SZKQE v Minister for Immigration
[2007] FMCA 1637
•15 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1637 |
| MIGRATION – Particular social group – claim not dealt with – failure to exercise jurisdiction – decision quashed – Tribunal to hear matter according to law. |
| Migration Act 1958 (Cth), s.424A |
| Applicant: | SZKQE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1540 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 19 September 2007 |
| Date of last submission: | 19 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr R. Turner of Parish Patience |
| Counsel for the Respondents: | Ms B. Nolan |
| Solicitors for the Respondents: | Ms Z. McDonald of DLA Phillips Fox |
ORDERS
That the decision of the Tribunal signed on 10 April 2007 (RRT Case No: 071065809) is vitiated by jurisdictional error.
That a writ of certiorari issue quashing the said decision.
That a writ of mandamus issue requiring the Tribunal to hear the applicant’s application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1540 of 2007
| SZKQE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 16 May 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 April 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 25 July 2007 and a further amended application on 10 September 2007.
Background
On 15 November 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed that he had been persecuted by local Maoist factions because of his support for the Nepalese monarchy.
This application was refused by a delegate of the first respondent on 15 December 2006 (CB 93) and by the Tribunal on review on 10 April 2007 (CB 145).
The matter is before this Court pursuant to an application for judicial review filed by the applicant on 16 May 2007.
Issues for determination
The issues before the Court may be summarised as follows:
·Whether the applicant was denied natural justice?
·Whether the Tribunal considered all parts of the applicant’s claims?
·Whether the Tribunal applied the definition of “refugee” correctly?
·Whether the Tribunal should have asked itself “what if I am wrong”?
The application
In his application, the applicant set out three grounds as follows:
(1)I do not agree with the purported decision of the Tribunal on the ground of denial of procedural fairness and natural justice.
(2)I argue that the Tribunal member’s decision in my case was vitiated by a failure of natural justice and procedural fairness amounting to jurisdictional error. The evidence that the Tribunal relied upon was so unreasonable or so inadequate the only inference was that the Tribunal applied the wrong test or was not in reality satisfied in respect to the correct test. I am a true victim of the impulsive decision made by the Tribunal member in my case.
(3)The Tribunal member intentionally expressed reluctances in considering my case to be valued for the purpose of Convention reason and failed to recognise the necessity in applying the definition of “refugee”. The decision in my case not made by reference to subject matter, scope and objects of the Immigration Act. This is unfair and injustice.
I contend that the Tribunal committed a jurisdictional error in that there was no evidence to support certain factual findings made by the Tribunal and that its findings were irrational or illogical.
The Tribunal’s decision to “give no weight to my claims and evidence” was based wholly or very substantially upon reasons which the evidence it cited was incapable of supporting. In the context of the Tribunal’s reasoning for rejecting my claims that its failure genuinely to assess the evidence favourable to me and a propensity to adopt illogical or unbalanced reasons.
The applicant filed an amended application on 25 July 2007 setting out the following grounds and particulars:
(1)The Tribunal failed to consider my claims as it did not address and make findings on my claim that my friend in the village was killed by the Maoists in 2004 as result of my friend’s opposition to the Maoists and their activities in the village. Thus, the claim of the death of my friend was integral to my fear of persecution.
(2)The Tribunal’s decision was affected by jurisdictional error. The Tribunal significantly misstated the effect of important country information. In addition, it presented unsupported, unreasonable and capricious adverse conclusions to justify its decision, and failed to address significant evidence, which it did not reject, providing support to my claims. Moreover, its reasoning and conclusion ignored the substantial support given to my claims by the country information. These errors establish the jurisdictional error of failing to take into account the actual contents of relevant material.
(3)The Tribunal accepted that as a result of the death of my friend I decided to leave the village as the death of my friend caused me significant trauma and distress. The Tribunal believed that I had wished to improve my economic circumstances by finding work outside Nepal. The Tribunal believed that I could live in Kathmandu if I did not wish to return to the village of my birth. I am a young healthy man and I have lived and worked in the UAE and Australia and have demonstrated that I have the resilience and capacity to live outside my home area. If I did not wish to return to my village the Tribunal believed that I could live elsewhere in Nepal and I would not face any chance of harm. In the context of the Tribunal’s reasoning, I argue that it tended to point to a failure by the Tribunal genuinely to assess the evidence favourable to me, and a propensity to adopt illogical or unbalanced reasons for rejecting my evidence. The Tribunal displayed bias against me in making its findings as to my claims of being harmed or targeted by the Maoists because of my opposition to their activities and support to the Monarchy. The Tribunal was biased in basing its rejections of my claims on assumptions rather than evidence.
