SZTFI v Minister for Immigration and Border Protection

The appellant, a citizen of [country of nationality], appealed against the decision of the Refugee Review Tribunal (the Tribunal) affirming the decision of the delegate of the Minister for Immigration and Border Protection (the Minister) to refuse the grant of protection visas. The Tribunal held that the appellant did not have a well-founded fear of persecution for reasons of political opinion, or for fear of significant harm. The appellant claimed that he feared being persecuted for his political opinions and ideological views and that he would be charged with being a spy if he returned to his country of nationality. The primary judge dismissed the appeal and the appellant sought leave to appeal to the High Court. The primary issue for the court was whether the Tribunal properly applied the ‘real chance’ test in assessing whether the appellant had a well-founded fear of persecution. The court considered whether the Tribunal was required to assess whether there was a real chance of persecution on the assumption that the appellant's claims were accepted as correct. The court held that the Tribunal was required to make such an assessment, but had failed to do so. The court also considered whether the Tribunal's generalised findings embraced the appellant's particular claim to fear risk of harm. The court held that the Tribunal's failure to consider the risk of harm in leaving the country of nationality at the time of departure amounted to a jurisdictional error. The court also considered whether the Tribunal failed to consider whether the appellant's unexplained absence from State employment for a significant period may give rise to a risk of persecution when assessed with the claims assumed as correct. The court held that this amounted to a jurisdictional error. The court further considered whether the Tribunal failed to consider the appellant's fear of future persecution following his lengthy absence from employment, which also amounted to a jurisdictional error. Finally, the court considered whether the Tribunal failed to consider the appellant's clearly articulated claim to fear persecution as a spy, which also amounted to a jurisdictional error. The appeal was allowed and the orders of the Federal Circuit Court dismissing the appellant's application and ordering that the appellant pay the Minister's costs of the application were set aside. An order in the nature of certiorari was made quashing the decision of the Tribunal and an order in the nature of mandamus was made requiring the Tribunal to determine the appellants' application for review according to law. The Minister was ordered to pay the appellants' costs of the appeal and of the application in the Federal Circuit Court. These reasons are not to be disclosed until 4pm on Wednesday 15 April 2015 other than to the parties and their external legal representatives, and the Court. The parties are to advise the associate to Justice Perry and each other of any concerns as to details contained in the judgment which might tend to identify the appellants. There be liberty to apply on short notice for any extension of the order.