"W204/00A" v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-04-19|Before: Katz JJ, Lee J

Introduction 32 The appellant appeals from a decision of a judge of the Court dismissing his application for review of a decision of the Refugee Review Tribunal ("RRT") by which the RRT affirmed a decision of a delegate of the respondent ("the Minister") not to grant the appellant a protection visa. The issue on the appeal concerns the effect of the RRT's failure to address a claim or claims by the appellant that he was tortured. 33 At the first instance the appellant was designated "H" pursuant to an order made by the primary Judge. Without objection by the Minister, we gave the appellant leave to amend the title to the proceeding on the appeal by designating himself "W204/00A". 34 Section 29 of the Migration Act 1958 (Cth) ("the Act") provides that subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following: (a) travel to and enter Australia; (b) remain in Australia. 35 Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). Australia is a party to the Convention. 36 Article 1A(2) of the Convention provides that a refugee is any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 37 Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth), which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 38 The RRT's decision was a "judicially reviewable decision" (par 475(1)(b) of the Act); the Applicant was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486). 39 The appellant's case before the RRT was that he was both outside the country of his nationality, Myanmar (Burma), and unwilling to return to it because of a well-founded fear of being persecuted for reasons of actual or imputed political opinion.

Procedural Background 40 The appellant was born in Rangoon in Burma on 23 July 1967. His father is deceased. His mother lives in Burma. He has two brothers and three sisters. All but one are residents of Burma, where one brother is a head clerk in the Department of Agriculture and one sister is a teacher. Another sister, an Australian resident, lives in Perth. 41 The appellant first visited Australia from August 1994 to February 1995 on a Visitor's Visa. He had been issued with a three-year Burmese passport on 17 February 1994, apparently valid until 16 February 1997. He went back to Burma in 1995, returning to Australia on 11 December 1996, again on a Visitor's Visa, where he has remained since that date. In 1996, the appellant had applied for a "renewal" or "extension" of his passport and this was granted by the Burmese authorities until 10 November 1997. 42 On 30 June 1997, the appellant applied for a protection visa. He was interviewed in relation to the application on 26 September 1997 at an office of the Department of Immigration and Multicultural Affairs ("the Department") in Perth. On 21 March 1998, a delegate of the Minister ("the Delegate") decided to refuse the application. On 15 April 1998, the appellant lodged an application with the RRT for review of the Delegate's decision. There was an oral hearing before the RRT on 14 July 1999 at which the appellant, his sister and a friend gave evidence. On 12 November 1999, the RRT affirmed the Delegate's decision. On 8 December 1999, the appellant lodged his application in this Court for review of the RRT's decision. On 10 November 2000, the primary Judge gave the decision dismissing that application from which the present appeal is brought.

The Appellant's Claims 43 The appellant's claims were made in his application completed on 30 June 1997 for the protection visa, written submissions to the Department, an interview with an officer of the Department, written submissions to the RRT, and oral testimony before the RRT. Because the issue on the appeal is a narrow one, it is sufficient for us to give only a brief outline of the appellant's claims that are particularly relevant to his allegation that he was tortured. 44 In 1988, the appellant was studying in the second year of a Bachelor of Science course at Yangon University in Burma ("Yangon" is another name for Rangoon). In that year, the appellant participated in student demonstrations against the Government over human rights abuses. On 4 September 1988 at about 3 am he was taken into custody by the Military Intelligence Service ("MIS"). His claim in this respect assumes some importance. The way in which he made it in his application for the protection visa was as follows: "I was taken rounded up at 3am at my house by the Military Intelligence Service (7) (M.I.7) I was imprisoned at the Helpin Street MI(7) where I was tortured and interrogated for 24 days." (our emphasis) Of the various accounts the appellant gave, it was only in his application for the protection visa that he claimed to have been tortured during this initial 24-day period. Immediately following this passage in his application for the protection visa, the appellant made a second claim of torture in the following terms: "On Oct 14 I was transferred to the big Insein prison where I was given hard labour for six months. In the prison where [sic] many young students and I suffered political discrimination, blackmail, physical torture." (our emphasis) The appellant claimed he was never charged with an offence and was released from Insein Prison in April 1989 "before the water festival". In his application for the protection visa, he claimed he was quietly dropped off at his family home at 4am on 14 April 1989. He said there had been such an alarming deterioration in his physical and emotional state that his family and friends were hardly able to recognise him. 45 The appellant claimed that he could hardly remember what had happened to him, that he "barely spoke about the atrocious [sic - conditions, treatment?] in the prison", that he suffered nightmares, and that he was unable to function in a normal manner. 