SZKNF v Minister for Immigration and Citizenship

[2008] HCASL 361

SZKNF
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 361
S95/2008

1. The applicant is a national of the People's Republic of China.  She arrived in Australia in July 2006 and promptly applied for a protection visa, claiming to be a refugee in accordance with the Refugees Convention and Protocol.

2. A delegate of the Minister refused the application.  The applicant then sought review by the Refugee Review Tribunal ("the Tribunal").  The Tribunal rejected the application, relying in part on the fact that some of the claims mentioned by the applicant in her written case had not been mentioned by her at the hearing.  The Tribunal concluded that the applicant was not a credible witness and that none of the alleged events upon which she relied for her claim of persecution had actually occurred.

3. The applicant sought judicial review from the Federal Magistrates Court (Smith FM). The Federal Magistrate concluded that the Tribunal's reasoning as to the applicant's credibility was rational, and that there was no jurisdictional error such as would warrant setting aside the Tribunal's decision. He rejected claims of breach of ss 424A and 425 of the Migration Act 1958 (Cth) and of bias. The Federal Magistrate dismissed the application.

4. The applicant then appealed to the Federal Court of Australia (Dowsett J).  In that Court, his grounds of appeal were substantially the same as in the Federal Magistrates Court.  His Honour expressed some misgivings about the Tribunal's decision, cautioning that inconsistencies in evidence by refugee applicants did not necessarily demonstrate dishonesty or unreliability.  This is a caution which this Court has itself given on a number of occasions.

5. Nevertheless, in the end, Dowsett J was satisfied that no case had been established to warrant the intervention of the Federal Court.  He considered that the applicant's case had been fully addressed; and that such inconsistencies as had been given weight were not insubstantial.  The appeal was dismissed.

6. We have carefully considered the applicant's case, being of a view similar to that expressed by Dowsett J.  Nonetheless, no question of general principle appears to arise in the matter, and any error that may have occurred happened in the exercise by the Tribunal of its jurisdiction and not in a departure from that jurisdiction.  An appeal to this Court would not enjoy reasonable prospects of success.  Accordingly, the application is refused.

7. In accordance with Rule 41.10.5 of the High Court Rules we direct the Registrar to draw up, sign and seal an order dismissing the application.

M. D. Kirby
20 June 2008 J. D. Heydon