FEDERAL COURT OF AUSTRALIA Kyi v Minister for Immigration & Multicultural Affairs [2001] FCA 580 MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – whether finding of fact can be in conditional or hypothetical form Migration Act 1958 (Cth) ss 430(1)(c), 476(1)(a), 476(1)(e) Minister for Immigration and Multicultural Affairs v Singh [2000] 98 FCR 496 applied Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388-389 applied MAY HTWE KYI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 659 OF 2000 HEEREY J 18 MAY 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 659 OF 2000 BETWEEN: MAY HTWE KYI APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 18 MAY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 659 OF 2000 BETWEEN: MAY HTWE KYI APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY J DATE: 18 MAY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. 2 The applicant is now aged 33. She is a Burmese national of Chinese ethnicity. She arrived in Australia on 28 July 1998 and on 15 October 1998 lodged an application for a protection visa. That application was refused on 28 January 1999. By a decision dated 25 July 2000 the Tribunal affirmed the decision of the Minister's delegate. The applicant's claims 3 The applicant's parents were born in China and migrated to Burma. The applicant's father owned rice mills and prospered until 1962 when the mills were nationalised without compensation. Subsequently the applicant's family suffered discrimination because they were Chinese. They could not buy basic foods at subsidised prices. They suffered travel restrictions. The applicant's brothers were not allowed to study for professional degrees. As the applicant learned about the discrimination the family had suffered her dislike of the political system in Burma grew. 4 The applicant first became involved in politics in March 1988 when she was studying Botany at Rangoon Arts and Science University. She joined in protest demonstrations after the death of Phone Maw on 13 March 1988. One of her friends was shot and killed by police. She herself was pushed into a police truck with other students and taken to prison. She and other students were taken out for questioning every day and beaten and kicked. This occurred every day until 29 May. 5 On 30 May police came and took herself and three others out of their cell. They were taken to a place in the country and brutally raped. She became unconscious and woke up in hospital in Rangoon where she remained for three months. Following this she received psychiatric treatment. 6 At the end of 1999 when schools reopened she returned to university to enrol to complete her final year of Botany. A clerk told her there was something on her file which prevented her from re-enrolling. This made her angry and she resolved to work against the government. 7 In the lead-up to the election on 27 May 1990 she was involved with a group of students who encouraged people to work for the National League for Democracy (NLD). The group was led by a Botany student Yan Naing Myint. She passed on information from him about what was happening to students at the Burma/India and Thai/Burma borders. Towards the end of 1990 she helped with fund raising from the Chinese community. The money was passed on to Yan Naing Myint. 8 In June 1991 police came and took her for questioning. They searched the house. They had information that she was distributing information. She was kept for ten days and interrogated every day. Police asked her about connections with underground students and her contacts. 9 After this arrest she did not take part in any political activities for about three months, then she recommenced passing on information from the borders and collecting moneys. 10 In December 1993 she was again arrested and taken to the police station, again interrogated and accused of distributing anti government material. She was threatened with detention for an indefinite period if she continued to act against the government. Otherwise, as on the 1991 occasion, she was not mistreated. 11 After another period of keeping a low profile she recommenced her political activities in March 1994. At this time she learnt that Yan Naing Myint had been arrested. She again started collecting donations and passing on information. 12 At the end of 1994 she married. She continued her activities distributing information and collecting donations every two or three months. Her husband did not support these activities as he was afraid she would again be arrested or detained. She became pregnant in 1996 and gave birth to a daughter on 25 March 1997. 13 In February 1997 she was taken to the police station and kept there for a week, asked similar questions as before and received threats and warnings. The day after her arrest her mother died. 14 In June 1997 she decided to leave Burma. She applied for a passport which was refused without explanation in writing but when she asked about the reason she was told it was because of her past political activities. 15 She decided to use the fact that her husband had a business in order to obtain a business passport. She applied for this in November 1997 and two weeks later she was told it was ready. However because her child was still young she did not collect it until 9 March 1998. 