46 The appellant claimed his parents sent him to a doctor who administered tablets to calm his nerves. There was in evidence before the RRT a certificate dated 16 November 1989, that is, some seven months later, issued by a doctor. Relevantly, it read as follows: "I certify that [the appellant] was given medical treatment under my supervision on 16.4.89, due to physical and mental illness, and received treatment during the month of November, 1988. He was treated with [various medicines or tablets] for six months. I recommended that he was now fully regain [sic] his normal activity and will be able to continue his education or may be able to proceed [sic - undertake?] any assignment he wishes to have." The RRT stated in its reasons for decision under the heading "Claims and Evidence": "The applicant's file contains medical certificates indicating that he was treated in April 1989 as an in patient at the general hospital for a mental and physical illness that occurred in November 1988." There are not "medical certificates" to this effect in the Appeal Book. There is, however, a "notarial certificate" attached to the doctor's certificate. The notarial certificate is dated 3 November 1995 - some six years after the doctor's certificate. It states that there is attached the doctor's certificate to the effect that the appellant was admitted to the General Hospital for treatment under the doctor's supervision on 16 April 1989 "for Physical and Mental illness during the month of November 1988." 47 The RRT stated: "The Tribunal notes that the applicant was admitted to a hospital for mental illness in April 1989 for a disease that occurred in November 1988. The report does not indicate what the trigger was for this disease nor why he was not treated for 6 months." The doctor's certificate does not say this and is problematical. The RRT's statement appears to be based on the notary public's certificate. 48 The appellant claimed that the MIS maintained surveillance of him in Burma after his release from Insein Prison. 49 After a closure for some months, the universities reopened in July 1990 when the appellant resumed his studies at Yangon University, upon signing an undertaking that he would not engage in political activity again. The appellant claimed he did not breach that undertaking. In July 1991, he was transferred to the "Arts and Science University" in Mandalay. In August 1991 Yangon University students staged a demonstration for three days. The appellant claimed he was warned by an MIS officer not to move anywhere or to participate in any political activities. 50 In October 1991, there were political demonstrations and the universities were again closed, reopening in June or August 1992. By then the appellant was in the third year of his course. 51 In February 1993, the appellant was transferred back to Yangon University to complete his studies. He did so in August 1993, when he was awarded a degree in Mathematics. 52 The appellant alleged that all his movements were closely monitored and that he continued to suffer discrimination even though he had long since ceased to engage in any political activity. For example, he alleged that applications he made for jobs were promptly rejected and that he was required to report all of his movements out of Yangon. 53 The appellant claimed he had to bribe Burmese officials in order to be able to leave Burma in August 1994 and, on the last occasion, in December 1996. 54 We turn now to further evidence before the RRT in relation to the appellant's claim of torture. 55 In the course of his interview by the Delegate, the appellant stated: "I was arrested and then I was taken to Inseng [sic - Insein] Gaol. With the other students I was kept there for six months and I was tortured but I couldn't take it any more. I became forgetful then I was taken back to my home." The appellant told the Delegate he had been one of some thirty students distributing pamphlets, and one of about ten of them who were arrested. Later, before the Delegate, the appellant stated: "It will be a great mistake if I go back and I know what it is like to be tortured in the gaol, remember, so I don't think I could take it." 56 In the course of the hearing before the RRT, the appellant made further reference to the subject of torture in the following passage: "Member Thousands of students took part in these demonstrations [in 1988], why do you think you were arrested? Applicant There were lots of other students also arrested. Member Why did they come to your home? Why didn't they arrest you whilst you were demonstrating? Applicant In some areas some were arrested while demonstrating but as for me they came to my place and enquired about me and then arrested me. Member Were you charged? Applicant They didn't charge me but they interrogated me at the MI office. Member At the military intelligence office? Applicant Members from MIS. Member And how long were you at that office for? Applicant 24 days in the office lock-up. Member And then where were you? Applicant And then they sent me to Insein Jail. Member Did your family know you were in Insein jail? Applicant They were never involved and they didn't know. Member Did anyone come to visit you whilst you were in jail? Applicant They never allowed anyone to see us. Member Where did jail food and things like that come from? Applicant From the jail authority fed us. Member Were you kept in a cell? Member [sic] How did it come about that you were released. Do you know why you were released? Applicant When they interrogated me I give no response to them and they tied and beat me and [I was] unconscious and thinking that I will die when they sent me back home. Member After that did you take part in any further political activities? Applicant I did treat myself for quite a long time but I didn't know but my parent provided me with a doctor to treat me." Later in the hearing, the appellant stated that after "organis[ing] three people and send[ing] them to the place where Aung San Suu Kyi was giving speeches" at the end of 1989 or early in 1990, he did not engage in political activity again because he was under "severe surveillance" which deprived him of the chance to resume activity of that kind because he "dare[d] not go in the jail and get beaten by the authorities again".

