MZXTU v Minister for Immigration & Anor [2009] FMCA 66 (6 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXTU v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 66

MIGRATION – Review of Refugee Review Tribunal’s decision – membership of a particular social group – failure of the Tribunal to identify a particular social group – failure of Tribunal to consider an integer of claim squarely raised – Tribunal misdirected itself – jurisdictional error shown.

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Applicant:

MZXTU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 187 of 2008

Judgment of:

O'Dwyer FM

Hearing date:

25 September 2008

Delivered at:

Melbourne

Delivered on:

6 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr Sorensen

Solicitors for the Applicant:

Maddocks Lawyers

Counsel for the Respondents:

Ms Burchell

Solicitors for the Respondents:

Clayton Utz

ORDERS THAT:

(1) The decision of the Refugee Review Tribunal made on 21 January 2008 be set aside.
(2) The matter be remitted to the Tribunal for determination according to law.
(3) The first respondent pay the applicant's costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 187 of 2008

MZXTU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 18 February 2008, the applicant seeks to review a decision of the Refugee Review Tribunal (the Tribunal) made on 21 January 2008 which affirmed an earlier decision of the first respondent's delegate to refuse to grant the applicant a protection visa.
2. In an amended application filed on 12 September 2008, the applicant set out a number of grounds for review, expressed in large part in generic terms. The ground, however, which is relevant to my determination, and which was substantiated, was that the Tribunal misdirected itself and failed to consider an important integer of the applicant’s claim for protection which was squarely raised; namely, a failure to identify the particular social group of which the applicant claimed membership and, because of such membership per se, to consider whether he was at risk of persecution should he be returned to Sri Lanka.

Background

3. The applicant claims to be a citizen of Sri Lanka who arrived in Australia on 18 May 2007, travelling on a short stay business visa valid until 18 June 2007 in order to participate in the Arafura Games held in Darwin from 12 to 19 May 2007. On 18 June 2007 the applicant lodged an application for a protection visa. On 6 July 2007 a delegate of the first respondent refused to grant the applicant a protection visa and on 23 August 2007 the applicant lodged his application for review with the Tribunal.

The applicant's claims

4. The applicant claimed, amongst other claims, that he feared persecution if returned to Sri Lanka because he was a member of the Sri Lankan United Nations Friendship Organisation (SUNFO), an organisation comprised of both Tamil and Sinhalese youths attempting to bring understanding between the warring communities.
   The applicant claimed that he feared persecution from the police and military as someone they suspected as being in league with the Liberation Tigers of Tamil Elam (LTTE) because of his membership of SUNFO and from the LTTE as someone they suspected as being in league with government forces, again because of his membership of SUNFO.
5. The claims of the applicant were set out in his application and a supporting statutory declaration attached to it.

The applicant's contentions

6. Under the ground, as set out above, the applicant particularised the basis for that ground as the Tribunal's apparent misguidance of itself as to what the applicant claimed by way of membership of a social group. The applicant contends the Tribunal was wrong in finding that the applicant's claim of persecution was based on his claim that he was a perceived member of a particular social group, identified by the Tribunal as young Tamils (which he was not) and that his claim related to an associated political opinion consequentially attributed to him.
   In that finding, the applicant contends, the Tribunal misdirected itself. It is the applicant's contention that the social group to which the Tribunal should have rightly found he claimed to be a member that formed the basis of his fear of persecution was that of SUNFO.
   Had the Tribunal member made a proper finding in that regard, then the focus of the Tribunal of whether, or how, the applicant would suffer persecution would have been different. The Tribunal should have focused on how he, as a member of SUNFO, would have suffered persecution, or more correctly, was likely to suffer persecution because of the persecution directed at SUNFO members generally. Whereas the focus, as I understand the applicant’s contention, was on him as an individual who, as an individual, was unable to establish he experienced persecution or ran the risk, as an individual, that should he be returned to Sri Lanka he would suffer persecution. Instead the Tribunal’s focus was on the applicant and how he could show persecution directed at him personally, as an individual, to establish the claim, whereas it should have been a focus of whether a member, indeed, any member, of SUNFO was likely to suffer persecution.

Finding

7. A reading of the applicant's application for a protection visa, and in particular the statutory declaration filed in support, in my view, clearly spells out that the social group of which the applicant claimed membership, and because of which his fear of persecution arose, was SUNFO. The characteristic of this social group that sets it apart within the Sri Lankan society is the interracial and inter-religious nature of its work. The Tribunal failed to adequately identify this social group and there was a consequent failure to address the claim raised in respect of the alleged persecution of this social group and its members generally. The issue of his membership of this social group was squarely raised both on the material filed by the applicant and also, from a reading of the Tribunal's decision, at the hearing itself. (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263) The Tribunal clearly acknowledges his membership, understands that the applicant places some significance in it in support of his claim, refers to other members having allegedly suffered persecutory conduct against them, but does not address whether he, primarily because of his membership, would suffer, or is likely to suffer persecution, even though he may not have experienced persecution before, should he be returned to Sri Lanka.
8. I am satisfied that the Tribunal failed to direct itself to and consider an important integer of the claim being made by the applicant, and also misdirected itself. Although the Tribunal acknowledged the applicant's membership of SUNFO, it pursued, from a reading of the decision, a line of questioning limited to how the applicant had been affected with a view to determining whether the applicant had personally suffered persecution and whether the applicant’s fear of persecution was well founded based upon his personal experience. A fair reading of the decision does not appear to address the case squarely put, in my view, by the applicant that it was his membership of a particular social group, SUNFO that was likely to attract persecution, which claim he supported with evidence of persecution of similar social groups and claims about how other members of SUNFO had allegedly become the subject of suspicion and persecutory conduct by both sides of the conflict in Sri Lanka.

Conclusion

9. For the above reasons, I find that the Tribunal failed to consider a significant integer of the applicant’s claim and misdirected itself.
10. Accordingly, the order sought in the application will be made.
11. Having regard to my finding on the first ground, I have not addressed the others.

I certify that the preceding 11Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !eleveneleven (11) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

Date: 6 February 2009