MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095

FEDERAL COURT OF AUSTRALIA

MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095 MIGRATION – appeal from judgment of Federal Magistrate affirming decision of Refugee Review Tribunal to refuse appellants protection visas – refusal based upon rejection of primary appellant's claim he had suffered persecution for a Refugees Convention reason – acceptance by Refugee Review Tribunal that various incidents of mistreatment occurred – finding by Refugee Review Tribunal that incidents not the product of racial or religious discrimination – whether failure by Refugee Review Tribunal to consider reason for incidents cumulatively as well as individually – whether failure to consider claim in its entirety a constructive failure to exercise jurisdiction, giving rise to jurisdictional error – whether futile to remit matter to Refugee Review Tribunal on basis that even if persecution for Refugees Convention reason, persecution could not constitute "serious harm" as required by s 91R(1)(b) of the Migration Act 1958 (Cth) Held –(1) The Refugee Review Tribunal failed to determine whether the incidents of mistreatment, when considered cumulatively, constituted persecution for a Refugees Convention reason (2) It therefore failed to consider the primary appellant's claims in their entirety (3) This constitutes a constructive failure to exercise jurisdiction (4) It is arguable the persecution could constitute "serious harm" for the purposes of s 91R(1)(b) (5) As the Refugee Review Tribunal did not consider the question of "serious harm", the matter should be remitted to it for determination according to law. Migration Act 1958 (Cth), s 91R Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 referred to Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 referred to Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 cited NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95 referred to R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407referred to VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 discussed MZWPD, MZWPE AND MZWPF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID98 OF 2006