Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824

FEDERAL COURT OF AUSTRALIA

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824 MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – whether Tribunal failed to take into account relevant consideration, namely applicant's ethnicity Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [75] and [82] applied THET NAING HTUN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 139 OF 2000 HEEREY J 4 JULY 2001 MELBOURNE (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 139 OF 2000

BETWEEN: THET NAING HTUN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 4 JULY 2001

WHERE MADE: MELBOURNE (HEARD IN PERTH)

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 139 OF 2000

BETWEEN: THET NAING HTUN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 4 JULY 2001

PLACE: MELBOURNE (HEARD IN PERTH)

REASONS FOR JUDGMENT 1 This is an application for review under Pt VIII of the Migration Act 1985 (Cth) (the Act) of a decision of the Refugee Review Tribunal made on 5 July 2000 affirming a decision of a Delegate of the Minister to refuse to grant a protection visa to the applicant. 2 The applicant is a citizen of Burma now aged 27. He is a single male and a Karen. Karens are a minority ethnic group in Burma. He arrived in Australia on 3 July 1999 and applied for a protection visa on 16 August 1999. 3 The Tribunal dealt with the case on the basis that the applicant's fear of persecution was by reason of political opinion which took the form of activities in connection with the National League for Democracy (NLD) in Burma and his engagement in protest activities after arrival in Australia which he feared would become known to the Burmese authorities. 4 However, on the application for review to this Court counsel for the applicant argued that the Tribunal erred in law by failing to have proper regard to a relevant consideration, namely his ethnicity as a Karen. This was said to found a fear based on another Convention ground, namely race, or alternatively was something which gave added weight to his fear based on political opinion. It will therefore be necessary to give some attention to the materials which were before the Tribunal and the way the hearing was conducted.