(4)The structure of the decision clearly showed the Tribunal member did not complete its required review function. Given the Tribunal’s statement of reasons as a whole, the absence of any pertinent findings and discussion about my claims implied that it was overlooked by the Tribunal member.
(5)I contend that the Tribunal failed to satisfy all its statutory requirements in dealing with my case and it did not refer to its duty to confer common law, natural justice in determining my application.
(6)I argue that the Tribunal overlooked some critical points of my case and did not address all the relevant issues I had raised, including whether I was considered an anti-Maoist or supporter of the Monarchy because of imputed political opinion.
(7)I argue that the Tribunal overlooked some critical points of my case and did not address all the relevant issues I had raised, including whether I was considered an anti-maoist or supporter of the Monarchy because of imputed political opinion. I also claim that the Tribunal failed to ask relevant questions, failed to determine whether I was subject to persecution because of my imputed political opinion, failed to determine the ;particular social group’ I belonged to, and failed to enquire as to whether my past or future conduct would amount to persecution.
(8)I contend that the Tribunal had failed to exercise good faith, and to make a bona fide attempt to exercise its power to review the delegate’s earlier decision which had been also adverse to me relying in large measure in that regard upon the Tribunal’s consideration of the report. I believe that the Tribunal was incorrect in concluding first, that the Tribunal’s failure to deal with certain submissions concerning the report, and secondly the Tribunal’s approach to its assessment of the reliability of my evidence did indicate a lack of good faith on its part.
(9)The Tribunal made a jurisdictional error because it used information in the protection visa application to affirm the decision but did not explain that possibility in the s.424A letter and hence, did not comply with its obligation to explain the significance of the information.
(10)The Tribunal failed to comply with its obligations pursuant to s.424A(1) of the Act in that it did not provide me with the opportunity to comment on, nor did it explain to me the relevance of, the issue of my credibility and that further the Tribunal did not bring to my attention that this issue was important for the decision that it would be making, in circumstances where I could feel “pretty sure that the Tribunal had no doubts about the truth about my credibility.”
(11)I argue that the Tribunal member intentionally expressed reluctances in considering my case to be valued for the purpose of Convention reason and failed to recognise the necessity in applying the definition “refugee”. The decision in my case not made by reference to subject matter, scope and objects of the Immigration Act. This is unfair and injustice.
(12)I argue that I was regarded as an implicit economic refugee other than a refugee of persecution in the view of the Tribunal because it failed to identify the complete necessity in applying the definition of a refugee in dealing with my claims.
The applicant filed a further amended application on 10 September 2007, setting out the following grounds and particulars:
(1)The Tribunal failed to carry out its statutory duty.
Particulars
(a)The Tribunal failed to consider all integers of the Applicant’s claims:
(i) The Applicant claimed, inter alia, that he feared persecution because he “did not accept the Maoists request to join their army.”
(ii) The Tribunal made ultimate findings only in relation to his risk of harm for “his political opinion or imputed political opinion.”
(b)The Tribunal applied the wrong test
- The Tribunal considered whether he had suffered harm in the past and, having found that he did not, did not accept that he would face a real chance of persecution in the future.
- The Tribunal failed to consider whether, as a resident of a remote Nepalese Village, he would be conscripted by the Maoists.
(c)The Tribunal found that the Applicant and his family may have suffered at the hands of the Maoists in the past, but failed to ask itself “what if I am wrong” or give the Applicant the benefit of the doubt in considering whether the Applicant had suffered at the hands of the Maoists.
(d)The Tribunal considered whether the Applicant could relocate within Nepal without considering whether it would have been reasonable for him to do so.
The Court finds that the Tribunal did not make a finding on a central claim in the applicant’s case that he fears persecution as a member of a particular social group, that as being “an able bodied person…he will be conscripted by the Maoist to join their so called Peoples Army” if he returns to Nepal. That claim was put in the written submission at CB 51 and was not subject to a finding by the Tribunal. The failure to deal with that claim is a failure to exercise jurisdiction.
Conclusion
The Court finds that the Tribunal’s decision is infected with jurisdictional error.
Accordingly, the application is granted.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 15 October 2007
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