SZKQN v Minister for Immigration
[2007] FMCA 1313
•7 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKQN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1313 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Thailand – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.420 |
| Applicant WAEE v Minister for Immigration [2003] FCAFC 184 Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 WAJW v Minister for Immigration [2004] FCAFC 330 |
| Applicant: | SZKQN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1553 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 7 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1553 of 2007
| SZKQN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 27 March 2007 and was handed down on 19 April 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background to the applicant's claims and the Tribunal decision on them are contained in the Minister's written submissions filed on 1 August 2007. I accept and adopt as background for the purposes of this judgment paragraphs 2 to 5 of those written submissions:
The applicant, a citizen of Thailand, claimed to have converted to Islam as her husband was Muslim. In 2006, the applicant’s parents were killed in an accident and the applicant held a Buddhist funeral for them. As a result, her husband’s family were angered. The applicant was forced to flee Thailand as she tried to divorce her husband but he would not allow it and threatened to kill her: court book “CB” 19-22.
The Tribunal found the applicant not to be credible on key aspects of her claims: CB 59.1. The Tribunal found the applicant’s evidence to be at times “implausible, vague, unconvincing and contradictory: CB 59.3. In particular, the Tribunal found that the applicant could not initially state the year that she was married to her husband and had only minimal knowledge of what was required for conversion to Islam: CB 59.5. Further, the applicant had been issued with a passport in June 2006, yet did not obtain a visa to leave Thailand until September 2006: CB 59.6
On the basis of its adverse credibility findings, the Tribunal rejected the applicant’s claims that she converted to Islam or the she feared harm for holding a Buddhist funeral for her parents. The Tribunal did not accept that she was the subject of threats or violence prior to leaving Thailand: CB 59.8.
Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason upon her return to Thailand: CB 59.9.
These proceedings began with a show cause application filed on 17 May 2007. That application asserts actual notification of the Tribunal decision on 19 April 2007. I find that the application was filed within time. The application contains two grounds with particulars. The first is an accusation that the Tribunal decision is unreasonable, irrational and illogical. The second asserts a breach of s.420 of the Migration Act 1958 (Cth) (“the Migration Act”) and asserts that the Tribunal failed to make a finding of whether the applicant feared persecution by reason of membership of a particular social group.
The evidence I have before me is limited to the court book filed on 5 July 2007. The applicant filed no written submissions. She declined the opportunity to make oral submissions in support of her application.
The Minister deals with the grounds in the application in paragraphs
6 through to 11 of the written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
The application for judicial review pleads two grounds of review. The first ground alleges that the Tribunal decision is unreasonable, irrational and illogical and was “not open”. The particulars to this ground challenge factual findings of the Tribunal. In substance the applicant is asking the Court to undertake a review of the merits of the Tribunal’s decision and its assessment of the credibility of her factual claims. This is not an appropriate line of attack in an application for judicial review, in which an applicant must identify a jurisdictional error.[1]
In any event, there is no basis for a claim that there is some legal error which may be established by reason of irrationality or illogicality in the Tribunal’s reasoning.[2]
Illogical reasoning does not of itself constitute an error of law or jurisdictional error, nor does it necessarily indicate that there has only been a purported exercise of power.[3] It has not been established that any want of logic in the Tribunal’s reasoning of itself would constitute an error of law. Even if the High Court in Applicant S20/2002 did not exclude the possibility that such a ground might exist (see McHugh and Gummow JJ at [35] – [37], [52], [73] – [74] and Kirby J at [142] – [146]), since that time six differently constituted benches of the Full Court of the Federal Court have ruled that ‘want of logic’ does not constitute an error of law.[4]
The decision of the Tribunal in this case is one which was both logical and reasonable when viewed in light of the whole of the evidence before it. The Tribunal’s decision was based on factual findings drawn by the Tribunal that the applicant’s evidence was not credible. Those factual findings based upon its consideration of the evidence that the applicant gave at the hearing. The Tribunal’s decision was not so unreasonable that no reasonable person could have come to it.[5]
The second ground of the application for judicial review pleads that the Tribunal failed to assess whether the applicant was at risk of persecution as a member of a particular social group. The application asserts that the claim arose on the basis of independent country information concerning domestic violence against women in Thailand which was considered by the delegate. The delegate referred to the independent country information in considering whether adequate state protection was available to the applicant in Thailand. The delegate concluded that there was not a failure of the state to protect women in the applicant’s position: CB 32.8-33.2.
The Tribunal was not obliged to consider unarticulated claims or claims which did not clearly arise from the material before it.[6] The applicant clearly did not claim and the materials do not support a claim that she feared harm for reasons of membership of a particular social group, namely “women”. The applicant’s claims were solely confined to her religion and the related conflict with her husband and his family. As the Tribunal rejected her claims that she had converted to Islam, that she was threatened or the victim of violence before leaving Thailand, the Tribunal was not required to consider whether the applicant was member of a particular social group or make specific findings in this regard.[7] Nor was the Tribunal required to consider the adequacy of state protection in Thailand.
[1] Minister for Immigration v Wu Shang Liang (1996) 185 CLR 259 at 272.
[2] Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9] per Gleeson CJ.
[3] NACB v Minister for Immigration [2003] FCAFC 235 at [29]; W404/01A of 2002 v Minister for Immigration [2003] FCAFC 255 at [35]; VWST v Minister for Immigration [2004] FCAFC 286 at [18].
[4] See NACB v Minister for Immigration [2003] FCAFC 235 at [30]; W404/01A v Minister for Immigration [2003] FCAFC 255 at [35]; NATC v Minister for Immigration [2004] FCAFC 52 at [25]; VWST v Minister for Immigration [2004] FCAFC 286 at [16] – [18]; WAJW v Minister for Immigration [2004] FCAFC 330 at [31] – [32] and WAJQ v Minister for Immigration [2005] FCAFC 79 at [22]
[5] Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223
[6] NABE (No 2) v Minister for Immigration (2004) 219 ALR 27
[7] Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [47]
There is nothing unreasonable, irrational or illogical about the Tribunal decision, at least in a legal sense. Section 420 of the Migration Act is an exhortative provision and even if a breach of it were to amount to jurisdictional error, such a breach has not been indicated by the material. The Tribunal dealt with this matter on the facts and there was no material failure to consider any of the applicant's claims.
I find that the applicant has failed to establish any jurisdictional error. Accordingly, I dismiss the application.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $2,500. Scale costs in this instance would be $5,000. The applicant queried arrangements for payment of costs, but did not otherwise make any submissions relating to costs. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application fixed in the sum of $2,500.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 August 2007
0
8
1