SZUEE v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUEE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1674
Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – whether ‘failed asylum seekers’ are a particular social group – whether the Tribunal failed to make inquiries – whether the Tribunal failed to take into account relevant material – consideration of WZAPN issue – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2A), 91R

Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1996) 190 CLR 225
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321

BZAFM v Minister for Immigration and Border Protection  [2015] FCAFC 41

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429
Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377
Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22
Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50
MZZUO v Minister for Immigration and Border Protection [2014] FCA 1267
N258A/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 47
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 77 ALD 402
Sunchen v Commissioner of Taxation (2010) 264 ALR 447
SZTFS v Minister for Immigration & Anor [2015] FCCA 100
SZSBX & Anor v Minister for Immigration, Multicultural Affairs and Citizenship & Anor [2013] FCCA 1127
SZSOY v Minister for Immigration and Border Protection & Anor [2014] FCCA 1811
SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252
SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252
SZSPT v Minister for Immigration and Border Protection & Anor [2014] FCCA 1388
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
SZSXY v Minister for Immigration and Border Protection [2014] FCA 1183

SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40

VOAO & Anor v Minister for Immigrationand Multicultural and Indigenous Affairs [2004] FMCA 441
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82

Applicant: SZUEE
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 936 of 2014
Judgment of: Judge Lloyd-Jones
Hearing date: 4 December 2014
Delivered at: Sydney
Delivered on: 19 June 2015

REPRESENTATION

Solicitors for the Applicant: Mr R Selliah of Rasan Sealliah & Asosciates
Solicitors for the First Respondent: Ms N Blake of Clayton Utz
The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

  1. The Application, as amended, be dismissed.

  2. The Applicant…

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Details
Case
[2015] FCCA 1674
Decision Date

CaseChat Overview and Summary

The applicant, SZUEE, sought judicial review of a decision by the Minister for Immigration. The dispute concerned the applicant's claim for protection, which was based on a fear of persecution due to his religion and an investigation into an organisation of which he was a manager. The case was heard by Lloyd-Jones J in the Federal Court of Australia.

The primary legal issue before the Court was whether the Refugee Review Tribunal (RRT) had made a finding that was not supported by evidence, specifically in relation to the applicant's claim of persecution as a Jew in Kyrgyzstan. The applicant argued that the RRT's finding of an absence of evidence supporting his claim was inconsistent with country information it had itself cited, and that this inconsistency rendered the finding erroneous.

Lloyd-Jones J considered the RRT's decision, which reproduced an extract from the International Religious Freedom Report 2002 detailing an incident where calls for violence against Jews were heard from a mosque in Bishkek. The RRT then stated that it noted the country information but remarked on the absence of any mention of an event or attitude supporting the applicant's claim. The Court found this statement to be plainly inconsistent with the cited report, noting that the RRT had failed to evaluate the significance of the report's contents in the context of the applicant's claim. The Court agreed with the applicant that the RRT's finding was simply wrong and lacked evidentiary support, drawing an analogy to the decision in *VOAO & Anor v Minister for Immigration* [2004] FMCA 441, which was upheld on appeal.

The Court found that the RRT had failed to undertake the necessary evaluation of the evidence before it, particularly the country information it had cited. Consequently, the RRT's finding that there was no evidence to support the applicant's claim of persecution was not supported by evidence. The Court therefore set aside the decision of the RRT.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant submits that the case of VOAO & Anor v Minister for Immigration [2004] FMCA 441 provides a factual scenario that is analogous to the present case. In that case, Walter FM made the following statements:The No Evidence Ground8. In its decision, the RRT referred to and reproduced a lengthy extract from the International Religious Freedom Report 2002 … (“the 2002 Report”). …9. The extract from the 2002 Report appears under the heading “Independent Information” on pages 76 to 80 of the Court Book. …10. The extract from the 2002 Report included the following passage (at page 80 of the Court Book):In March 2002, members of the country's Jewish Cultural Society reported that they had heard calls for violence against Jews issued in Russian and Kyrgyz from a loud speaker at a Mosque in central Bishkek. According to the Israeli Embassy in Almaty, the Government is investigating.I shall refer to this passage as “the first passage”.11. The RRT's decision is brief…12. Almost immediately after the recitation of the extracts from the 2002 Report, and under the heading "Findings and Reasons" appears the following:The applicant claims fear of persecution for reason of religion, being a Jew in Kyrghyzstan. The applicant also claims that he will be persecuted because of an investigation over the fate of the organisation in which he was a manager.RELIGIONThe Tribunal notes the country information above and remarks on the absence of any mention of either an event or an attitude that would support the applicant's claim that he was and would be persecuted as a Jew in Kyrghyzstan. [emphasis added]13. Prima facie, the sentence commencing “The Tribunal notes...” quoted in paragraph 12 above (which I shall refer to as "the second passage"), appears to be inconsistent -- and obviously so -- with the first passage. Such discordance is clearly apparent from the plain and ordinary meaning of the words contained in the two passages (and, in particular, when regard is had to the words upon which I have placed emphasis in the second passage).…21. … [The applicants] say, quite simply, that the second passage is wrong and, to the extent that it may constitute a finding, there is no evidence for it. It is not illogical because it is not reasoned. It is simply wrong, and I agree with them. The above decision was upheld by the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50. The Court stated at [11]:11. It was for the Tribunal to evaluate the significance of this statement, considering it in the context of the whole report and the other evidence. The outcome of that evaluation would be a finding of fact and probably invulnerable to judicial review. However, the Tribunal did not undertake any such evaluation. In finding an absence of any mention of an event that would support the male respondent’s claim, the Tribunal ignored this statement. The Tribunal, in this matter, at [40] of the Decision Record stated that “[t]here is no evidence that the law, and period of detention and fine, or the condition of detention, are being applied in a discriminatory matter.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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