SZMRV v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMRV v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 8

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China because of “personal beliefs” – claims detailed before the Tribunal – factual claims generally accepted but applicant not otherwise believed – whether the Tribunal overlooked relevant material or breached s.424A of the Migration Act 1958 (Cth) considered – whether the Tribunal’s rejection of the applicant’s credibility was open to it considered given that the Tribunal appeared to accept the factual bases for the applicant’s claims.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A, 424AA, 425

Applicant A & Anor v MIEA (1997) 190 CLR 225
SZBEL v Minister for Immigration (2006) 231 ALR 592

Applicant: SZMRV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2235 of 2008

Judgment of: Driver FM

Hearing date: 18 November 2008

Date of last submission: 16 December 2008

Delivered at: Sydney

Delivered on: 5 February 2009

REPRESENTATION

Counsel for the Applicant: Ms K Welshman

Solicitors for the Applicant: Austin Haworth & Lexon Legal

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2235 of 2008

SZMRV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 19 August 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the applicant’s written submissions filed on 6 November 2008 and the Minister’s written submissions filed on 10 November 2008.

3. The applicant is a Chinese national who arrived in Australia on 30 September 2000.  She applied for a protection visa on 29 February 2008.  The applicant claimed that she would be tortured and persecuted for her personal beliefs if she returned to China.  Since arriving in Australia she has given birth to two children, one by her first husband, also a Chinese national who is resident in Australia, and one by her second husband who is an Australian citizen, and from whom she is now divorced.  She also has a son in China who was born in 1999.

4. The applicant’s visa application was rejected by a delegate of the Minister on 30 April 2008 on the basis that the claims were vague and brief and there was nothing in them to substantiate a claim of Convention based persecution. 

Application for…