16 After the passport had been granted a man in civilian dress (whom she and her husband suspected was from Military Intelligence) came to her home and warned her husband about her. The man said to her husband that she had been politically active against the government and had now been issued with a passport. The man said that as she was going to leave the country if she continued her activities outside Burma the authorities would cancel his business licence. 17 She discussed the warning with her husband who told her that he thought that if she left the country this would lessen the problems with the authorities. She did not want to leave her husband and child but she and her husband agreed that she should go because the longer she remained in Burma, the more risk there was that she would again be detained and his business suffer. 18 She paid a broker and made an application for a student visa to travel to Australia. This application contained some false documents and false statements. The degree certificate was false as were other statements about her address and assets. She accompanied the broker to the police station to collect the police clearance. The police officer made a sarcastic comment saying that she was obviously leaving to take part in political activity outside the country as she could no longer do this in Burma. He then said that the authorities would be well rid of her. She left Burma on 20 July 1998. 19 On 8 August 1998 and 18 September 1998 she took part in demonstrations in Canberra outside the Burmese Embassy. 20 About a week after the first demonstration she called her husband. He was angry and told her that because of her activity he was in serious trouble. Two days earlier the authorities had cancelled his business licence as they had promised and they had told him that they had found out about her activities in Australia. Her husband told her that the authorities had said that if she returned to Burma her family had to take her to the police station or they would be punished for hiding her. 21 The applicant feared that if she returned to Burma she would again be arrested and detained because of her political opinion. Her husband has told her that the authorities came looking for her and cancelled his business licence because of her activities in Australia. 22 Since her arrival in Australia she has joined the Friends of the National League for Democracy (FNLD). At the Burmese Community Radio she has made broadcasts and read articles and news reports in Burmese about twice a month. She has attended demonstrations. Tribunal's reasons 23 The Tribunal accepted that the applicant had suffered a degree of discrimination for reasons of her Chinese ethnicity but it was not satisfied that the extent of that discrimination was so great as to constitute persecution. 24 As to her claims relating to political belief, the Tribunal first considered those which related to the time before she left Burma. The Tribunal found "significant problems" with accepting that the applicant was politically active prior to her arrival in Australia. The Tribunal was not satisfied that she was in fact a university student. Amongst other things the Tribunal found her knowledge of Botany and its cognate subjects to be "minimal". She was unable to explain even the most basic forms of categorisation of plants, name any past or present famous students of botany and remember topics and text books. These were elementary questions, not ones easily forgotten by someone who claimed to have been in her fourth year when forced to cease studies. While it was possible that, even if not a student, she could have joined in the demonstrations in March 1988, she could not give details of major incidents occurring at the time in connection with those demonstrations. Her lack of knowledge contributed to the Tribunal's dissatisfaction with her claim of being a political activist. It followed that the Tribunal rejected her claim to have been detained and imprisoned as a result. 25 The Tribunal was unable to accept her claim to have been raped. She was unable to provide convincing details of her treatment or how she got to the hospital or the fate of the other three alleged victims. The lack of detail surrounding the alleged rape might have been accepted by the Tribunal as an aspect of trauma had it not been for a corresponding lack of detail on almost every other aspect of her claim concerning the 1980s. 26 It was possible that she had received psychiatric treatment although again she was very vague on the nature of this. 27 Her claim to have been involved in the dissemination of information was "unpersuasive". She demonstrated no ability to remember specific information which was significant enough to be passed on to the NLD. The Tribunal then said: "It follows then that the Tribunal is not satisfied that her house was raided three times or that she was detained on three occasions. There is no doubt that the Burmese government treats its own citizens badly and that it is intrusive and brutal. It does sanction raids on houses as part of the 'normal' process of keeping surveillance on who is in what neighbourhood and also in frightening its citizens into inaction. The Tribunal is not satisfied that it would raid the applicant's house three times, detain her three times over a period of years, press no charges and then let her leave the country. It does not accept her claim that this was because there was a lack of evidence. The Burmese government is not known for following such a lawful process." 