SZMEJ v Minister for Immigration
[2008] FMCA 1074
•29 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMEJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1074 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether the show cause application discloses an arguable case of jurisdictional error considered – show cause order made. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 424AA, 425, 430 |
| Applicant: | SZMEJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1011 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 29 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Mafessanti Clayton Utz |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted to the applicant in relation to the first ground in her application by reference to these reasons.
The matter be listed for a final hearing at 10.15am on 12 September 2008.
The applicant is to file and serve on the respondents any written submissions on which she wishes to rely no later than 22 August 2008.
The first respondent is to file and serve on the applicant an outline of written submissions no later than 29 August 2008. A copy is to be e‑mailed to my associate.
Costs of today’s hearing are costs in the proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1011 of 2008
| SZMEJ |
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 Tribunal handed down its decision on 27 March 2008. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Thailand and had made claims of persecution arising out of her relationship with her former husband. The applicant claimed that her ex‑husband was a drug user and dealer and harshly beat her. Her husband had threatened to kill her. She was afraid to get help from the police. She was afraid that the police might abuse her if they knew that she had a relationship with drug dealers.
The Tribunal noted that the applicant's claims arose out of her relationship with her former husband and hypothesised that the only Convention nexus could be the applicant's membership of a particular social group. The Tribunal considered what hypothetical particular social groups the applicant might be a member of but found that it was unnecessary to resolve that issue. The Tribunal found that it was unnecessary to resolve that issue because the applicant had not sought the protection of the Thai authorities. The Tribunal accepted that the applicant might have been afraid to go to the police because of her association with a drug trafficker. The Tribunal found on the basis of country information that if the applicant had approached the police she might have been investigated for criminal activity and conceivably arrested and charged. However, the presiding member was not satisfied that such a reaction by the Thai authorities, had it occurred, would have been motivated by anything other than the enforcement of laws of general application. The Tribunal was not satisfied that the law would have been applied in a discriminatory fashion.
The applicant relies upon her show cause application filed on 22 April 2008. That application asserts jurisdictional error by the Tribunal on the basis of misunderstanding and misapplying the relevant law in relation to particular social groups and breaches of ss.425 and 430 of the Migration Act 1958 (“the Migration Act”) in relation to country information. The applicant is supported by a short affidavit, which I received. I also had before me as evidence the Court Book filed on 26 May 2008.
There is, in my view, no substance to the second ground. As alleged in the application, the Tribunal had regard to country information, referred to on page 71 of the court book. The applicant asserts a breach of s.425 of the Migration Act and says that that information was not put to her at the hearing. This was not disclosable information for the purposes of s.424A of the Migration Act. Accordingly, there was no need for oral disclosure pursuant to s.424AA. Further, the same country information was referred to by the delegate in her decision. The applicant was on notice from the delegate's decision that the issue of whether there was a Convention nexus with her asserted fear of harm was in issue.
There is, in my view, on the other hand, an arguable legal issue in relation to the first ground. It is not clear to me whether it was open to the Tribunal to conclude solely upon the country information referred to whether relevant Thai criminal law, which was not identified, would be a law of general application adopted for clearly legitimate purposes. Neither is it clear to me whether it was open to the Tribunal to conclude that the law would not be applied in a discriminatory fashion.
There is also a question of whether the Tribunal overlooked an element or integer of the applicant's claims in that the Tribunal concluded that the applicant was afraid of going to the police for fear of arrest (court book, page 7). However, on page 67 of the court book, the Tribunal notes that the applicant's claimed unwillingness to go to the police was based on a fear of abuse at the hands of the police because of her relationship with drug dealers. Accordingly, the applicant's fear was not the fear of application of the criminal law but, rather, a fear of physical harm applied unlawfully.
These are issues which ought to be addressed at a final hearing.
I will order that, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted to the applicant in relation to the first ground in her application by reference to these reasons.
The Court directs that the matter be listed for a final hearing at 10.15am on 12 September 2008. The applicant is to file and serve on the respondents any written submissions on which she wishes to rely no later than 22 August 2008. The first respondent is to file and serve on the applicant an outline of written submissions no later than 29 August 2008. A copy is to be e-mailed to my associate.
Costs of today’s hearing are costs in the proceedings.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 July 2008
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