Win v Minister for Immigration and Multicultural Affairs - [2001] FCA 1451

FEDERAL COURT OF AUSTRALIA
Win v Minister for Immigration & Multicultural Affairs [2001] FCA 1451
MIGRATION – application for review of a decision of the Refugee Review Tribunal – where applicant is opposed to the ruling regime in Burma – where applicant had repeatedly attended demonstrations against the Burmese regime in Australia – where RRT found that the applicant’s activities may be of more than “little concern” to Burmese authorities – the restriction on free expression may amount to persecution if it can actually and seriously offend a real aspiration held by an asylum seeker such as to offend human dignity – where the RRT failed to consider whether there was a real chance of persecution of the applicant if returned to Burma for political opinion in the event that he expressed his views – where the RRT failed to consider whether there was a real chance the applicant would express his views openly so as to attract punishment – where the RRT failed to make a proper finding but simply recorded an impression of a tentative nature
Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 applied
Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 525 applied
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied
Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (FCA, 8 May 1990, unreported) applied
Tolibao-Cortes v Minister for Immigration and Multicultural Affairs [2001] FCA 1183 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
PHYO THET WIN v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 360 OF 2001
TAMBERLIN J
SYDNEY
18 OCTOBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 360 OF 2001

BETWEEN:

PHYO THET WIN
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

18 OCTOBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The application be allowed.
2.The decision of the Refugee Review Tribunal be set aside and the matter be referred to the Refugee Review Tribunal, differently constituted, for decision in accordance with law.

3. The respondent 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

NEW SOUTH WALES DISTRICT REGISTRY

N 360 OF 2001

BETWEEN:

PHYO THET WIN
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

18 OCTOBER 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant is a Burmese national who claims that he is a “refugee” within the well-known definition in the 1951 Convention as amended by the 1967 Protocol. The basis for the claim is that there is a real chance that the applicant will be persecuted for reasons of his political opinion if returned to Burma. On 14 February 2001, the Refugee Review Tribunal (“the RRT”) affirmed a decision of a delegate of the Minister for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 1451
Decision Date: 18 OCTOBER 2001

CaseChat Overview and Summary

The matter before the court involved an application by the applicant, Win, against the Minister for Immigration and Multicultural Affairs. The dispute centred around the applicant's claim for refugee status and the subsequent review of that claim by the Refugee Review Tribunal (RRT). The Federal Court was tasked with reviewing the decision made by the RRT and determining whether there were any errors in their assessment that warranted judicial intervention.

The central legal issues before the court were whether the RRT had erred in their assessment of the relevance and weight of a particular photograph presented as evidence by the applicant, and whether the RRT's conclusions were legally sound. The applicant argued that the RRT had incorrectly dismissed the significance of the photograph, while the Minister contended that the RRT's evaluation of the evidence was appropriate and within their jurisdiction.

The court examined the RRT's reasoning and found that the tribunal had correctly identified the photograph as relevant but had appropriately assessed its limited evidentiary value due to the absence of information regarding the time it was taken. The court emphasised that the tribunal was within its rights to weigh the evidence and that the lack of context for the photograph did not render the RRT's decision unlawful. The court concluded that the RRT's findings were not in error and that the applicant had not demonstrated any procedural unfairness or miscarriage of justice in the tribunal's decision-making process.

The court granted the application for review, setting aside the RRT's decision and directing that the matter be referred back to the RRT, constituted differently, for reconsideration in accordance with the law. Additionally, the court ordered that the respondent, the Minister for Immigration and Multicultural Affairs, pay the applicant's costs associated with the application.

Orders

Orders of the court

1. The application be allowed.

2. The decision of the Refugee Review Tribunal be set aside and the matter be referred to the Refugee Review Tribunal, differently constituted, for decision in accordance with law.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

TAMBERLIN J (dissent)

Finally, I do not accept the applicant’s submission in relation to the photograph which is that the decision was based on irrelevant material because the time at which the photograph was taken was not indicated and the RRT considered the photograph to be of no assistance to the applicant. The photograph was clearly relevant and was so treated by the RRT. The question of its importance and weight as evidence was weakened by the lack of evidence as to the time at which it was taken. This was an appropriate matter for consideration by the RRT in assigning weight to the activity shown in the photograph. The RRT did not consider that it carried sufficient weight to make good the applicant’s claims as to the extent of his participation and this conclusion was open to it. There was a lack of any other accepted evidence as to what had transpired on that day. On a fair reading of its language, the RRT found that the photograph was relevant but of limited weight and that it did not assist the applicant. No error, in my view, has been disclosed in relation to this aspect of the RRT reasoning.CONCLUSION The application for review should be granted. The decision of the RRT should be set aside and the matter referred to the RRT, differently constituted, for decision in accordance with law. The respondent should pay the applicant’s costs.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 360 OF 2001

BETWEEN:	PHYO THET WIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	18 OCTOBER 2001
WHERE MADE:	SYDNEY

JUDGE:	TAMBERLIN J
DATE:	18 OCTOBER 2001
PLACE:	SYDNEY