Mar v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Refugee Review Tribunal ("the RRT"). By that decision, the RRT affirmed a decision which had earlier been made by a delegate of the present respondent, the Minister for Immigration & Multicultural Affairs ("the delegate" and "the Minister" respectively). The delegate's decision had been that the present applicant, Ms Lwin Lwin Mar, who is a Burmese national, was not entitled to the grant of a protection visa. 2 The procedural background to the present proceeding is as follows: Ms Mar arrived in Australia on 9 May 1999, as the holder of a visitor visa which had been issued to her in Rangoon on 27 April 1999. She had travelled to Australia on a Burmese passport which had been issued to her in Rangoon on 26 March 1999. On 22 June 1999, she applied for a protection visa. On 30 July 1999, the delegate refused her application. On 25 August 1999, Ms Mar applied to the RRT for review of the delegate's decision. On 15 August 2000, the RRT held an oral hearing in connection with Ms Mar's application to it. On 17 October 2000, the RRT handed down its decision affirming the delegate's decision. On 14 November 2000, Ms Mar began the present proceeding. 3 In support of her attempts to obtain a protection visa, Ms Mar gave an account of her personal history which included the matters set out in the following three paragraphs. 4 Ms Mar had been involved in pro-democracy activities in Burma in the late 1980s and early 1990s. She had, as a result of those activities, been detained by the authorities on three occasions between July 1988 and April 1991 and had been physically mistreated during detention. At the time of her first detention, Ms Mar had been nineteen years old and had just finished high school. She was then living in Henzada, where she had lived since birth and where she continued to live until June 1991. 5 In June 1991, with the permission of the authorities, Ms Mar had moved from Henzada to Rangoon, where she had continued to live until May 1999, when she had left Burma to travel to Australia. From very shortly after her arrival in Rangoon until she left Burma to travel to Australia, Ms Mar had worked for the Joint Venture Corporation No (7) Ltd, an enterprise which operated health care facilities and of which the majority shareholder was the Burmese government, with the minority shareholders being private Burmese investors. In 1996, Ms Mar had obtained a university degree, having been permitted by the authorities, since 1993, to study for that degree by correspondence. In 1997, Ms Mar had arranged for her sister also to be employed by the enterprise by which she was employed. From her last release from detention in April 1991 until her departure from Burma in May 1999, Ms Mar had been politically inactive, except for her attendance at a number of speeches given by Aung San Suu Kyi. In the course of that eight year period, Ms Mar had had to report to the authorities and had also had her movements restricted. 6 After her arrival in Australia, Ms Mar had engaged in various anti-Burmese government activities. 7 The RRT, in that part of its statement of findings and reasons in which it was setting out its findings and reasons, began by stating that Ms Mar's claim of having a well-founded fear of being persecuted for a Convention reason if she should return to Burma had been based on "her past political activities in Burma and her political activities in Australia". 8 In dealing with Ms Mar's past political activities in Burma, the RRT accepted that Ms Mar had been involved in such activities during the pro-democracy movement in Burma in the late 1980s and early 1990s. The RRT further accepted that she had been detained on three occasions during that period, as she had claimed, and that she had been physically mistreated while in detention. The RRT also expressed itself as satisfied that the treatment to which Ms Mar had been subjected had amounted to political persecution. 9 The RRT next noted that, after her release from detention in April 1991, the only political activity in which Ms Mar had engaged while remaining in Burma had been to attend a number of speeches given by Aung San Suu Kyi. The RRT stated that Ms Mar's evidence indicated that no action had been taken against her as a result of such attendances. The RRT concluded that such attendances would not have led to Ms Mar's being of "adverse interest" to the authorities. 10 The RRT pointed also to a number of other matters which persuaded it that the authorities had had no interest in Ms Mar before she left Burma. The RRT instanced her ability to obtain, shortly after her last release from detention, employment with a government-controlled enterprise, which employment she had been able to maintain until her departure from Burma. The RRT referred as well to Ms Mar's ability in 1997 to obtain employment for her sister at the same enterprise. 11 The RRT also referred to Ms Mar's ability to begin a university course in 1993 and to complete it in 1996. 12 The RRT next noted Ms Mar's evidence that, after her release from detention, she had had to report to the authorities and had had her movements restricted. However, the RRT was satisfied that monitoring of the population and reporting requirements were universal in Burma; the RRT was not satisfied that Ms Mar "[had been] subjected to any higher level of monitoring … than the general Burmese population" or that "being required to report to the authorities on occasions indicate[d] that the Burmese authorities had any particular adverse interest in Ms Mar, given that this [was] a requirement that applie[d] to the entire Burmese population". 