SZMVC v Minister for Immigration - [2008] FMCA 1667

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMVC v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1667

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.91R(3)

SZGDJ v Minister for Immigration [2008] FCA 722
SZHFE v Minister for Immigration (No 2) [2006] FCA 648
SZJGV v Minister for Immigration (2008) 247 ALR 451, [2008] FCAFC 105

Applicant:

SZMVC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2576 of 2008

Judgment of:

Driver FM

Hearing date:

11 December 2008

Delivered at:

Sydney

Delivered on:

11 December 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms T Quinn
DLA Phillips Fox

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
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 2576 of 2008

SZMVC

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 11 September 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Mongolia and claimed persecution on the basis of her membership of the particular social group of lesbians in Mongolia. She arrived in Australia on 2 March 2008 and applied to the Minister's Department for a protection visa on 8 April 2008. The Minister's delegate rejected that application on 17 April 2008. On 15 May 2008, the applicant sought review by the Tribunal.
The Tribunal conducted a hearing on 14 August 2008. The applicant appeared and gave evidence. It is apparent from the record of what occurred at that hearing that the Tribunal had serious doubts about the applicant's claims. The Tribunal found that the applicant was not a lesbian as she claimed. The Tribunal took into account the applicant's history of having had male partners and having had children. The Tribunal also took into account the failure by the applicant to have contact with the gay community in Australia or to contact her alleged female lover in Mongolia since she came here. The Tribunal also rejected the applicant's claim to have suffered domestic violence at the hands of her male de facto partner in Mongolia.
These proceedings began with a show cause application filed on 7 October 2008. The applicant now relies upon an amended application filed on 4 December 2008. That application prepared by the applicant's panel adviser contains one ground:
The Tribunal exceeded its jurisdiction by not disregarding conduct engaged in by the Applicant in Australia without being satisfied the Applicant had engaged in that conduct otherwise than for the purpose of strengthening [her] claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
Particulars
The Tribunal took into account against the Applicant’s credibility the Applicant’s conduct in relation to her conduct in Australia with regard to:
·    lack of contact with the gay community in Australia;
·    looking for and securing employment; and
·    failure to contact her partner in Mongolia
without first determining whether it was satisfied in accordance with s.91R(3) in respect of that conduct.
I have before me as evidence the court book filed on 24 November 2008.
The applicant's submissions made orally at the hearing before me today were not directed to the amended application. The applicant told me that she fears death at the hands of her former male de facto partner in Mongolia. She would prefer suicide to having to go back to face him. Domestic violence is a very serious matter and should be taken seriously. There may be reasons quite apart from the applicant's protection visa claims why she is afraid to return to Mongolia. If there are such matters, the applicant would be wise to explain them clearly and frankly to the Minister's Department. They are matters that the Minister could take into account should he be so minded, if he would wish to. They are however, matters beyond the scope of this present proceeding.
The ground raised in the amended application is not arguable. The Tribunal's reasons relevant to this ground are contained in paragraph 55 and 56 of its decision[1]:
The Tribunal has considered the following matters of evidence cumulatively to make its finding that the applicant is not and was not homosexual. In the tribunal’s view it is not consistent with the applicant’s claims, namely that she suffered/feared harm in her country because she is lesbian that, except for the period between 1998 to 2002, she has had four male partners over the years, from 1981 when she married until 2008 when she came to Australia, and has had three children by three of those partners; she was living with her de facto partner at her usual address in her sister’s house right up until she came to Australia where he still lives, at least sometimes, according to the applicant’s oral evidence to the Tribunal. The Tribunal does not accept as true her explanation for why she has had four male partners, including her current de facto partner, if she is lesbian, namely that she has had male partners because she wanted to be seen as normal, it was expected of her and, after 2002, having a male partner concealed her relationship with her gay partner which began in 1998. In the Tribunal’s view if this were true the applicant would have had at least some contact with the gay community in Australia since coming here, even if that contact were limited by the fact that she does not speak English. The applicant’s oral evidence to the Tribunal is that she has not done so. Her other explanation that she has been depressed here in Australia is not supported by any medical evidence although she has recently attended the doctor for other reasons as is evidenced by the medical reports she has provided to the Tribunal which are dated August 2008. Clearly she has been well enough to look for work and get a job; she told the Tribunal that she has recently secured work as a housekeeper at a hotel in Sydney which she named.
The applicant told the Tribunal that she has had no other female partner or relationships except with the person whom she describes as her lesbian partner from 1998; she states that she had no lesbian relationships prior to this time. Also, although by itself it is not necessarily conclusive as to sexuality, the applicant’s evidence is that her alleged female partner also was in and remains in a relationship with a male partner and had a child in 2004, right in the middle of the period during which the applicant claims they were in a lesbian relationship. Also the applicant’s oral evidence to the Tribunal is that she has not contacted that female person since coming to Australia. She states that this is because the woman’s male partner would then know about hem and she does not want to destroy this female person’s life. In the Tribunal’s view this explanation is not consistent with the applicant’s oral evidence that she was contacting her lesbian partner by telephone when she was in her country and did so just before she came to Australia in March 2008.
[1] court book, pages 109-110
The Tribunal did not draw a distinction between the applicant's asserted conduct in Mongolia and her conduct in Australia. The Tribunal did not need to draw such a distinction. The only conduct in Australia of interest to the Tribunal was the applicant's failure to have any contact with the gay community here, her failure to have any contact with her alleged former female lover in Mongolia and her medical and employment history. The Tribunal had regard to the applicant's employment history in Australia in dealing with the applicant's claim that she was medically unfit to have contact with the gay community here because of depression.
I accept from the decision of the Full Federal Court in SZJGV v Minister for Immigration (2008) 247 ALR 451, [2008] FCAFC 105 that a failure to act may be conduct for the purposes of s.91R(3) of the Migration Act 1958 (Cth). However, the applicant's failure to have conduct with the gay community in Australia and her failure to communicate with her former lesbian lover in Mongolia could not on any view be conduct intended to enhance the applicant's protection visa claims. Neither could the applicant's employment history in Australia lend any support to her claims.
Where it is patently obvious that conduct could not have any corroborative impact on claims, the Tribunal does not need to make a decision pursuant to s.91R(3) (see SZHFE v Minister for Immigration (No 2) [2006] FCA 648 at [30] and SZGDJ v Minister for Immigration [2008] FCA 722).
I have myself considered whether there is any other arguable case of jurisdictional error by the Tribunal in this matter. I can see none.
Accordingly, the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks scale costs of $2,500. The applicant made no submissions bearing 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 16 December 2008