SZMWI v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWI v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 770
MIGRATION – Review of RRT decision – applicant a citizen of Iran – whether claim based on Kurdish ethnicity clearly arose on materials before Tribunal – whether Tribunal was entitled to dismiss corroborative evidence on the basis of credibility findings not amounting to a comprehensive rejection of applicant’s story – whether Tribunal ought to have informed applicant of its suspicions regarding the authenticity of that documentary evidence – whether Tribunal failed to exercise its duty to enquire.
Migration Act 1958 (Cth), ss.422B, 424, 425, 427
NABE v Minister for Immigration (No.2) [2004] FCAFC 263
WAGU v Minister for Immigration [2003] FCA 912S
ZHKA v Minister for Immigration [2008] FCAFC 138
Minister for Immigration v SGLB [2004] HCA 32
Minister for Immigration v Le [2007] FCA 1318
Applicant M164/2002 v Minister for Immigration [2006] FCAFC 16
SZDGC v Minister for Immigration [2008] FCA 1638
Applicant: SZMWI
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2720 of 2008
Judgment of: Raphael FM
Hearing date: 30 July 2009
Date of Last Submission: 30 July 2009
Delivered at: Sydney
Delivered on: 14 August 2009

REPRESENTATION

Counsel for the Applicant: Mr P Reynolds
Solicitors for the Applicant: Fragomen
Counsel for the Respondents: Mr T Reilly
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. A writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 10 September 2008.

  2. A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.

  3. First Respondent to pay the Applicant’s costs assessed in the sum of $5,500.00 from which should be deducted the sum of $2,750.00 awarded to the Respondent at the last hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2720 of 2008

SZMWI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. The applicant is a citizen of Iran.  He arrived in Australia on 19 November 2006 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 15 November 2007.  On 5 March 2008 a delegate of the Minister refused to grant a protection visa and on 17 March 2008 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.  The applicant, who was at all times represented by a migration agent, attended a hearing before the Tribunal and through his agent provided further representations thereafter.  On 10 September 2008 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 23 September.

  2. The applicant is of Kurdish ethnicity.  He was employed as an accountant in Iran prior to coming to Australia.  In a statement attached to his protection visa application he outlined his reasons for seeking the protection of Australia.  He referred to…

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Details
Case
[2009] FMCA 770
Decision Date

CaseChat Overview and Summary

In the case of SZMWI v Minister for Immigration, the applicant, an Iranian national, sought judicial review of a decision made by the Refugee Review Tribunal. The primary issue was whether the Tribunal had correctly considered the applicant's claims of persecution and whether it had made jurisdictional errors in its assessment. The Federal Court of Australia was tasked with reviewing the Tribunal's decision and determining whether it was legally sound.

The court examined several grounds of appeal, focusing on whether the Tribunal properly considered the applicant's claims of persecution due to his Kurdish ethnicity and adultery conviction, and whether it appropriately evaluated the evidence presented. The applicant argued that the Tribunal failed to consider a clear claim of general persecution of Kurds in Iran, which was allegedly supported by materials before the Tribunal. The court found that while the applicant had not explicitly articulated this claim, the Tribunal should have inferred it from the materials presented. However, the court concluded that the applicant's agent had not adequately supported this claim, and the Tribunal's interpretation of the evidence was not unreasonable.

Additionally, the court reviewed the Tribunal's handling of evidence, including a letter from the Australian Kurdish Association and country information on the situation of Kurds in Iran. The court determined that the Tribunal erred in not considering these materials as supporting evidence of the applicant's claims. The court also found that the Tribunal failed to adequately address the applicant's claim that his Kurdish ethnicity would lead to harsher treatment by Iranian authorities, a point the Tribunal had dismissed due to a lack of specific evidence. The court held that the Tribunal's decision was flawed as it did not properly consider the provided evidence.

The court further considered the Tribunal's rejection of a warrant and summons submitted by the applicant, noting that the Tribunal had not adequately addressed the applicant's explanation regarding the delay in issuing the documents. The court found that the Tribunal breached statutory obligations in not drawing this issue to the applicant's attention and in not exercising its powers to seek clarification from its Iranian lawyer.

Ultimately, the court concluded that the Tribunal had committed jurisdictional errors in its decision-making process. It granted the applicant's application for judicial review, issuing a writ of certiorari to quash the Tribunal's decision and a writ of mandamus to direct the Tribunal to reconsider the matter according to law. The court also ordered the Minister for Immigration to pay the applicant's costs, deducting an amount previously awarded to the Minister.