13 Turning next to Ms Mar's activities after her arrival in Australia, the RRT stated, "I accept that Ms Mar is a member of AYBL [that is, the All Young Burmese League] and CDB [that is, the Committee for Democracy in Burma]. I accept that she has attended approximately four demonstrations and a number of fundraising events, social and cultural events and other meetings. I accept that she has donated blood on two occasions. I also accept that Ms Mar has sung political songs and been in a political play at fundraising events and that she was in a dance group which performed at the Sydney Olympic Games Opening Ceremony. However, the independent evidence before me, which I accept, indicates that whilst the Burmese authorities monitor opposition activities outside Burma, they do not have an adverse interest in low-profile participants in political activities. Rather, they are interested in active opposition leaders, repetitive demonstrators and ringleaders of a violent attack on the Burmese Embassy [in Canberra] in September 1999. In my view, Ms Mar's activities in Australia, although she has attended four demonstrat[ion]s, are not such [as] to give her a profile that would lead her to being of adverse interest to the Burmese authorities. Whilst Ms Mar has the title of 'public relations officer' with AYBL, she did not indicate that she had done anything in this role apart from attend one meeting. I note Ms Mar's evidence that the Burmese authorities consider CBD [sic] to be an 'enemy organisation'. However, whilst Ms Mar is a member of CDB, she does not hold any executive position. On her own evidence, Ms Mar has not had any more active role in this organisation than attending meetings, singing songs and performing in a play at a dinner. In my view, Ms Mar's political activities in Australia have been very low-profile. Furthermore, given the number of people involved in the Olympic Games Opening Ceremony and the nature of Ms Mar's participation in this event, I am not satisfied that having participated in the dance group has [in] any way raised Ms Mar's profile. Given the independent evidence before me, I consider that the chance Ms Mar would face persecution on account of her activities in Australia is remote." 14 The RRT ultimately summarised its views regarding Ms Mar as follows: "… I am satisfied that Ms Mar was persecuted in the past because of her political opinion. However, I am of the view that at the time she left Burma, Ms Mar was of no adverse interest to the Burmese authorities. I am not satisfied that Ms Mar has a well-founded fear of persecution arising out of her political activities in Australia…. Overall, I am of the view that the chance that Ms Mar will face persecution if she returns to Burma is remote." 15 As her case was finally presented before me, Ms Mar made no complaint that the RRT had committed judicially-reviewable error by reaching any of the following conclusions to which I have already referred above: that no action had been taken against Ms Mar as a result of her attendances at speeches by Aun San Suu Kyi; that such attendances had not led to Ms Mar's being of adverse interest to the authorities; that the authorities had had no interest in Ms Mar before she left Burma; that monitoring of the population and reporting requirements were universal in Burma; that Ms Mar had not been subjected to more intensive monitoring than usual; and that Ms Mar's anti-Burmese government activities in Australia had been of very low profile. Ms Mar submitted only that the RRT had committed judicially-reviewable error by omitting to deal with two matters which had been part of her attempts to obtain a protection visa. 16 Ms Mar placed heavy reliance in making that submission on the recent decision of the High Court of Australia (Gleeson CJ and Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (31 May 2001, unreported) and it is convenient to refer immediately to aspects of that decision which are relevant for present purposes. 17 In their joint reasons for judgment (with which Gleeson CJ stated that he agreed: see at [1]), McHugh Gummow and Hayne JJ stated (at [69]) that the presence in the Migration Act 1958 (Cth) ("the Act") of s 430 entitled a reviewing court to infer that any matter not mentioned by the RRT in a statement of findings and reasons had not been considered by the RRT to be material. The RRT's omission to mention a matter might reveal, stated their Honours, some basis for judicial review of the RRT's decision by this Court under s 476 of the Act, although not under par 476(1)(a) thereof. (In giving to s 430 of the Act the effect which they did, their Honours disapproved of the approach which had earlier been taken to s 430 by a Full Court of this Court (Black CJ and Sundberg, Katz and Hely JJ; Kiefel J dissenting) in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469.) 18 Later in their joint reasons for judgment (at [76] to [85]), their Honours discussed judicial review by this Court under Pt 8 of the Act of RRT decisions. In particular, their Honours pointed out (at [83]) that the ignoring by the RRT of relevant material would enliven the grounds of review set out in pars 476(1)(b) and (c) of the Act. Furthermore, they stated (at [84]), if the RRT ignores relevant material, "… that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out." 19 Having stated various matters of principle, their Honours then turned (at [87]) to the particular complaint made by Yusuf, a Somali of the Abaskul clan, about the RRT's decision regarding her. They described the essence of her complaint as being that the RRT had made no finding about whether one of the three principal events on which she had relied before it as establishing past persecution of her, namely, an invasion of her house by members of the Hawiye clan, was capable of giving rise to a well-founded fear by her of being persecuted in the future for a Convention reason. As to that omission by the RRT, however, their Honours said (at [89]) that, in the particular circumstances of the case before them, the failure by the RRT "to make a finding about this matter in its s 430 statement [does not] reveal any error of law by the Tribunal or any failure to take account of a relevant consideration". 