Myint v Minister for Immigration & Multicultural Affairs

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.