SZMHQ v Minister for Immigration
[2008] FMCA 1190
•22 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMHQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1190 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Thailand due to fear of her former boyfriend – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth) considered – observations on the interpretation of s.424AA – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 441C |
| SZBYR v Minister for Immigration (2007) 235 ALR 609 SZLTC v Minister for Immigration & Anor [2008] FMCA 384 |
| Applicant: | SZMHQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1317 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 22 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | 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 $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1317 of 2008
| SZMHQ |
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 handed down on 1 May 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background relating to the applicant’s arrival in Australia, the protection visa claims and the Tribunal decision on them are set out in the Minister’s written submissions filed on 12 August 2008. I adopt as background for the purposes of this judgment paragraphs 2 to 4 of those submissions:
The applicant arrived in Australia on 2 September 2007: court book (“CB”) 60.2, and applied for the visa on 12 October 2007: CB 1-27. The delegate refused the visa on 20 December 2007: CB 28-33. The applicant applied to the Tribunal for review on 16 January 2008: CB 34-37. The Tribunal held a hearing on 6 March 2008: CB 45-46, and on 12 March 2008 wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”): CB 53-55.
As ultimately presented to the Tribunal the applicant claimed to fear persecution in Thailand from her former boyfriend, who was a friend of her stepfather. She claimed her boyfriend would kill her. She claimed that he had hit her in 2007 when she refused to have sex with him. She claimed that she had complained to the police but they did not appear to have done anything, and that she could not relocate elsewhere in Thailand because nothing would change. See generally CB 62-65.
The Tribunal found that the applicant was not credible, noting contradictions between her written and oral claims as to her past addresses and the implausibility of her being unable to recall the address where she had lived with her former boyfriend for two years; and contradictions between her oral and written claims concerning her past employment and education history. These matters were detailed in the Tribunal’s s.424A letter, to which the applicant did not respond. The Tribunal regarded them as significant and concluded that the applicant was not a witness of truth: CB 67.9, and rejected all her claims of past harm in Thailand. See generally CB 65-68.
The applicant relies upon her show cause application filed on 22 May 2008. There are two grounds in the application, the text of which I incorporate in this judgment:
1.The Tribunal failed to provide “information” which is part of the reasons of the decision in writing pursuant to s.424A of the Migration Act. The Tribunal erred jurisdictionally.
Particulars
a)The Tribunal said that it sent a letter about the discrepancies on 12 March 2008 which the applicant did not receive. This is an important letter in this case.
2.The Tribunal made a jurisdictional error of law by failing to consider the integer of claim.
Particulars
a)The Tribunal did not also consider whether the applicant would have a well founded fear of persecution on the basis of the Convention reasons of Particular Social Group in light of her claim and independent country information.
b)An applicant who makes a claim to be a refugee on the basis of persecution for being a woman on the basis of Particular Social Group is entitled to have that claim dealt with. Failure to deal with that claim of Convention ground involved jurisdictional error.
I have before me as evidence the applicant’s affidavit made on 22 May 2008 and the court book filed on 17 June 2008.
There is no substance to either of the grounds in the application. The Tribunal wrote to the applicant on 12 March 2008 purportedly pursuant to s.424A of the Migration Act. The applicant asserts that she did not receive that letter, but I accept the Minister’s submission that the letter was sent to the applicant’s nominated address for service (CB 36 and 40). The applicant is deemed to have received that letter pursuant to s.441C(4) of the Migration Act. Further, the Tribunal, while acting prudently and lawfully, arguably went beyond its obligations of disclosure under s.424A because the letter dealt with discrepancies in written and oral information provided by the applicant. This is unlikely to have been “information” for the purposes of s.424[1].
[1] see SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17] to [18]
I also note that the Tribunal appears to have embarked upon a course of oral disclosure pursuant to s.424AA of the Migration Act in relation to the same information during the hearing conducted by the Tribunal (CB 64 to 65). I have previously held that “information” has the same meaning in s.424AA as in s.424A[2]. The important point for the purposes of this hearing, however, is that the applicant cannot claim ignorance of the discrepancies referred to by the Tribunal about her residence, employment and contact with her mother because they were drawn to her attention during the course of the oral hearing. There was no unfairness in the procedures followed by the Tribunal. Indeed, the Tribunal appears to have gone out of its way to attempt to be fair to the applicant.
[2] SZLTC v Minister for Immigration & Anor [2008] FMCA 384 at [18]
During the course of oral submissions, counsel for the Minister drew my attention to the very recent decision of the Federal Court in SZLXI v Minister for Immigration [2008] FCA 1270. At [27] of his judgment, Cowdroy J interpreted s.424AA in part on a different basis to that adopted by me in my decision of SZLTC at [16]. In particular, his Honour found that the exclusions from the obligation of disclosure in s.424A(3) applied also in relation to s.424AA notwithstanding the omission of those exclusions from s.424AA by Parliament. I accept that the Federal Court’s decision in SZLXI is binding upon this Court.
As to the second ground in the application, the issue of a Convention nexus with the applicant’s claims does not arise because the factual claims made by the applicant were rejected.
I conclude that the decision of the Tribunal in this matter is free from jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,000. Scale costs in this instance would be $5,000. The applicant asked about arrangements for paying the costs, but did not otherwise make submissions. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 August 2008
3
1