FEDERAL COURT OF AUSTRALIA

Nwe Ni Soe v Minister for Immigration & Multicultural Affairs [2001] FCA 471

MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – whether Tribunal breached s430 of the Migration Act 1958 (Cth) by not making a finding about a material question of fact – whether finding of Tribunal was illogical

WORDS AND PHRASES- “material question of fact”

Migration Act 1958 (Cth) ss 430, 476

Minister of Immigration and Multicultural Affairs v Singh [2000] FCA 845, (2000) 98 FCR 469 referred to

NWE NI SOE  v  THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W172 OF 2000

MARSHALL J

MELBOURNE (HEARD IN PERTH)

27 APRIL 2001

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent’s costs, including reserved costs, if any.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for a review of a decision of the Refugee Review Tribunal (“the RRT”) affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. I incorporate, by reference, the reasons of the RRT.

2                     The applicant is a citizen of Burma. She arrived in Australia on 21 August 1999. She lodged an application for a protection visa on 9 September 1999. The applicant claimed that she left Burma because she feared for her safety as a result of her involvement in the student’s movement in opposition to the government.

3                     Counsel for the applicant submitted that the RRT had breached s430 of the Migration Act 1958 (Cth) (“the Act”) by failing to make a finding of fact on the applicant’s claim that four of her fellow student activists had been arrested.

4                     A fair reading of the RRT’s reasons reveals that it did not accept that the applicant had a high profile in the student movement. There was no obligation on the RRT to deal with every piece of evidence put forward by the applicant in support of her application for a protection visa. The question of whether or not four particular student activists had been arrested was not a material question of fact in that it was not a fact the existence of which was “an essential preliminary to the making of the decision”: see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, (2000) 98 FCR 469 at [50]. In any event, as counsel for the respondent noted, if it is, in fact, true that others were arrested, this can only serve to highlight that the applicant was not arrested.

5                     Counsel for the applicant also submitted that the RRT’s decision was not authorised by the Act because it was illogical. Counsel conceded that the effect of such a submission was that the decision was so unreasonable that no reasonable RRT could make such a decision. I can discern no basis in s476 of the Act for the Court to review a decision of the RRT because the decision is illogical. Such a submission essentially invites the Court to come to a different view about the merits of the application than the view arrived at by the RRT. Even if the RRT was illogical in the aspect of its decision focused upon by the applicant’s counsel, the RRT had a wealth of information before it on which it could conclude that the applicant did not posses a political profile of a level which was likely to attract the attention of the authorities.

6                     Consequently, the application will be dismissed with costs, including reserved costs, if any.

7                     The Court will order that:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs, including reserved costs, if any.

Associate:

Dated:  27 April 2001