A review of recent immigration cases in the Federal Magistrates Court of Australia highlights some of the difficulties that applicants experience when trying to establish that the Refugee Review Tribunal has exercised jurisdictional error. Jurisdictional error covers situations where the court incorrectly applies its jurisdiction or where it fails to exercise its jurisdiction, eg by looking at the wrong question.
Case One – SZJRV v Minister for Immigration [2007] FMCA 1880 (12 November 2007)
The applicant was a citizen of Bangladesh who applied for a refugee protection visa on political grounds. When the application was refused, the applicant applied to the Refugee Review Tribunal (RRT) to seek review of this decision. However, the RRT ruling affirmed the decision of the Minister’s delegate.
The applicant then turned to the Federal Magistrates Court, arguing that the RRT had: (1) failed to give any weight to relevant evidence and (2) made a wrong comment in relation to his claim and persecution in Bangladesh. The evidence to which he referred included a medical report in relation to an attack and the treatment provided, as well as letters that were written in his support by previous political colleagues.
Nicholls FM found that the RRT was not in error by failing to give weight to particular evidence. The weight that should be accorded to evidence is a matter for the Tribunal to decide. In this case, the RRT had formed an adverse view of the applicant's credibility as his story was deemed to be inconsistent and even fanciful and far–fetched at times. Due to this perceived lack of credibility, the Tribunal was open to reject the evidence. Nicholls FM noted that "[F]indings of fact, including findings of credibility, are within the proper exercise of the Tribunal's function".
The Federal Magistrates Court also found that the applicant's claim that the RRT had made a 'wrong' comment in relation to his claim and persecution could not succeed. This ground could only be used if the Tribunal had misunderstood the applicant's claim, but Nicholls FM found that there was no evidence to suggest that this was the case.
Case Two – SZKRJ v Minister for Immigration [2007] FMCA 1809 (15 November 2007)
A Nepalese citizen who claimed to fear persecution by the Maoists applied for a protection visa in Australia. Following a refusal by the Minister's delegate and a judgment of the RRT that affirmed this decision, the woman applied to the Court. The Court was required to decide whether the Tribunal's decision was affected by jurisdictional error.
The woman alleged that her family members were longstanding targets of the Maoists, her uncle was abducted by Maoists, her father had gone into hiding and she feared that the Maoists would try to recruit her and possibly kill her if she did not comply with their demands. She had fled Nepal for Japan, where she spent two and a half years on a student visa before returning to Nepal and then onwards to Australia.
The RRT described much of the applicant's evidence as "contrived and unconvincing". It was also determined that her past travel and residency "was inconsistent with a person whose immediate family had experienced harm and who themselves feared or had any objective reason to fear persecution".
The applicant argued in the Federal Magistrates Court that the Tribunal had fallen into jurisdictional error when making the following statements: her past travel and residency were inconsistent with a person who feared persecution; her return to Nepal in mid–2006 and delay in filing a visa application meant that she did not face a real chance of persecution on Convention grounds; and her claim that she was subject to extortion demands on her return to Nepal was "unbelievable".
Cameron FM found that no jurisdictional error was demonstrated in any of these respects for the following reasons:
The Tribunal's decision showed that it had given proper consideration to the reasons for delay of the visa application. The Tribunal did not find credible the evidence that the applicant considered it a reasonable risk to return to Jhapa in mid–2006, but did not consider it safe to return to Nepal in mid–2007, "notwithstanding a much improved security situation". The Tribunal had clearly expressed its bases for rejecting the applicant's claim that she was subject to extortion demands on her return to Nepal.
Despite the fact that jurisdictional error could not be proven in this case, the applicant pointed to a useful passage from W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 at 717, which serves as an important reminder to the Tribunal:
Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant's account to be "implausible" or "highly unusual" does not constitute a finding on the question raised … The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.