WAKZ v MIMIA

Case [2005] FCA 1065

FEDERAL COURT OF AUSTRALIA

WAKZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1065

MIGRATION – judicial review – protection visa – well founded fear of persecution – applicant imprisoned and raped following involvement in student demonstration in Burma – 17 years ago – currently suffering post traumatic stress – psychological fragility – likely deleterious effect if returned to Burma and subjected to routine questioning of returnees – whether routine questioning thereby persecutory – applicant with little political profile in Burma since imprisonment and rape – little political profile in Australia – whether projected avoidance of political activity upon return due to well founded fear of persecution – failure by Tribunal to consider – jurisdictional error – decision quashed

Migration Act 1958 (Cth) s 91R

Minister for Immigration and Multicultural and Indigenous Affairs v Ibrahim (2000) 204 CLR 1 cited
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
WAHK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 12 cited
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 cited
Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 cited

WAKZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
WAD 231 OF 2003

FRENCH J
2 AUGUST 2005
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD231 OF 2003

BETWEEN:

WAKZ
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

2 AUGUST 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The  decision of the Refugee Review Tribunal made on 31 October 2003 affirming the refusal to grant a protection visa to the applicant is quashed.

2.The matter is remitted to the Refugee Review Tribunal for reconsideration according to law.

3.The respondent is to pay the applicant’s costs of the application.

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

WAD231 OF 2003

BETWEEN:

WAKZ
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

FRENCH J

DATE:

2 AUGUST 2005

PLACE:

PERTH

REASONS FOR JUDGMENT

Factual background

  1. The applicant is an Anglo-Burmese national of Burma who was born on 2 May 1966.  She has parents and a brother and sister who still live in Burma.  She is married and has two children.  Her husband and children are in Burma.  She has a Bachelor of Arts degree from a Burmese university.  Before coming to Australia she worked as an Assistant Manager at an agricultural products shop.

  2. The applicant left Burma in August 2000 and travelled to Australia on a tourist visa.  On 15 September 2000 she applied for a protection visa.  Her application relied upon apprehended persecution by reason of:

    1.        her ethnicity – she has Karen and Chin as well as English and Portuguese…

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Details
AGLC
WAKZ v MIMIA [2005] FCA 1065
Case
[2005] FCA 1065
Decision Date

CaseChat Overview and Summary

The case of WAKZ v MIMIA involved a claimant from Burma seeking a protection visa in Australia. The Refugee Review Tribunal had previously refused to grant the applicant a protection visa, a decision the applicant sought to challenge. The dispute hinged on whether the Tribunal had correctly applied the law in evaluating the applicant's claims of past persecution and her fear of future persecution in Burma. The Federal Court was tasked with reviewing the Tribunal's decision under the Migration Act.

The central legal issues before the court were whether the Tribunal had correctly assessed the evidence regarding the applicant's past persecution, her claims of discrimination, and her risk of future persecution. The court had to determine if the Tribunal had applied an appropriate legal standard in its evaluation of the applicant's evidence, particularly in relation to the severity and nature of the persecution she faced. Additionally, the court needed to consider whether the Tribunal had properly weighed the country information and how this information impacted the assessment of the applicant's claims.

In its reasoning, the court found that the Tribunal had not adequately considered the severity and nature of the persecution the applicant had suffered. The Tribunal had not sufficiently acknowledged the extent of the discrimination and abuse the applicant had endured, including the physical abuse and sexual assault she suffered in detention. The court held that the Tribunal had failed to properly weigh the evidence and had made errors in its assessment of the country information. Consequently, the court quashed the Tribunal's decision and remitted the matter back for reconsideration, emphasizing the need for a thorough and balanced evaluation of the applicant's claims.

The court ordered that the decision of the Refugee Review Tribunal be quashed, the matter be remitted for reconsideration, and that the respondent pay the applicant's costs of the application. This decision underscored the importance of a meticulous and fair assessment of protection visa applications, ensuring that all evidence and country information are appropriately considered.

Orders

Orders of the court

1. The decision of the Refugee Review Tribunal made on 31 October 2003 affirming the refusal to grant a protection visa to the applicant is quashed.

2. The matter is remitted to the Refugee Review Tribunal for reconsideration according to law.

3. The respondent is to pay the applicant’s costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH J
The Tribunal referred to independent country information. This included information about the 1988 disturbances in which the applicant claimed to have taken part.The Tribunal’s decision The Tribunal accepted that Burma is ruled by a highly authoritarian military regime which, since the 1990s, has systematically violated human rights in the country in order to suppress the pro-democracy movement. It also found that the Burmese government had reinforced its firm military rule with a pervasive security apparatus led by its military intelligence organisation. It accepted that control is reinforced by arbitrary restrictions on citizens’ contact with foreigners, surveillance of government employees and private citizens, harassment of political activists, intimidation, arrest, detention and physical abuse. The Tribunal accepted that the applicant is a citizen of Burma. It accepted that she may have been discriminated against because of her Eurasian heritage. It accepted that she was forced to change her name to enrol in a school and that her father had to change to a Burmese name in order to obtain government employment. The Tribunal accepted the applicant’s claims that she had been the subject of religious discrimination and was taught Buddhist prayers while at primary school and forced to recite Buddhist prayers at her secondary school. It did not, however, accept that such discrimination amounted to persecution. The Tribunal had ‘difficulty’ in accepting the applicant’s claim that, as a Eurasian Christian, she was unable to obtain a government job. Her father had been working for the government since before 1988 and she herself had been employed by the Public Service and Selection Training Department until being dismissed over political activities. The Tribunal rejected this aspect of the claim. The Tribunal was prepared to accept the applicant’s evidence of her interest in politics and her involvement in the 1988 demonstrations. It accepted that she was detained in the Insein prison for three weeks and that while there she was beaten and raped by prison authorities. Nevertheless it referred to the applicant’s evidence that she was not singled out for such treatment and that other people in the prison were similarly mistreated. It accepted that she was released upon making a written statement that she would not be further involved in politics. It also accepted that her brothers were killed during this period. The Tribunal accepted that the applicant had participated in a mass demonstration on 24 August 1988 as part of her high school’s Old Students Association and that she was responsible for delivering lunches, cigarettes and pamphlets. The Tribunal found that she took no further part in politics in Burma thereafter. It was prepared to accept that her husband might have been detained prior to her departure for Australia because he had some anti-government pamphlets which he got from friends. The Tribunal accepted that the applicant was dismissed from her employment with the Public Service and Selection Training Department in connection with her responses to a questionnaire about her political views.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

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