MZZQH v Minister for Immigration

[2014] FCCA 241

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 241

Catchwords:
MIGRATION – Whether failure to deal with all integers of claim.

NABE v Minister for Immigration and Multicultural Affairs (No.2)[2004] FCAFC 263
SZGUW v Minister for Immigration & Citizenship [2008] FCA 91
SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18

Applicant: MZZQH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1242 of 2013

Judgment of: Judge Turner

Hearing date: 6 February 2014

Date of Last Submission: 6 February 2014

Delivered at: Melbourne

Delivered on: 6 February 2014

REPRESENTATION

Counsel for the Applicant: Mr L. Brown

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Solicitors for the Respondents: Australia Government Solicitor

ORDERS

1. A writ of certiorari issue to quash the decision of the Refugee Review Tribunal (the “Tribunal”) dated 15 July 2013.

2. A writ of mandamus issue compelling the Tribunal to determine the matter according to law.

3. The first respondent pay the applicant’s costs fixed in the amount of $6,646.00.

AND THE COURT NOTES THAT:

1. It is prudent for the Tribunal to consider both particulars of the claim in the Further Amended Application filed in this Court on 6 February 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1242 of 2013

MZZQH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROCTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of a decision in the Refugee Review Tribunal (the “Tribunal”) dated 15 July 2013. That decision affirmed the decision of the delegate to the Minister not to grant the applicant a Protection (Class XA) visa.

2. The Court granted leave today to the applicant to file a Further Amended Application. That was not opposed by the Minister. The ground and particulars for seeking judicial review are:

   (1)The Tribunal engaged in jurisdictional error by misconstruing or failing to consider claims or component integers thereof made by the applicant or apparent upon the material before it.

   Particulars

   (a)There was a claim before the Tribunal that the applicant was of Pashtun ethnicity. This gave rise to a well-founded fear of persecution on the basis of his ethnicity. The Tribunal failed to deal with this claim.

   (b)There was a claim before the Tribunal that the applicant was at risk of serious significant hard due to the high levels of violence in Pakistan and the inability of the Pakistani authorities to protect their citizens. The Tribunal failed to consider this claim, or to make a positive finding that such a risk did not amount to a risk of significant harm in accordance with s.36(2B)(c).

3. At the hearing today, Mr L. Brown of Counsel appeared for the applicant and Mr D. Brown for the first respondent.

Particular (a)

1. The questions for the Court are:

   ·Did the applicant make a claim of Pashtun ethnicity and the resulting fear of persecution based on his ethnicity?

   ·If such a claim was made, did the Tribunal deal with it?

   ·Was such a claim an integer of the applicant’s case?

2. The Statement the applicant attached to his application for a visa appears at Court Book (“CB”) pp.34 to 36. In that he states at [2],

   
   “I am a Sunni Muslim”.

3. There is no claim to be of Pashtun ethnicity. There is no claim of Pashtun ethnicity in the Personal Particulars (Form 80) at CB pp.37 to 54.

4. The decision of the delegate states that the applicant “declared his ethnicity to be Pashtun” (CB p.68). The materials before the delegate included details of Pashtuns being targeted (CB p.69, Folio 9 and 11).

5. The delegate summarised the applicant’s claims at CB p.71. The first claim was that he was “a Sunni Muslim of Pashtun ethnicity”. The applicant claimed that “his facial features clearly identify him as a Pashtun” (CB p.72). The delegate considered the claim of Pashtun ethnicity at CB p.78. He was found to be a Pashtun (C p.78)

6. Country information indicates:

   ·That militants in Karachi have been “killing pro-government Pashtuns” and that “Pashtuns in Karachi face a risk of harm from the Muhajir ethnic group residents…” (CB p.80);

   ·

   that “Pashtuns have been targeted in Balochistan province”

   
   

   (CB p.82);

   ·That “Pashtuns have faced threats to their safety in KP…”, but not in the Punjab province (CB p.84).

7. The application to the Tribunal for review includes a claim that the applicant’s dialect is Pashtu (CB p.90). The letter from the applicant’s migration agents to the Tribunal does not make a claim relating to Pashtun ethnicity (CB pp.101 to 104). The Tribunal had the delegate’s file before it (CB p.110).

8. The Court finds that there was material before the Tribunal indicating that the applicant claims to be of Pashtun ethnicity and of an apparent fear of resulting persecution. That fear is apparent from the country information and the delegate’s findings.

9. The question is did the Tribunal deal with the claim? The Tribunal noted the issue of “the killing of Pashtuns tied to militant groups in Karachi” (CB p.109 [5]). However, the Tribunal did not deal with the claim to have a well-founded fear of persecution based on the applicant’s Pashtun ethnicity. That was an integer of the applicant’s claims that was not considered.

10. The Court refers to the following decisions.

11. In SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18 Nicholas J decided at [62]:

    “It is accepted by the first respondent that the Tribunal is obliged to consider claims which, while not expressly advanced, are apparent on the face of the material before the Tribunal: NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58].”

    And at [68]:

    “It (the Tribunal) was not required to consider theoretical possibilities that were not adverted to by the applicant and which had no support in any of the material before it.”

12. As decided in SZPZJ (supra), the claims must be apparent on the face of the material before the Tribunal and supported in NABE (supra) at [58] and [68].

Particular (b)

1. The Court having found that there was a failure to deal with the claim of fear on the basis of the applicant’s ethnicity, it is not necessary to consider whether the Tribunal failed to consider the claim, in Particular 1(b).

2. The court refers to the decision in SZGUW v Minister for Immigration & Citizenship [2008] FCA 91, where Jacobson J decided at [74]:

   “Although the Tribunal came to the view that there was no real likelihood of such a threat, it did so without considering all the integers of the claim. It is well-established that this vitiates the purported exercise of the power.” (emphasis added)

3. The Court issues a writ of certiorari to quash the Tribunal’s decision dated 15 July 2013 in this matter.

4. The Court issues a writ of mandamus compelling the Tribunal to determine the matter according to law.

5. The court notes that it would be prudent for the Tribunal to consider both particulars of the claim in the Further Amended Application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Turner

Associate: 

Date:  17 February 2014