MZXEE v Minister for Immigration
[2006] FMCA 1513
•30 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXEE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1513 |
| MIGRATION – Failure of Tribunal to deal with claim of risk of persecution arising out of residence in western country – jurisdictional error found – application allowed. |
| NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60 SZECG v Minister for Immigration & Multicultural Affairs [2006] FMCA 733 Minister for Immigration and Multicultural Affairs v Wu Lang Shian (1996) 185 CLR 259 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24) Htun v Minister for Immigration & Multicultural Affairs [2001] 194 ALR 244 |
| Applicant: | MZXEE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1424 of 2005 |
| Judgment of: | Burchardt FM |
| Hearing date: | 20 September 2006 |
| Date of Last Submission: | 20 September 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Gibson |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr. Horan |
| Solicitors for the Respondents: | Phillips Fox Lawyers |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 10 October 2005.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent shall pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1424 of 2005
| MZXEE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The relevant background, which is not controversial, is set out in the First Respondent’s contentions of fact and law at paragraphs 2 to 10 inclusive, which I adopt for the purposes of these reasons for judgment.
It should be noted that counsel for the Applicant made a concession almost immediately upon commencing his address.
One of the matters asserted in the Applicant’s contentions of fact and law was a submission that the Refugee Review Tribunal (“the Tribunal”) had misconstrued Article 1C(5) of the Convention Relating to the status of Refugees 1951 (“the Refugees Convention”).
Counsel conceded however in the light of the joint judgment of the Full Court of the Federal Court in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60 (a decision followed by Branson J in SZECG v Minister for Immigration & Multicultural Affairs [2006] FMCA 733 at [13] to [15]) that this submission could not stand.
Accordingly, the matters pressed on the Applicant’s behalf by counsel were the three errors asserted as “a failure to deal with integers or elements of the Applicant’s claims” set out in paragraph 20 of the Applicant’s contentions of fact and law. The three integers or elements of the Applicant’s claims which it was submitted the Tribunal failed to deal with were:
(a)his fear of harm through his family’s association with the occupying British forces at the hands of militias – Shia and/or Sunni – which in large numbers have infiltrated and influence the police forces in the Applicant’s home region of Basra;
(b)the Applicant’s fears of harm at the hands of militias through a combination of cumulative factors which he said amounted to him being seen as a collaborationist; and
(c)the Applicant’s risk of harm as a person who has returned from overseas who would be perceived as being pro-western and a traitor.
In submissions it was strongly submitted by counsel for the Applicant that the Tribunal had failed to address the last of these matters at all. Counsel referred to the detailed submissions placed before the Tribunal on the Applicant’s behalf and pointed out that the Applicant had squarely raised (CB135 at paragraph at [4.1]) the fact that he feared persecution in Iraq relevantly on account of “his membership of the particular social group of returnees from the west”.
In this regard the Applicant’s submission to the Tribunal (CB118 and following) contained country information which, it was submitted, both squarely put and supported the Applicant’s assertion that simply as a person returning from the west, and more particularly from Australia, the risks to him of persecution on return were very considerable.
The Applicant pointed out that the Tribunal accepted the Applicant’s evidence about his past persecution under the Saddam Hussein regime (CB 199) but said that the Tribunal failed to deal with this aspect, or integer, of the Applicant’s claims, namely the possibility of persecution as a returnee from the west.
I will return to this aspect of the submissions in due course, but for the moment would like to deal with the other two aspects of the Applicant’s claim.
The Applicant undoubtedly did claim that he was at risk through his family’s association with the occupying British forces.
This was put by the Applicant both as a general proposition in that his family’s association with the British forces would of itself put him at risk and also as it were in the particular sense that the Applicant’s profile as a pro-western person would be added to because of his family’s involvement.
It was submitted by Counsel for the Applicant that the Tribunal failed properly to address this issue in either regard.
The Tribunal set out the Applicant’s materials at some length.
The findings and reasons that flowed from the Tribunal’s consideration of those materials was however relatively brief, amounting to just over two pages.
While the Tribunal’s reasons are expressed fairly shortly, in my opinion the Tribunal did not misconceive its role in addressing these matters. The finding of the Tribunal was essentially to the effect that on the material before it the Applicant did not have a well founded fear of persecution because of his family’s involvement with the British forces. It is sufficient in my opinion to say that the materials before the Tribunal show, at the very least, that there was material before the Tribunal which could justify that conclusion. Furthermore, and more importantly, the Tribunal did not misconceive its task or otherwise fall into error in approaching this integer of the applicant’s claim in the way that it did.
The Tribunal clearly did address the question of the Applicant’s family's involvement in the British forces. It did so in terms (CB 199-200).
It was in my view not necessary for the Tribunal to say in terms that the Applicant individually was not at risk because of these matters. Furthermore, at CB 200, having approached the question of the family’s involvement with the British forces generally, the Tribunal said “I do not accept that the employment of some members of his family by the British forces would bring danger to the Applicant if he returned to Basra”.
