FEDERAL COURT OF AUSTRALIA Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 IMMIGRATION – application for review of decision of Refugee Review Tribunal ("the Tribunal") – applicants claimed to be involved in clandestine anti-government activities – Tribunal found that authorities unaware of clandestine activities and therefore applicants would not be punished on return – Tribunal failed to consider whether restrictions on free expression of political opinion may amount to persecution in itself – persecution not merely punishment – persecution may take form of denial of civil rights if it would offend a real aspiration so held as to be integral to the human dignity of an asylum seeker. WORDS & PHRASES – "persecution" Migration Act 1958 (Cth), s 476(1)(e) Convention Relating to the Status of Refugees 1951 as amended by the 1967 Protocol Relating to the Status of Refugees Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, applied "Applicant LSLS" v Minister for Immigration & Multicultural Affairs [2000] FCA 211, applied Minister for Immigration & Multicultural Affairs v Zheng [2000] FCA 50, applied Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 175 ALR 585, applied Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287, applied Reg v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 WLR 1015, cited U WIN AND ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 228 OF 2000 MADGWICK J SYDNEY 23 FEBRUARY 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 228 OF 2000 BETWEEN: U WIN FIRST APPLICANT MA WIN WIN SECOND APPLICANT AND: MINSTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MADGWICK J DATE OF ORDER: 23 FEBRUARY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be allowed. 2. The Tribunal's decision is set aside and the matter be remitted to the Tribunal for reconsideration. 3. The respondent pay the applicants' costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 228 OF 2000 BETWEEN: U WIN FIRST APPLICANT MA WIN WIN SECOND APPLICANT AND: MINSTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MADGWICK J DATE: 23 FEBRUARY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR: 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 16 February 2000, affirming a decision of a delegate of the respondent Minister not to grant the applicants, Mr U Win and Ms Ma Win Win, protection visas under the Migration Act 1958 (Cth) ("the Act").. Background 2 The applicants, husband and wife, are Burmese nationals. On 4 May 1996 they arrived in Australia. On 30 May 1996, Ms Win lodged a single application for a protection visa with the Department of Immigration and Multicultural Affairs and on 5 September 1996 Mr Win lodged an application, on behalf of himself and his wife, for protection visas. On 6 March 1998, a delegate of the Minister refused these applications, and on 25 March the applicants sought review of that decision before the Tribunal. 3 Before the Tribunal the applicants claimed to have engaged in a range of political activities in opposition to the Burmese military regime. Their claims can be categorised into three types: first, overt political campaigning for the 1988 pro-democracy movement; second, activities undertaken in the period between 1988 and 1996 (when they left Burma), including joining political parties, clandestine activities such as smuggling passports to political dissidents in Thailand, printing and distributing political pamphlets, and sending information about the government out of Burma for publication; and third, attending political demonstrations outside the Burmese embassy in Australia. 4 Primarily, the applicants claimed to fear persecution because the Burmese authorities are, or will likely become, aware of these activities. Alternatively, it was said, the applicants claimed 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." 5 The relevant Convention, the Convention Relating to the Status of Refugees 1951 as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"), provides in Article 1A(2): "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." The Tribunal's decision 6 With respect to the applicants' political involvement before 1988, the Tribunal noted that thousands of people had participated in the democracy movement at that time, but that the harassment of such people had largely ceased by 1994 unless they were considered still to be politically active. 7 The Tribunal accepted that Mr Win had engaged in the clandestine act of smuggling passports. However, the Tribunal seems not to have accepted that this was for the political reasons claimed (see further discussion below). In any case, the Tribunal found that any clandestine activities that the applicants had engaged in had been successfully concealed from the Burmese authorities and that therefore they would not face persecution. The Tribunal relied, amongst other things, upon the apparent ease with which Mr Win had left and re-entered Burma between 1994 and 1996. 8 The Tribunal also rejected the applicants' claim to have come to the attention of the authorities, immediately before leaving for Australia, whilst attempting to assist a woman who was said to be the wife of a political dissident leave Burma. 9 The Tribunal therefore found that "the Applicants were not at risk of Convention-related discrimination or harm at the time they departed Burma on 17 April 1996." 