WAKK v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT THE COURT 1 This is an appeal from the judgment of the primary judge published on 9 November 2004. His Honour dismissed the application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal has been joined as the second respondent in accordance with the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, [2005] HCA 24. 2 For the reasons set out below the appeal should be dismissed. Factual and Procedural Background 3 The appellant was born on 8 August 1974 in Mandalay and is a citizen of Burma. He entered Australia on a visitor's visa on 13 November 1999. Some five weeks later, on 21 December 1999, the appellant lodged an application for a protection visa. In his statement setting out reasons for leaving his country, the appellant stated that his elder brother had been involved in political demonstrations in Mandalay in 1988 and had been arrested by military intelligence and detained for several weeks. He was eventually released but after his brother's release, his family had been harassed. Military intelligence officers had visited them at home at night and demanded a list of persons in the household. He also said that he was disgusted with the military regime in Burma. Because of this, he had fled to the Chinese border in December 1994 but was detained at the border post. When released he fled into the jungle and joined the Kachin Development Army ('KDA') which was based at the Chinese/Burmese border. Following a ceasefire between the government and the KDA he returned to Mandalay and found employment. However, following his return to Mandalay the harassment by the Burmese authorities continued. He said that if he were now returned the military intelligence would arrest him. He also said that he would be subjected to persecution by the military intelligence because since he had come to Perth he had become involved with refugees from Burma. He claimed that there were agents of the Burmese military regime in Western Australia and he would be considered an enemy of the State of Burma. The appellant supplied further material to the Department of Immigration and Multicultural and Indigenous Affairs ('the department') in support of his application for a protection visa and he was interviewed by a departmental officer on 21 June 2001. 4 A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the delegate') refused that application on 28 November 2001. The delegate was not satisfied that the appellant had experienced persecution by Burmese authorities. 5 In his reasons for decision the delegate stated that the appellant had applied for a special assistance category visa in 1994. That visa application was sponsored by an uncle of the appellant who, at the time of the application, lived and continues to live in Western Australia. The claims made on behalf of the appellant in that application were that he suffered persecution and discrimination on the basis of his Anglo‑Burmese ethnicity. That visa application was refused as the claims presented at the interview were marginal and did not amount to substantial discrimination. The delegate noted that no mention was made in that visa application of any claims based upon threatened persecution on the grounds of political opinion. 6 In his reasons for decision, the delegate found that the appellant's claims lacked credibility. The delegate referred to the following elements of the appellant's claims which the delegate found to be implausible. 7 In his interview with the departmental officer, on 21 June 2001, the appellant had said that his difficulties at the Chinese border occurred when Burmese authorities checked his imported goods and wanted to impose a tax on the goods which the appellant said was excessive. The incident resulted in the Burmese authorities taking his identification card and that of his companions. To avoid arrest he and two of his companions fled into the jungle. In the jungle, he sought refuge with the KDA until November 1995 in order to avoid arrest. The delegate found it implausible that the appellant would remain in hiding in the jungle in respect of so trivial an issue as a replacement identification card and an altercation in relation to the tax due on imported goods. 8 Secondly, the delegate noted that the appellant was able to obtain a police clearance so as to be able to obtain a passport in July 1999 which was valid until July 2002 and was able legally to depart Burma on that passport. The delegate found that this raised serious questions in relation to his claim that he was a person who, prior to his departure, was under surveillance by the authorities and was a person of sufficient interest to them, such that he would be the subject of persecution on the grounds of political opinion. The delegate was not satisfied that the appellant had experienced persecution at the hands of Burmese authorities. 9 Further, the delegate was not satisfied that the appellant's involvement with pro‑democracy activities in Australia had been other than intended to strengthen his claims to be a refugee. The delegate did accept however that the appellant had some involvement in pro‑democracy activities in Perth but found that it had been a minor one. 10 The delegate concluded by finding that the appellant was not a person of sufficient interest to the authorities in Burma because of his political opinion, such that there was a real chance he would suffer persecution in the Convention sense if he was to return to Burma. The Tribunal 11 On 12 December 2001 the appellant lodged an application with the Tribunal seeking a review of the delegate's decision. A typed supporting statement accompanied the appellant's application for review. In that statement the appellant stated that he could not practise his religion as a Christian as freely as he would in Australia and he stated that he was forced to discard his rightful name and take on a Burmese Buddhist name. Among the documents that he attached to that statement was a newsletter entitled 'Karenaid News' dated September 2001. The 10 page newsletter disclosed that the Karenaid organisation was registered as a charity, and set out the names of the persons then acting as its trustees. Lord Alton of Liverpool was named as the patron of the organisation. The newsletter also stated that the organisation provided financial assistance to help displaced persons from Burma, and that it was planning to hold a day long conference on the same weekend as the Day of Prayer for Burma - anticipated to be in March 2002. In addition, the newsletter provided information about developments in Burma. 