SZBMR v Minister for Immigration
[2005] FMCA 1011
•20 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBMR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1011 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Mongolia – RRT not satisfied on limited material that the applicant qualified for a visa – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.474 |
| Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 SAAP v Minister for Immigration (2005) 215 ALR 162 SZBKB v Minister for Immigration [2005] FMCA 719 |
| Applicant: | SZBMR |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1973 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 20 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Court directs that the transcript of today’s proceedings be obtained.
The Court directs that the Court provide the transcript of today’s proceedings to the Migration Agents Registration Authority for such action as the Authority considers appropriate.
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1973 of 2003
| SZBMR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was made on 22 July 2003 and handed down on 19 August 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Mongolia and had made claims of religious persecution. The relevant background facts are set out in Mr Wigney's written submissions filed on 15 July 2005. I adopt as background for the purpose of this judgment paragraphs 1.2 through to 3.2 of those written submissions:
On 3 February 2003 the applicant, a citizen of Mongolia, arrived in Australia. She applied for a Protection Visa (Class XA) on 3 March 2003.[1]
[1] The applicant’s initial visa application is at court book, pages 1-26.
The basis of the applicant’s claim to entitlement to a protection visa was initially set out in answers to questions 40 to 44 of her visa application.[2] The substance of the applicant’s claim was that she feared persecution in Mongolia for reasons of her religion. The applicant claimed that she attended the Ulaan Baatar Baptist Church and that she and fellow members of the Baptist Church suffered violence at the hands of unnamed persons because of their religion. She also claimed that her husband was upset that she preferred Christianity to Buddhism and was violent towards her. She claimed that the Mongolian police and authorities would not protect her because the State is corrupt.
[2] court book, pages 17-22.
On 17 March 2003, a delegate of the respondent refused to grant the applicant a protection visa. The delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention, this being a criteria for the grant of a protection visa.
RRT proceedings
On 14 April 2003, the applicant applied to the RRT for a review of the delegate’s decision. In her application to the RRT, the applicant repeated the claims she had made in her visa application.[3]
On 17 June 2003, the RRT wrote to the applicant and advised her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The applicant was invited to attend a hearing to give oral evidence and present arguments in support of her claims.[4] The applicant initially responded to the invitation by indicating that she would attend a hearing, but four days before the scheduled hearing, the RRT received a letter from the applicant’s migration agent indicating that the applicant would not attend the hearing and consented to the RRT making a decision without taking any further actions to allow or enable her to appear before it.[5]
On 14 September 2004, the RRT handed down its decision affirming the decision of the delegate refusing the applicant’s visa application.[6]
The RRT’s decision and reasons
The RRT found that on the limited material that was before it, it was unable to be satisfied that the applicant’s claims in relation to her religion were credible and that, given the ambivalent nature of the independent evidence regarding the treatment of Christians in Mongolia, it could not accept that the applicant had been attacked as claimed. The RRT also found that on the evidence before it, it could not accept that any violence the applicant had suffered at the hands of her husband was the result of the applicant’s claimed conversion to Christianity.
As a result of these findings, the RRT concluded that it was not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention and accordingly is not a person to whom Australia has protection obligations under the Convention. The applicant therefore did not meet the key criterion for a protection visa.
[3] court book, page 53.
[4] court book, pages 57-58.
[5] court book, page 61.
[6] court book, pages 143-151.
The applicant relies upon her judicial review application filed on 24 September 2003. In that application she asserts that the RRT erred in determining whether she has a real chance of being persecuted if she returns to Mongolia. The applicant asserts that the RRT wrongly applied a test of whether the protection of Mongolia was available to her.
In order to succeed in these proceedings the applicant must establish jurisdictional error. I agree with and adopt for the purposes of this judgment paragraph 5.1 of Mr Wigney's written submissions:
The RRT’s decision is a privative clause decision as defined in s.474(1) if the Migration Act 1958 (Cth) (“the Migration Act”) unless the applicant is able to demonstrate that it was a decision affected by jurisdictional error.[7] In determining whether the RRT made a jurisdictional error, regard must be had to s.474 of the Act in the way described by the High Court in Plaintiff S157 v Commonwealth of Australia.[8] As a privative clause decision, the constraints on review or challenge to the decision in s.474(2) of the Act apply.
[7] Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 24.
[8] (2003) 211 CLR 476 - see esp at [21], [26], [60], [76]-[77].
The applicant has been unable to demonstrate any jurisdictional error. As the presiding member notes in her reasons for decision on page 146 of the court book, on 21 July 2003 the RRT wrote to the applicant advising that it had considered all of the material before it relating to her application but it was unable to make a favourable decision on that information alone. The RRT invited the applicant to give oral evidence and present arguments at a hearing on 25 July 2003. On 21 July 2003 the applicant's adviser on the applicant's behalf advised the RRT in writing that she did not wish to give oral evidence and consented to the RRT proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. In accordance with the Migration Act the matter was then dealt with by the RRT on the evidence available to it.
The presiding member, after referring to the applicant's claims and the available country information, found that she could not be satisfied that the applicant had a well-founded fear of persecution in Mongolia by reason of her religion. In particular, on page 150 of the court book, the presiding member found that given the ambivalent nature of the independent evidence regarding the treatment of Christians in Mongolia she could not accept that the applicant had been attacked as she had claimed. The findings made by the presiding member were open to her on the limited material before her. The presiding member applied the correct test in order to assess the applicant's claims. Plainly, the presiding member understood the task that she had to perform and performed her duty under the Migration Act.
The outcome of the proceeding before the RRT, while equivocal, was sufficient to discharge the question of whether the applicant should be granted a protection visa (see Minister for Immigration v VASF of 2003 [2005] FCAFC 73 at paragraph 17.
As I recently observed in SZBKB v Minister for Immigration [2005] FMCA 719, at paragraphs 21 to 25, such an equivocal decision of the RRT may be of little or no value in any future consideration of whether the applicant should be removed from Australia. That question is, however, beyond the scope of the present proceedings.
The applicant was critical of the performance of her migration agent, Mr Kyselov. She raised matters with me during the course of these proceedings that I decided merited the referral of the transcript of this hearing to the Migration Agents Registration Authority. However, the quality of the services provided by the migration agent cannot support a claim of jurisdictional error on the part of the RRT.
I find that there was no jurisdictional error in the decision the of RRT. The decision is therefore a privative clause decision and the judicial review application must be dismissed.
I note that only the Minister is named as a respondent to the application. In accordance with the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162, I will order that the Refugee Review Tribunal be joined as the second respondent.
On the question of costs, I agree with Mr Wigney that a costs order should be made. He tells me that the Minister's legal costs exceed $4,000. I am satisfied that costs of not less than that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. There has been a directions hearing and a trial in this matter and counsel was properly engaged for the trial. Notwithstanding the simplicity of the legal issues, significant preparation was required of the Minister's solicitors and of Mr Wigney.
The applicant was concerned about an order for such a large amount. However, as I explained to her, I do not regard her capacity to pay as a relevant consideration. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I will fix in the sum of $4,000.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 July 2005
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