10 The Tribunal appears to have accepted that the applicants did thereafter attend demonstrations in Australia and that "such expression of political views in opposition to those of the authorities is not tolerated in Burma." The Tribunal also accepted that the activities of dissident groups in Australia are monitored by agents of the Burmese government here. However, the Tribunal said, quoting a minute from the Department of Foreign Affairs and Trade dated 1992, that "it is not merely an individual's presence at protests which might result in questioning and surveillance on return to Burma, but whether such people might be regarded as 'active leaders'. Even if they were, 'further action would be dependent on how cooperative they were with the authorities'." 11 In conclusion the Tribunal said: "I have found that the Applicants were not regarded as politically suspect in any way by the time they left Burma in 1996. Whether or not they were involved in protests in the late 1980s, they were not imputed with any continuing political opinion after 1994 at the latest. In my view the Applicants have not been involved in any activities in Australia which might give the impression that either was an active leader overseas of protests against the Burmese authorities. They have made no public speeches and have not organised any public protests, nor are they office holders of any of the various dissident groups which exist in Sydney. I am also of the view that, even if they were questioned on return to Burma, they will be able to allay any real suspicions about their political views. I am satisfied that the Applicants may be questioned on return to Burma, as is normal for most Burmese re-entering the country … and that the chance is not remote that the authorities will be aware of their presence at a number of protests. However, I am not satisfied that they will be subjected [to] treatment amounting to persecution, motivated by a political opinion imputed to them or by any other Convention reason, as a result. Their fear of Convention-related persecution in Burma is, therefore, not well-founded." 12 Having decided that the applicants had successfully avoided suspicion by the authorities in the past and would continue to do so in the future, the Tribunal appears to have concluded that it was unnecessary to determine whether the applicants had strongly held political beliefs, whether these beliefs had motivated their political involvement, or whether, in any case, such beliefs were of great importance to them. In particular, the Tribunal did not determine whether the applicants had: · joined political parties; · printed and distributed political pamphlets; · sent information about the government out of Burma for publication; or · attended demonstrations in Australia because of their political opposition to the Burmese government. Persecution as restriction upon political expression 13 It was submitted by counsel for the applicants that the Tribunal's reasoning, though addressing the applicants' primary claim that they may be suspected of clandestine activity by Burmese officials, and persecuted for that reason, failed to address the subsidiary claim, that the applicants faced persecution because they would be denied the right to express their political opinions freely if returned to Burma. 14 Counsel for the respondent argued that such harm could never amount to persecution under the Convention. It was said that the Tribunal was only required, under the terms of the Convention, to consider whether the applicants would be punished (in the form, for example, of arrest, detention or torture) for their political opinions. Therefore it was said that, since the applicants claimed to have operated clandestinely in the past and gave no indication that they would not do so in the future, it was appropriate for the Tribunal merely to ask, as it had done, what the prospects were that the authorities would discover their activities in the future. 15 The scope of the concept of "persecution" recognised by the Convention was considered in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. Mason CJ said at 388: "The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute [persecution], although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason." (emphasis added) McHugh J said at 431: "… the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason: [reiterated in] Goodwin-Gill, pp. 38 et seq. In Reg v Immigration Appeal Tribunal; Ex parte Jonah [[1985] ImmAR 7] Nolan J … held as a matter of law that there was a well-founded fear of persecution when the adjudicator had found 'that if the appellant on his return to Ghana sought to involve himself once again in union affairs, he could be in some jeopardy, but there is no acceptable evidence to indicate that he would be at any material risk if he was to resume his residence in his remote family village where he spent a year and a half immediately prior to coming to this country' [at 12]." It is clear from these comments that Mason CJ and McHugh J hold that at least in respect of some kind of rights, persecution may take the form of a prohibition on the exercise of them, and is not limited only to actual punishment for exercising such rights. However, it is to be noted that their Honours each said that denial of fundamental freedoms "may", not would, constitute persecution. 