SZBXH v Minister for Immigration - [2005] FMCA 905

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBXH v MINISTER FOR IMMIGRATION

[2005] FMCA 905

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Kenya – where the applicant did not attend court – no reviewable error.

Federal Magistrates Court Rules 2001 R. 13.03(c), 13.03(d)

A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 238

Applicant:

SZBXH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2468 of 2003

Judgment of:

Scarlett FM

Hearing date:

27 June 2005

Date of Last Submission:

27 June 2005

Delivered at:

Sydney

Delivered on:

27 June 2005

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondent:

Ms Wong

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2468 of 2003

SZBXH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal made on 26 September 2003 which was handed down on

22 October of that year. The decision of the Tribunal was to affirm the decision of a delegate of the minister not to grant a protection visa to the applicant.
The applicant filed her application for judicial review at this court on 17 November 2003. She sought relief in the forms of mandamus, certiorari and prohibition. The grounds of the application were very sparse:
Tribunal fell into a jurisdictional error.
The application is otherwise silent as to what error the Tribunal may have fallen into.
The application came before a registrar of this court on 1 April 2004. The registrar listed the application for final hearing at 2.15 pm today, 27 June 2005. This seems to me to be ample notice of a court hearing, being nearly 14 months. The applicant entered into short minutes of order and it was made quite clear that the application was listed for hearing in this court before me at 2.15 pm today. The applicant has not appeared. I called the matter at 2.25 pm and there was no appearance. Following the usual practice, I stood the matter down in order to allow the applicant a little bit of time in case she were delayed or in case she had telephoned to indicate that she was ill or somehow hindered in attending or had faxed in a medical certificate or perhaps had gone to the law courts in Queen Square by mistake as happens from time to time. Inquiries revealed that no message has been received from the applicant at all.
The matter was called again at 2.46 pm. Still there was no appearance by or on behalf of the applicant. I have formed the view that it is quite likely that the applicant will not appear.
The rules provide that if a party to a proceeding is absent from a hearing, other than the first court date, the court may, if the party absent is an applicant, dismiss the application. This is set out under Rule 13.03A(c). A dismissal of the application can be made purely on the basis of an unexplained appearance by an applicant or a respondent. The rules also provide under Rule 13.03A(d) that the court may proceed with the hearing generally or in relation to any claim for relief in the proceeding.
In this case Ms Wong of counsel who appears for the respondent has asked the court to proceed with the hearing generally under Rule 13.03A(d). Ms Wong points out that not only has the applicant inexplicably failed to appear, but her application alleges no other ground for relief other than an unexplained jurisdictional error on the part of the Tribunal. She also points out that the Tribunal's decision is a detailed one in which the applicant's case was considered carefully and in her view there is no jurisdictional error apparent on the face of the decision. She refers me also to her outline of submissions in which she has thoroughly covered the matters contained in the decision of the Tribunal.
Her submission is that there is no jurisdictional error or any arguable case presumably for a jurisdictional error and that it is appropriate therefore that the application should be heard on its merits. Of course the rules provide for just such an eventuality. I am mindful of the fact that this is not the first court date. I am also mindful of the fact that the proceedings were listed for final hearing a very long time ago and that there has just been no sign at all from the applicant that she required an adjournment or that she wished to file further material or that she was going to obtain legal advice.
In the circumstances I am of the view that I should accede to the application to hear the matter on its merits. I therefore direct that the application is to be heard ex parte.
The applicant is a citizen of Kenya. She arrived in Australia on

25 May 2002 and on the 31st of that month made an application for a protection visa. Her claim for a protection visa related to what she said was a well-founded fear of persecution by reason of the fact that she is a lesbian. She claimed persecution in her native country and a fear of what may happen if she were to return to Kenya.
A delegate of the respondent refused to grant the application for a visa. So the applicant applied for a review of the decision by the Refugee Review Tribunal on 12 July 2002. Just over a year later, on 15 July 2003, the Refugee Review Tribunal informed the applicant that it was unable to make a decision in her favour on the information that had been provided to the Tribunal and it invited the applicant to attend the hearing of the Tribunal to give oral evidence and to present arguments in support of her claims. That hearing was set for 19 August 2003 and the applicant did indeed attend and presented further evidence in support of her claim to be a refugee. She submitted further supporting documents in support of her claims on 18 September 2003.
The Tribunal made its decision on 26 September and handed that decision down on 22 October 2003. In the decision the Tribunal set out the facts upon which the applicant relied and indeed quoted verbatim from her claims in the original application, some 24 paragraphs.

