SZTRJ v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRJ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2885
Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case raised –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 SZRMQ v Minister for Immigration and Border Protection & Anor [2013] FCAFC 142
S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; 216 CLR 473; 203 ALR 112
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45
Applicant: SZTRJ
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3143 of 2013
Judgment of: Judge Nicholls
Hearing date: 25 August 2014
Date of Last Submission: 25 August 2014
Delivered at: Sydney
Delivered on: 10 December 2014

REPRESENTATION

Applicant: In Person
Solicitor for the Respondents: Ms M Stone of DLA Piper Australia

ORDERS

  1. The application made on 17 December 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

  2. The applicant pay the first respondent’s costs set in the amount of $ 3326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3143 of 2013

SZTRJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 December 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 November 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

  1. The Minister has filed a bundle of relevant documents (“the Court Book” – “CB”) which was in evidence before the Court. The following background can be ascertained from those documents.

  2. The applicant is a citizen of Pakistan. He arrived in Australia on 29 May 2008 as a “trainee” on a subclass 442 visa that was valid until 30 August 2009 (CB 15). He applied for a protection visa on 15 June 2012 (CB 1 to CB 27). The applicant was represented by a registered migration agent (CB…

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Details
Case
[2014] FCCA 2885
Decision Date

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Refugee Review Tribunal (RRT) that found the applicant did not satisfy the criteria for protection under s 36(2)(a) of the Migration Act 1958 (Cth). The applicant contended that the RRT had made procedural errors, failed to properly assess and provide reasons for rejecting claims, and misunderstood its obligations under the Act.

The core legal issues before the Court were whether the RRT had provided adequate reasons for its decision, particularly in relation to the applicant's credibility and the assessment of his fear of persecution. The applicant also raised questions about the RRT's understanding of the concept of "persecution" and "well-founded fear" in the context of international refugee law.

The Court considered the applicant's grounds of review, which alleged that the RRT had rejected claims without proper assessment and had failed to give adequate reasons for its dissatisfaction. The applicant highlighted inconsistencies in the RRT's decision, specifically regarding its acceptance of the applicant's PTSD and memory loss while simultaneously expressing concerns about his credibility. The Court also examined the RRT's conclusion that the applicant did not have a well-founded fear of persecution for Convention reasons, referencing legal authorities such as *Chan Yee Kin v Minister For Immigration and Ethnic Affairs* and the UNHCR Handbook to define "persecution" and "well-founded fear." The applicant argued that the RRT's reasoning was insufficient and that the decision was not legally acceptable.

The Court ultimately found that the RRT's decision was reasonably open on the evidence before it and that no legal errors had been made. The Court concluded that the RRT had considered the applicant's claims and the evidence, including the psychological report, and had provided sufficient reasons for its findings. Therefore, the application for review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant applied for review to this Court on 17 December 2013. The grounds of the application are as follows:“1. The Tribunal made a procedural mistake that the Tribunal collected information from the applicant and rejected the information without proper assessment and proof. The Tribunal simply rejected the applicant’s claim by saying that it is not satisfied but did not give any proper reason. The Tribunal’s rejection is not acceptable by law.2. In respect of each of those points of claim made by the applicant the Tribunal was not satisfied that the applicant’s claims were established.3. In respect of each of those claims the Tribunal has set out the evidences that it relied upon in reaching its conclusions that it was not satisfied on each particular claim. Each of those conclusions was reasonably open to the Tribunal on the evidence before the Tribunal and no grounds of review arise.4. The conclusion of the Tribunal being ‘reasonably open’ does not mean that conclusions were not open; it simply means that there were no legal errors in particular Tribunal coming to its stated conclusion.5. The Tribunal made a procedural mistake that the Tribunal did not understand its obligation under the Act how to review an application for protection.6. The Tribunal in its decision of 27 November 2013 at point 10 refers to that the’ delegates concerns with the credibility of the applicant’s claims and found inconsistencies that led him to reach a positive state of disbelief in relation to the applicant’s overall case’. Then the Tribunal at point 11 refers to a report from a Clinical Psychologist , Dr.NeeloferRehmanof dated 19 April 2013 an says at point 18 says that the’ Tribunal has considered the psychological report when considering the applicant’s over all evidence but has concerns with the applicant’s credibility.” But the Tribunal has not given any proper reasons and only mentions that the applicant was only able to remember some dates and forgetting other dates. But at point 16 of the decision the Tribunal says that it ‘…accepts the psychologist’s reports in regard to the analysis of the applicant’s mental state that has PTSD, is stressed, unable to concentrate for long periods and suffers memory loss’.7. The Tribunal simply rejected the applicant’s claim by saying that it is not satisfied but did not give any proper reason. The Tribunal’s rejection is not acceptable by law.8. The Tribunal in its decision at point 20 says that ‘ The Tribunal accepts that applicant has a subjective fear of returning to Pakistan’ but was concerned the objective elements to the fear.9. The Tribunal in its decision at point 21 & 22 saysthat’ the applicant fears return to Pakistan, as he fears serious harm because of his past actions refusing to help the gangsters…The applicant claims he is unable to receive protection from the authorities…’10. The Tribunal in its decision concludes at points 57 and & 58 that ‘ the Tribunal has considered all the applicant’s claims...and find that the applicant does not have a well –founded fear of persecution for convention reason if he returns to Pakistan… For this reason and the above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligation…Therefore the applicant does not satisfy the criteria set out in s.36(2)(a).’11. I am also not satisfied with the interpretation at the interview with the RRT for which I would request to grant me an opportunity to provide the script od the interview CDs.12. In order to be recognised as a ‘refugee’, an applicant must demonstrate a well founded fear of being persecuted for Convention related reasons. The term persecution is not defined in the Convention. There has been considerable discussion, legal and academic, domestic and international, regarding the nature of persecution.13. The UNHCR Handbook For Procedures And Criteria For Determining Refugee Status characterises persecution as a threat to life or freedom and other serious violations of human rights.14. In Chan Yee Kin v Minister For Immigration and Ethnic Affairs (1989) 87 ALR 412 McHugh J describes persecution as ‘harm’, ‘measures in disregard of human dignity’, and ‘infliction of suffering and harm’.15. According to Professor Hathaway persecution involves ‘constant infliction of some mental or physical cruelty’ and ‘persistent or urgent efforts to harm or cause to suffer’ and ‘pursuit with enmity’. Professor Hathaway, further adds as follows:‘…persecution may also consist of either failure or inability of a government to effectively protect the basic human rights of populace..specially,…in situations of objective inability to provide meaningful protection.. the state which ignores or is unable to respond to legitimate expectations of protection fails to comply with its most basic duty thereby raising the prospect of protection of a need for surrogate protection’.According to above explanations, it is clearly evident that ‘persecution’ need not be torture or incarceration.12. In Chan’s case, McHugh J. cited the United States of America’s case ‘Cardoza-Fonseca’, for analysing of what was meant by ‘well founded fear’. According to Cardoza-Fonseka, a person can have a well founded fear of harm or persecution, even if that fear was 10% chance that he will be shot, tortured or otherwise persecuted.13. I now request the Honourable Court to kindly set aside the RRT’s decision of 27 November 2013.”[Emphasis in original.] [Errors in the original.]