28 The Tribunal was not satisfied on the basis of the information the applicant submitted that she had an objectively well-founded fear of persecution for reasons either of her ethnicity or political opinion when she left Burma. 29 Turning to her experience in Australia, the Tribunal said that there was more substantial evidence that she had in the past participated in some anti-Burmese government activities. The Tribunal accepted that she had joined the FNLD, taken part in some demonstrations and been a news reader for a Burmese radio program. The Tribunal accepted that the Burmese authorities try to keep their country's citizens under forms of surveillance no matter where they are. Burmese in Australia report that there is a network of informers so that what their fellow citizens do here will be known back in Burma and although the Tribunal has no information of any informer actually being identified, it accepts their presence. The Tribunal then said: "However, the Tribunal is not satisfied that all those who form a link with an opposition group face a real chance of persecution on return to Burma. Therefore while it assumes that there is a real chance the Applicant's presence at anti-government events has been noted it does not follow that her activities are sufficient to warrant action by her government against him. The Tribunal has accepted the advice of DFAT [Department of Foreign Affairs and Trade] that 'Burmese involved in demonstrations in Australia, whilst often known to the authorities, are generally of little concern, even if they return to Burma. There would be a couple of exceptions: those who are repetitive demonstrators; active and high profile members of ABSDF or the NCGUB and those ringleaders of the more violent attack on the Embassy in Canberra in September 1999. Other than these exceptions, any Burmese returning to Burma after a lengthy period in Australia (or anywhere else for that matter) would come to the attention of their local township authorities and their movements may be monitored for an initial period.' The DFAT information quoted above continues the advice it has offered since at least 1992. Then, in a letter to the Department of Immigration dated 24 September 1992, DFAT officer Ian Coghill, stated that '… there is a high probability that the Burmese have photographed/ video taped these demonstrations [those outside the Burmese Embassy in Canberra]. The question as to what would happen to participants if they were to return to Burma is not as straightforward. If over a period of several demonstrations particular individuals reappeared again and again and were identified as being active leaders they would probably face questioning and surveillance if they were to return home. Further action would depend on how cooperative they were with the authorities. As there is no record of anyone with such a profile having returned, any further thoughts on possible consequences would be only supposition.' This information does not claim that a Burmese citizen can return to her country with no anxiety about surveillance. The government continues to subject all its citizens to scrutiny and it seems to be a rare citizen who escapes without having to explain his movements to some authority. The Tribunal accepts that this might happen to the Applicant. It is not satisfied that this amounts to persecution. It has considered her Australian-based activities and while accepting that her support for democratic change in her country is sincere, it does not accept that she is a 'repetitive demonstrator' or ringleader or that her links with FNLD lead her to face a real chance of persecution on her return to Burma. The Tribunal has considered her claim that her husband has lost his business licence because of her political activities in Australia in August 1988 [sic – in fact 1998]. The Tribunal accepts that this could follow if her presence at such events was reported back to the authorities. That would be unfair on him. However, the Applicant has not submitted that he has been prevented from earning a living or has suffered persecution because of her. Given that the cancellation allegedly occurred in August 1988 [sic], there is no information before the Tribunal of persecution of him by the authorities. Such an [sic] that the Applicant's fear of persecution is not objectively well-founded is not made lightly as there is no doubt that the current government of Burma is one which keeps its citizens under surveillance and perpetrates human rights abuses. However, the criteria of the Refugees Convention must still be met in each specific case. The Tribunal is not satisfied that the Applicant has been involved in activities which necessitated that she flee from her country. It is not satisfied that what she has done in Australia is sufficient to make her a person who would face a real chance of persecution by her government on the grounds of her political or an imputed political opinion. Consequently it is not satisfied that her subjective fear of returning to Burma is an objectively well-founded fear of persecution for a Convention reason." Failure to make findings 30 Counsel for the applicant submitted that the Tribunal has failed to set out findings on material questions of fact as required by s 430(1)(c) and thus failed to observe procedures required by the Act within the meaning of s 476(1)(a): Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 496. 31 The first material question of fact said not to have been the subject of a finding was the applicant's claim that her husband had lost his business licence because of her activities and that he had been subject to ongoing questions about her. 32 The Tribunal deals with the husband's alleged loss of his business licence in terms which might fairly be described as conditional or hypothetical. In essence, the Tribunal is saying that if this happened, which might have been the case, it nevertheless did not amount to persecution of him and did not give rise to a well founded fear by the applicant that she would be persecuted if returned to Burma. 33 I do not think this approach contravenes s 430(1)(c). Materiality is a matter to be assessed objectively by the court on review: Singh at [47]. It is legitimate for the Tribunal to say "Even if fact X occurred, that would not amount to persecution and would not base a well-founded fear of persecution in the future". If an alleged fact, whether or not true, could not either itself or in combination with other facts found a well-founded fear it is not "material" because it is not relevant to the issue the Tribunal has to consider. 34 Put another way, it might be said that such a question is not "material" because it is not something on which the case turns: Singh at [56]. 35 Very frequently a court might decline to make a finding of fact on a contested issue. For example a court might say that it was unnecessary to find whether the defendant's representation was deliberately untruthful because it is sufficient for the plaintiff to succeed if the representation was in fact untrue. It is difficult to see how the Tribunal should be under any more stringent obligation. 36 The second material question of fact said to be not the subject of a finding was the uncontradicted evidence as to the possibility that the applicant as an ordinary member of the FNLD (as distinct from a "repetitive demonstrator" or "ringleader") might be subject to scrutiny on her return to Burma and required to explain her movements to some authorities. 37 For the reasons already given, the Tribunal did not fail to observe procedures when it accepted that the applicant might be subject to such scrutiny but concluded that if she was that would not amount to persecution. Error of law 38 Counsel for the applicant alleged there was an error of law. If the Tribunal made a finding that the husband had lost his licence because of her activities and that she would be subject to restriction and scrutiny, the Tribunal erred in not finding that this would be capable of constituting persecution. Reference was made to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388-389 per Mason CJ, at 399 per Dawson J and 430-431 per McHugh J. In particular, in the last mentioned passage his Honour said: "… persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination. Hence, the denial of access to employment to the professions sand 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." 39 The Tribunal cited Chan in its reasons. There is no ground for thinking that the principles expounded in that case were not applied. The mistreatment of citizens by governments can extend across a spectrum from murder, torture and arbitrary imprisonment through to mildly annoying bureaucratic interference. If the apprehended actions of the government (or of persons against whom the government is unable to provide protection: Chan at 430) are for a Convention reason, the question whether these actions would amount to persecution is ultimately a matter for the Tribunal. The principles stated by the High Court and this Court in expounding the concept of persecution must be applied. There is no basis for concluding that the Tribunal did not do so in the present case. If this Court simply disagrees with the conclusion of the Tribunal, even to the extent of thinking the decision so unreasonable that no reasonable person could make it, review is not available: s 476(2)(b). Even accepting for the purposes of argument counsel's proposition that the matters claimed were capable of constituting persecution, that would not in itself show that the Tribunal had made an error of law in failing to make a finding of persecution. Orders 40 The application will be dismissed. There will be an order that the applicant pay the respondent's costs, including reserved costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 18 May 2001 Counsel for the Applicant: Fiona McLeod (pro bono) Counsel for the Respondent: Maree Kennedy Solicitor for the Respondent: Clayton Utz Date of Hearing: 15 May 2001 Date of Judgment: 18 May 2001