SZLPW v Minister for Immigration

[2008] FMCA 96

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLPW v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 96

MIGRATION – Review of Refugee Review Tribunal decisions – refusal of a protection visa – applicant claiming persecution in China based on her practise of Falun Gong – applicant not believed – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Applicant: SZLPW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3498 of 2007

Judgment of: Driver FM

Hearing date: 4 February 2008

Delivered at: Sydney

Delivered on: 4 February 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms Z McDonald
DLA Phillips Fox

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. 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

SYG 3498 of 2007

SZLPW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 16 October 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had sought a protection visa based upon her practise of Falun Gong.  She arrived in Australia on 15 April 2007 and applied for a protection visa on 7 May 2007.  That application was refused by a delegate on 22 May 2007.  On 23 June 2007 the applicant applied to the Tribunal for review of that decision.  The applicant was invited to attend a hearing before the Tribunal and did attend and give evidence.  However, the Tribunal had serious concerns about that evidence. 

2. The Tribunal wrote to the applicant on 28 August 2007, setting out its concerns and inviting comment. It appears that that letter was sent in purported compliance of perceived obligations under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal received no response to that letter. As is clear on the face of the Tribunal decision, the applicant was not believed. The Tribunal found that the applicant's evidence showed a propensity to fabricate claims and tailor and shift evidence to achieve the applicant's purpose. In the light of that finding the Tribunal found that the applicant did not have a well founded fear of persecution in China for the reasons she had advanced.

3. The applicant relies upon her judicial review application filed on 12 November 2007. That application is supported by an affidavit filed on the same day. I also have before me as evidence a court book filed on 6 December 2007. The applicant asserts that the Tribunal did not properly apply the Migration Act, but no particulars are given. The applicant notes that she was not believed by the Tribunal and accuses the Tribunal of subjectivity. As I noted during the course of oral argument this morning, a degree of subjectivity is involved in any decision to reject claims on the basis of an assessment of credibility. However, that is part of the Tribunal's function. The Tribunal must assess claims that are made and evidence that is presented. The Tribunal is entitled to reject claims on credibility grounds where its decision is made on a reasoned basis. There is no doubt, in my view, on the face of the Tribunal's decision (court book, page 95), that the Tribunal's adverse credibility findings had a reasoned basis.

4. The applicant expressed concern in her oral submissions that she did not have an opportunity to address the Tribunal's credibility concerns.  That is not correct.  She had two opportunities.  The first was at the hearing she attended when the Tribunal's concerns were outlined orally to her.  She also had the opportunity to respond in writing to the letter sent to her migration agent by facsimile on 28 August 2007 (court book, pages 84 to 87). 

5. The applicant told me that she had no real opportunity to respond to that letter because her agent did not show it to her until the day before the due date for a response.  If that is so that would indicate a dereliction of duty on the part of the migration agent, but that failure would not invalidate the Tribunal decision.  The Tribunal received no request for an extension of time to respond from the applicant or any other indication of concern. 

6. It appears to me that while the applicant is concerned about the outcome of her case before the Tribunal there was no breach of the Migration Act and the Tribunal acted reasonably, fairly and properly.

7. I can identify no arguable case of jurisdictional error on the available material. Accordingly, I will dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

8. The application having been dismissed, costs should follow the event. The Minister seeks an order for scale costs in accordance with the Federal Magistrates Court Rules. The applicant did not wish to be heard on costs.  I will order that 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.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  6 February 2008