Reasons for Decision of the RRT 57 The RRT accepted some of the appellant's claims and did not accept others. Relevantly to the torture claim specifically, the RRT: · accepted that the appellant was involved in student protests in 1988; · did not accept that the appellant was the leader of a student group; · accepted that the appellant was arrested for his involvement; · given the low level of the appellant's involvement, did "not accept that he was detained for six months in Insein gaol as he was not an activist or high level organiser"; · found that the appellant would have been "a low level demonstrator along with thousands of others and he would not have been singled out for such severe punishment [detention for six months in Insein gaol]"; · accepted that the appellant would have been distressed at being detained, no matter for how long he was detained; · found that even if the appellant had been detained for six months, he had not come to the attention of the authorities since that time (that is, since April 1989); · found that on the appellant's own evidence, he had not been involved in politics since 1990; · did not accept that the appellant had been constantly under the surveillance of the authorities as he claimed; · did not accept that the appellant was unable to obtain employment because of his political profile; · found that the appellant did not have a political profile; · accepted that the appellant had been employed (and rejected his testimony that he had falsely claimed to have been employed); · did not accept any of the appellant's claims of persecution since 1990. 58 The RRT concluded the relevant part of its reasons for decision as follows: "The applicant has not been involved in any political activities since 1988 when he participated at a low level. He has not been detained nor come to the attention of the authorities since that time. He was able to obtain a passport to leave Burma on two occasions, and based on the country information quoted above there is no real chance that he will [be] persecuted now or in the reasonably foreseeable future for his political activities in 1988 if he returns to Burma. The applicant is therefore not a Convention refugee. The applicant has made no claims in relation to any other Convention ground." 59 The RRT also reviewed the appellant's claims of having engaged in political activity in Australia but found he did not have a political profile in Australia within the Burmese community and would not experience difficulties on account of his low-level involvement in Burmese community social functions and demonstrations, if he were to return to Burma.

Reasons for Decision of Primary Judge 60 Before the learned primary Judge, the appellant relied upon the following grounds of review referred to in subs 476(1) of the Migration Act 1958 (Cth) ("the Act"): · That procedures required by the Act to be observed in connection with the making of the RRT's decision were not observed (par 476(1)(a)); · That the decision was not authorised by the Act (par 476(1)(c)); and · That the decision involved an error of law (par 476(1)(e)). In various ways, these grounds turned on the RRT's treatment of, or failure to deal with, the appellant's claims of torture. 61 The reasoning of the learned primary Judge in this respect is encapsulated in the following paragraphs of his reasons for decision: "23. …In substance the Tribunal's reasoning revealed that it rejected his claims to have been imprisoned for six months and tortured. Moreover, having regard to the Tribunal's conclusions about his subsequent activity, even if he had been detained for six months and tortured as claimed, his later history meant that he did not have a well-founded fear of persecution for reason of his political opinions. Accordingly, the Tribunal was not required to make a finding as to his claim to have been tortured after his arrest in 1988 and during his six month's imprisonment. 24. In my opinion, the findings of the Tribunal about H's low political profile both in Burma and subsequently in Australia, the fact that he was not imprisoned for six months as claimed, and the absence of significant political activity since 1988, militate against the contention that the claim that he had been tortured at that time has any significant bearing upon whether or not he now holds a well-founded fear of persecution on account of his political opinions. The torture claim is not one which, in the light of its other findings, the Tribunal had to determine in order to arrive at a conclusion on the ultimate issue which it had to decide. 25. It cannot be assumed that the Tribunal has overlooked or forgotten about the torture question because it specifically referred to the claims made in that respect. Consistently with having made the findings it did, [the tribunal] was entitled to take the view that whether or not the torture occurred was not a matter which would weigh in its assessment of H's current entitlement to protection. In my opinion, it has not been shown that the Tribunal has failed to make a finding on a matter of material fact."