12 Further, a 45 page typed submission was lodged on behalf of the appellant by SCALES, an advocacy agency representing the appellant. The appellant also made a 37 paragraph statutory declaration dated 30 December 2002 in further support of his application. 13 In each of these documents the appellant outlined and expanded upon the claims that he had made in support of his application for a protection visa. The appellant claimed firstly that he had a well founded fear of persecution due to ethnicity and religion. He also claimed he had a well founded fear of persecution for political opinion founded on his activities in the context of the pro‑democracy movement and the KDA, and upon imputed political opinion arising from the political activities of his brother. Further he claimed that he had a well founded fear of persecution arising from his political activities since arriving in Australia and his association with a political activist in Australia with whom the appellant claimed that he was 'closely and publicly' associated. 14 The appellant stated in the statutory declaration that he returned to Mandalay at the end of the fighting between the KDA and the government, that the KDA was formally recognised by the Burmese government, and the KDA headquarters was opened in Mandalay. He then went on to say: 'Nothing happened to the top leaders of the KDA as a result of the surrender, but myself and other soldiers and fighters in the KDA were harassed and made to check in weekly to sign a register at the local police station, sometimes having to pay to sign it. I also had to sign and notify the government if I wanted to leave Mandalay. This "reporting in" process was later reduced to monthly, but I would again be called in weekly if things became unsettled, in terms of a lot of student demonstrations and political activity in the city. Whilst the government now formally recognised the KDA, both groups were not on good terms, and were merely upholding the cease‑fire. There was a lot of suspicion and the government believed that I had senior information about the operations of KDA due to my relationship with [the prominent dissident]. The Military Intelligence continued to harass me in my home, coming to search the house, looking for evidence of any involvement with other underground political groups, and to intimidate. When I came to Australia I didn't sign out. A letter of demand, dated September 21, 2000 was sent to my grandmother's house which was given to me by my uncle, [on his return to Australia after visiting relatives in Burma]. It is an official letter dated September 21, 2000 sent by the local police station noting that I had not been in to sign the register for 10 months and requiring me to report to the police station immediately and without fail.' 15 A copy of the letter and a translation of the letter was annexed to the statutory declaration. The letter is addressed to the appellant and uses both his Buddhist name and his English name. The body of the letter states as follows: 'Subject: Notification to report to the police station This is to notify [the appellant's name and address] who has been required to sign on a monthly basis, in accordance with the Emergency Provision Ordinance Section 5 - (nya) to report at the police station. As he has been absent for nearly 10 months, he is hereby required to attend without fail.' 16 The appellant stated that he feared on his return to Burma he would be arrested immediately. Further he claimed that he would be the subject of psychological torture if he was not put in prison because the military intelligence would interrogate him about the reasons for his absence and come to know of his involvement in political activities in Australia if they were not already so aware. 17 As to his political activities in Australia, he said in his statutory declaration that he was a member of Tribal Refugee Welfare ('TRW') in Perth. He made a speech for the commemoration committee about the human rights situation in Burma. He also said that he was involved in a group known as 'Free Burma'. The prominent dissident also provided a statement to the Tribunal in support of the appellant's application. The appellant and the prominent dissident gave evidence at the hearing. 18 One of the issues which the Tribunal raised with the appellant at the hearing was the police letter of 21 September 2000. A transcript of the evidence before the Tribunal indicates that the following exchange occurred at the hearing: 'Q. Why, when you're English name is not recognised at all in Burma do they include your English name in the document? A. When I was admitted to the school, my name was in English but they asked me to change into Burmese, then only they will accept my admission. That's why I had to change Burmese name. Q. I understand that, but I don't understand why they would use your English name on an official document when it is not recognised at all? A. Which document you mean? Q. The document asking you to report to the police station. A. Because when the police ask my mother, she explained that "he has left for foreign country". When I had to sign, they only knew my Burmese name. When the police officer ask my mother why I was not coming to the station to sign, she told police that I was in Australia. I left Burma and "he was in a foreign country". At the time one of my uncles went to Burma on a tourist visa and the police officer ask my mother to send the letter to me. So my mother requested the police station to put my English name there because my Burmese name was not known in Australia. The letter was sent through my uncle.' 