J in (Zuway v Minister for Immigration Multicultural and Indigenous Affairs (1998) 160 ALR 391) that a search by the Court ofr objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the tribunal.

The error of fact in this regard is not insignificant in the context of this case. The mis-statement in this ground results in the tribunal failing to consider a central aspect of the applicant's case: whether her involvement in politics after that date placed her at risk and whether she was only safe if she didn't exercise her political rights. See: S395_/2002 v The Minister_ for Immigration [2003] HCA 71; VWSR v Minister for Immigration [2005] FMCA 977. I find that this is a judicially reviewable error.

In support of ground 3 the applicant complains that the tribunal's decision was vitiated by bias both apprehended and actual. On the first page of the decision there is a heading in bold type as follows:

The explanation for inclusion of the word ooga-booga is that the tribunal member was having difficulty with her spell check program and it was suggested that she type a nonsense word into the decision to see if the spell checker would find it. The tribunal member said that she overlooked the word when proofing the decision.

The applicant describes the word as an insulting onomatopoeia, although not a word with a dictionary definition but one denoting some form of derisory or insulting comment.

Counsel for the Minister relied heavily upon the fact that the word does not appear in any of the major dictionaries and points out that it could not be an example of onomatopoeia, because onomatopoeia describes a word that sounds like the thing it is describing. Counsel for the Minister, however, noted that the term Ooga-booga appears to have been adopted as a brand name for a line of Australian clothing. Clothing names are not altogether helpful given other recent brand names such as FCUK and CNUT appear in the marketplace.

A search of the internet indicates that whilst the word has not made an appearance in major dictionaries it is not unused. In James Cook's 1777 work A Voyage Towards the South Pole and Around the World he sets out in Chapter 1 of Book 3:

When I came off, I prevailed on a young man, his name was Wha-a-gou, to accompany me. Before dinner I shewed him every part of the ship; but did not observe that anything fixed his attention a moment, or caused in him the least surprise. He had no knowledge of goats, dogs or cats, calling them all hogs (booga or boogas). I made him a present of a dog and a bitch, as he shewed a liking to that kind of animal. Soon after he came on board some of his friends followed in a canoe, and inquired for him, probably doubtful of his safety.

In much more recent times the term has appeared in a number of film reviews with respect to the recent remake of the King Kong film. Ty Burr, writing for the Boston Globe, said:

...Finally, we get to the island, and to Jackson's vision of the natives as an inbred hoard of prehistoric savages; the emphasis isn't on ooga-booga political incorrectness but full on zombie terror. (Anyway, there's enough sublimated racial desinence later on, in the image of a beautiful blonde in the grip of a dark, bestial stranger three storeys tall. Jackson doesn't really go there, but you grad students can.)

Similarly, in the L A Weekly Scott Foundas in his review of the film on 16 December 2005, makes the comment that:

Jackson's cavalcade of ooga-booga savages makes 'Memoirs of a Geisha' seem like a monument to ethnic sensitivity.

Writing for the South Florida Sun Sentinel on 14 December 2005, Phoebe Flowers also uses the term in a review about the King Kong movie saying:

Skull Island, you see, is not only populated with homicidal decidedly inhospitable natives (it needs to be said: there's a faint stench of racism in their dark skin and general ooga-booga quality). Also residing there are creepy critters of so many stripes that you half expect the title character of Anaconda to come slithering out; even dinosaurs are roaming the island.

Matt Zoller Seitz in an article entitled, "Ape lynched redux: ooga-booga natives with drug crazed eyes" (appearing in Vol 18, issue 50 of the New York Press) writes:

Does Jackson understand what an emotional mother load he's tapped? Incredibly, I don't think he does. If he knew, I doubt he'd have devoted so much of the film to spectacular set pieces that don't feed the Kong-Anne relationship (the brontosaur stampede, for instance), and bloodless human exposition that even he doesn't seem excited about. He might have spent more energy integrating the notion of Anne-as-performer and Kong-as-audience. And he should have examined the tale's never subtle racial overtones (see David N. Rosen's Jump Cut Article 'King Kong: race, sex and rebellion') with more care. As is, the subtext bubbles up on screen and pops in your face: the ooga-booga natives with their drug crazed eyes; the unmediated, clumsy juxtaposition of Kong in chains and a snippet of Bye Bye Blackbird.

Even The Christian Science Monitor uses the term in a film review by Peter Rayner where the author states: "Jackson skirts the original film as ooga-booga political incorrectness by essentially turning the natives into zombies" (14 December 2005 edition).

The term has also appeared in web posts, such as the

following which appears on the 'Ask the Myth Busters' site at where it is stated:

I know at one point in the show you've stated that you'd like to stay away from the 'ooga-booga' myths, meaning I suppose the ones with a bit of mysticism attached to them. But still, a large percentage of the myths out there actually fall into that category. A good compromise might be doing a Halloween episode in which you dedicate one show to taking on a few of the most TV friendly 'ooga-booga' myth busting. What do you think of this idea?

Whilst the word has not yet made it into a dictionary I do not accept that it is not a word that is in use. Indeed, in the Los Angeles Sentinel of 14 November 1996 an article appears entitled:

Against the company that he endured taunts of 'ooga-booga' from a fellow worker ...

The term appears to have overtones of mysticism and racism in its more modern uses.

In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, Gleeson CJ, and Gaudron and Gummow JJ explained the test for apprehended bias as follows:

27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.

28. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

In Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, Kirby J discussed the different requirements for establishing actual bias and apprehended bias saying:

111. Until recently it was extremely rare for parties before Australian courts to assume the task of establishing "actual bias" on the part of a decision-maker. Sometimes, in the heat of disappointment or distress caused by an adverse decision, actual bias was alleged. Usually such allegations were later withdrawn. This was because, as the law of natural justice concerning the right to an impartial decision-maker has developed in Australia, it was ordinarily sufficient for the complainant to establish "imputed", "apparent", "apprehended", "suspected", "notional" or "deemed" bias ("imputed bias"). Although the two kinds of bias obviously overlap, imputed bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that "in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it". A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of reasonable observers would suffice to obtain relief.

These proceedings involve a claim for refugee status and a protection visa on the basis of a fear of personal harm as a result of political conduct in Burma. The issues are potentially those of life and death for the applicant. It is essential that the public and those involved in proceedings have confidence in the integrity and impartiality of such proceedings.

In the circumstances of this case I am of the view that a fair minded observer appraised of the facts and circumstances of the ooga-booga comment would entertain a reasonable apprehension of bias.

I have also considered the conduct of the hearing, in failing to correctly recount the evidence given by the applicant, and not providing the witness with a clear opportunity to expand upon evidence that was central to the case. Whilst the aspects of the case in grounds one and two would add weight to my finding on ground three, I am not satisfied that even taken with the ooga-booga comment, the material demonstrates actual bias.

I find that the applicant has established an entitlement to writs of certiorari and mandamus requiring the matter to be heard according to law. Given the issues in this case it is appropriate that the matter be heard by a differently constituted tribunal.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Riethmuller FM