Myint v Minister for Immigration & Multicultural Affairs [2001] FCA 122 (23 February 2001)

Last Updated: 23 February 2001

FEDERAL COURT OF AUSTRALIA

Myint v Minister for Immigration & Multicultural Affairs [2001] FCA 122

MIGRATION - application for a protection visa - whether a valid application for a protection visa was made - where the application was originally invalid for want of completion - where additional information was furnished before a decision was made by the delegate - where the format of the additional information did not correspond with the format of the application form, but in substance answered the questions

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural Affairs v "A" [1999] FCA 1679; (1999) 91 FCR 435 distinguished

Minister for Immigration & Multicultural Affairs v Li (2000) FCA 1456 distinguished

Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCR 495 distinguished

Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908; (2000) 175 ALR 548 followed

Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489 distinguished

MYO MYINT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1110 of 2000

TAMBERLIN J

SYDNEY

23 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1110 OF 2000

BETWEEN:	MYO MYINT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	23 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with 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 1110 OF 2000

BETWEEN:	MYO MYINT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	23 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for review under the Migration Act 1958 (Cth) ("the Act") in respect of a decision of the Refugee Review Tribunal ("the RRT"). The RRT decision was given on 31 August 2000 and it affirmed a decision of a Ministerial delegate ("the delegate") not to grant a protection visa because the applicant did not satisfy the criteria set out in s 36(2) of the Act in that he did not fall within the well-known definition of "refugee" in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention").

2 The applicant claimed refugee status on the basis that if returned to Burma there is a real chance that he would be persecuted for three Convention reasons. The first of these reasons was his Chinese ethnicity. The second was his religious beliefs in that he was a Christian. The third reason was the applicant's claimed political opinion in that he had been politically active and as a consequence had been subjected to discriminatory and harmful treatment which amounted to persecution.

3 The sequence of events is that on 23 October 1996 the applicant, who is a citizen of Burma, arrived in Australia and filed an application for a protection visa dated 10 December 1996 under cover of a letter from his solicitor dated 11 December of that year. There is no dispute that the application was on the form approved by the Minister pursuant to the Regulations made under the Act. That form contained a heading entitled "Your reasons for claiming to be a refugee". Under this heading a number of questions are asked relating to the reasons for leaving the country in respect of which protection was claimed. These questions seek information as to the nature and extent of the applicant's fear if returned; the identity of the persons or groups which may harm or mistreat the applicant if returned; why it is considered that they might harm or mistreat the applicant; and whether the authorities of the country could and would protect the applicant if returned; and, if they would not protect the applicant, the reasons for such inability or unwillingness. There is then a substantial space for these questions to be addressed.

4 The applicant answered each of these questions by stating:

"SEE STATEMENT TO FOLLOW"

5 By 14 January 1997 no statement had been received and a letter from the Department of Immigration and Multicultural Affairs ("the Department") was sent to the applicant. It referred to the definition of "refugee" in the Convention and pointed out that the applicant had not made any specific Convention related claims in his application and that this might lead the delegate to refuse the grant of a visa. A response was called for within twenty-eight days. On 25 January the solicitor for the applicant, Kessels & Associates, replied enclosing a Statutory Declaration of the applicant made on 22 January 1997 together with photographs of the applicant participating in a demonstration in front of the Burmese Embassy in Canberra on 31 October 1996. The enclosed Statutory Declaration was a detailed one and ran to thirty-two paragraphs.

6 On 1 June 1998 an officer of the Department sent a further letter to the applicant referring to his application lodged on 16 December 1996 in which it was stated:

"In that Application you made certain claims. However these claims have been contradicted by evidence provided by you on 23 September 1996 to the Department in Rangoon in your Application for a Visitor Visa, three months before.

The claims are listed overleaf. If you wish to comment on those claims you should do so in writing and reply no later than Friday 12 June 1998."

7 This letter referred to an apparent contradiction between the applicant's application for a visitor visa on 17 September 1996 and his application for a protection visa. The former referred to the applicant providing a Police Certificate dated 23 September 1996 stating that the applicant was "free from offence", while the latter indicated that he had been arrested and imprisoned in Burma for six months during 1988-1989, that he had been released only with monthly reporting requirements, and that he was constantly watched and questioned.

