SZIEW v Minister for Immigration
[2007] FMCA 561
•16 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIEW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 561 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.91R |
| Applicant: | SZIEW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3645 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 16 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms G Broderick Clayton Utz |
INTERLOCUTORY ORDERS
The Court orders that the title of the first respondent be amended to the Minister for Immigration & Citizenship.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3645 of 2006
| SZIEW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was handed down on 7 November 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant sought judicial review of the Tribunal decision by a show cause application filed in this Court on 7 December 2006. In that application the applicant asserted notification of the Tribunal decision on 15 November 2006. On that basis I find that the application was filed within time.
The application sets out three grounds. The first is that the Tribunal made errors in reviewing the application as it did not review the decision as directed by the Court. That is a reference to the fact that an earlier decision by the Tribunal in the applicant's case was set aside and the matter remitted to the Tribunal for rehearing.
Secondly, the application asserts that the Tribunal committed an error of law be exceeding its jurisdiction by calling the applicant non Christian despite her baptism. That is a reference to the Tribunal's finding that although the applicant had gone through a form of baptism, she had done so for the purposes of supporting her claim to be a refugee. This was conduct engaged in in Australia. The Tribunal found that it was required to disregard that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).
The third ground in the application is an allegation of bad faith. It is not particularised. However, the applicant seeks to explain the allegation in a supporting affidavit filed with the application. In her affidavit the applicant repeats some of her protection visa claims. Plainly there is no substance to the allegation of bad faith. The allegation was only raised because the applicant disagrees with the decision of the Tribunal. The merits of the Tribunal decision are beyond the scope of this proceeding.
The burden on the Tribunal following the remittal of the matter to it for rehearing was to deal with the review application again according to law. The first ground in the application only has meaning if the Tribunal committed a jurisdictional error. The application therefore centres upon the second ground of review.
The Tribunal accepted that the applicant had suffered harm in Nepal. However, that harm was domestic violence at the hands of the applicant's husband. The Tribunal found no Convention nexus with that harm. The applicant had asserted that her husband was a Maoist and that she feared persecution in Nepal on the basis of political opinion imputed by reason of her husband's activities. The Tribunal rejected that claim. The Tribunal's finding was open to it on the material before it.
In relation to the claim of religious persecution, the Tribunal said the following (court book, page 169):
The Tribunal does not accept that the applicant is a genuine Christian and does not accept that she will practise Christianity in Nepal. The applicant could tell the Tribunal very little about Christianity when invited to do so. The Tribunal does not accept as reasonable the applicant's explanation for this, namely that she was depressed and could not concentrate when she attended church, that she went there for healing, that she hasn’t been able to study the Bible properly and that she studied Christianity in Nepali. The Tribunal finds that the applicant's claims to be Christian were invented by the applicant to assist her claims to be a refugee. Although the Tribunal accepts that she attended the Jesus Family Centre as she claims, that she was baptised and that she spoke to others about Christianity the Tribunal is not satisfied that she engaged in this conduct otherwise than to strengthen her claims to be a refugee. The Tribunal therefore disregards the conduct under subsection 91R(3) of the Act.
Having found that the applicant engaged in the conduct of becoming a Christian in Australia in order to enhance her protection visa claims, the Tribunal was required pursuant to s.91R(3) to disregard that conduct. I see no error in the Tribunal's approach.
The application fails to disclose an arguable case of jurisdictional error. I therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I will further direct that the title of the first respondent be amended to the Minister for Immigration & Citizenship.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs. The applicant was concerned about her capacity to pay. However, that is not a reason for the Court to refrain from making a costs order. I see on reason to depart from the Court scale in this matter. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 April 2007
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