Findings unfavourable to Mr Oo
1. In relation to Mr Oo's participation in the pro-democracy movement of 1988 and 1989, independent country information before the RRT showed that many thousands of Burmese participated and many were interrogated and some imprisoned, but that those events of 1988 and 1989 have rarely been treated as the basis for ongoing harassment unless the person has continued to be an active dissident.
2. The RRT did not accept that Mr Oo became active in the ALP soon after arriving in Thailand; rather, it accepted that he became a member only as late as 25 July 1995, that is, more than five years after he arrived in that country, after he obtained his visa to enter Australia and shortly before he actually left Thailand for Australia.
3. Mr Oo spent most of his time in Thailand working full time in Bangkok as a cook and later as a labourer.
4. The RRT did not accept that Mr Oo was an active member of the ALP, that he was a member of the ALP underground or that he was widely understood to be an ALP member.
5. The RRT did not accept that Mr Oo's activities in Thailand were governed by the dictates of the ALP.
6. On Mr Oo's own account, he did not return to the Thai-Burmese border after his second visit to that area in October 1990.
7. Mr Oo's claim to be a member of the ALP "underground" in Australia was vague and the RRT did not accept that he was an active member of the ALP here.
8. The RRT did not accept Mr Oo's evidence that he went to Malaysia and Japan to raise funds for the ALP and it noted that he had not in fact become of the ALP until after his visits to those countries.
9. After the imprisonment and maltreatment in 1988 and 1989 which the RRT accepted, Mr Oo was not afterwards "of much interest to the authorities". He remained in Burma for almost twelve months after his release from the second imprisonment and, although subject to a reporting requirement, did not suffer harassment from the authorities.
10. Mr Oo did not approach UNHCR in Thailand seeking protection and the RRT rejected his explanation that he did not do so because the ALP did not instruct him to do so.
11. Mr Oo did not experience difficulties in Thailand on the basis of his political opinion or his Burmese political activity.
12. Mr Oo's political activity in Thailand was minimal and the only documentary or supportive evidence he provided of it indicated that his membership of the ALP commenced within weeks of his leaving Thailand for Australia.
13. The RRT did not accept that the purpose of Mr Oo's trips to Japan and Malaysia was fund raising for the ALP.
14. The RRT also had difficulty accepting that the level of activity undertaken by Mr Oo in Australia would bring him to the attention of the authorities in Burma.
15. At the various demonstrations in Canberra and Sydney, Mr Oo was "only … a participant, not a leader".
16. Mr Oo has not been an active dissent since being released from his second imprisonment in 1989.
17. Although he has been a participant, Mr Oo has not taken a leadership role in the major demonstrations by members of the Burmese community in Australia.
18. The fact that upon returning to Burma Mr Oo would come to the attention of the local authorities and might face monitoring for a period is not of sufficient seriousness to amount to persecution.
32 At the outset, it must be acknowledged that it is not sufficient for Mr Oo to show that another decision-maker might have reached a conclusion different from that reached by the presiding Member of the RRT in this case. Similarly, I must not review the RRT's decision on the merits.
33 Ms Winfield, counsel for Mr Oo, makes several criticisms of the course of reasoning which led the presiding Member to reach the conclusion which he did, but I do not think that an error of law is shown.
34 Ms Winfield attacks the RRT's statement that Mr Oo remained in Burma for almost twelve months after his release from prison on the second occasion and, although subject to a reporting requirement, was not harassed by the authorities during that period of twelve months. Mr Oo had said that it took him about one and half to two months to recover his health (his loss of weight had fallen from a normal 52 kg down to 38 kg). A period of two months expired on 23 September 1989. The nine day retreat in a Buddhist Monastery would have ended in early October 1989. In November 1989 Mr Oo completed his application form for a passport and made his first payment to an agent in Rangoon. He made a second payment to that agent in December 1989 and a final payment in March 1990 when the passport was handed over. In May 1990 Mr Oo's father was very ill and was admitted to hospital, so Mr Oo remained in Burma until he was better. Mr Oo left Burma on 14 July 1990.
35 By reference to these facts, counsel for Mr Oo makes the point that it is wrong to conclude, as the RRT seems to have done, that Mr Oo chose to live in Burma for almost twelve months after his release from prison, and was not harassed during that time. She submits that the true position is that after recovering from the effects of his imprisonment and spending nine days in the Buddhist monastery, Mr Oo virtually immediately took steps directed towards his leaving the country and pursued that objective as diligently as the circumstances permitted.
36 The difficulty I have with this criticism of the RRT's reasoning is to appreciate how it advances establishment of the error of law ground on which Mr Oo relies. The fact is that regardless of why he did so, it is not disputed that, as the RRT said:
"[h]e remained in Burma for almost 12 months after his release and, although subject to a reporting requirement, did not suffer any harassment from the authorities."
That is, the authorities were not interested to pursue him for the period of twelve months although he was in Burma available to be pursued.