Taking the materials as a whole and bearing in mind the observations of the High Court in Minister for Immigration and Multicultural Affairs v Wu Lang Shian (1996) 185 CLR 259 (at 271/2 per Brennan CJ, (Toohey, Mettugh & Gummow JJ) and 291 per Kirby J) that decisions of the Tribunal’s such as the First Respondent should not be picked over unduly, this complaint in my view is not made out.
The second (or arguably third) element of the Applicant’s claim that was said not to have been properly dealt with was the Applicant’s fear of harm at the hands of militias through a combination of cumulative factors which the Applicant asserted amounted to him being seen as a collaborationist. In relation to this claim, I accept the submission for the Applicant that the Tribunal did not in terms respond to this aspect of the Applicant’s case.
Nonetheless, it is my opinion that this ground is not made out also. The various components of the Applicant’s materials that were said to give rise to this conclusion amount to his brother and his family and his other family member’s interrelationship with the British forces, and the fact that he has a brother who is a US citizen with six years residency in Australia.
The latter two matters are really in my view just a subset of the assertion that a person who has returned from overseas would be perceived as being pro-western and a traitor. The other aspect, namely the Applicant’s family connections, I have already dealt with.
In my opinion the Tribunal’s decision taken as a whole would be fairly said to have properly disposed of this contention, bearing in mind that it is open to the Tribunal to err without falling into jurisdictional error.
Returning however to the outstanding issue, the claim put by the Applicant here was really to the effect that persons who have returned from overseas are at risk. He referred to his brother resident in the United States in this regard and I accept the submission made by counsel for the Applicant that this issue was clearly before the Tribunal.
What the Applicant was saying in substance was that, while there were a number of aspects of life in Basra that might be problematic for a returnee such as the non consumption of alcohol and the like, he was at risk himself simply because he was a returnee from the west.
The only part of the Tribunal’s reasons for decision that in any way touched on this aspect of the Applicant’s claim is that CB 200 in these terms “Neither is there evidence that having spent a number of years in a western country would of itself cause problems”.
Counsel for the Respondent conceded that this was the only passage that could be said to touch upon this particular aspect of the Applicant’s claim. He said however that this extract was sufficient.
The difficulty that I have with that proposition is that the sentence to which I have made reference above is set in a context wholly concerned with particular instances of conservative religious prejudices in Basra. The Tribunal’s remarks were directed at Iraqis who “had acquired a way of life which conservatives now in power would find objectionable”. While the Tribunal may be correct to have observed “I have no evidence that these or anything similar are the case with the Applicant”, the fact is that the Tribunal does not seem to me to have turned its mind to the issue raised by the Applicant, namely whether it would not be safe for him to return simply because of his years in the west.
In this regard, I believe that the Tribunal did fall into jurisdictional error. I have been provided with a super-abundance of authority as to what constitutes jurisdictional error. It is not necessary for these purposes to do more than refer to the following extract of the Full Federal Court judgment quoted in the Applicant’s submissions in the case VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 (Wilcox, Gray and RD Nicholson JJ), which I respectfully adopt:
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
Here in my opinion the Tribunal fell into error by identifying the wrong issue and asking itself the wrong question. It did not address the subset or integer of the Applicant’s case that asserted risk of persecution on the basis of being a returnee from the west simpliciter. Rather, the Tribunal fell into error as it considered this issue as a subset of the Applicant’s asserted difficulties arising out of his family’s relationships and other matters.
This led the Tribunal in my opinion to ask itself the wrong question i.e. not asking itself the right question. Further, in my opinion the Tribunal failed to have regard as it should have done to the materials before it that dealt with country information going to this question of the prejudice faced by returnees from the west generally, and this only compounded the ultimately erroneous outcome in the Tribunal’s decision.
I have been referred by both Counsel to the case of Htun v Minister for Immigration & Multicultural Affairs [2001] 194 ALR 244 (“Htun”).
In that case a Full Court of the Federal Court constituted by Spender, Merkel and Allsop JJ found that the Tribunal in that case constructively failed to exercise its jurisdiction by not dealing with the ethnicity based claim raised by the Applicant in his initial visa application.
This case however is in a sense even stronger in Htun because in Htun the ethnicity-based claim was not expressly identified during the hearing before the Tribunal, although the Full Court found that it could not be concluded that the Applicant had abandoned the claim. Here the Applicant’s claim that he would be at risk of persecution because he would be a returnee from the west was before the Tribunal in terms but was not as I find dealt with by the Tribunal.
For these reasons in my opinion the Tribunal did fall into jurisdictional error and it follows that the orders sought by the Applicant should be made. I will make the orders contended for in the Applicant’s further amended application dated 5 April 2005.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 30 October 2006
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