SZIOF v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIOF v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1321

MIGRATION – Persecution – review of Refugee Review Tribunal decision.
Visa – protection visa – refusal.
Tribunal under no duty to make inquiries – it is the applicant’s task to make out her claim – applicant disbelieved – no s.424A(1) obligation in the circumstances.

Migration Act 1958, s.424A

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

Applicant: SZIOF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 917 of 2007

Judgment of: Cameron FM

Hearing date: 26 June 2007

Date of Last Submission: 26 June 2007

Delivered at: Sydney

Delivered on: 17 August 2007

REPRESENTATION

Counsel for the Applicant: Mr. J. R. Young

Solicitors for the Applicant: Simon Diab & Associates

Counsel for the Respondents: Ms. L. Clegg

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 917 of 2007

SZIOF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By amended application filed in Court on 26 June 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 8 February 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 31 October 2005 refusing the applicant’s application for a protection visa.

2. The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant.  There was a previous Tribunal decision signed on 30 January 2006 which was quashed by order of this Court.

Background facts

1. The Tribunal described the applicant as:

   … a 32 year old married Nepalese who has lived and worked in Kathmandu prior to coming to Australia.  She gained 12 years of schooling and has worked as a “beautician/host”.  (Court Book (“CB”) page 224).

2. The applicant claims to fear persecution in Nepal because of her membership of a particular social group, being the wife of security personnel, a media host, a Maoist victim and an internally displaced person.

3. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-22 of the Tribunal’s decision (CB 224-242). Relevantly, they are in summary:

   a)on 19 May 1995 the applicant married an army corporal.  Her district was influenced by Maoists much more than the districts of Kathmandu, Bhaktapur and Lalitpur.  The Maoist influence further strengthened from 2001/2002;

   b)in every village Maoists started to visit every house owned by army servicemen and to threaten them.  The Maoists visited the applicant’s house a number of times and told her that they knew that her husband was in the army.  They demanded that she recall her husband to the village or make him resign from the army and that if this was not done, they threatened that actions would be taken against her family;

   c)the applicant tried to convince her…