Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Kyaing v Minister for Immigration and Multicultural Affairs [2001] FCA 1495
IMMIGRATION – application for a protection visa – activities of applicant in Australia – whether Tribunal found that applicant was a repetitive demonstrator – no such finding – no error of law. Migration Act 1958 (Cth) ss 476(1)(e), 476(1)(g) SEIN KYAING V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 842 of 2001 CONTI J SYDNEY 19 OCTOBER 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 842 OF 2001
BETWEEN: SEIN KYAING
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: CONTI J
DATE OF ORDER: 19 OCTOBER 2001
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the Respondent's 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 842 OF 2001
BETWEEN: SEIN KYAING
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: CONTI J
DATE: 19 OCTOBER 2001
PLACE: SYDNEY
REASONS FOR JUDGMENT
Application for Review 1 Before the Court is an application for review against the decision of the Refugee Review Tribunal ("the Tribunal") made on 24 April 2001, whereby the Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa, because as in the case of the delegate, the Tribunal was not satisfied that he was a refugee within the Convention definition. The Applicant was both legally represented before the Tribunal and in the proceedings before me. 2 The grounds of the amended application for review, which I granted leave to file in court, are as follows: "1. The RRT erred in the course of finding that the Applicant does not face a real chance of persecution in Burma as a result of his activities in Australia since 1996 in that: (a) in light of the RRT's finding that the applicant was a "repetitive demonstrator", it was not open to the RRT to find that he would only be of slight concern to the authorities, giving rise to an error of law under s 476(1)(b) or s 476(1)(e) of the Act. (b) In considering whether the punishment the applicant might face on his return to Burma constituted persecution, the RRT incorrectly applied the law to the facts as found, giving rise to an error under s 476(1)(e) of the Act. (c) In considering whether the punishment the applicant might face on his return to Burma constituted persecution, the RRT based its decision on a particular fact where that fact did not exist, giving rise to an error under s 476(1)(g) of the Act. (d) In considering whether the punishment the applicant might face on his return to Burma constituted persecution, the RRT took into account the level and nature of the government's intrusiveness in the lives of all Burmese. In taking this matter into account, the RRT has incorrectly interpreted the law giving rise to an error of law under s 476(1)(e) of the Act."
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