37 Counsel for Mr Oo also attacks the RRT's finding that Mr Oo did not become a member of the ALP in Thailand until 25 July 1995. That finding depended on a document which Mr Oo produced to the RRT. It was headed "Arakan Liberation Party - Thai/Burma Border Registry Section" and was dated 10 December 1999. That is, Mr Oo obtained it some years after coming to Australia. The document was a "Member's Record" in respect of "Mr San Schwe Thein" who was born on 6 January 1968 in Rangoon. Mr Oo had, on his application for a protection visa, given his Arakanese name as "San Schwe Thein" but he had given his date of birth as 10 August 1962. The document contained an entry reading,
"Membership Date: 25 July 1995"
Counsel for Mr Oo submits that constructions of this entry are available other than the one adopted by the RRT, that is, that Mr Oo became a member of the ALP on 25 July 1995 and not before. Counsel points out that Mr Oo travelled from Burma to Thailand on 14 July 1990 and suggests he may have become a member of the ALP virtually immediately on 25 July 1990, and, on the basis of a membership renewable annually, his membership would have fallen due for renewal on 25 July 1995. Another suggestion she makes is that the recording of the date 25 July 1995 against "Membership Date" in the form might have been intended to mean that Mr Oo had been a member from some unspecified date up to that date.
38 While it is conceivable that the RRT may one day be shown to have been "wrong" in giving to the entry in question what I consider to be its prima facie significance, this does not advance Mr Oo's case. Indeed, even if it were shown now, by reference to other incontrovertible evidence that was before the RRT, that the entry was intended to convey a meaning different from that identified by the RRT, this would not establish an error of law of the limited kind referred to in par 476(1)(e) of the Act.
Whether well-founded fear of persecution by reason of political opinion established by absence of freedom of speech and of expression of political opinion
39 Counsel for Mr Oo submits that the RRT erred in not categorising the monitoring for a period which it found Mr Oo would be likely to face upon returning to Burma as being " of sufficient seriousness to amount to persecution". No doubt what may amount to persecution for reason of political opinion of a person with a high degree of political commitment may not amount to persecution for that reason of a person with no such commitment. Similarly, what may amount to persecution for reason of religion of a deeply religious person may not amount to persecution for that reason of an irreligious person.
40 Counsel for Mr Oo submits that the factual findings of the RRT in favour of Mr Oo established that he "holds a well-founded fear that he will not be able to exercise the right to free speech or political opinion should he return to Burma." Counsel referred to Minister for Immigration & Multicultural Affairs v Zheng [2000] FCA 50 (FC) ("Zheng"); and Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 ("Win").
41 In Zheng, Hill J stated that "the prohibition legally to practise one's religion could, and probably would, constitute persecution on religious grounds for the purposes of the Convention" (at [41]). His Honour concluded, however, that it had been open to the RRT to find, as it had done, that the Chinese authorities did not prohibit Roman Catholics, including the respondent to the appeal from practising their religion. Carr and Whitlam JJ agreed with Hill J in this respect.
42 Win is a recent decision of Madgwick J. His Honour held that the RRT had failed to consider a subsidiary claim of the applicants that they "faced persecution because they would be denied the right to express their political opinions freely if returned to Burma" (at [13]). He concluded that a denial of freedom to express one's political opinion may, of itself, constitute persecution. But his Honour stated (at [19]):
"However, the mere fact that a right is denied is not, in my opinion, necessarily enough to establish refugee status. It will generally also be important to ascertain the importance that the asylum-seeker places upon the exercise of that particular right. To take an extreme example, heterosexuals could not claim to be persecuted because they are prohibited from engaging in homosexual acts."
His Honour also stated (at [20]):
"The principle, it seems to me, is that a denial of [civil rights] would amount to persecution when 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. It is not fatal to such a claim of persecution that the claimant fails to show that he or she is a leading exponent of a claim to, or the wish to, exercise such rights, let alone that he or she exhibits a capacity for martyrdom."
43 In Win, the applicants had claimed in their written submissions to the RRT to fear persecution because, if returned to Burma, they would "not have the right to speak freely, the right to writing freedom and the right to living freedom" (at [4]). Madgwick J held that, "having accepted that free expression of political opinion was not tolerated by the Burmese government and that those actually undertaking such expression were subject to persecution", the RRT was bound to consider this subsidiary claim made by the applicants because, firstly, the applicants had claimed to have demonstrated a high degree of political commitment in the not so distant past, and, secondly, the claim was distinctly and sufficiently raised (at [25] and [26]).
44 Mr Markus for the Minister refers to an earlier decision of Madgwick J, Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663 ("Cho"). In Cho, his Honour held that the applicant had not claimed to have a well-founded fear of persecution based on the fact that she was likely to wish to assert her political opinions in Burma, and, therefore, that the RRT had not made an error of law based on a failure to consider the claim made or on a failure to make a finding on a material question of fact.
45 Mr Markus submits that both cases taken together establish that "in some instances, people who are particularly active in political life, to whom their political activity is so central, denial of those political activities or free expression can be so serious a matter as to amount to persecution". He submits that there are two reasons why the present case is not of this kind. First, the RRT found that Mr Oo had not been an "active dissident" since he was released from his second imprisonment in 1989. I think it is clear from the RRT's findings, including its findings in relation to Mr Oo's participation, but not as a leader, in demonstrations in Sydney and Canberra, that the RRT meant that Mr Oo was not a "prominent" or "leading" or "notable" dissident voice. Secondly, Mr Oo did not claim to fear persecution of the kind and for the reason mentioned.
46 Because I accept the second of these submissions, I need not address the first further.
47 It is true that 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 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. (I note that the RRT's finding that Mr Oo had not been an "active dissident" since his release from prison in 1989 is not inconsistent with his not having made the claim postulated.)