Myint v Minister for Immigration & Multicultural Affairs

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) 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) 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.