N1168/00A v Minister for Immigration and Multicultural Affairs

[2001] FCA 686

FEDERAL COURT OF AUSTRALIA

N1168/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 686

N1168/00A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1168 of 2000

N1169/00A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1169 of 2000

WHITLAM, FINN & KATZ JJ
20 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1168 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	N1168/00A APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	WHITLAM, FINN & KATZ JJ
DATE OF ORDER:	20 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		N 1169 of 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:	N1169/00A APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	WHITLAM, FINN & KATZ JJ
DATE OF ORDER:	20 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1168 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	N1168/00A APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
N 1169 of 2000
BETWEEN:	N1169/00A APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	WHITLAM, FINN & KATZ JJ
DATE:	20 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT OF THE COURT

1. These two appeals have been heard together, as were the proceedings below. The appellants are sisters. They are citizens of Myanmar (formerly Burma) and arrived in Australia on 25 April 1996. Each of the appellants lodged an application for a protection visa on 26 August 1996. These applications were refused on 11 February 1998 by a delegate of the respondent (“the Minister”), and upon review his decisions were affirmed on 21 December 1999 by the Refugee Review Tribunal (“the Tribunal”). Applications under s 476 of the Migration Act1958 (Cth) (“the Act”) to review the decisions of the Tribunal were dismissed with costs by a Judge of the Court on 30 August 2000. These are appeals from those orders. It is common ground that for the present purposes there are no material differences in the appellants’ cases.

2. A single error of law was pursued at first instance.  It related to the way in which the Tribunal assessed the real chance that the appellants might be persecuted by reason of their Chinese ethnicity if they returned to Myanmar.  Specifically, the appellants complained that the Tribunal confined its assessment to their past treatment and that it did not address fears of “an anti-Chinese back-lash” to which they had referred in their protection visa applications.  The appellants submit that the primary judge erred in failing to address this ground of review.  It should be said at once that the scope for any alleged error of law must have seemed to the appellants to be severely confined by the findings made by the Tribunal in respect of their claimed fear of persecution for reasons of race and political opinion based upon particular events alleged to have occurred in the past.  The Tribunal made damning assessments of both appellants’ credibility and concluded that they had fabricated their evidence.

3. So far as this appeal is concerned, the history of the protection visa applications is instructive.  A solicitor, who was also a migration agent, assisted with their preparation.  The appellants’ reasons for claiming to be refugees were set out in practically identical statements comprising twenty closely typed pages attached to their visa applications. The appellants come from Yangon.  However, they expressed a fear of “an anti-Chinese back-lash” in the light of a December 1994 magazine report about Burmese resentment of illegal migrants from China living in Mandalay.  The appellants were interviewed by the Minister’s delegate.  In his reasons for refusal, he relevantly stated in respect of each application:

   “It is clear from the interview that significant portions of the material included in the signed statement do not reflect the applicant’s own personal experience and that they were not statements or claims made by the applicant.  Much of the information is generic in nature and is identical to that contained in statements prepared for other applicants whose applications were lodged by the same agent.  In one instance where the applicant has quoted material from a magazine as being reflective of her own experiences, it is clear that the applicant was provided with a copy of the magazine to read in the agent’s office while discussing the application.  Although the applicant’s statement contains detailed quotation from the magazine, the applicant was unable to even say what the magazine article was about when questioned at interview.  A similar lack of knowledge was displayed in relation to other material quoted in detail in the statement.”

4. Prior to the hearing before the Tribunal the appellants apparently changed solicitors. Nonetheless, the Tribunal also refers specifically in its reasons to what each appellant told the delegate about the magazine article and, most importantly in that context, identifies the claims to which each appellant “adhered”. The appeal papers do not suggest that the appellants persisted with any claim that ethnic Chinese generally will face a real chance of persecution in the future in Myanmar or that there was any material before the Tribunal, such as so-called “independent country information”, raising the possibility of such persecution. We do not have a transcript of the Tribunal hearings, but any such claim must be regarded as having been abandoned by the appellants. In those circumstances the Tribunal was, on any view of s 476(1)(e) and s 430 of the Act, under no obligation to address such a question or make findings of fact upon it. Accordingly, no matter how the primary judge dealt with the chance of persecution in the future, this ground of review was utterly futile and the appeal cannot succeed.

5. Each appeal will be dismissed with costs.  We have acceded to the appellants’ request that they be referred to by pseudonyms in these reasons.  This request was not opposed by the Minister, notwithstanding that there seems little point in the use of pseudonyms since the appellants were named in the proceedings at first instance.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             19 June 2001

Counsel for the applicant:	P S Braham
Counsel for the respondent:	S B Lloyd
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	21 May 2001
Date of judgment:	20 June 2001