WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131

FEDERAL COURT OF AUSTRALIA WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131

WALN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS WAD 392 OF 2005 RYAN, TAMBERLIN AND MIDDLETON JJ 18 AUGUST 2006 PERTH

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 392 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WALN Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGES: RYAN, TAMBERLIN and MIDDLETON JJ DATE OF ORDER: 18 AUGUST 2006 WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 392 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: WALN Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGES: RYAN, TAMBERLIN and MIDDLETON JJ DATE: 18 AUGUST 2006 PLACE: PERTH

REASONS FOR JUDGMENT

RYAN J: 1 This is an appeal from orders made by Nicholson J, on 28 November 2005, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), handed down on 22 November 2004. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), to refuse to grant a protection visa class XA to the appellant. 2 The appellant is a national of Myanmar, which was previously Burma. He arrived in Australia on 23 June 1997 on a student visa, valid until 3 August 1998. He was issued with further student visas on 30 July 1998, 1 July 1999, and 17 July 2000. His last visa was due to expire on 30 July 2003. On that date he applied for a protection visa under the Migration Act 1958 (Cth) ("the Act"). He was granted a bridging visa for the period during which his claim was to be assessed. 3 The appellant was born on 26 December 1972. Between 1978 and 1991 he attended various schools and between June 1992 and June 1996 he attended the University of Yangon, which was then Rangoon. Both of the appellant's parents reside in Myanmar and his sister resides in the United States of America as a refugee. 4 The appellant claimed that he was 16 years old when he took part, on 8 August 1988, in demonstrations against the ruling government of Burma. He claimed that he was afraid to voice his opinions about the ruling government and could not stay in that country, or live like that, so his parents sent him away for further education. He claimed to fear that, if he were returned to Myanmar, he would be questioned by the intelligence agency about the people with whom he had associated in Australia. He said that he had participated in demonstrations in Australia organised by refugee welfare and support groups. He also asserted that Myanmar military intelligence was present in Australia and reported back to Myanmar. The appellant claimed that his association with pro-democracy groups would hurt his parents and that, if he returned to Myanmar, the State Peace and Development Council would authorise his interrogation. He further claimed that he would not be adequately protected in Myanmar as the government would not afford protection to its ideological opponents. 5 Before the Tribunal, the appellant claimed that, since the Tabayin killings of 30 May 2003, his parents had contacted him through others and advised him not to return. He testified that, since his school days, he and his parents and sister had opposed the military regime. They had remained silent, however, for fear of the military intelligence. The appellant also claimed that he had sent his passport to the Myanmar Embassy in Canberra in July 2001 but that it had not been returned and he had received no communication from the Embassy. In support of these claims, the appellant furnished the Tribunal with a number of documents including a report of 15 January 2004 by the Burma Action Group on the Tabayin killings of members and supporters of the National League for Democracy ("the NLD") and a document prepared by Amnesty International, released on 30 July 2003, which expressed concern over the Tabayin attack and the arrest of NLD members and supporters since 30 May 2003. The applicant also provided photographs of his participation in street demonstrations on 19 June 2004 in Australia. 6 The Tribunal accepted that the appellant had been born in Myanmar and that he had thirteen years of schooling before attending Yangon University. It also accepted that he may have been involved in student demonstrations in 1988 and that he ran away when the military broke up those demonstrations. However, the Tribunal found that the appellant did not take part in any political activities in Myanmar and that there was no reason for the appellant to have attracted adverse interest from the authorities in 1988 or at any time thereafter. The Tribunal found that the appellant did not attempt to leave Myanmar until he came to Australia in 1997 and that he did not claim protection in Australia in the six years during which he had resided here. It considered that, had the appellant really been concerned for his life, he would have sought to leave Myanmar sooner and would have claimed asylum on arrival in Australia or shortly afterwards. 7 The appellant also asserted that he had a well-founded fear of persecution by reason of events which had occurred in Australia since his arrival. The Tribunal accepted that the appellant may have taken part in various pro-democracy demonstrations and events whilst in Australia. Nevertheless, it considered that independent country information established that Myanmar authorities, although monitoring activities outside Myanmar, would only be interested in high profile members of particular organisations. It accepted that the appellant may be subject to some questioning on his return to Myanmar, but it held that this would not constitute persecution within the meaning of s 91R of the Act. 8 The Tribunal concluded that there was no evidence before it to suggest that the appellant had been anything more than a low level supporter of anti-government groups and a general enthusiast for the overthrow of the present regime in Myanmar. Since he was not an active and high-profile member of any significant anti-government organisation, the Tribunal, therefore, did not accept that the appellant had been put on a black list by the Myanmar military regime because of his political activities. The Tribunal found that the appellant's activities did not give rise to a real chance of his being persecuted on return to Myanmar. Nor did it find that he had left Myanmar because he could not express his political opinions. 9 Having considered all of the appellant's claims cumulatively, the Tribunal was not satisfied that he faced a real chance of persecution on return to Myanmar now or in the reasonably foreseeable future because of his political opinion or for any other Convention reason. It did not regard his fear of persecution as well-founded. Consequently, it did not consider that there was any obligation on Australia to grant him a protection visa. 10 On application to this Court for review of the Tribunal's decision, the appellant contended that the Tribunal had failed to determine the relevant question arising from his claims, namely, whether, as an active supporter of the NLD and other pro-democracy groups in Australia, he had a well-founded fear of persecution on return to Myanmar in the aftermath of the Tabayin killings of NLD supporters on 30 May 2003. 11 In particular, the appellant contended that the Tribunal had incorrectly informed itself about his history of student visa applications. It had failed to consider country information related to the attitude of the Myanmar government to the NLD after May 2003 and to pro-democracy supporters within Myanmar and who were returning to it. Conversely, it was contended that the Tribunal had considered irrelevant and outdated country information, the most recent of which was dated 19 June 2002. The appellant further contended that the Tribunal was obliged to comply with s 424A of the Act in relation to "selected adverse country information" on which it had relied. Its failure to give the appellant particulars in writing of the country information which the Tribunal considered would be part of the reason for affirming the delegate's decision, was said to be a breach of a mandatory requirement for a valid decision. 12 The appellant also contended that the Tribunal had failed to accord him procedural fairness in that he had been unrepresented and that, during the hearing, the Tribunal had confronted him, for the first time and for his immediate comment, with selected adverse country information, which was then relied upon by the Tribunal to make findings adverse to him. It was submitted that the opportunity to comment had been inadequate in the circumstances, which included the failure of an interpreter effectively to convey to the appellant the Tribunal's invitation to comment. Finally, the appellant contended that the Tribunal proceeding had been vitiated by errors made in translation by the same interpreter.