SZIIF v Minister for Immigration - [2008] FMCA 203

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIF v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 203

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZIIF”.

Migration Act 1958 (Cth), ss.91X, 422B, 424A

Abebe v Commonwealth of Australia [1999] HCA 14
Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77
Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka [2001] HCA 23
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
SZIWJ v Minister for Immigration & Multicultural Affairs [2006] FCA 1706
Whisprun Pty Ltd v Dixon [2003] HCA 48

Applicant:

SZIIF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 240 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

11 September 2007

Delivered at:

Sydney

Delivered on:

21 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr JR Young

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the Respondents:

Mr JAC Potts

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 25 January 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 240 of 2007

SZIIF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The male applicant was born in Zbaradge, Ukraine in 1971. In his protection visa application, the applicant claims to have been gay since he reached sexual maturity and that he was assaulted, mistreated and victimized because of this.
The applicant asserts that his father, mother and two brothers have ostracised him. Further he claims mistreatment during his military service (between 1989 and 1991) and while working in a factory and a hair saloon. In 1999, he became a gay activist and was persecuted by nationalists thereafter.
He claims that on a business trip to Germany, he was targeted by neo-Nazis who were against homosexuals. When he returned to the Ukraine, he decided to seek protection in Australia.
The applicant arrived in Australia on 26 October 2001 and applied for a Protection (Class XA) visa on 3 December 2001. A delegate of the first respondent refused to grant the visa on 14 October 2002 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision but this was quashed by the Federal Magistrates Court on 6 October 2005. A second reconstituted Tribunal again affirmed the decision of the delegate of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 203
Decision Date: 21 February 2008

CaseChat Overview and Summary

In the case of SZIIF v Minister for Immigration, the applicant, who had claimed refugee status based on his fear of persecution due to his homosexuality and Christian faith, challenged the decision of the Migration Review Tribunal (MRT). The Minister for Immigration responded, defending the Tribunal's decision and arguing that the applicant's claim was not supported by the evidence. The legal issues at the heart of the case centred on whether the Tribunal had exercised its jurisdiction correctly by considering the applicant's claims in their entirety or if it had failed to adequately assess the cumulative effect of his evidence. The court examined whether the Tribunal's consideration of the applicant's evidence, as stated in the decision, was sufficient and whether it had avoided the error of considering the facts in isolation, which could constitute a jurisdictional error.

The court analysed the Tribunal's reasons and concluded that the Tribunal had indeed considered the evidence as a whole. The decision in SZIWJ v Minister for Immigration & Multicultural Affairs was cited as authority, where it was held that the Tribunal's statement that it had considered the evidence as a whole should not be dismissed as mere formulaic language. The court held that the Tribunal's reference to "all the reasons" and the conclusion that it had considered the evidence as a whole indicated a fair and comprehensive assessment of the applicant's claims. The court rejected the argument that the Tribunal had failed to consider the applicant's claims cumulatively, finding that the Tribunal had addressed all the integers of the applicant's claims. Consequently, the court found no jurisdictional error in the Tribunal's decision.

The court dismissed the applicant's appeal, affirmed the Tribunal's decision, and ordered that the name of the first respondent be amended to "Minister for Immigration & Citizenship". The applicant was also directed to pay the Minister's costs and disbursements associated with the application. This ruling underscores the importance of the Tribunal considering refugee claims in their entirety and not in isolation, to avoid any potential jurisdictional errors.

Orders

Orders of the court

The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.

The application filed on 25 January 2007 is dismissed.

The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Potts submits that although the applicant’s claim of fear of persecution because he was a homosexual Christian was dealt with briefly, it was sufficient. Mr Potts relied on the Tribunal’s conclusion which states:Having considered the evidence as a whole the Tribunal is not satisfied the applicant is a person who Australia has protection obligations under the Refugee Convention. (CB 274.7, emphasis added) In support of the contention that the Tribunal “considered the evidence as a whole”, Mr Potts referred to SZIWJ v Minister for Immigration & Multicultural Affairs [2006] FCA 1706 at [31]-[37] per Jacobson J:[31] The appellant relied upon the decision of Moore J in Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 1401. That case was referred to with apparent approval by Finkelstein J in Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at [48]. Kaur was a case in which it was argued that the tribunal considered each of the facts put forward by the applicant in isolation but failed to consider their cumulative weight. His Honour accepted that this may amount to constructive failure to exercise jurisdiction. His Honour cited a number of authorities in support of that proposition.[32] I should mention that in the present case the Minister’s counsel concedes that if there was a failure to consider the facts cumulatively then there would be demonstrated jurisdictional error.[33] However, it seems to me that in the present case upon a fair reading of the Tribunal’s reasons it did not compartmentalise the appellant’s claims in the manner submitted by the appellant’s counsel. Rather, in my view, the Tribunal did consider the claims cumulatively and did consider all of the integers of the appellant’s claims. In particular, I would point to three factors to support that view; firstly, the Tribunal identified the issue as submitted by the appellant’s legal adviser, secondly, there seems to be a comprehensive treatment of the claims which were identified in some detail, thirdly, the Tribunal appears to me to have dealt with all of the factual bases of the claim, that is to say the critical bases upon which the claim is put.[34] Mr Potts for the Minister relied in particular upon the statements in the Tribunal’s reasons including the reference to “all the reasons” and the conclusion which stated that the Tribunal had considered the “evidence as a whole”. The use of these expressions should not be considered to be a verbal formula or a substitute for a fair reading of the whole of the Tribunal’s reasons.[35] However, in the present case, for the three reasons that I have mentioned above, I consider that the Tribunal dealt with all of the integers of the claim and that the facts put forward to support the profile were considered cumulatively. Indeed, that was the view which was eventually reached by Moore J in Kaur at [13] to [15]. It seems to me that the reasons given by the tribunal in Kaur pointed more strongly in the direction of a compartmentalised consideration of the claims than appears in the present case.[36] In my view the present case falls within the approach taken by Finkelstein J in Jegatheeswaran at [49]. His Honour observed that the separate treatment of the incident relied on in that case did not indicate that the tribunal failed to look at the case in its entirety. His Honour remarked that the tribunal stated that it reached its conclusion “[h]aving considered the evidence as a whole” and that there was no reason to doubt the statement. In my view that is apt in the present case. Sundberg J agreed with the reasons given by Finkelstein J. The reasons of Emmett J at [23] are also consistent with this approach.[37] I reject the submission put by counsel for the appellant that the Tribunal failed to address a contention. I do not think the appellant’s argument is supported by what was said in Applicant WAEE at [44]. The present case falls for consideration upon a fair reading of all of the reasons of the Tribunal. I have already given my views on that question.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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