Reasoning on the Present Appeal 62 The following are the appellant's grounds of appeal: "2. The learned trial judge erred in law in finding that the Refugee Review Tribunal ("the Tribunal") was not required to determine the appellant's claim that he had been tortured in 1988 ("the torture claim"). 3. The learned trial judge erred in law in not finding that the Tribunal had failed to observe the procedures required by s 430(1) of the Migration Act 1958 ("the Act") by failing to set out in its written statement of reasons any finding of fact on the torture claim. 4. The learned trial judge erred in law in not finding that because the Tribunal had failed to set out in its written statement of reasons any finding of fact on the torture claim the decision involved an error of law. 5. The learned trial judge erred in law in not finding that because the Tribunal had failed to set out in its written statement of reasons any finding of fact on the torture claim the decision was not authorised by the Act or the Migration Regulations 1994. 6. The learned trial judge erred in law in not finding that 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. Particulars [The particulars turned on the RRT's treatment of the torture claim.]" 63 The procedures to which the first ground referred were the requirements contained in subs 430(1) of the Act that the RRT prepare a written statement that sets out the RRT's findings on any material questions of fact, and that refers to the evidence or any other material on which those findings were based. It is convenient to refer only to the first of these two requirements: the second is ancillary to the first. 64 On the hearing, Ms Sheehan of counsel for the appellant summarised her client's submissions as follows: "… essentially what the appellant's case to the court is is that the central issue as he made his claim for refugee status was never dealt with. That central issue is not of significance only for itself but it is of significance in terms of how it affects every other finding made in the chain of events that then follows. It's also significant because it is the basis of the well-founded fear today and that is a matter that clearly has been stated by the appellant throughout." 65 It is useful to say at once that we accept the following submissions made by Ms Sheehan on behalf of the appellant: · The appellant repeatedly made a claim of torture; · The appellant regarded that claim as a "key" claim (to adopt the language of a concession made by counsel for the Minister orally on the hearing); · The appellant's claim of torture was clearly before the RRT. 66 These considerations do not, however, signify that the claim of torture raised a material question of fact on which subs 430(1) of the Act required the RRT to make a finding. The majority reasons for judgment in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 (FC) are authority for the following propositions relevant to this case: (1) The preparation of the written statement required by subs 430(1) is a "procedure" of the kind referred to in par 476(1)(a), so that a failure to prepare a statement complying with subs 430(1) gives rise to the ground of review specified in that paragraph (at [43]). (2) "If the RRT fails to make a finding on a fact which is in truth, as a court subsequently determines, a material fact, then s 430(1)(c) will not have been complied withĽ." (at [47]). (3) "[W]hether a question of fact isĽmaterial may be influenced or determined by the way the [RRT] has approached the case as revealed by its reasons for decision" (at [54]). (4) A fact will be a material one if the RRT's "decision, one way or another, turns upon whether [the] particular fact does or does not exist, having regard to the process of reasoning the [RRT] has employed as the basis for its decision" (at [56]). (5) Facts may well be material ones "if, in a real practical sense, the outcome of the application for a protection visa can be seen as depending on whether the applicant's claim of the existence of those facts is accepted or rejected" (at [58]). (Counsel for the Minister submitted that Singh was not correctly decided, but we must follow it unless we think it plainly wrong - counsel for the Minister did not attempt to persuade us that it is plainly wrong, and we do not think it is.) 67 A theme which runs throughout the RRT's reasons for decision is its assessment that the appellant was a low level participant in student protests of 1988; that he had not been involved in political activities since then; that his involvement in 1988 was at the same level as thousands of others; that he had never been a "leader" or had a high political profile; that he was able to complete his university education and to depart Burma twice on a Burmese passport; and that the Burmese authorities had no interest in him. It was because of this assessment that the RRT, while prepared to accept that the appellant was arrested with other student protestors in 1988, was not prepared to accept that he had been detained in Insein Prison for six months. The RRT stated of the appellant: "The Tribunal accepts that he was arrested for his involvement but given the low level of his involvement, it does not accept that he was detained for 6 months in Insein gaol as he was not an activist or high level organiser. The Tribunal refers to the country information quoted at pages 10-12 of this decision and finds that the applicant would have been a low level demonstrator along with thousands of others and he would not have been singled out for such severe punishment. The Tribunal accepts that the applicant would have been distressed at being detained no matter how long he was detained." 