16 Counsel for the applicants also supported his case by analogy from cases considering persecution on the membership of a particular social group and religion grounds referred to in the Convention. In Minister for Immigration & Multicultural Affairs v Zheng [2000] FCA 50, Hill J said at para 41 (Carr J agreeing at para 57): "For my part I am prepared to accept that the prohibition legally to practise one's religion could, and probably would, constitute persecution on religious grounds for the purposes of the Convention." It was however held in that case that it was open to the Tribunal, on the evidence, to reach the conclusion that there was no such prohibition in fact. 17 Likewise, it has been held that the need for a homosexual to remain discreet may constitute persecution. In "Applicant LSLS" v Minister for Immigration & Multicultural Affairs [2000] FCA 211 Ryan J said at para 28: "An error of law could readily have been imputed to the Tribunal had it acknowledged, on the one hand, that the practice of a homosexual lifestyle as a whole is 'protected' by the operation of the Convention, but, on the other, had denied the applicant all means of meeting prospective sexual partners, thereby reasoning that the Convention does not, as a matter of law, 'protect' a part of the activity of a particular social group that is necessary and integral to the defining characteristic of that group. That erroneous reasoning would render illusory the protection afforded by the Convention, but I am not persuaded that the approach of the Tribunal has been infected by that error and this ground is not made out." 18 There appears to be no reason why, similarly, a denial of freedom to express one's political opinion may not, of itself, constitute persecution. To illustrate this point by reference to an historical example, upon the approach suggested by counsel for the respondent, Anne Frank, terrified as a Jew and hiding for her life in Nazi-occupied Holland, would not be a refugee: if the Tribunal were satisfied that the possibility of her being discovered by the authorities was remote, she would be sent back to live in the attic. It is inconceivable that the framers of the Convention ever did have, or should be imputed to have had, such a result in contemplation. 19 However the mere fact that a particular 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. To take a more mundane example, a person so caught up in the daily round (or grind) as to have no real interest in political questions such as the right to assemble or to speak freely may be an unlikely candidate for refugee status based on an assertion that the impugned country of nationality denies its citizens such rights. However, even for such people, the subject regime may be so appalling as to galvanise them into ardent if terrified support of political change, if only in a dimly understood direction towards an abstraction such as "democratic rights". An opinion that favours full or greater enjoyment of the sorts of civil and political rights commonly enjoyed and aspired to in the Western democracies is or may be the subject of a "political opinion" within the ordinary meaning of that term, used in the Convention. 20 The principle, it seems to me, is that a denial of such 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. The Convention aims at the protection of those whose human dignity is imperilled, the timorous as well as the bold, the inarticulate as well as the outspoken, the followers as well as the leaders in religious, political or social causes, in a word, the ordinary person as well as the extraordinary one. But, of course, the Convention did not aim at providing a universal right to change countries for every inhabitant of every oppressively ruled society on earth, however important civil and political rights may, as a matter of mere intellectual persuasion, be to such an inhabitant. The Convention was intended to relieve against actual or potentially real suffering. 21 It is unclear exactly which civil and political rights the Convention extends to protect. Free speech, however, upon the authority of Mason CJ and McHugh J in Chan is clearly one of them. It is unnecessary, in this case, to determine the limits of such protected rights: there is no question that Burma is ruled by an extremely repressive regime. However, the Universal Declaration of Human Rights 1948 ("UDHR") and the International Covenant on Civil and Political Rights 1966 ("ICCPR") may be a good starting point. That view is supported by the remarks of Gummow J (with whose reasons Gleeson CJ and Hayne J agreed) at [136]-[141] in Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 175 ALR 585. His Honour was concerned to show that the Convention was not aimed at "comprehensive humanitarian or human rights coverage", in the sense of protecting: "… those fleeing generalised violence or internal turmoil and mass movements of persons fleeing civil war or other armed conflicts, military occupation, natural disasters and bad economic conditions are outside the Convention" In the process, his Honour relied on Professor Hathaway's emphasis on the Convention having been limited to "'persecution' in the sense of being denied basic civil and political rights" (see [139]). Hathaway's whole argument is that "the concept of 'fear of persecution' was sufficiently open-ended to allow the West to continue to admit ideological dissidents to international protection" (ibid), but not economic etc refugees. His Honour also adopted Hathaway's observation: "Moreover, the new Refugee Convention added significantly to the scope for ideologically influenced interpretations by allowing each contracting state to make its own eligibility determinations. Thus, for example, the United States and others have routinely assumed that all persons in Communist states are by definition in fear of persecution." 