8 The applicant responded with a second Statutory Declaration sent under cover of a letter from the applicant's solicitor on 9 June 1998. In paragraph four of that Statutory Declaration the applicant gave a detailed response to the request.

9 Three days later on 12 June 1998 the delegate refused the grant of a protection visa.

10 On 10 July 1998 the applicant filed for review by the RRT. On 1 August 2000 the applicant made a further Statutory Declaration which was provided to the RRT. He also provided other documents in support of his application. A hearing took place on 21 August 2000. On 21 September 2000 the RRT handed down its decision affirming the decision not to grant a protection visa. An application was then filed with this Court on 18 October 2000 for review of this decision.

THE RRT DECISION

11 The RRT's decision deals with the question of jurisdiction. The RRT found that the applicant's initial reference in the primary application to a "STATEMENT TO FOLLOW" and the claims made in the Statutory Declaration of 22 January 1997 were sufficient to validate the application lodged on 16 December 1996 since the Statutory Declaration imported into the primary application several Convention related grounds. The RRT therefore found that the delegate had considered a valid application and that the delegate and the RRT had power and jurisdiction to deal with the application.

12 The RRT went on to make findings adverse to the applicant in relation to each of the three Convention grounds in respect of which the applicant claimed a real chance of persecution. There were also adverse findings as to credibility on each of the grounds. In particular, in the penultimate paragraph of the decision, the RRT said:

"The Tribunal has considered carefully whether the combination of the applicant being Christian, of Chinse ethnicity and having had a brief period of political activity in the past in Burma and having engaged in some political activity in Australia, puts him at differential risk of persecution for a Convention reason. The Tribunal has considered all the evidence, including that the applicant was not detained from 1991 to 1996, during which time he continued to live at his usual home and to work at his usual occupation, his own business, and that his political activity in Australia has not been as a leader nor high profile nor of a high level, and it is remote he would continue to be politically active if he returned to Burma. The Tribunal accepts that these factors of the applicant being Christian, of Chinese ethnicity and having had political activity in Burma in 1988 and in Australia, may indeed put the applicant at a greater risk than average, but after considering all the evidence, the Tribunal finds that any increased risk faced by the applicant for Convention reasons is negligible, so that there is still merely a remote chance of the applicant being persecuted for a Convention reason. After considering the applicant's claims separately and on a cumulative basis, the Tribunal finds that if the applicant returns to Burma, he will not face a real chance of persecution for his race and/or his religion and/or his political opinion and/or for any other Convention reason, nor does he hold a well-founded fear of persecution for a Convention reason."

REASONING

13 Essentially, two matters were pressed before this Court as providing a basis for review. The first was that, contrary to the findings of the RRT, the decision was not authorised by the Act or the Regulations because no valid application had been made by the applicant which could be considered by the delegate. This ground is founded on a line of authority to the effect that if an application does not provide any information on the applicant's specific claims, as required by the Act and Regulations, it is not completed in accordance with the prescribed form and is invalid. Accordingly, some decision have held that the delegate's decision in such circumstances is not authorised by s 65 of the Act. This being the case it is then said in this case that the RRT has no jurisdiction to review that decision: see Minister for Immigration & Multicultural Affairs v "A" [1999] FCA 1679; (1999) 91 FCR 435; Minister for Immigration & Multicultural Affairs v Li (2000) FCA 1456 par 62; Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCR 495; Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908; (2000) 175 ALR 548; Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489.

14 The present case is unusual, and different from most of the above authorities in that before the delegate made her decision the applicant did in fact furnish a detailed Statutory Declaration under cover of the letter of his solicitor after the Department had pointed out the inadequacy of the information furnished in the application. This Statutory Declaration appears clearly to have been typed in the office of the applicant's solicitor and was designed to set out the applicant's case. It is comprehensive. There is no indication in any way that the applicant was not given a full and complete opportunity to state every fact and matter or furnish all documents which he or his advisers considered might support his application. His attention had been drawn to the need to set out the basis for his claims. The applicant took advantage of this opportunity in also lodging the photographs of the Canberra demonstrations. Not only did the applicant furnish the 21 January Statutory Declaration, but as noted above, a second Statutory Declaration was lodged prior to the delegate's decision under cover of the solicitor's letter of 9 June. Accordingly, with the exception of Nader, the present case is distinguishable from the above decisions in that Statutory Declarations were provided prior to the delegates' decision and were comprehensive in nature.