19 The Tribunal also raised with the appellant his political activities in Australia. The transcript reveals the following exchange occurred at the hearing: 'Q. Do you have any contact with the Karen people? A. Which people? Q. The KAL or Karen Aid? A. What is KAL? Q. Do you have any contact with Karen Aid Organisation? It's called Karen Aid. A. I use to go to their functions with [the prominent dissident]. Q. No, I mean in Australia, have you had any involvement with the Karen Aid Organisation? A. Yes I do. Q. What is your involvement? A. TRW was also Karen Organisation so I used to take part in all the activities from them.' 20 The interpreter then said that the appellant had said the object of the organisation was also to 'restore democracy in Burma'. 21 In its reasons dated 24 September 2003, the Tribunal affirmed the decision of the delegate not to grant the protection visa. In relation to the claim that the appellant feared persecution by reason of his religion, the Tribunal accepted that there had been some low level discrimination suffered by the appellant due to his Anglo‑Burmese Christian background, but the Tribunal found that the discrimination did not involve serious harm amounting to persecution as defined in the Convention. No issue is taken in this appeal in relation to this finding. 22 The Tribunal considered the appellant's claim of persecution by reason of imputed political opinion as a result of his brother's political activities. The Tribunal accepted the evidence that the appellant's brother had been detained for two months as a result of his pro‑democracy activities and had suffered ill treatment whilst in detention. But it noted that the brother's detention was during a period where thousands of people were being arrested. The Tribunal also accepted that after the brother's release the family was placed under surveillance, but found that the surveillance had ceased within eight months of his brother's release from detention. The Tribunal could not accept that the appellant's family would still be under surveillance as a result of political activities by his brother in 1988. The Tribunal concluded that the appellant: 'has not been persecuted in the past as a result of his brother's political activities, he was not imputed with anti‑government political opinion as a result of his brother's political activities, and that there is no real chance that he will be persecuted in the reasonable foreseeable future for reasons of his brother's political activities in 1988 and his fear of persecution is not well‑founded.' 23 The Tribunal then considered the appellant's own activities in Burma. It dealt firstly with his claims of harassment arising from his association with the KDA. The Tribunal referred to inconsistencies in the appellant's claims in this respect. The appellant had initially claimed that he was forced to flee to the border. However, at the hearing he explained that he went to the Burmese border to earn money for his family, not to escape any ill treatment that the family was receiving in Mandalay. The appellant had stated in his evidence that he did not know that groups like the KDA existed until he went to the border areas. 24 The appellant also initially claimed that he became involved with the KDA and was a bodyguard to one of the division leaders. However, he also said, that he had no military training, and at the time he was appointed as the bodyguard, he hardly knew this person. When the Tribunal put to the appellant that it was implausible that a leader of a division of the KDA would have a person who was untrained and unknown to him as a bodyguard, the appellant stated that the leader actually had another bodyguard and he was more like an assistant. Further, the appellant's evidence was that he was never involved in any combat or military activities with the KDA. The Tribunal was not prepared to accept that he had acted as a bodyguard for one of the leaders of the KDA. The Tribunal accepted that the appellant 'may have' sheltered with the KDA at the time of their negotiations with the Burmese government for a ceasefire. 25 The Tribunal referred to further inconsistencies in the appellant's claims in relation to his claimed fear of persecution founded on his association with the KDA. The appellant initially claimed that after the ceasefire he returned to Mandalay and was under constant surveillance by the military authorities. The appellant provided conflicting evidence as to the reasons for this surveillance. His initial claim in his interview and statutory declaration was that it was because of his association with the KDA that he was under surveillance. He stated that soldiers and fighters with the KDA were harassed and made to check in weekly to the local authorities in Mandalay. There was a lot of suspicion and the government believed that the appellant had 'senior information' about the activities of the KDA. He said further that whilst the government now formally recognised the KDA, both groups were not on good terms and were merely upholding a ceasefire. However, the appellant's evidence at the hearing was 'diametrically opposed to his earlier claims'. He stated that the KDA had become affiliated with the government authorities and that he was under surveillance because he had left the KDA and the surveillance commenced two weeks after he had left the KDA. The appellant admitted at the hearing that he had changed his evidence and stated the evidence that he had given on earlier occasions when interviewed by the delegate and in his statement was incorrect. When asked to explain the inconsistency, the appellant said that upon reflection he realised that his initial claims were wrong. The Tribunal found that if the Burmese authorities had targeted the appellant because of his association with the KDA, he could not have possibly got his initial story wrong. He would have been aware of the government's attitude towards the KDA; it would be something that would have been basic and fundamental to his understanding. The Tribunal said that