SZCSH v Minister for Immigration
[2005] FMCA 98
•4 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCSH v MINISTER FOR IMMIGRATION | [2005] FMCA 98 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Mongolia as a homosexual – no reviewable error found – application dismissed. |
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
| Applicant: | SZCSH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNOUS AFFAIRS |
| File No: | SYG389 of 2004 |
| Delivered on: | 4 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 4 February 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG389 of 2004
| SZCSH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 30 December 2003 and handed down on 21 January 2004. 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 claimed persecution as a member of a particular social group of homosexuals. I adopt as background paragraphs 2‑12 of written submissions prepared on behalf of the Minister by Mr McInerney:
In November 2002, the applicant arrived in Australia.
On 24 December 2002 he applied for a protection visa.
On 14 April 2003, a delegate of the respondent refused that application.
On 8 May 2003, the applicant applied to the RRT for a review of the decision made by the delegate.
The RRT’s decision
The applicant gave evidence to the RRT on 16 October 2003, and was assisted by an interpreter in the Mongolian language. His migration agent appeared on his behalf [court book, page 52.5].
The RRT had an opportunity to observe the applicant during the hearing of his evidence and made a credibility finding which, in part, turned on his demeanour whilst giving evidence [court book, page 60.3].
The RRT did not accept the applicant’s claims that he was a homosexual. Having made an adverse finding of fact in respect to that matter, the applicant’s claim to be a refugee fell away.
The RRT made the following findings of fact adverse to the applicant’s claim:
a)Notwithstanding the bleak picture which the applicant has painted of his life as a homosexual in Mongolia he made no attempt to leave the country to seek refuge elsewhere until 2002 [court book, page 60.1], even though by at least 1995 his homosexuality was well known [court book, page 59.9];
b)The applicant had never thought of attempting to apply for refugee status in China despite the picture he painted of his life as a homosexual in Mongolia [court book, page 60.3];
c)It was not credible that the applicant would not have explored his options for seeking refuge in some other country earlier than he did if his claims were true [court book, page 60.3];
d)Having had the opportunity to observe the applicant giving evidence at the hearing before the RRT, the RRT did not accept that his claims were true [court book, page 60.3];
e)The RRT did not accept that the applicant was homosexual, that he and his partner were beaten many times for reasons of their homosexuality, or that the applicant’s partner was beaten to death in 2000 in an attack in which the applicant himself also suffered injury [court book, page 60.4];
f)The RRT did not accept that there was a real chance that the applicant would be persecuted by reason of his membership of a particular social group of homosexuals in Mongolia if he returned to that country now or in the reasonably foreseeably future [court book, page 60.5];
g)The RRT was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention Reason if he returned to Mongolia [court book, page 60.6];
h)The RRT found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention [court book, page 60.7].
In his application for judicial review the applicant asserts that there was no evidence for the findings made by the RRT. That claim must fail. The presiding member based his adverse credibility findings on the evidence presented by the applicant himself. The presiding member was also influenced by the manner in which the applicant gave his evidence at the hearing conducted by the RRT. I accept Mr McInerney's submission that an adverse finding as to credibility is a finding of fact par excellence. I adopt for the purposes of this judgment paragraph 15 of Mr McInerney's submissions:
The RRT rejected the applicant’s claim on a credibility basis. An adverse finding as to credibility is a finding of fact par excellence: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407.
The finding of credibility made by the presiding member was reasonably open to him on the material before him. There is no jurisdictional error in the decision of the RRT. In his oral submissions this afternoon, the applicant sought more time to seek legal assistance and to present better arguments to the Court. I rejected that request on the basis that the application has been before the Court for approximately 12 months. That should have been ample time for the applicant to present whatever arguments he wished to.
I note that a directions hearing was conducted in this matter on 16 June 2004. The applicant consented to an order requiring him to file and serve an amended applicant giving complete particulars of each ground of review relied upon, together with any evidence upon which he wanted to rely by 28 September 2004. Nothing further has been filed by the applicant. The only evidence I have before me is the court book.
I find that the decision of the RRT is a privative clause decision. I dismiss the application for judicial review.
Mr McInerney seeks an order for costs fixed in the sum of $3,000. The applicant opposed that costs order. I am satisfied that costs of at least $3,000 have been reasonably and properly incurred on behalf of the Minister in this matter. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 February 2005
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