68 Pages 10-12 of the RRT's reasons for decision referred to in this passage quoted material from "Country Information" about Burma. Generally speaking, that information distinguished between the hundreds of thousands of Burmese citizens who participated in the pro-democracy movement and demonstrations of 1988 on the one hand, and persons who have persisted in activity which the Burmese authorities perceive to be hostile to them, on the other. For example, a DFAT cable from the Australian Embassy in Rangoon dated 15 June 1992 which was before the RRT included the following: · "It is very common for people to be arrested frequently in Burma. By all accounts, people are not generally physically tortured; they are deprived of food and sleep, interrogated for long periods and forced to sign confessions. All this is done to obtain information, and Burmese live under a constant threat of being arrested. There is no stigma in Burma about having been arrested, particularly if it was for political reasons. · Important to remember that in 1988 many millions of Burmese were involved in the uprisings and it would be unlikely that such participation would lead to any adverse consequences. It is all a matter of degree and perceived hostility towards the government. If the military consider someone to be hostile towards them, they will arrest them. Remember that army units, airforce units, etc all marched in the democracy rallies in 1988." The relationship between the two paragraphs is not obvious. The first may relate to all and sundry who are thought by the authorities to possess information of interest. On the other hand, it may be a description of the treatment given to those persons whom the military perceives to be hostile, that is, the persons referred to in the second paragraph. Either way, the cable does not support the appellant's claims, because of the RRT's finding that he is of no political interest to the authorities. 69 Against the above background, it is not to be expected that the RRT would accept a claim by the appellant that he was tortured, either during the initial 24-day period at the MIS office or lock-up, or during the following six months' period of confinement in Insein Prison. 70 We turn first to the latter claim, that is, the claim of torture during the six months' imprisonment. In its most precise form, this claim was that while interrogating him in prison, the authorities tortured the appellant by tying him up and beating him into a state of unconsciousness. There are two reasons why, notwithstanding the prominence of the claim in the way in which the appellant put his case, this claim did not raise a material question of fact on which subs 430(1) of the Act obliged the RRT to make a finding. First, the RRT's express non-acceptance of the claim of six months' imprisonment is logically inconsistent with acceptance of a claim of torture during that period of imprisonment, and, having rejected the claim of six months' imprisonment, it was unnecessary for the RRT to state expressly that it rejected that claim of torture; cf Abebe v Commonwealth of Australia (1999) 197 CLR 510at [85]per Gleeson CJ and McHugh J, [298] per Callinan J. The second reason is that the RRT's assessment that, in substance, the appellant was just one of the hundreds of thousands of pro-democracy demonstrators of 1988, is inconsistent, not only with the authorities' having imprisoned him for six months but also with their having tortured him. 71 We turn next to the claim of torture during the initial 24-day period of confinement in the MIS office or lock-up. The RRT accepted the appellant's claim that he was arrested on the occasion of his involvement in the student protests of 1988. The RRT made no finding as to when or in what circumstances the appellant was released following the arrest. The RRT could not have thought that the appellant was detained for any longer period than 24 days, since that period, and no longer, was the period asserted by him. We think the case should be approached on the basis that the RRT did not reject the appellant's claim in respect of the initial 24-day period, that is, his claim that he was detained for 24 days in the MIS office or lock-up and was interrogated and tortured in some unidentified manner, there during that period. Nonetheless, clearly the RRT was required to decide whether the appellant had a well-founded fear of persecution for reason of political opinion as at the date of its decision. That was 12 November 1999 - some eleven years after the 24-day period in question. In our opinion, the appellant's low political profile which led the RRT to reject his claim of imprisonment for six months, the absence of any significant political activity on the part of the appellant since 1988, his two departures from Burma on a Burmese passport since that time, and the country information which was before the RRT, combine to show that the claim of interrogation and torture in some unspecified manner during the 24-day period did not raise a material question of fact on which the RRT was obliged to make a finding. The reason is that in the circumstances mentioned, interrogation and torture during that 24-day period, some eleven years earlier, could not, having regard to the RRT's reasoning otherwise, have given rise to a finding by it of a well-founded fear of persecution of the appellant in Burma for reason of political opinion. 72 In the result, having regard to the course of the RRT's reasoning and its assessment of both of the appellant's claims of torture described above, we do not think that either one or both of those claims raised a material question of fact on which subs 430(1) obliged the RRT to make a finding. 73 Our conclusion in this respect suffices to dispose of the other grounds of appeal as well.

Conclusion 74 For the above reasons the appeal should be dismissed with costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lindgren and Katz.