20 (I must confess to being unable to understand their Honours' reference to a possible failure by the RRT to take account of a relevant consideration, a notion which I have always understood as being applicable solely to the exercise of a discretion (which is, of course, not the nature of the RRT's function) and as having no significance for the process of fact-finding. However, my lack of understanding in that respect appears to me to be of no present significance.) 21 Their Honours pointed out that the RRT had accepted Yusuf's account of two of the three events on which she had relied before it as establishing past persecution of her, those two events having been attacks on her. They then continued (at [91]), "[I]n rejecting the argument that the two attacks it accepted had occurred could give rise to a well-founded fear of persecution, the Tribunal made a finding that the Hawiye clan was not targeting the Abaskul clan. This finding, being a finding at a higher level of generality than the question of specific incidents, may well explain why the Tribunal made no detailed finding about the house invasion. That being so, it is not demonstrated that the Tribunal made some error of law. It is not shown that it failed to take account of a relevant matter or that it asked itself the wrong question." 22 Having dealt with the Minister's appeal in the matter of Yusuf, their Honours then turned to the Minister's appeal in the matter of Israelian, which appeal was heard and decided together with the Minister's appeal in the matter of Yusuf and in which appeal the Minister was also successful. 23 In the Israelian matter, Israelian, an Armenian national, had claimed before the RRT to have a well-founded fear of being persecuted on his return to Armenia for two Convention reasons, namely, political opinion and membership of a particular social group. That fear was claimed to be based on Israelian's having evaded compulsory military service and the political opinion concerned was his conscientious objection to rendering military service in connection with a territorial dispute between Armenia and Azerbaijan, while the particular social group concerned was draft evaders. The RRT had concluded that Israelian did not have a well-founded fear of being persecuted for reasons of political opinion, but had expressed no conclusion on the question whether he had a well-founded fear of being persecuted for reasons of membership of a particular social group. However, in rejecting Israelian's claim to have a well-founded fear of being persecuted for reasons of political opinion, the RRT had expressed the view that if Israelian were to be proceeded against on his return to Armenia for not having rendered compulsory military service, that would not amount to persecution of him, but would rather be the application to him of a law of general application. 24 Their Honours stated (at [97]) that the RRT was not shown to have made an error of law in expressing the view that if Israelian were to be proceeded against on his return to Armenia for not having rendered compulsory military service, that would not amount to persecution of him, but would rather be the application to him of a law of general application. Accordingly, the RRT's failure to express a conclusion on the question whether Israelian had a well-founded fear of being persecuted for reasons of membership of a particular social group had not constituted a judicially-reviewable error under Pt 8 of the Act. 25 I turn now to the first of the two matters which, before me, Ms Mar submitted had been part of her attempts to obtain a protection visa and with which the RRT had omitted to deal, thereby committing judicially-reviewable error. 26 In her protection visa application, Ms Mar had stated, "In Australia, I participated in fund raising activities organised by the organisations endeavouring to restore democracy and human rights in Burma and have breached the agreement I was forced to sign by the Burmese junta. Therefore, I am certain that I will be arrested again and subjected to persecution and torture if I go back to Burma." 27 Later in her protection visa application, Ms Mar had stated, "In Australia, … I have become involved in pro-democracy movements[,] which breaches the restrictions imposed on me by the Burmese military junta. I am sure that the authorities will harass and torture me again if I go back to Burma." It would appear that the restrictions to which Ms Mar had been referring in the passage which I have just quoted were those imposed by the agreement to which she had earlier referred. 28 Further, in a statement which she had lodged together with her protection visa application, Ms Mar had stated, with reference to her last period of detention, "I was released on 20 April 1991. Before my release I was asked to sign an agreement not to get involved in any kind of political activities in future". It was presumably the agreement to which Ms Mar was referring in the statement which I have just quoted to which she had also been referring in her protection visa application. 29 As well, the RRT recorded in its statement of findings and reasons that, at the oral hearing before it, it had asked Ms Mar about her political activities between 1991 and her departure from Burma and that Ms Mar had "stated that she had to sign an undertaking that she would not be involved in politics". Again, I assume that the undertaking being referred to was what had been referred to, in Ms Mar's protection visa application and accompanying statement, as the agreement. 