The applicant in those paragraphs set out the circumstances of her coming out as a lesbian at the age of 17, forming a relationship with a woman and eventually suffering some persecution by people which resulted in an attack on the two of them with the other woman being murdered.
The Tribunal sets out details of the applicant's evidence to the Tribunal including the applicant's replies to a number of questions that the Tribunal member asked of her. Eventually the Tribunal member raised some doubts with the applicant about the plausibility of her account. Page 97 of the court book in the second paragraph the Tribunal member reports that the Tribunal put to the applicant that it was implausible that the father of another woman was carrying on a vendetta against her. The Tribunal in fact put it to the applicant that the father was not concerned about or interested in her, but the applicant replied that the boys who harassed her were still about and would harm her if she returned home and that the boys were a particular problem.
In the fifth paragraph on page 97 of the court book the Tribunal put to the applicant that the member found much of her testimony unconvincing and the applicant's adviser said that they would prepare a written submission which would address the Tribunal's concerns.

The Tribunal member noted that the submission was in fact received on

22 September 2003 and addressed the Tribunal's specific concerns as well as making general points about the applicant's membership of a particular social group constituted by "women in Kenya" and/or "homosexual women in Kenya" and/or "homosexual women wishing to live an openly homosexual lifestyle" and/or "women who are unable to obtain appropriate protection from the authorities or society" and/or "women who are not seen as conforming to societal norms".
The decision at page 98 indicated that the Tribunal member considered the material contained in the additional submission. In the findings and reasons, which are quite detailed, the Tribunal member set out a lengthy account of the applicant's claims. At page 101 at the beginning of the third paragraph the Tribunal member stated that the Tribunal rejects the applicant's account of her friend's death, but goes on to say:
But this is not to say that her friend was not killed in some senseless street violence, nor that the police failed to find the culprits. However, the applicant's account is flawed and inconsistent at various stages of her testimony.
The Tribunal referred at page 102 of the court book to two aspects of the applicant's evidence which the Tribunal described as implausible. In the final paragraph on page 102 the Tribunal member said that the Tribunal did not find the applicant to be a credible witness.
The fact is that the Tribunal rejected the applicant's claim largely on the credibility of the applicant herself and on the plausibility or rather the implausibility of a number of parts of the applicant's claim. Findings on credibility are essentially findings for the decision-maker, not court conducting judicial review. At paragraph 24 of her outline of submissions Ms Wong of counsel points out that the court does not have the jurisdiction to engage in a reconsideration of the merits of the RRT's decision and refers me to A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 238.
The fact is that no matter how heart-rending the applicant's account of her history may be, the Tribunal did not find her account plausible or credible, and that is purely a matter for the Tribunal. There is no suggestion even from an independent examination of the decision of any bad faith or lack of procedural fairness or denial of natural justice. Indeed it is clear that the applicant took advantage of the opportunity to give evidence to the Tribunal accompanied by her adviser. The Tribunal member appears to have not only asked her questions to clarify her case, but put the Tribunal's concerns about the plausibility about the applicant's case to the applicant so that she had an opportunity to reply to them at the hearing itself or, as was the case here, forward written submissions aimed at the Tribunal's particular concerns. It is quite clear too that the Tribunal considered the applicant's further written submissions of 18 September and took those into account when making the decision.
My own investigation of the decision, which involves reading it through very carefully and reading through the court book, leads me to the view that I can see no jurisdictional error. There is no reviewable error and the application will be dismissed.
The applicant has been unsuccessful in her claim. The respondent seeks an order for costs in the sum of $4,000.00. I see no reason why an order for costs should not be made. The amount of costs sought, which involves a lump sum, is, to my mind, well within the scale provided by the Federal Magistrates Court Rules. I note that counsel was briefed and, in my view, it was an appropriate case for briefing of counsel. The applicant is to pay the respondent's costs fixed in the sum of $4,000.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 29 June 2005