Solicitor for the Respondent: Australian Government Solicitor

LEE J: 1 The relevant facts set out in the joint reasons of Lindgren and Katz JJ need not be repeated. 2 The Refugee Review Tribunal ("the Tribunal") accepted that the appellant was involved in student protests in Burma in 1988. By that the Tribunal meant that the appellant engaged in protest activities in March 1988 and on 8 August 1988. 3 The Tribunal said it did not accept that the appellant was the leader of a "student group" that participated in those events. The reasons given for so concluding were "the (appellant's) lack of knowledge of political matters and a shift in his claims". 4 With regard to the first point it is not apparent that the possibility that the appellant participated as the leader of a student group depended on his "knowledge of political matters". The appellant said that a group of students was formed to object to the repression of students being carried out by the ruling Burmese authority. It was not in issue that students did so protest in 1988. "Knowledge of political matters" was not a pre-requisite for a student to promote, or participate in, such a protest. Furthermore, the facts on which the finding of absence of knowledge was based were less than comprehensive. The facts apparently relied on were that the appellant, when asked by the Tribunal, was unable to give the month in which the election was held in Burma in 1990 and the date on which Aung San Suu Kyi was placed under house arrest, (although he was able to tell the Tribunal she was released in 1995) and that the appellant, "(did) not know who U Tin Oo is or anything about him". 5 Given that the appellant was conversant with the election held in 1990 and its outcome and was aware of the role of Aung San Suu Kyi, it may be thought odd that a finding of credibility could turn on inability to remember the date on which the election was held or on which Aung San Suu Kyi was confined to her home, both events having occurred some nine years earlier. 6 With regard to the appellant's knowledge of U Tin Oo, the whole of the relevant material reposes in the following exchange between the Tribunal and the appellant, conducted through an interpreter. The appellant had told the Tribunal he was not, and had not been, a member of the NLD but did support it. "Member Are you aware of any members of the NLD that have been arrested? Applicant Yes I have my friends from my quarters where member of NLD were arrested. Member Do you know when U Tin Oo was arrested? Applicant: I know only about my quarter the people in my quarters. Member I find it odd that someone who says that they are a supporter of the NLD doesn't know about U Tin Oo and didn't know when Aung San Suu Kyi was arrested. Applicant I know who but I didn't know when she was arrested because it was so long ago I can't remember the proper date." 7 The final paragraph of the passage set out above suggests that a slip may have occurred "'twixt lip and cup" in respect of the appellant's response to the two matters put to him by the Tribunal. It is possible that the appellant stated that he did know U Tin Oo, (transcribed as "I know who"), before he explained why he could not recall exactly when Aung San Suu Kyi was arrested. 8 The appellant was not asked about his knowledge of U Tin Oo, other than the date on which that person was arrested. As transcribed the appellant's response lacked coherence but the Tribunal did not pursue the matter. The material seems to fall short of providing a firm foundation for the Tribunal's finding. As may be seen in other parts of the transcript of interview, including the passages set out below, the transcript contains incomplete and unintelligible segments which suggest that either the interpreter's words, or the transcript, did not represent an accurate record of what the appellant had said in response to the Tribunal's questions. 9 With regard to the second point relied on by the Tribunal, namely, the "shift" in the appellant's claims, it was said that "it was not until (the appellant) was interviewed by the delegate that he claimed that he was a member of a group". 10 The relevant facts are as follows. In his application for a protection visa dated 30 June 1997 the appellant set out, inter alia, the following account as to why he had left Burma: "In 1988 July, I was studying at the Yangon University the second year bachelor of Science Course where I participated in student demonstrations. During the August 8 uprising I marched in the front-line students group shouting." 11 On 26 September 1997, the appellant, through an interpreter, was interviewed by an officer of the respondent's Department. That officer, as a delegate of the respondent, determined the appellant's application for a visa. It may be assumed that the purpose of the interview was to obtain elaboration, or an explanation, of matters raised by the application for a visa. 12 The relevant parts of the interview were as follows: "THE INTERPRETER: And second year I participated in the riots and - against the Government and I was helping with the distribution of paper. Then I was arrested by this Number 7, Intelligent Office and I was arrested for two weeks. … [DELEGATE]: Okay. So second year you were arrested and you were detained for two years, what happened ----- THE INTERPRETER: Two weeks--- MR LAY: Two weeks. [DELEGATE]: Two weeks, sorry, yes. And what happened then? THE INTERPRETER: I was arrested and then I was taken to Inseng Gaol. With the other students I was kept there for six months and I was tortured but I couldn't take it any more. I became forgetful then I was taken back to my home. … [DELEGATE]: Okay. Why did you participate in the riots? What party did you belong to? THE INTERPRETER: The reason that I joined in the riot because I could not take what the government was doing and the students were treated by this government - I just couldn't stand it any more. The group that I participated in is like the Student Youth Group. [DELEGATE]: Yes, what group? Did it belong to the Youth Group? What party did it belong to, the Youth Group? What party did it belong to? THE INTERPRETER: YSC. [DELEGATE]: What is it called? MR LAY: YSC or Young School - Young Student Group. THE INTERPRETER: Young Student Group, YSG. … [DELEGATE]: Okay. So you belong to Young Student Group. Did you hold any position there? THE INTERPRETER: It's the basic group that I distribute papers. [DELEGATE]: How many were there in that group? THE INTERPRETER: Students but… [DELEGATE]: And you were distributing pamphlets? THE INTERPRETER: Yes. [DELEGATE]: So you did not hold any official positions? THE INTERPRETER: I am not