Orders

Orders of the court

1.

A writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 10 September 2008.

2.

A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.

3.

First Respondent to pay the Applicant’s costs assessed in the sum of $5,500.00 from which should be deducted the sum of $2,750.00 awarded to the Respondent at the last hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant who was represented by counsel before me moved on a Second Further Amended Application which contained ten grounds. The applicant only proceeds on nine of these grounds and I shall deal with each in turn:1.The Applicant claimed (or alternatively the material before the Tribunal squarely raised the claim) that Kurds were persecuted in Iran. The Tribunal did not consider the said claim (instead, considering a more limited claim that he would be treated more harshly as an adulterer because of his ethnicity), thereby committing jurisdictional error.It is accepted by the applicant that the claim of general persecution of Kurds was not specifically articulated by the applicant but he relies upon the dicta of the Full Court in NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [58-61] that whilst the Tribunal is not required to consider a case that is not expressly made it is required to consider one that arises clearly on the materials before it. The applicant pointed to the transcript at T6 where the following exchange took place:“T:Now, which of those five [convention] reasons do you say is relevant to your application?Int:We are saying that he think it is just race and being member of, you know, a special group because of what they have done. It would be in those two categories.T:Why would you say race?Int:There is an ethnic Kurdish you know, because of Iran there are people from different ethnic backgrounds and Kurds are one of the ethnics. And also the religion because what he is saying that what they have done it is against, you know, it is against the Islamic religion, the Islamic religion which is dominant and mainly in Iran, so what the group that he belongs and the sect or religion that he follows is just against according to definition of Islamic Republic of Iran and he said that would be persecuted and the result would be death for that.T:You are not saying that you are going to be persecuted for being a Muslim or for being Kurd. You are saying you are going to be persecuted because you committed adultery with a married woman.?Int:He said that what I am saying that it has with race and religion is that this is something that interpretation of Islamic law adultery, the punishment for adultery is death. It bears, you know, the death penalty. So this is, he things that is because of the religion, he is thinking of, you know, fears of death and then being, you know, a Kurd, you know, the Kurdish people that there is a discrimination in general, you understand, not against the law but, you know, there are those who live in that area that is just, you know, background that you know and, of course, the government doesn’t say, accept that, but, you know, during the time, but this a bit of background that I have…”Given that the applicant was represented by a legally qualified migration agent I am of the view that the applicant has not satisfactorily articulated the independent claim in this exchange and I believe that these views are corroborated by the letter from the agent at [CB 200] in which he refers to the convention grounds under which his client falls. The first is the particular social group of Iranian citizens who transgress Islamic laws relating to sexual conduct and the second is that he falls within the convention ground of being persecuted on the grounds of religion. There is no reference in that letter to the independent ground of being a ethnic Kurd. It is correct that there is a letter from the Australian Kurdish Association [CB 57]. This letter is relevantly in the following form:“We want to confirm that applicant is a Kurdish (Sorani speaker) from Iran. As you might be aware of the situation in Iran; Kurds are being discriminated against for so many years and been treated unfairly.We would like to express our concern about his situation; should he return to Iran he will be in major risk and in a life threatening position which, we feel can be avoided if he was allowed to stay in Australia. We believe he is a genuine refugee.”I cannot accept that this letter makes a clear case for a claim on the ground of Kurdish ethnicity. It could easily be read as a letter which indicates that because he is a Kurd his problems with the Iranian authorities will be magnified. That is the interpretation the Tribunal adopted and it is not an unreasonable one. If the Tribunal made an error of fact in its interpretation of the letter I am of the view that this was an error within jurisdiction given the lack of clarity as to the exact claim. In a similar way the independent country information concerning the situation of Kurds in Iran could be utilised by the Tribunal (as it was) when it considered the magnification of the difficulties he would have rather than as a separate claim in themselves.2. The Tribunal rejected the claim that Iranian authorities would treat the Applicant more harshly as a consequence of his ethnicity on the basis that the Applicant did not provide specific evidence in this regard. This amounted to jurisdictional error in that:a)there was no evidence for this finding, given that there was some evidence of harsh treatment of Kurdish people by Iranian authoritiesb)The Tribunal failed to take into account relevant considerations.ParticularsThe evidence/relevant considerations consisted of:a)a letter from the Australian Kurdish Association which stated “As you might be aware of the situation in Iran; Kurds have been discriminated against for so many years and been treated unfairly; andb)a bundle of country information