SZVWF v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2532
Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether applicant abandoned claim for protection based on membership of an asserted social group – whether in any event claim based on membership of the asserted social group was bound to fail had the Tribunal considered the claim – whether asserted social group constituted a “particular social group” within the meaning of the Refugees Convention – whether the asserted claim disclosed a necessary causal connection between the asserted membership of the asserted social group and the persecution claimed to have been feared by reason of such membership – jurisdictional error found.

Legislation:

Migration Act 1958 (Cth), s. 414, 414(1), 418, 418(2), 418(3), 424, 425,

425(1), 425(2)(a)

Cases cited:

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Applicant WAEE v  Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244

Sargent v ASL Developments Ltd (1974) 131 CLR 634
SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1798
SZTFY v Minister for Immigration & Anor [2014] FCCA 2087
SZURJ v Minister for Immigration & Anor [2016] FCCA 1771

The Commonwealth of Australia v Verwayen (1990) 170 CLR 394

Applicant: SZVWF
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 3523 of 2014
Judgment of: Judge Manousaridis
Hearing date: 6 August 2015
Date of Last Submission: 8 August 2016
Delivered at: Sydney
Delivered on: 30 September 2016

REPRESENTATION

Counsel for the Applicant: Mr L Karp
Solicitors for the Applicant: Proactive Legal Pty Ltd
Counsel for the Respondents: Ms R Greycar
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The decision of the Refugee Review Tribunal made on 2 December 2014 affirming the decision of the delegate of the first respondent made on 9 April 2014 not to grant the applicant a Protection (Class XA) visa (Protection visa) is quashed.

  2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

  3. Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Refugee Review Tribunal to review the decision of a delegate of the first respondent made on 9 April 2014 not to grant the applicant a Protection visa.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3523 of 2014

SZVWF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The principal question that arises on this application for judicial review is whether there was before the second respondent (Tribunal) a claim (asserted claim) that the applicant, a national of Yemen, feared harm…

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Details
Case
[2016] FCCA 2532
Decision Date

CaseChat Overview and Summary

This decision concerns an appeal by SZVWF against a decision of the Minister for Immigration. The core dispute revolved around whether a particular claim made by the applicant had been considered by the Tribunal, or if it had been abandoned. The matter was heard by Judge Manousaridis in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the applicant had abandoned an asserted claim, or if that claim remained before the Tribunal for consideration. This involved determining the circumstances under which a represented applicant might be taken to have waived their right to have a claim considered, particularly when the claim arose from material before the Tribunal, even if not explicitly advanced by the applicant or their representatives. A secondary issue, raised by the Minister, was whether the asserted claim, even if considered, was bound to fail, with particular focus on the wording used to describe the social group.

Judge Manousaridis found that the Minister's submission that the applicant had abandoned the asserted claim was expressed too broadly. The Court applied the principle that for a claim to be considered abandoned, there must not only be a failure by the applicant to advance it, but also no material before the Tribunal that gives or may give rise to the claim. The Court noted that the Tribunal has an obligation to consider claims arising from the material before it, and an applicant will not generally be taken to have waived this benefit merely by not specifically addressing a claim that otherwise arises. In this instance, material before the Tribunal, specifically a letter from RACS, raised the asserted claim, and the applicant's and their adviser's silence was insufficient to infer an intention to forgo the Tribunal's consideration of that claim. The Court therefore rejected the Minister's submission that the claim was not before the Tribunal or had been abandoned. The Court also noted that the significance of the Minister's observation regarding the phrasing "possible social group" versus "particular social group" was unclear.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Minister also relies on the following passage from the judgment of Judge Cameron in SZTFY v Minister for Immigration & Anor:[28]In the absence of compelling reasons to conclude otherwise, where an applicant is professionally represented, was as the case here, it must be assumed that the claims which the applicant wished to make before the Tribunal were the ones expressly articulated by him or her and his or her advisers and that any arguable claims which were not expressly articulated were not pressed. If a represented applicant has not pursued an issue, then that is his or her election: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57].[28] [2014] FCCA 2087 at [35] With respect, this proposition is expressed too broadly because it does not refer to whether there is material before the Tribunal which otherwise gives or may give rise to a claim. As I have noted, before an applicant will be held to have abandoned a claim, the passage from the judgment of Bennett J in SZEIV requires not only that the applicant not advance the claim, but also on there not being material before the Tribunal that gives or may give rise to the claim. Further, and as I also have noted, the Tribunal, for the benefit of the applicant, is obliged to consider claims that arise on the material that is provided to it; and, although an applicant may waive that benefit, he or she will not, at least in most circumstances, be taken to have waived that benefit only because the applicant did not specifically address or advance a claim that otherwise arises on the material before the Tribunal. Thus, even if the applicant had not responded to the delegate’s consideration of the asserted claim, I would not have concluded that, from his and his adviser’s inactivity and silence in relation to the asserted claim, the applicant waived or otherwise elected to forgo the benefit of the Tribunal’s being required to consider the information that came before it under s.418 and s.425 of the Act with a view to determining claims that arose on that material. That is so because the material that was before the Tribunal, which included RACS’s letter dated 28 January 2014 to the delegate, raised the asserted claim, and the mere silence and inactivity of the applicant and his adviser in relation to the asserted claim would have been insufficient to raise the inference that the applicant intended to forgo the benefit of the Tribunal’s considering the asserted claim that was expressly made in RACS’s letter of 28 January 2014. I do not, therefore, accept the Minister’s submission that the asserted claim was not before the Tribunal, or that the applicant otherwise abandoned the asserted claim. The Minister submits that, even had the Tribunal considered the asserted claim, it was bound to fail. First, the Minister, in his written submissions, observed it was “notable” that the asserted claim was formulated by use of the words “possible social group” rather than the words “particular social group” that are to be found in the definition of “refugee” in Art.1A(2) of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Refugees Convention). It is not clear, however, what significance the Minister attaches to the claim having been formulated using the words “possible social group” rather than “particular social group”.