sitting, I am just going around to distribute paper here and there and Military Intelligence would follow me. [DELEGATE]: So all the 30 students were arrested? THE INTERPRETER: Out of the 30, 10 of us were arrested. The rest - the rest - some just went to the jungle and left. [DELEGATE]: Okay. 10 were arrested. When did these riots take place? THE INTERPRETER: That is before - about March '88, yes." 13 Later when asked if he claimed that he suffered discrimination because he "participated in the riots" the appellant replied: "Not just participating in the riot. If you do a little bit more than just participating, like distribution of papers, that is why." 14 The hearing before the Tribunal contained the following exchange: "Member In 1988 you were at University - is that correct? Applicant Yes, second year. Member And you participated in the student demonstrations? Applicant Yes. Member Were you a member of any particular group or Organisation? Applicant Student Organisation. Member Did that student Organisation have a name? Applicant A Young Students Organisation with 30 members. Member What did you actually do? What was your involvement in the protest? Applicant I am the leader of the group who used to do the pamphlets to the people and I had to organise the government servants from the government departments. Member What did the pamphlets say that you distributed? Applicant Invitation to the demonstration meeting. Member What were you demonstrating about? Applicant To organise the anti-government movements. Member Why were you against the Government? Applicant I was seeing with my own eyes bullying students by the authorities. Member How did you want Burma to change? What was the point of the protest? Applicant Not to kill each other and to have human rights for our people. Member What sort of human rights did you want? Applicant To help each other and not to kill and not to torture own people. Member Did you want elections to be held? Applicant Yes I did. Member Why did you want elections to be held? Applicant In 1990 we had an election and the NLD won totally but they didn't hand over the power. And that party was watched, by the whole world. And they announced that the party was not a legal party. Member Why were given the task of organising the public servants? Applicant It was my responsibility to organise three townships including Syriam township. Member And you were arrested as a result of your involvement? Applicant They came to my house at 3.00am early morning and they closed my eyes and look (sic) me away including the elders from my quarters. Member Who arrested you? Applicant The authorities that I think is one of the MIS group. Member Thousands of students took part in these demonstrations, why do you think you were arrested? Applicant There were lots of other students also arrested. Member Why did they come to your home? Why didn't they arrest you whilst you were demonstrating? Applicant In some areas some were arrested while demonstrating but as for me they came to my place and enquired, about me and then arrested me." 15 It may be thought that the foregoing exposition of the appellant's claims by answers to interrogatories provided detail to the short statement set out in his application for a visa and that in no respect was that further information inconsistent with the application. If so, there was no "shift" in the appellant's claims that provided foundation for the Tribunal to conclude that the evidence of the appellant in that regard was not to be accepted. Furthermore, the appellant did not rely on any role he had in the student group to explain why he had been arrested or why he feared persecution. 16 The Tribunal did accept the appellant's claim that he was arrested for his involvement in the manifestation of public dissent represented by the 8 August 1988 demonstration. However, on the ground that the appellant was not "a high level organiser" the Tribunal did not accept his claim that he was incarcerated for six months thereafter. It has been reported, and the Tribunal would have been aware, that 3,000 people were killed by Burmese authorities in suppression of the 8 August 1988 uprising. (See: X v Minister for Immigration and Multicultural Affairs [2001] FCA 253.) No doubt those killed included more than "high level organisers". It may be assumed that the process of subjugation undertaken by Burmese authorities involved not only identification and neutralisation of ringleaders, but widespread acts of repression. There would be little reason to doubt that Burmese authorities may have decided to interrogate a person they had observed distributing pamphlets before the demonstration, to discover not only what part that person performed in the organisation of rebellion but also from whom instructions were received. Such acts of arrest, interrogation and imprisonment would become in themselves an instrument of repression used to warn others not to oppose the ruling régime. How the perceived "level" of the appellant's involvement could determine, to the exclusion of other considerations, whether the appellant was to be believed as to the period of his imprisonment is not evident. On its face the appellant's account was not inherently unbelievable. 17 Furthermore, the appellant's sister gave evidence to the Tribunal which supported the appellant's account. Although she is now an Australian citizen, the appellant's sister was living in the family home in Rangoon when the appellant was arrested in 1988. She confirmed that the appellant had been taken from his home by Burmese authorities in September 1988 and that he did not return until six months later. During that time the family was not informed where the appellant was held. The appellant was in ill health when released. The appellant's sister also confirmed the appellant's account that between 1989 and 1991, whenever there was "instability in the country", Burmese authorities had taken the appellant from the family home for interrogation over two or three days. 18 That evidence supported the appellant's claims as to the period for which he was imprisoned, that he was not of good health when released and that he had been taken from his home for questioning between 1989 and 1991. No part of the evidence of the sister was referred to by the Tribunal in its findings. 19 Before the Tribunal could assess whether there was a real risk that the appellant may suffer persecution if returned to Burma, it had to determine whether the appellant had suffered persecution in the past. That involved consideration of whether there had been arbitrary arrests, incarceration and ill treatment over six months from September 1988 and any recurrence of such events thereafter. The Tribunal purported to do so by "not accepting" the appellant's claims in that regard. Whether the Tribunal could dispose of the appellant's claims without dealing with relevant evidence provided by the appellant's sister is discussed later in these reasons. 