for these reasons it did not accept that the appellant was under surveillance or required to report after he returned to Mandalay. The Tribunal did not accept that he was required to report to the Burmese authorities because of his involvement with the KDA. 26 The Tribunal found further inconsistencies with regard to the appellant's claimed pro‑democracy activities in Burma. The appellant said that after his return to Mandalay he was involved in pro‑democracy activities from 1995 to 1999 including meetings with university students and members, distributing anti‑government information and participating in protests at the university. At the hearing the appellant said that whilst in Burma, he had not been caught by military authorities for his pro‑democracy activities and he had never been called for questioning, arrested or interrogated by the Burmese authorities. He said that he was suspected of being involved in such activities but the authorities could not do anything unless he was caught 'red-handed'. The Tribunal found that this evidence was inconsistent with country information, which indicated that people suspected of pro‑democracy activities did not need to be caught 'red-handed' by the authorities before action against them could be taken. When the country information was put to the appellant at the hearing, he responded by stating that he tried to avoid being involved in anti‑government activities. The Tribunal found this to be at odds with his claimed political activism. The Tribunal said that by reason of these inconsistencies and the fact that the appellant knew little of political issues, it did not accept that the appellant was involved in pro‑democracy activities during that time. The Tribunal found that even if he was involved in some minor activities on his own evidence none of these minor political activities came to the attention of the Burmese authorities so even on his own account he could not have developed an elevated political profile in the eyes of the military regime. 27 The Tribunal then considered the claim based on the appellant's activities since arriving in Australia. The Tribunal said that the appellant claimed to be involved in the organisation of a political forum at Edith Cowan University, but when questioned about the forum, the appellant was unable to explain its nature and stated that the extent of his involvement was decorating the hall and singing songs. Further, the Tribunal said: 'The [appellant] had submitted some information regarding the KLA and the Karen Aid Organisation. When asked about these two organizations at the hearing, he did not know who they were; he did not know where they operated from or what their activities were. The Tribunal would expect that someone who is involved with the TRW or in pro‑democracy activities in Australia would be aware of their activities.' The Tribunal found that he attended pro‑democracy demonstrations in Perth but had a limited understanding of the pro‑democracy movement. 28 In relation to the appellant's association with the prominent dissident, the Tribunal accepted some association but was not prepared to accept on the evidence that it was a close association such that would lead the Burmese authorities to identify the appellant with the prominent dissident. The Tribunal then said: '…if the [appellant] was closely associated with [the prominent dissident] the Tribunal would have expected him to know something about Karen groups and their activities, which he did not know'. 29 The Tribunal also referred to the appellant's activities in Perth including his setting up a website with his photograph commemorating '8/8/88'. Pursuant to s 91R(3)(b) of the Migraton Act 1958 (Cth) ('the Act') the Tribunal found that his conduct had been engaged in for the purpose of strengthening his claims for refugee status rather than because of his pro‑democracy convictions. Section 91R(3) of the Act required the Tribunal to disregard the appellant's conduct in Australia unless satisfied that the appellant engaged in conduct otherwise than for the purpose of strengthening his refugee claims. 30 Finally the Tribunal referred to the police document sent to the appellant's home in September 2000 demanding that the appellant report to the Burmese authorities on his return to Burma. The Tribunal recorded the evidence given by the appellant in relation to the use of the appellant's English name in the police letter as follows: 'The [appellant] was asked about the Order to Report, dated September 2000. He was asked why his English name was included in this Order when he was never known by this name if Burma. The [appellant] stated that when the authorities came to his home looking for him, his mother told them he had gone to a foreign country. His mother insisted that his name be placed on the Order in English because outside of Burma he is only known by his English name.' 31 The Tribunal said that it seemed odd that the appellant's mother's will could 'overbear' that of the Burmese authorities. The Tribunal referred to the fact that in his evidence at the hearing the appellant had said that he had not been called in for questioning or detained during his time in Burma and it seemed strange that he should now receive a letter from the authorities calling on him to report immediately. The Tribunal said it had doubts about the document and said even if it was a genuine request to report to the Burmese authorities, there was nothing to indicate that the request was because of the appellant's political activities. The request could be because the appellant has been outside of Burma for longer than previously indicated. The Tribunal said that it did not accept that the 'document means that the appellant faces a real chance of persecution in the reasonably foreseeable future if he returns to Burma'. 