SZKSW v Minister for Immigration
[2007] FMCA 1708
•4 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKSW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1708 |
| MIGRATION – Mongolian woman claimed threats of forced marriage and kidnapping – disbelieved by Tribunal – no jurisdictional error found. |
| Migration Act 1958 (Cth) |
| Applicant: | SZKSW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1795 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 4 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | The applicant in person |
| Counsel for the First Respondent: | Mr R Foreman |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1795 of 2007
| SZKSW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in 2006, and applied for a protection visa on the ground that she feared persecution if she returned to her country of nationality, Mongolia. She said that she was a person from the Mongol majority ethnic group, who had married a man who was from the Kazakh minority group. She claimed that, after he died:
Due to Kazakh tradition, if someone is dead in the family his brothers must get married with the wife of the dead brother. I didn't want and hate to get married with my dead husband's brother so I left my family and my country.
She claimed that her parents-in-law had sought to persuade her to remarry her husband's older brother, and had threatened that they would take custody of her son if she did not marry him. She came to Australia to avoid this pressure.
The delegate refused the visa application on 28 August 2006, and the applicant appealed to the Tribunal. She attended a hearing on 26 October 2006. At that time, as at the time of bringing her visa application, she represented herself unaided. According to the Tribunal's description of the hearing she confirmed the contents of her visa application. She gave more of the background history to her claims, including that she had first met her husband's parents after his death in 2004. She also told the Tribunal that her parents-in-law had visited her mother's home unexpectedly and had kidnapped her son, after her arrival in Australia. She told the Tribunal that they were “holding her son hostage in Western Mongolia until she returns to marry her husband's brother”. She told the Tribunal that it was “impossible” for her family to call the police regarding the kidnapping, as the in-laws insisted they had rights over their son.
The Tribunal identified some possible inconsistencies in her evidence, and some element of implausibility in the light of country information concerning the relevant situation in Mongolia. It sent to the applicant a written invitation to comment on these matters. The applicant then instructed a solicitor, who presented a submission and material to the Tribunal, including a statutory declaration by the applicant. This repeated aspects of the applicant's previously given history, but also presented the applicant's claim to fear persecution in a significantly different manner. For example, it claimed that the applicant's parents-in-law had often come to her house and abused her prior to her husband's death, and that their objective in persecuting her was not to enforce marriage with her brother-in-law, but to obtain custody of her son. There were also some further inconsistencies which were identified by the Tribunal in the version of the history presented by the solicitor.
The Tribunal drew attention to these concerns in a further written invitation for comment, which was responded to by further submissions and evidence presented by the solicitor. The Tribunal then handed down a decision on 10 May 2007. It affirmed the delegate's decision to refuse the grant of a protection visa.
In its statement of reasons, the Tribunal carefully considered all the material presented to it by the applicant, and also country information identified by its researchers relevant to the relevant situation of women in Mongolia. It found no information confirming the likelihood of the applicant's claims, although there was confirmation of a custom within the Kazakhs of Mongolia whereby a widow marries her husband's brother. But it said “It is not clear how strongly it is enforced nowadays or whether it is followed by all Kazakhs”.
The Tribunal considered the inconsistencies and inaccuracies in the applicant’s evidence, and rejected her explanations for the defects. It therefore formed an adverse view of her reliability as a witness. Examining closely each of the elements in the applicant's claims, it declined to accept them as credible. It specifically rejected the claim that the applicant's parents-in-law had abused her and her deceased husband, and had pressured them for custody of their son. It did not accept the applicant's claims as to what had happened after her husband died, and did not accept that she had been subjected to any form of harm from her parents-in-law at any time before her departure from Mongolia. It thought that the country information was “broadly consistent” with its finding that the applicant was not subject to persecution in the form of forced widow marriage, considering her situation as a person of a different ethnic background who had been well-educated and held responsible employment.
The Tribunal did not accept that the applicant's son had been kidnapped by her parents-in-law after she came to Australia, nor that her son was subject to any other harm. It did not accept that the applicant would not have been able to get the protection of Mongolian authorities from the harm she claimed. It said that her admitted failure to seek such protection was consistent with, and “reinforced the Tribunal's findings”, that in fact she did not experience any relevant harm. It rejected all of the applicant’s history of past persecution and a risk of future persecution. It was not satisfied that the applicant had a well-founded Convention related fear of persecution if she returned to Mongolia.
The applicant now asks the Court to set aside the Tribunal’s decision, and to order it to reconsider her refugee claims. I can only make these orders if I am satisfied that the decision was affected by jurisdictional error. I do not have authority to decide whether the applicant’s refugee claims are true, nor whether she should be granted a protection visa or any other permission to stay in Australia.
I have carefully considered the material before the Tribunal, and its reasons, and have been unable to identify any jurisdictional error affecting its decision which is reasonably arguable on behalf of the applicant. Her application filed in the Court did not present any such argument. It contains only an unparticularised contention that the Tribunal “committed a jurisdictional error by failing to determine my claims, whether my claims can be characterised as Convention-related”.
However, there is no substance in that contention. The Tribunal did not make the error contended. It identified and considered all the applicant’s claims. It did not need to enter into the characterisation of the harms claimed to have been suffered or feared by her, since it did not accept any of her relevant history.
Nor can I find any arguable substance in an unexplained contention made in the affidavit in support of the application: that “The Tribunal misunderstood the nature of its tasks and have not applied the correct test for my claims”.
The applicant has had a full opportunity to provide further evidence, and to present better arguments to the Court. Her application was listed at a First Court date before me on 26 June 2007. Directions were given allowing her to file an amended application and any evidence, after receiving a bundle of relevant documents and a referral for free legal advice. Such a referral was sent to a barrister on 29 June 2007, and the applicant was given that person's contact details at the time.
The matter was listed again before me on 21 August 2007 for a show-cause hearing. The applicant at that time had not filed any documents, and had not made contact with the free legal advisor. I gave her a further opportunity to take advice, by listing the matter for today for a final hearing. One reason why I did that was because the Court had not been able to be provided with a Mongolian interpreter at either of the directions listings, although the applicant was noted by the Tribunal to speak English which was “precise and quite fluent”. Unfortunately, the Court was again unable to procure a Mongolian interpreter for today's hearing, and there is no prospect that the situation will improve.
The applicant appeared today with the barrister appointed under the free legal scheme, who informed the Court that he had considered the papers, and had been unable to identify a ground of jurisdictional error which could be formulated in an arguable fashion. He then withdrew. The applicant herself, not unnaturally, was also unable to identify any arguable area of jurisdictional error affecting the Tribunal's decision, and presented no arguments to me.
For the above reasons I have arrived at the same conclusion as the applicant’s advisor. I therefore must find that the Tribunal's decision is a privative clause decision, and must dismiss the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 12 October 2007
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