22 In understanding what civil and political rights the States that made the Convention had in mind, the UDHR and the ICCPR, are in my view reliable, sufficiently contemporaneous guides. See also Reg v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 WLR 1015 at 1032-7 per LordHoffman. 23 In this case, the more difficult part of the factual assessment may be to determine whether the entire situation of the applicants in Burma was (more correctly: is likely to be) such that their human dignity would be truly affronted by the denial of civil and political rights inherent in the disposition there if they have to return. It is sufficient for present purposes to say that, despite the Tribunal's rejection of certain important aspects of the applicants' story, it cannot be concluded that they must necessarily fail if this matter were properly considered. Was the alternative claim really raised? 24 Counsel for the respondent also argued that the claim of persecution by denial of political freedom had not been sufficiently raised before the Tribunal. As indicated above, the applicants did state in written submissions to the Tribunal that if returned to Burma, they would "not have the right to speak freely, the right to writing freedom and the right to living freedom." However, it was submitted for the respondent that, since the main consideration, according to the applicants' claims, that precipitated their travel to Australia was their fear of their alleged, recent political actions having been discovered by the authorities, rather than their inability to express their political views freely, the claim that they suffered persecution for this latter reason did not really arise before the Tribunal. As Wilcox J and I stated in Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 at para 16: "regard may be had to the way a case is presented, but not so as to relieve the Tribunal of the burden of considering the entire case." It appears to me that although what counsel for the applicant termed the "primary" claim was mainly argued before the Tribunal, there is nothing to suggest that the subsidiary claim stated in the application was not pressed by the applicants, who were unrepresented before the Tribunal. 25 In light of the high degree of political commitment that the applicants claimed to have demonstrated in the not so distant past (and even though some of their claims more recently to have been politically motivated in their actions were rejected), combined with the independent information considered by the Tribunal, their claim to have been persecuted on the basis of being denied the right to political expression was not only distinctly but also sufficiently raised by the written submission just referred to. The fact the applicants may have been persecuted in this way (if, for them, the denial of civil and political rights did amount to persecution) for some length of time before leaving Burma, or that they may have restrained themselves (if they did) from expressing themselves politically, in the face of grave risks, does not of itself undermine their claim to have been persecuted for being denied the right to free political speech. 26 In the present case the Tribunal 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. It seems clear enough, from its reasons, that the Tribunal did not appreciate that, accordingly, it was required in these circumstances to consider whether, if they returned to Burma, the applicants would face persecution by the very denial to them of their right to free political expression. This failure, in my opinion, constitutes an error of law under s 476(1)(e) of the Act. Further, the Tribunal's failure to apply the law to the claims, constituted a constructive failure by the Tribunal to exercise its jurisdiction and thus gives rise to a reviewable error under s 476(1)(c) of the Act: Sellamuthu, Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559, Sinclair v Maryborough Mining Warden (1975) 132 CLR 473. Other grounds 27 It was also argued that the Tribunal had fallen into error by failing to make findings about whether the applicants had undertaken political activities in Burma in the past; whether their political opinions were antithetical to the Burmese government; and whether a denial of their civil rights would constitute persecution in itself. These were said to constitute failures to make findings on material questions of fact and thus failures to observe the procedures required by s 430 of the Act. A further error was said to be that the Tribunal had impliedly considered that the Convention requires a person to deny fundamental aspects of his or her being, namely to lie or hide their political opinions. This was said to constitute both a constructive failure of the Tribunal to exercise its jurisdiction, under s 476(1)(c), and an error of law, under s 476(1)(e) of the Act. However, for the reasons given above it is unnecessary to consider these grounds further. Disposition 28 For these reasons, the application is allowed. The Tribunal's decision is set aside and the matter is to be remitted to the Tribunal for re-consideration. The respondent is to pay the applicants' costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 23 February 2001 Counsel for the applicant: S Lloyd Solicitor for the applicant: Ong & Co Solicitors Counsel for the respondent: R Beech-Jones Solicitor for the respondent: Australian Government Solicitor Date of Hearing: 25 May 2000 Date of Judgment: 23 February 2001