Win v Minister for Immigration and Multicultural Affairs

The applicants, Mr U Win and Ms Ma Win Win, Burmese nationals, sought judicial review of the Refugee Review Tribunal’s decision to affirm a delegate’s decision not to grant them protection visas under the Migration Act 1958. The applicants claimed to have engaged in political activities in opposition to the Burmese military regime, including participation in the 1988 pro-democracy movement and clandestine activities between 1988 and 1996, such as smuggling passports to dissidents and distributing political pamphlets. They argued that if returned to Burma, they would face persecution due to their political activities. The Tribunal found that the applicants’ political activities before 1988 had largely ceased to be a concern by 1994, and that any clandestine activities had been concealed from the Burmese authorities, concluding that they would not face persecution. The applicants argued that the Tribunal erred in its findings and did not properly consider their claims under the Convention Relating to the Status of Refugees 1951. The court was required to determine whether the Tribunal erred in its assessment of the applicants' political activities and likelihood of persecution upon return to Burma.

The court found that the Tribunal had erred in its assessment of the applicants’ political activities and likelihood of persecution. The Tribunal had not adequately considered the totality of the applicants' involvement in political activities, including their participation in the 1988 pro-democracy movement and subsequent clandestine activities. The court held that the Tribunal should have considered the applicants' activities in the broader context of the Burmese government's response to political dissent. The court also found that the Tribunal had not properly assessed the applicants' fear of persecution based on their political opinions. The court concluded that the Tribunal's decision was unreasonable and remitted the matter to the Tribunal for reconsideration. The court allowed the application, set aside the Tribunal's decision, and ordered the matter to be remitted to the Tribunal for reconsideration. The respondent was also ordered to pay the applicants’ costs.