32 In summary the Tribunal found the following: '…the [appellant] has not been persecuted in the past for reasons of being Anglo Burmese Christian and there is no real chance that he will be persecuted in the reasonable foreseeable future. The [appellant] has not been persecuted in the past for reasons of his political opinions or imputed political opinions, and the Tribunal finds that there is no real chance that he will be persecuted in the reasonable foreseeable future if he was to return to Burma and his fear of persecution is not well‑founded.' 33 The Tribunal concluded by saying: 'Having considered the evidence as a whole, the Tribunal is not satisfied that the appellant is a person in whom Australia has protection obligations under the Refugees Convention…' The review before the primary judge 34 On 21 November 2003, the appellant lodged an application pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking a review of the decision of the Tribunal. 35 An amended application was filed on 24 May 2004. The appellant relied on several grounds of review but, there were three grounds that remain relevant for the purposes of the appeal. 36 The first ground related to the way the Tribunal dealt with the police letter. The appellant alleged that the Tribunal had misapprehended the evidence that the appellant had given as to the presence of his English name. The Tribunal had reported the evidence as his mother 'insisting' that the English name be included in the letter, when the evidence actually was that the mother had 'requested' that the English name be included. Further, the appellant said that the letter referred to the Emergency Provision Ordinance as being the basis on which the appellant had been required to report to the police and so the Tribunal was wrong to have stated that there was nothing in the police letter to indicate that the authorities were interested in him for his political activities. These errors were said to be jurisdictional errors. 37 Further, the appellant alleged that the Tribunal had failed to accord procedural fairness in not advising him in terms that it had doubts as to the authenticity of the police letter. If the police letter had been accepted as genuine, said the appellant, that would have undermined the Tribunal's refusal to accept that he was required to report to the police at all. 38 The second ground was that the Tribunal had erred in rejecting his claim that he had been involved in pro‑democracy activities in Australia, on the ground that the appellant had, when questioned by the Tribunal, shown little knowledge of the KLA and Karen Aid Organisation. The error was that during the hearing the Tribunal questioned the appellant about organisations which it referred to as 'KAL' and 'Karen Aid', when in fact there were no such organisations. There was only a newsletter called 'Karenaid News' - which the appellant had supplied to the Tribunal. This was also an error allegedly which went to jurisdiction. 39 The third ground was that the Tribunal should have found that the relationship between the appellant and the prominent dissident was close because there was evidence to that effect from the prominent dissident. The Tribunal erred also in relying on the appellant's absence of knowledge of the Karen Aid and KAL to find that the relationship was not very close. 40 As to the first ground, the primary judge accepted that the Tribunal had misdescribed the evidence that the appellant had given. His Honour said that it was open to the Tribunal to query the use of the English name. It was also open to the Tribunal not to accept the evidence that he gave that his mother had suggested that they use his English name because the appellant was in Australia. His Honour concluded that although the mischaracterisation of the evidence of his mother's request was careless, it did not vitiate the Tribunal's decision. The Tribunal had made no positive finding about the letter. His Honour referred to the case of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [53] ('NABE'). He said that the error of fact was not one that would have affected the outcome of the case. 41 Further, his Honour said that there was no breach of procedural fairness arising out of the absence of any notification from the Tribunal of its doubts about the document. The Tribunal had put to the appellant its concerns about the presence of the English name and it did not find the letter to be a forgery. His Honour did not expressly deal with the appellant's complaint that the Tribunal had said there was 'nothing in the letter' to indicate that the authorities wanted to see the appellant about political activities when there was a reference in the letter of the Emergency Provision Ordinance. However, his Honour did make the observation that before the Court the appellant relied on corroborative evidence from the uncle, but that evidence was not before the Tribunal. The evidence from the uncle to which his Honour referred included a copy of the relevant Emergency Provision Ordinance. 42 In respect of the alleged errors in relation to the references by the Tribunal to the 'KAL' and the 'Karen Aid Organisation', his Honour accepted that the Tribunal had erred in its reference to KAL, and that there was no such organisation. The error did not go to jurisdiction. His Honour found that on the basis of the appellant having submitted the Karenaid newsletter to the Tribunal, but only being able to speak of Karenaid in the broadest of generalities, it was open to the Tribunal to make its finding regarding the appellant's knowledge of the Karen Aid Organisation. 43 The primary judge found that in relation to the appellant's association with the prominent dissident, the Tribunal's error related to a finding of fact. The error does not constitute jurisdictional error. Further, it was open to the Tribunal to conclude that the appellant's association with the prominent dissident 'was at a minor level'. His Honour also referred to s 91R of the Act and said that, in any event, the Tribunal found that the appellant engaged in conduct in Australia for the purpose of strengthening his claim for refugee status rather than for pro‑democracy convictions. Full Court Appeal 44 An amended notice of appeal from the whole of the judgment of the primary judge was filed on 2 May 2005. The amended grounds of appeal are as follows: