Sein v Minister for Immigration & Multicultural Affairs [2001] FCA 1579 (9 November 2001)

Last Updated: 9 November 2001

FEDERAL COURT OF AUSTRALIA

Sein v Minister for Immigration & Multicultural Affairs [2001] FCA 1579

MIGRATION - protection visa - review of decision of tribunal refusing visa - application based on combination of ethnicity, membership of prominent dissident family, activities of family members in fight for independence, applicant's participation in earlier student movement and applicant's sur place political activities - tribunal considered each element separately - did not make finding on activities of family members - did not consider elements in combination - whether error of law - whether tribunal did not have jurisdiction to make the decision - whether the decision was not authorised - application of "real chance" test

Migration Act 1958 (Cth) ss 5(1), 36, 476(1)(b), 476(1)(c), 476(1)(e), 481(1)(a), 481(1)(b)

Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401 followed

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 applied

Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 applied

Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 applied

NANG KHAM MYA SEIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 830 of 2000

GRAY J

9 NOVEMBER 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 830 of 2000

BETWEEN:	NANG KHAM MYA SEIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	9 NOVEMBER 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal, made on 18 September 2000, affirming

the decision of a delegate of the respondent to refuse to grant the applicant a

protection visa, be set aside.

2. The matter to which the decision relates be referred to the Refugee Review Tribunal for further consideration according to law.

3. For the purposes of such further consideration, the Refugee Review Tribunal be

constituted differently.

4. The respondent pay the applicant's costs of the proceeding.

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 830 of 2000

BETWEEN:	NANG KHAM MYA SEIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GRAY J
DATE:	9 NOVEMBER 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) ("the Migration Act"), of a decision of the Refugee Review Tribunal ("the Tribunal"), made on 18 September, 2000. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse to grant the applicant a protection visa. This proceeding must be determined according to the provisions of s 476 as they stood when the application was filed in the Court, on 25 October 2000.

2 Section 36(1) of the Migration Act provides that there is a class of visas to be known as protection visas. Section 36(2) provides:

"A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

The phrase "Refugees Convention" is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term "Refugees Protocol" is also defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call the Refugees Convention as so amended "the Convention". For present purposes, the relevant effect of the Convention is that Australia has protection obligations with respect to a 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".

3 The applicant is a citizen of Burma, who arrived in Australia on 5 August 1998, travelling on a Burmese passport. On 15 October 1998, she made an application for a protection visa under the Migration Act. On 18 January 1999, a delegate of the Minister refused to grant a protection visa. On 28 January 1999, the applicant applied to the Tribunal for a review of that decision. The Tribunal conducted a hearing on 28 June 2000, with the assistance of an interpreter in the Burmese language. The Tribunal published its decision and its reasons for decision on 18 September 2000.

4 In her original application, the applicant recited seven of the grounds for judicial review available pursuant to s 476 of the Migration Act, without giving any particulars as to how she proposed to make out any of these grounds. By consent of the parties, an order was made on 11 December 2000, requiring the applicant to file and serve an amended application providing proper particulars of the grounds relied upon. Such an amended application was filed on 19 January 2001. The amended application invoked the ground specified in s 476(1)(e) of the Migration Act, which is in the following terms:

"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 by the person who made the decision, whether or not the error appears on the record of the decision".

In the amended application, the applicant relied on both types of error of law referred to in this provision.

5 On 21 June 2001, the applicant filed a further amended application. In this document, she raised in addition, the grounds specified in s 476(1)(b) and (c) of the Migration Act, which are in the following terms:

"(b) that the person who purported to make the decision did not have

jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the Regulations".

6 In order to understand how the applicant contended that these grounds were made out, it is necessary to examine the manner in which the applicant put to the Tribunal her claim to have a well-founded fear of being persecuted in Burma for one or more of the reasons specified in the Convention, and the manner in which the Tribunal dealt with those claims. In substance, the applicant claimed to fear persecution in Burma because of:

* being one of the Shan people, a minority ethnic group;

* her membership of a family whose forebears were senior figures in the fight for Shan autonomy or independence and in the political and social life of the Shan people;

* the activities of her father and two brothers as soldiers in the Shan State Army ("the SSA");

* her participation in a student movement in March 1988; and

* her political activities since she has been in Australia.

7 The Tribunal accepted that the applicant is fearful of returning to Burma. It found that there is no doubt that the Burmese Government is repressive. It accepted that the last decade has been one of attempted suppression of all political opposition, initiated by the regime's refusal to accept the government elected by the people in 1991. It referred to evidence from a report of Amnesty International concerning the arrest and imprisonment of large numbers of people. The Tribunal accepted that the applicant's ethnic heritage is Shan. It found that the Shan have a long history of fighting for independence from Burma and that this fight is carried on by the SSA. It accepted that among the applicant's forebears were casualties of previous conflicts between the Shan and the Government of Burma. They involved the detention of the applicant's great uncle in the early 1960's and the killing of her grandfather in 1947. However, the Tribunal found no convincing evidence that the identity of the applicant's forebears had led to her suffering harm amounting to persecution.

8 The Tribunal then examined the applicant's claim that her father and two brothers are soldiers in the SSA. It had before it conflicting documents on the location of the applicant's family members. One document had been the subject of a clumsy alteration, involving the use of liquid paper to obliterate a word. The Tribunal was unable to resolve the evidence as to the applicant's father's occupation. It did find that it was not plausible that the applicant would be permitted to continue with her studies (as she had) at the same time as her father and two brothers were known insurgents. Given that she had been permitted to obtain a degree in agricultural science from the Institute of Agriculture in December 1994, the Tribunal was satisfied that the activities of her father and brother were not so serious for her that the authorities, always nervous about students, took any significant action against her.

9 On the subject of her political profile within Burma, the Tribunal accepted that the applicant became caught up in the events of March 1988 and their consequences. The applicant's account of this was that, in March 1988, she joined a group of students to travel to Rangoon by train. Police and soldiers boarded the train, arrested the students on it, and detained, questioned and tortured them over a period of five days. The applicant's mother had to sign a document saying that her daughter would refrain from future involvement in politics, to secure the applicant's release. She was questioned again and told to report once a week, which she did until 8 August 1988. The applicant then began to distribute pamphlets as part of a group of students campaigning for an independent Shan state. The leader of the group was arrested and died in custody. His mother, the headmistress at a government school, was also arrested.

10 In August 1988, the applicant joined a group of students in a government building behind her local town hall. She participated in a hunger strike with other students. She was arrested following a demonstration on 8 August 1988. She was detained for almost two months, during which time she was questioned repeatedly and was beaten. Before being released, she had to sign a document stating that she would not take part in any antigovernment activities. She had to report once a month.

11 While it accepted the applicant's account of her involvement in the events of 1988, and that she was placed on reporting conditions, the Tribunal was not satisfied that the requirement that she report extended into the 1990's, or that it was in place when the applicant left Burma. The Tribunal found that she returned to the university campus, which prevented her from reporting in her home village, and that she travelled on a number of occasions between her home village and Rangoon apparently without hindrance. She undertook no further political activity which would have induced the authorities to treat her as a political opponent.

12 The Tribunal was satisfied that the applicant did not thereafter suffer persecution for reasons of her political opinion. She was permitted to complete her university education, although that was a long process because of periodic closures of the universities. Thereafter she undertook other courses. The Tribunal was not satisfied that she was considered to be a political risk by the authorities prior to her coming to Australia. The evidence before it did not support a finding that she had to flee Burma because she faced a real chance of persecution for reasons of her political opinion. It also accepted evidence from the Department of Foreign Affairs and Trade that participation in the 1988 demonstrations is not of itself now the cause of further trouble from the authorities. The Tribunal was satisfied that the applicant did not continue her political activity within Burma and so her fear of persecution on that ground was not well-founded.

13 The Tribunal then returned to the issue of the applicant's Shan ethnic identity. It accepted the applicant's account that people in the Shan area, where she lived, are harassed and abused by the Burmese military forces. It accepted that the military officially kept control of the region and that soldiers, less officially, made demands on local people. It accepted that women in that area are liable to sexual assault and that households are forced to provide porters or money and goods in lieu to the military. If the applicant were forced to remain in that area, she would face these problems. The Tribunal found, however, that it would be reasonable for the applicant to relocate to Rangoon. It found that she had a strong link with relatives in Rangoon, had been able to reside there with a great uncle and his family, who had funded her trip to Australia, including paying a bribe for her passport. The applicant had made a number of visits to Rangoon and was not hindered in travelling there from her home town. The Tribunal found that the applicant had the option of living in Rangoon and that she was not a person of serious and negative concern to the authorities.

14 The Tribunal then dealt with the question of the applicant's activities in Australia. It accepted that she had joined a group called The Friends of the National League for Democracy, taken part in some demonstrations and been a newsreader (reading anti-government material) for a Burmese radio program. The Tribunal accepted that the Burmese authorities try to keep their citizens under surveillance wherever they are. There are informers in Australia. The Tribunal was not satisfied, however, that this meant that the applicant had a real chance of persecution if she should return to Burma. It accepted the advice of the Department of Foreign Affairs and Trade that "repetitive demonstrators", active and high profile members of a couple of organisations and ringleaders of an attack on the Burmese Embassy in Canberra in September 1999 would be of concern to the authorities. Any Burmese person returning to Burma after a lengthy period in Australia would come to the attention of local authorities and their movements may be monitored for an initial period. The Tribunal accepted that the applicant would be subject to scrutiny and would have to explain her movements to some authority. It was not satisfied that this would amount to persecution. It accepted that the applicant's support for democratic change in her country was sincere, but did not find that she was a "repetitive demonstrator" or ringleader or that her links with the organisation she has joined would lead her to face a real chance of persecution on her return to Burma.

15 By way of conclusion, the Tribunal said this:

"The Tribunal finds that the Applicant did not have a political profile at the time she left Burma. It finds that then and in the foreseeable future she could avoid the difficulties of living in the Shan ethnic area by re-locating [sic] to Rangoon. It is not satisfied that her sur place claims are sufficient to permit a finding that she would be persecuted for this reason. On consideration of all the evidence, the Tribunal is satisfied that she is not a refugee.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa."

16 The basis of the case put by counsel for the applicant was the proposition that, while the Tribunal dealt thoroughly with each aspect of the applicant's claims, it failed to consider her case as a whole. It did not give consideration to the effect of the totality of the various claims the applicant made, or even of more than one of her claims in combination.

17 I am of the view that this proposition is correct. It is supported by the structure of the Tribunal's reasons for decision. In those reasons, the Tribunal dealt with the applicant's various claims and rejected her claim to have a well-founded fear of persecution because of each of them. There is no indication in the reasons that, when considering one claim, the Tribunal considered it in conjunction with any other. Thus, it is one thing for the Tribunal to say that the Burmese authorities would not visit the applicant with serious consequences because of her activities while in Australia. The Tribunal did not give consideration to whether those activities, in conjunction with the fact that the applicant is a Shan, the fact of her high-profile Shan family, and the fact of her involvement in the student movement in 1988 gave rise to a real chance of persecution. It is easy to understand that the Burmese authorities might be more tolerant of behaviour of the kind the Tribunal found the applicant had engaged in when such behaviour was that of a person without the applicant's prior record of political activity in Burma, or without her ethnicity or her family connections.

18 I do not think that the words used by the Tribunal at the end of its reasons for decision can be taken as an indication that it did perform this task. To say that the Tribunal had considered all of the evidence, and that it had considered the evidence as a whole, is at best ambiguous. The first of the statements was made in the context of a summary of the Tribunal's reasons for rejecting three key points of the applicant's claims. It is at least as likely that the Tribunal was saying that it had considered all of the evidence relating to each of these matters separately as that it was saying that it had considered the three of them in conjunction. The second statement is part of a formula, designed to express the Tribunal's conclusion. It appears under the heading "Conclusion". This would be a strange place for the Tribunal to state that it had examined all of the claims of the applicant in combination. The expression of an overall finding in such few words would be at odds with the remainder of the reasons of the Tribunal, which are detailed. They cover some twenty pages. If the Tribunal had in fact examined the various aspects of the applicant's case in combination, it is not unreasonable to expect that it would have set out its views in some detail. The reasons compel the conclusion that the Tribunal did not do so.

19 One other omission should be noted. The applicant's claims that she was at risk in her home were very much in the context of the absence from that home of her father and her brothers. On her case, she and her mother were the only ones living in the house. They were more vulnerable to the demands of soldiers for money, and more at risk from demands for sexual favours because of the absence of any males of the family. As well as being part of the evidence as to the manner in which the Burmese military forces controlled the Shan area, this evidence supported the applicant's claim that her father and brothers were part of the SSA, still engaged in an armed struggle against the government. It will be recalled that the Tribunal declined to find that the applicant's father and brothers were known insurgents. It was satisfied that the activities of her father and brothers were not so serious for her that the authorities took any significant action against her. The Tribunal made no finding, however, as to whether the father and brothers were at home. It is not clear whether the Tribunal accepted the applicant's claim that they were away from home or, if it did, whether it accepted that their absence from home was due to their activities with the SSA. Similarly, in rejecting the applicant's claim that she was liable to be persecuted if she lived at home, the Tribunal did not make a finding as to whether she and her mother were at risk in the way that the applicant had claimed because of the absence of males in the household. It made general reference to conditions in the Shan area but found that the applicant could avoid them by relocating to Rangoon and that it was reasonable for her to do so. The issue of whether the applicant's father and brothers were in the family home was therefore very important to the applicant's case. It is true that the applicant did not assist the determination of this issue by providing to the Tribunal conflicting documentary evidence, including the altered document. Nevertheless, if the Tribunal had found that her father and brothers were away from home because of activities with the SSA, and if it had considered the applicant's claims in combination in the light of that finding, it might well have reached a different conclusion as to whether the applicant had a well-founded fear of persecution in Burma for a Convention reason.

20 It is necessary, therefore, to determine whether the failure to consider the applicant's case as a whole falls within one of the grounds in s 476(1) of the Migration Act on which the applicant relied. In Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401 at [11] - [12], Moore J said:

"Counsel for the applicant submitted that the Tribunal's reasoning, set out above in par 8, revealed an erroneous approach to the facts as found by the Tribunal. It was said that the Tribunal considered each of these facts in isolation but failed to consider their cumulative weight. This error was said to be apparent from the structure of the decision which dealt systematically with each of the factual conclusions, in each instance finding that the particular conclusion would not give rise to a well-founded fear of persecution upon return to India. This was particularly evident in relation to the Tribunal's consideration of the circumstances of the husband. Similarly, it was said that the Tribunal erroneously considered the circumstances of the applicant separately from those of her husband. By adopting this approach, it was said that the Tribunal failed to recognise a pattern of persecutory treatment. Further, it was said that the Tribunal did not consider whether in the entirety of the circumstances, including all of the aspects of Mr Singh's political involvement, the applicant had a well-founded fear of persecution, and that this amounted to a misapplication of the real chance test.

Had the Tribunal, in fact, adopted such an approach it would clearly have amounted to an error of law in breach of s 476(1)(e) of the Act, and perhaps also to a constructive failure by the Tribunal to exercise its jurisdiction (see Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287), resulting in a breach of s 476(1)(c). As noted by Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 ("Wu") at 294 - 295 it is necessary for the Tribunal to "consider all the relevant possibilities by looking back at the entirety of the material placed before [it]", and the decision-maker must "[stand] back from the particular grounds and consider ... the case in its entirety". Had the approach the Tribunal adopted in the section concerning the circumstances of the husband been adopted in considering (in a notional sense) an application for a protection visa for the husband then it may have manifested an error of the [sic] precisely the same type as discussed by Lindgren J in Tharmalingam v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, 19 May 1998)."

21 This was said prior to the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1. In my view, what the majority said in Yusuf makes it apparent that Moore J's analysis was correct. It is unnecessary for present purposes to set out the whole of the analysis in the joint judgment of McHugh, Gummow and Hayne JJ, with whom Gleeson CJ expressed agreement. At [83] - [85], after discussing the nature of jurisdictional error, their Honours said:

"No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.

Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3) is not to the point. No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.

Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision. This Court would also have original jurisdiction in the matter and could grant relief under s 75(v)."

22 In the present case, the Tribunal identified a wrong issue and asked itself a wrong question, when it treated the applicant's case as being capable of resolution piece by piece, without considering the interaction of its various elements. Put simply, the Tribunal failed to deal with the case that the applicant put that she had a well-founded fear of persecution by reason of a combination of circumstances. This error of the Tribunal was an error that went to the exercise of its powers. It was an error of law, in that the Tribunal failed to appreciate the task imposed on it by the Migration Act of considering the applicant's claim that she is entitled to protection. The applicant had a right to have her claim considered in the terms in which she put it. Failure to consider it in those terms deprived the Tribunal of jurisdiction or of authority to make the decision under the Migration Act. The Tribunal did not have jurisdiction, or authority, to make a decision on something other than the applicant's claim.

23 Counsel for the applicant also contended that the Tribunal made an error of law in failing to apply the "real chance" test. It is clear that a fear of persecution may be well-founded even though the possibility of the persecution occurring is well below 50 per cent. See Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 389 per Mason CJ and 429 per McHugh J, and Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 571 - 572. The essence of the argument was the contention that if, as the Tribunal found, it was not possible to make a conclusive finding about the activities of the applicant's father and brothers, the Tribunal was nonetheless bound to consider whether there was a "real chance" that the applicant would suffer persecution because of their activities.

24 As I have already indicated, the failure of the Tribunal to make a finding about the whereabouts of the applicant's father and brothers was a significant factor in the failure of the Tribunal to deal with the applicant's case. I do not think, however, that the Tribunal misunderstood its task in relation to s 36(2) of the Migration Act. In its reasons for decision, it made reference to Chan and Guo and to the "real chance" test. There is no reason to suppose that it did not have this test in mind when considering the separate aspects of the applicant's case that it considered.

25 Counsel for the applicant also endeavoured to argue that the Tribunal made an error of law by failing to recognise that the applicant came within the category of persons it described as "repetitive demonstrators" by reason of the fact, which it accepted, that she was present at a number of demonstrations. This is no more than an attempt to have the Court review one aspect of the case on the merits. It cannot succeed.

26 For the reasons that I have given in relation to the failure of the Tribunal to deal with the different aspects of the applicant's case in combination, the decision of the Tribunal should be set aside, pursuant to the power contained in s 481(1)(a) of the Migration Act. An order should also be made pursuant to s 481(1)(b), returning the matter the subject of the decision for further consideration according to law. It seems to be accepted that s 481(1)(b) empowers the Court to make an order that the matter be referred to the Tribunal (as distinct from the member of the Tribunal who made the decision). It is also usual for the Court to include a direction that the Tribunal be reconstituted in a matter such as this. Such a direction avoids any suggestion that the member who made the decision would seek to justify the correctness of the original decision by coming to an identical decision on different reasoning. Costs should follow the event. The Minister should therefore be ordered to pay the applicant's costs of the proceeding.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 9 November 2001

Counsel for the Applicant:	Mr J Gibson
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Ms H Riley
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 July 2001
Date of Judgment:	9 November 2001