submitted by the Applicant that went to, inter alia, the circumstances of Kurds in Iran.The respondent’s answer to this ground is that the applicant has misread the Tribunal’s reasons at [CB 236 – 271]. The Tribunal came to the conclusions which it did because it believed the applicant had not provided it with any specific evidence about himself rather than general evidence about Kurds. That is presumably how the Tribunal read the letter from the Kurdish association. But even if the Tribunal fell into error in not properly considering the letter as offering corroboration of the effects upon the applicant if he should return having been charged with adultery that error only causes concern whilstsoever the Tribunal accepts that the applicant was so charged. The Tribunal did not accept this. The Tribunal did not believe that the young woman’s family ever discovered the adultery or reported it. The Kurdish ethnicity claim is only a make weight for the principal claim of persecution arising out of his adulterous liaison.3.The Tribunal’s rejection of a warrant and summons submitted by the Applicant on the basis that the father was a former policeman is affected by jurisdictional error:a)the Tribunal breached section 425 of the Act in failing to draw this issue to the Applicant’s attention;b)further and in the alternative, there was no evidence to support this finding;c)further and in the alternative, the Tribunal committed jurisdictional error when it failed to exercise its powers under s.424 and/or 427(1)(d) to ask its Iranian lawyer whether former policemen in Iran could readily obtain documents such as the warrant and summons.The discussion between the Tribunal and the applicant is found at [T18 – 19]. At [T18] the Tribunal asked questions about the young woman and whether she was detained and prosecuted. The applicant indicated that he didn’t know whether this has occurred because the young woman had left her husband and had gone into hiding:“T:And your brother hasn’t heard anything about her?Int:No.T:It would seem likely that if she had been detained, your brother would have heard something?Int:He says, no, because my brother hasn’t any contacts with them.T:But he could find out, I’m sure?Int:He said that, you know, Tehran is just a city of, you know, 15 million and, you know, but it’s not a small town that, you know, that they hear about this.T:And your father’s a policeman. Is that correct?Int:Sorry?T:Your father is a policeman?Int:Police, yes.T:So he would be able to have access to information about this matter, would he not?Int:He was a police.T:When did he leave the police force?Int:Nine years ago.T:Okay. So nobody has heard anything about this woman since she left your friend’s house. Is that correct?”There is further reference to the position of the father as a policeman at [T48 – 49]:“T:Now, the summons which asks you to attend a specific place on 11 August and you say you think you heard about the incident about the – either 10, 11 or 12 August. That seems a bit fast – that date, for you to attend in response to the summons?Int:Because it was the importance of the matter and it wasn’t – it wasn’t something ignoring because – pretty important issue and there was no doubt about the matter because there was evidence involved. The judge issued those relevant documents the same night and I have mentioned it in my case that her family are pretty influential and because they were not aware – this is what I’ve heard from my family – because they were not aware of my departure, they’re going through some means and ways to find me. They thought that I was hiding, so they could arrest me, or if I was escaping they could … or apprehend me for this issue.T:So it seems to me that, police in that situation, having been told by your father who himself was an ex-police officer and seems to be pretty respected, that you were not in the country, they would not issue a summons for you to attend on 11 August 2007, if you were clearly out of the country?Int:This summons is not by the police. It’s by the court. It’s different.T:Well, the police would have to put the information on, would they not, to get the summons?Int:I’m not familiar with the official way of handling all this – the procedure that they follow.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This ground seems to be a general role up of previous grounds. To the extent that some of the previous grounds have been accepted it is not necessary, and if they were not accepted then I do not believe that by rolling them up they become any stronger. I do not think this ground requires further comment.9.The Tribunal committed jurisdictional error by failing to consider a claim and/or take into account a relevant consideration.Particularsa)The Tribunal rejected the claim that the woman kept a particular video on her mobile telephone on the basis that she would not do so given that they were easily accessible by her husband, without considering the Applicant’s claim that the woman told him that her husband did not know how to use a mobile telephone.b)The Tribunal rejected the claimed attack on the Applicant by the woman’s brother without considering the scarring on the Applicant’s wrist and the claim that it was caused by the woman’s brother striking the Applicant. I accept the respondent’s submission that this is really a claim for impermissible merits review. The applicant has decided not to proceed with the most interesting ground, being ground 10, and I shall not comment upon it. In my view the Tribunal has rather comprehensively fallen into jurisdictional error in the manner in which it reached its conclusions in this case. I would therefore grant the constitutional writs sought by the applicant and order that the respondent pay the applicant’s costs which I assess in the sum of $5,500.00 from which should be deducted the sum of $2,750.00 which I awarded to the respondent at the last hearing.