15 On a reasonable reading of the Statutory Declaration of 22 January 1998 in my view there is either an express or inferential answer to the five questions asked in the original application for a visa and referred to above. It is true that the Statutory Declaration does not expressly address each question in sequence. However when read in a fair commonsense way it is clearly to be inferred that the Statutory Declaration was intended to be the statement referred to in the application form and to set out all matters which the applicant considered important and in my view the Statutory Declaration in fact answered the questions posed on the application form. As Hill J pointed out in Nader's case, at 550 when referring to the same questions in an identical application form, the questions are designed as guide lines:

These questions were designed to elicit the claims of the applicant that he was a person to whom Australia owed protection obligations under the terms of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ..."

16 If the Statutory Declaration had been attached to the application originally submitted by the applicant there can no question that it would have satisfied the legislative requirements. This being so, that the Statutory Declaration was furnished later in time, but prior to the delegate's decision, is for present purposes of no effect.

17 In Nader's case, prior to the decision of the delegate, the solicitor for the applicant sent by letter a Statement referred to by the applicant in the application form. The application form had not addressed a number of matters. The Statement was signed by the applicant and the basis of the claim for refugee status was set out. In relation to the validity of the application, Hill J concluded that on a proper analysis the applicant had lodged what could be referred to as an "inchoate" application which was completed by the subsequent supply of information. In his Honour's view the subsequent provision of the Statement operated to cause there to be brought into existence for the first time a valid application. His Honour considered that provided the provision of the information operates to complete the application before consideration by the delegate, the delegate's decision could not be invalidated because at the time of consideration by him there was in existence a valid application and, in consequence, the decision of the delegate was an effective and valid decision: at 560-561.

18 The second matter raised in submissions for the applicant is that the RRT did not consider the particular vulnerability of the applicant arising from the fact that a case was made in respect of three separate Convention grounds. It is said that the cumulative effect of the evidence was ignored and that each ground was considered discretely so that matters alleged by the applicant in one ground were not taken into account in the decision of the RRT when it reached its overall decision to dismiss the application. This is asserted notwithstanding the express statement by the decision-maker in the extract quoted earlier to the effect that the RRT had considered the consequences of the combined effect of the applicant being a Christian, of Chinese ethnicity, who had a period of political activity. The RRT concluded that the applicant was not, in anything other than a negligible way, at a different level of risk for a Convention reason to other persons in Burma. The RRT found expressly that the applicant had only a remote chance of persecution for a Convention reason. The substance of the submission is encapsulated in the applicant's contention that persecution in this case would be continued on political grounds although the applicant originally came to the attention of the authorities for religious reasons and that in turn adverse attention and detriment were compounded by the ethnicity of the applicant. In other words the applicant relied on the interwoven effect of the three grounds.

19 In my view the substance of the reasoning of the RRT in the penultimate paragraph of the decision quoted above makes it quite clear that the decision-maker did take into account and consider the cumulative effect of the three bases on which detriment had been alleged. I do not accept that this contention has been made out.

20 In addition, in reaching her decision the decision-maker also had regard to very extensive country information and made significant adverse findings as to the credibility of the applicant. Also, she adverted to the nature of the discrimination and, in relation to an incident in 1993 relied on by the applicant, took the view that being called into the police station was not detriment of such a nature or extent as to constitute persecution.

21 Accordingly, in my view the RRT did not commit a reviewable error and, for the above reasons, I consider that the application should be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 23 February 2001

Counsel for the Applicant:	R Winfield
Solicitor for the Applicant:	Ong & Co
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 February 2001
Date of Judgment:	23 February 2001