Tun Min Zan v Minister for Immigration and Multicultural Affairs

[2001] FCA 473

FEDERAL COURT OF AUSTRALIA

Tun Min Zan v Minister for Immigration & Multicultural Affairs
[2001] FCA 473

IMMIGRATION – protection visa – application for review of decision of the Refugee Review Tribunal – whether the Tribunal breached s 430 of the Migration Act 1958 (Cth) by not setting out findings in relation to material questions of fact – whether Tribunal made adverse credibility findings based on no evidence – whether certain evidence should have led the Tribunal to form the view that the applicant had a well founded fear of persecution for reasons of political opinion

Migration Act 1958 (Cth) ss 424(1), 430

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, (2000) 98 FCR 469 applied

TUN MIN ZAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 152 OF 2000

MARSHALL J
MELBOURNE (HEARD IN PERTH)
27 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 152 OF 2000

BETWEEN:	TUN MIN ZAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	27 APRIL 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the respondent’s costs, including reserved costs, if any.

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	W 152 OF 2000

BETWEEN:	TUN MIN ZAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	27 APRIL 2001
PLACE:	MELBOURNE (HEARD IN PERTH)

REASONS FOR JUDGMENT

1. The applicant, Mr Tun Min Zan, is a citizen of Burma. He arrived in Australia on 14 January 1999 on a three months visitor’s visa. On 14 May 1999, the applicant lodged an application for a protection visa. On 29 July 1999, a delegate of the respondent refused the application. The applicant then applied to the Refugee Review Tribunal (“RRT”) for a review of the delegate’s decision. On 24 July 2000, the RRT affirmed the decision of the delegate not to grant the applicant a protection visa. On 5 September 2000, the applicant filed an application for an order for review of the RRT’s decision pursuant to Part 8 of the Migration Act 1958 (Cth) (“the Act”).

2. At the hearing of application Mr R Lindsay of counsel appeared for the applicant and Mr A Jenshel of counsel appeared for the respondent.

3. Mr Lindsay submitted that the application was based on three grounds. I will consider these in turn.

4. Mr Lindsay contended first that the RRT had breached s430 of the Act by failing to set out findings in relation to material questions of fact. Mr Lindsay submitted that the RRT failed to set out their findings in relation to:

   ·    A letter from the applicant’s aunt dated 8 February 1999, informing the applicant that after he left Burma “the Military Intelligence came to the house on 12.1.99 evening and asked for you”. In the letter the aunt went on to say that the applicant should not return to Burma because if he did he would be arrested. Mr Lindsay observed that the RRT made no finding about the letter. The RRT merely observed that there was a letter of 8 February 1999 which was “purportedly written by his mother”. The reference to “mother” is incorrect. It should have been a reference to “aunt”.

   ·    Oral evidence given to the RRT by a witness called by the applicant, which suggested that people who were involved in anti-Burmese government activities in Australia would be arrested on return to Burma.

5. The RRT is not obliged to specifically deal in its reasons for decision with every piece of evidence before it. The important qualification to this general view was identified in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, (2000) 98 FCR 469 at [46] where Black CJ, Sundberg, Katz and Hely JJ held:

   “if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s430(1)(b) would require disclosure of that element of the RRT’s actual reasoning process.”

6. No part of the RRT’s decision shows that it was induced to come to its decision by either rejecting or placing no weight on the aunt’s letter or the oral evidence referred to above. A fair reading of the RRT’s reasons discloses that the RRT did not consider the applicant to have a political profile which would be likely to bring him to the attention of the authorities in Burma. Failure to accept or place weight on the evidence highlighted by Mr Lindsay was not central to the reasoning process of the RRT.

7. In his written outline of argument Mr Lindsay also submitted that the RRT was in breach of s424(1) of the Act by failing to have regard to the aunt’s letter and the oral evidence. That submission was not developed orally and affords no comfort to the applicant in the circumstances of this case. In any event, the RRT did have regard to the letter by referring to it. Additionally, there is no reason to suggest that it did not have regard to all the oral evidence before it.

8. The applicant’s second ground for review concerned certain adverse findings made about the credibility of the applicant with respect to his involvement in demonstrations in late 1996. Mr Lindsay contended that these adverse findings were wrong. In particular Mr Lindsay submitted that the RRT’s findings were based on “non existent facts” and that “there was no evidence or other material in the Amnesty reports to justify the finding of lack of credibility”.

9. However, it was clear that the RRT’s findings were open to it on the evidence before it, including other independent information on the 1996 demonstrations. This second ground is essentially no more than an invitation to the Court to engage in an impermissible merit review of the RRT’s reasons for decision.

10. It was finally submitted that the applicant’s sur place activities in Australia should have led the RRT to find that he had a well founded fear of persecution for reasons of political opinion. However, the RRT’s view was that the applicant’s “activities” were not “sufficient to make him a person who would face a real chance of persecution by his government on the grounds of his political or an imputed political opinion”. The theme that the applicant lacked a sufficient political profile to be of interest to the authorities in Burma is consistent throughout the decision.

11. Mr Lindsay’s submissions on this third ground, once again, essentially invites the Court to partake in a merits review. I reject the submission that the RRT failed to take into account the applicant’s sur place activities in Australia. The correct analysis is that the RRT did take them into account, but did not find them to be of such significance as to lead to the granting of a protection visa.

12. The Court will order that:

    1.        The application be dismissed.

    2.        The applicant pay the respondent’s costs, including reserved costs, if any.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             27 April 2001

Counsel for the Applicant:	Mr R E Lindsay
Solicitor for the Applicant:	Murie & Edward
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 February 2001
Date of Judgment:	27 April 2001