30 In that part of its statement of findings and reasons in which it was setting out Ms Mar's claims and evidence, the RRT obviously referred to the oral statement made before it by Ms Mar to which I have referred above. It referred also to Ms Mar's written statements, contained both in her protection visa application and in her accompanying statement, about the undertaking. 31 However, in that part of its statement of findings and reasons in which it was setting out its findings and reasons, the RRT did not express any conclusion as to whether Ms Mar had given the undertaking which she claimed to have given in 1991 and, if so, whether she was at risk of being persecuted on her return to Burma by reason of the fact that, by her activities in Australia, she had breached that undertaking. The RRT's failure to express a conclusion on those matters meant, Ms Mar submitted, that the RRT had ignored relevant material and that, in accordance with Yusuf, its decision either was not authorised by the Act (see par 476(1)(c) of the Act) or involved an error of law of one of the two types referred to in par 476(1)(e) of the Act. 32 In my view, Ms Mar has not demonstrated that the RRT's decision either was not authorised by the Act or involved an error of law of one of the two types referred to in par 476(1)(e) of the Act by reason of the fact that the RRT did not express any conclusion as to whether Ms Mar had given the undertaking which she claimed to have given in 1991 and, if so, whether she was at risk of being persecuted on her return to Burma by reason of the fact that, by her activities in Australia, she had breached that undertaking. 33 I have already set out above (at [13]) the RRT's negative conclusion on the question whether Ms Mar's activities in Australia would, by reason of their nature, attract the adverse interest of the Burmese authorities. The RRT's conclusion on that question, it appears to me, explains why the RRT expressed no finding on the question whether Ms Mar had given the claimed undertaking in 1991 and, if so, whether she was at risk of being persecuted on her return to Burma by reason of the fact that, by her activities in Australia, she had breached that undertaking. If Ms Mar's activities in Australia would not, by reason of their nature, attract the adverse interest of the Burmese authorities, it followed that those authorities would not consider whether those activities had breached any undertaking given by Ms Mar in 1991, assuming she had given one. It was therefore unnecessary to determine whether she had given such an undertaking. 34 Indeed, it may be thought that there is something fanciful in the suggestion that the Burmese authorities, otherwise considering anti-Burmese government activities in Australia by a Burmese national not to be of sufficient seriousness to merit the visiting of harm on that person on the person's return to Burma, would take a different attitude to those activities merely because they were in breach of an undertaking earlier given by the person not to engage in political activity. Certainly, the Burmese authorities did not, by reason of any earlier undertaking given by Ms Mar not to engage in political activity, approach in such a fashion Ms Mar's conduct in Burma of attending speeches given by Aung San Suu Kyi. I add that those authorities can hardly be thought to be less likely to have been aware, given their policy of universal monitoring of the population in Burma, of Ms Mar's attendance at those speeches than they would be of any activities by her in Australia. 35 I turn now to the second of the two matters which, before me, Ms Mar submitted had been part of her attempts to obtain a protection visa and with which the RRT had omitted to deal, thereby committing judicially-reviewable error. 36 It is convenient, by way of introduction to that second matter, to refer to decisions of two Judges of this Court, Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 (Madgwick J, 23 February 2001, unreported) and Oo v Minister for Immigration & Multicultural Affairs [2001] FCA 348 (Lindgren J, 3 April 2001, unreported). 37 In each case, the applicant before the Court, who was a Burmese national, had been a protection visa applicant whose application had been rejected by a Ministerial delegate and whose application to the RRT for review of the delegate's decision had been unsuccessful. Before this Court, Win's application for an order of review of the RRT's decision succeeded, while Oo's failed. (I note, incidentally, that both decisions were made after the RRT's decision regarding Ms Mar.) 38 In Win, a protection visa applicant had, in written submissions before the RRT, submitted that he feared being persecuted on his return to Burma because, among other things, he would "not have the right to speak freely, the right to writing freedom and the right to living freedom". Madgwick J treated that submission as amounting to a claim by the applicant that certain forms of political expression were prohibited in Burma, that the applicant would obey that prohibition if he returned to Burma and that for the applicant to obey that prohibition would constitute persecution of him for reasons of political opinion. That the applicant's written submissions before the RRT had contained such a claim and that there was nothing before the Court to suggest that that claim had not been pressed before the RRT combined to lead Madgwick J to conclude: first, that it had been incumbent on the RRT to deal with that claim: see at [24] and [25]; and, secondly, that the RRT's failure to deal with that claim had enlivened the grounds of review set out