SZQNO v Minister for Immigration & Citizenship [2012] FCA 326
Citation:
SZQNO v Minister for Immigration & Citizenship [2012] FCA 326
Appeal from:
SZQNO v Minister for Immigration & Citizenship [2011] FMCA 944
Parties:
SZQNO v MINISTER FOR IMMIGRATION & CITIZENSHIP and PATRICIA HALL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
File number(s):
NSD 2321 of 2011
Judge:
KATZMANN J
Date of judgment:
3 April 2012
Catchwords:
MIGRATION – Refugee – offshore entry person – procedural fairness – certain country information not disclosed – allegedly relied upon to refuse claim – whether denial of procedural fairness – whether relief should be refused.
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZQNO Appellant
AND:
MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
PATRICIA HALL IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
3 APRIL 2012
WHERE MADE:
SYDNEY
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
AGLC
SZQNO v MIAC [2012] FCA 326
Case
[2012] FCA 326
Decision Date
CaseChat Overview and Summary
In the case of SZQNO v MIAC, the appellant challenged the decision of the Migration Review Tribunal (MRT) to dismiss his application for a protection visa. The appellant argued that the MRT failed to provide procedural fairness in its assessment of his claims. The Federal Court was required to determine whether the MRT had breached the principles of natural justice by not disclosing certain country information that was allegedly relied upon to refuse the appellant’s claim. The court was also required to decide whether the appellant's claims for relief should be refused.
The Federal Court held that the appellant’s argument was without merit. The court found that the MRT had not breached the principles of natural justice by failing to disclose certain country information. The court held that the appellant had not identified any country information that was not disclosed and that the information that was disclosed was sufficient for the appellant to respond to the issues raised. The court also held that the appellant’s claims for relief should be refused because they were not supported by the evidence. The court found that the appellant’s claims were implausible and that the information he provided was inconsistent and unreliable.
The Federal Court dismissed the appeal and ordered the appellant to pay the first respondent’s costs. The court held that the appellant’s claims were not well-founded and that the MRT had acted reasonably in refusing his application for a protection visa. The court found that the appellant had not established any error on the part of the MRT that would warrant the grant of any relief.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
On 4 July 2011 the reviewer emailed the appellant’s migration agent requesting “in the interests of procedural fairness” that she arrange for the appellant to be given an opportunity to clarify some points about his claims. The email raised a number of matters that plainly concerned the reviewer. None of them, however, related to the claim that he feared persecution on the ground that he was a member of the social group of failed asylum seekers returning from a western country. The decision of the reviewer In her statement of reasons the reviewer identified the issue before her as being whether the appellant, though not an applicant for a protection visa, met the criterion for a protection visa in s 36(2) of the Act. She noted that, in conducting an independent merits review, the common law rules of natural justice (or procedural fairness) apply. She then proceeded to review the claims and the evidence submitted in support of them, including the information elicited from the appellant at his entry interview on 31 May 2010, further details the appellant provided in the statement of 23 October 2010, the RSA report of 14 December 2010 and the generic submission of 5 April 2011. After reviewing this material she summarised the information she elicited from the appellant in the interview she conducted on 7 May 2011. She also assessed the appellant’s claims against the available country information. The reviewer’s reasons are summarised at length in the federal magistrate’s reasons and there is no need to repeat them here. Suffice it to say that she rejected each of the appellant’s claims, including the claims made in the generic submission. Importantly, the reviewer found that the appellant’s evidence about threats he allegedly received from the Taliban whilst managing the hotel in Kabul were not supported by the documents he supplied or the country information provided by his agent. She referred to an inconsistency between accounts the appellant had given about the contents of two letters (allegedly written in 2008 and 2009) which he claimed had been placed on his desk in the hotel. When the documents were translated the first referred to a different hotel and neither mentioned the specific activities the appellant had said were criticised in the letters. Nor did the letters refer to his ethnicity or religion. Moreover, the letters emanated from Wardak province where the appellant had only lived for six months a decade earlier. The reviewer found they were not signed by Mullah Omar, as the appellant had claimed. She also found other things the appellant said implausible. Ultimately (at paragraph 92 of her reasons), the reviewer found that the Taliban did not threaten the appellant by letter in 2008 or 2009 and that the inconsistent accounts undermined his claim for protection on the basis of race and religion. She also found that he had invented the Taliban letters in a misguided attempt to bolster his claims. The appellant makes no complaint about any of these conclusions. The gravamen of the appellant’s complaint arises from paragraph 101 of the reviewer’s statement of reasons. It relates to one of the claims in the generic submission made on 5 April 2011. To understand the issue raised before the federal magistrate and on appeal it is necessary to refer to three paragraphs of the reviewer’s statement of reasons – paragraphs 99, 100 and 101: [99]I note that the first submission by the agent, dated 5 April 2011, was generic and in attempting to cover all situations regarding Hazaras in Afghanistan, included claims that neither [SZQNO] nor his agent provided me details as to his fears in this regard. [SZQNO] was provided ample opportunity to elaborate on these other claims and has not done so. The second agent submission of 18 July 2011 did not include them. There is insufficient detail or evidence provided in relation to the claims to satisfy me that [SZQNO] faces a real chance of persecution on those bases.[100]In relation to the agent’s submission that [SZQNO] would be at risk because of his “actual and/or imputed political opinion – actual/perceived sympathizers/supporters of the government/coalition forces/foreign workers/NGO’s in Afghanistan”, I note that [SZQNO] told me that he actively advertised, and permitted, foreigners to stay in the Nigin Asia Hotel whilst he was managing it. However, he did not claim that this was a reason the Taliban or the policemen targeted him for harm. I do not accept that this matter gives rise to a well-founded fear of being persecuted.[101]In relation to the agent’s submission that [SZQNO] would be at risk because of his “membership of the social group – failed asylum seekers returning from a western country”, [SZQNO] himself did not claim to fear being at risk for these reasons. The DFAT September 2010 advice states that “interlocutors did not believe Hazaras would be targeted because they had sought asylum in the west[”]. Other reports, although confirming that some failed Afghan asylum seekers have been attacked by the Taliban and other non-state actors in Afghanistan, posit that the reported attacks appear to have generally taken place for reasons other than solely being a failed asylum seeker (Dutch News, February 2011, DFAT September 2010 and February 2009, The Age 2009). I am not satisfied that [SZQNO] would be of interest to the Taliban or the policemen because of his return from the West as a failed asylum seeker. Overall I do not accept that this matter gives rise to a well-founded fear of being persecuted.(Emphasis added.)