20 The appellant also produced to the Tribunal a handwritten medical report dated 16 November 1989 provided by a medical practitioner in Rangoon. The report stated that the appellant was given treatment under that practitioner's supervision "on 16.4.89, due to physical and mental illness, and received treatment during the month of November, 1988". The report gave details of treatment by way of medication provided over a period of six months and then stated that: "I recommended that he was now fully regain his normal activity and will be able to continue his education or may be able to proceed any assignment he wishes to have." 21 Although the report as written was confusing in several respects and in particular in that it referred to treatment "during the month of November 1988", in context the report conveys the advice that the treatment commenced in April 1989 and lasted until November 1989. The thrust of the report was to the effect that for a period of six months from 16 April 1989 the appellant was treated for his ill health and that as at November 1989 he was ready to resume his studies. The appellant returned to university in 1990. So understood, the medical report provided some support for the appellant's claims that he was released from imprisonment and the treatment he had suffered whilst in prison had caused him physical and mental injury. 22 The Tribunal's finding in respect of the report was limited to the following: "The Tribunal notes that the applicant was admitted to a hospital for mental illness in April 1989 for a disease that occurred in November 1988. The report does not indicate what the trigger was for this disease nor why he was not treated for 6 months." 23 In that statement the Tribunal appears to accept the report, notwithstanding that it may have misunderstood it. However, the Tribunal did not deal with the relevance of the report to that part of the appellant's claims that related to imprisonment and ill treatment between September 1988 and April 1989. 24 In summary, the appellant's case was that in September 1988 he had been arrested by Burmese Military Intelligence officers as a result of observation of his activities, or perhaps as a result of information obtained, and had been interrogated in respect of the uprising by students, and others, that had taken place in August 1988. He had suffered ill treatment in that period of interrogation and imprisonment and had been subjected to surveillance and occasional interrogation thereafter, including detention after returning from a visit to his sister in Australia in 1995, and could expect such interference to his life to continue as long as it served the purpose of the ruling group in Burma to repress dissent by instilling fear of such consequences amongst its people. 25 The Tribunal dealt with that case by "not accepting" essential elements of the appellant's account and, after having regard to limited facts and to matters that the Tribunal considered to be relevant, found that there was no real chance that the appellant would be persecuted in future if the appellant were returned to Burma. 26 A bare statement that claims are "not accepted" may, in some cases, require examination of whether the exercise of the decision-making power has been perverse, arbitrary or capricious. If so, the function reposed in the Tribunal by s 414 of the Migration Act 1958 (Cth) ("the Act") will not have been carried out and ground for review may arise under s 476(1)(b), (c), (e) or (g) of the Act. (See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at pars [145], [154].) However, for the conduct of a review to be so described, more must be shown than that the material before the Tribunal could satisfy the Tribunal as required by s 65 of the Act. 27 For the reasons I have set out above, another mind charged with carrying out the function of administrative review under the Act may have considered that reason dictated that essential elements of the appellant's claims ought to be accepted and a determination made upon those facts as to whether the appellant's fear of being persecuted if he were returned to Burma was well-founded. 28 That circumstance on its own, however, does not raise a ground for review under s 476 of the Act. 29 The grounds of appeal in this matter turned on the failure of the Tribunal to make a finding of fact in respect of the appellant's claim that he had suffered torture at the hands of Burmese authorities whilst held by them for six months between 1988 and 1989. The Tribunal found that the appellant, although arrested, was not incarcerated as he claimed and that, contrary to the claims of the appellant, he had not come to the notice of Burmese authorities since that arrest in 1988 and was not a person in whom the Burmese authorities would show interest if he were returned to Burma. The absence of a finding of fact on the issue whether the appellant was tortured in 1988, therefore, could only become live if the decision-making process of the Tribunal were shown to have miscarried in respect of the findings of fact that made a finding on the issue of torture irrelevant. 30 As noted earlier in these reasons, the failure of the Tribunal to deal with the evidence given by the appellant's sister may have provided such a ground for review. That evidence went to material issues, or fundamental facts, in the proceedings, namely, was the appellant detained by Burmese authorities for six months between September 1988 and April 1989 and did those authorities continue to show interest in the appellant between 1989 and 1995. (See: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, per Black CJ, Sundberg, Katz and Hely JJ at [53]-[58].) It may have been argued that under s 430(1)(b), (c) and (d) of the Act, a bare assertion by the Tribunal that it "did not accept" such claims obliged the Tribunal to state how its reasoning dealt with the evidence of the appellant's sister on those material issues (see: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 per McHugh J at [65]), and that the failure of the Tribunal to do so provided ground for review under s 476(1)(a) of the Act. That task was not undertaken before the learned primary Judge or before this Court. 31 It follows that the appeal must be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

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