in pars 476(1)(c) and (e) of the Act: see at [26]. According to Madgwick J, it would be necessary for the RRT, when dealing with that claim on remittal, to ascertain the importance which Mr Win placed on engaging in the proscribed forms of political expression: see at [19] and [20]. The denial to him of the ability lawfully to engage in those forms of political expression would only amount to persecution of him for reasons of political opinion if "that denial is so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity". That was because, said Madgwick J, "… the Convention did not aim at providing a universal right to change countries for every inhabitant of every oppressively ruled society on earth, however important civil and political rights may, as a matter of mere intellectual persuasion, be to such an inhabitant. The Convention was intended to relieve against actual or potentially real suffering." 39 In Oo, the applicant before the Court relied on Win in order to challenge (but, as I have already mentioned, unsuccessfully) the RRT's decision affirming a Ministerial delegate's decision to refuse to grant him a protection visa. The applicant failed because Lindgren J held that he had not in fact made a claim of the type which Madgwick J had held had been made in Win. Lindgren J said, "[47] … Mr Oo did not claim before the RRT to hold a well-founded fear of persecution by reference to the fact that he would not be at liberty to express his political opinion upon returning to Burma. Rather, his claim was that he feared persecution based on political activities in which he claimed to have participated in the past, in Burma, Thailand and Australia. In the final paragraph of his lengthy typewritten statement, prepared with legal assistance, he said: 'I believe that if I return to Burma I will be arrested and imprisoned. My political activities in Burma, Thailand and in Australia would have been noted by the SLORC administration. It is usual practice to interrogate and torture returnees from Thailand, and my friends who were forcibly returned to Burma will have been interrogated and tortured and may have spoke[n] of my activities in Thailand against the Burmese government.' The RRT also noted that Mr Oo feared 'that upon [his] return his breach of the reporting conditions may be held against him'. But the RRT addressed and rejected the claim that a fear of persecution based on Mr Oo's past was well founded. It did so on the basis of independent country information, quoting the following passage from 'Human Rights Update' dated 7 February 2000: 'Activists from the period of the 1988 pro-democracy uprising would be treated no differently from the broader population nor face persecution or discrimination today unlessĽthey have continued to be and are known to be still actively working in opposition to the government. Even then, the level of activity would be taken into account.' [48] Although the RRT may be required in particular circumstances to make an investigation extending beyond the limits of the claim made by an applicant, there is no reason to think that it was bound to do so in the present case. Accordingly, the error of law ground relied on is not established." 40 In substance, Ms Mar claimed before me that, in support of her attempts to obtain a protection visa, she had made a claim like that which had been made by Mr Win. The RRT's failure to express a conclusion on that claim meant, Ms Mar submitted, that the RRT had ignored relevant material and that, in accordance with both Win and Yusuf, its decision either was not authorised by the Act (see par 476(1)(c) of the Act) or involved an error of law of one of the two types referred to in par 476(1)(e) of the Act. 41 The Minister submitted in response that the RRT had committed no judicially-reviewable error of the sort alleged, because, rather than being like that of Mr Win, Ms Mar's situation, so far as her attempts to obtain a protection visa were concerned, had instead been like that of Mr Oo. 42 I consider that, similarly to Mr Oo, Ms Mar did not claim before the RRT to hold a well-founded fear of being persecuted, if she returned to Burma, because (in substance) she would there obey prohibitions imposed by the Burmese authorities on the expression of political opinions and such obedience would seriously offend an aspiration integral to her human dignity. Instead, similarly to Mr Oo, she claimed to fear being persecuted by being again detained and physically mistreated in Burma, this time by reason of her political activities in Australia. That that was so appears most plainly from a statement in her protection visa application which I have already quoted above (at [26]), which statement was made in response to the direct question "What do you fear may happen to you if you go back to that country [that is, Burma]?" However, it appears also from other materials put forward by Ms Mar in support of her attempts to obtain a protection visa, in which materials she also described her fear as being one of being detained again and physically mistreated, as she had been on three occasions between 1988 and 1991. 43 The material relied on before me by Ms Win in an attempt to establish that she had made the claim presently under discussion related in substance, not to her intention to obey in Burma restrictions placed on her there, regardless of the personal cost to her of such obedience, but rather to her having breached in Australia the undertaking which she claimed to have given in 1991 and to her motivation for having done so. Indeed, Ms Mar's submission which I am presently discussing appears to me to be nothing more than an attempt by her retrospectively to force her attempts to obtain a protection visa into the mould cast by Madgwick J in Win.