SZMWR v Minister for Immigration

Case •

[2009] FMCA 321

•

23 April 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 321
MIGRATION – Visa – Protection (Class XA) visa – application for review of Refugee Review Tribunal decision – citizen of India claiming that her stepmother was mistreating her and wanted her to be a prostitute – claim of a well-founded fear for reason of political opinion – whether the Tribunal failed to regard the claim as material – whether Tribunal failed to ask itself the right question – whether Tribunal failed to take into account a relevant consideration – whether Tribunal failed to provide natural justice or procedural fairness – whether applicant actually made a Convention-based claim – assertions are not evidence – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.54, 420, 425, 474, 476
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389
MZWBW v Minister for Immigration &  Multicultural & Indigenous Affairs [2005] FCAFC 94
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; 211 ALR 660; 79 ALJR 397; [2004] HCA 62
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2005) 144 FCR 1; [2004] FCAFC 263   
Applicant: SZMWR
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2769 of 2008
Judgment of: Scarlett FM
Hearing date: 22 December 2008
Date of Last Submission: 22 December 2008
Delivered at: Sydney
Delivered on: 23 April 2009

REPRESENTATION

Counsel for the Applicant: Mr Nair
Solicitors for the Applicant: No solicitor on the record
Counsel for the Respondents: Mr Reilly
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2769 of 2008

SZMWR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant, a citizen of India, applies for judicial review of a decision of the Refugee Tribunal signed on 9th September 2008 and handed down on 30th September, affirming a delegate’s decision not to grant her a Protection (Class XA) visa.

  2. By her Amended Application filed on 2nd December 2008 the Applicant seeks orders in the nature of Certiorari and Mandamus on the ground that the Tribunal did not consider her claims.

Background

  1. The Applicant applied for a Protection (Class XA) visa on 31st March 2008. In her application she gave as her reason for leaving India “political persecution”.[1] She went on to claim:

    I will be politically persecuted and tortured.[2]

    The local administration is completely against me. They will get me arrested and I will not be treated lawfully.[3]

    [1] Court Book 19

    [2] Court Book 20

    [3] Court Book 21

  2. The Department of Immigration and Citizenship wrote to the Applicant on 31st March 2008, asking her to sign an Australian Values Statement.

  3. On 15th May 2008 a delegate of the Minister refused the Applicant’s application for a Protection (Class XA) visa. The delegate stated that she was not satisfied that the Applicant had substantiated her claim of a well-founded fear of persecution, giving these reasons (summarised):

    ·The Applicant had not provided any details about which political party she belonged to, what was her political stance and why the local administration was against her.

    ·Even if it were accepted that the Applicant was involved in politics in Gujarat, the delegate did not accept that her feats were well-founded.

    ·In the absence of details regarding the Applicant’s political persecution in India, the delegate did not accept that the Applicant was targeted on account of her political opinion.

    ·Relocation within Gujarat or further within India was a viable option for the Applicant, as the Applicant is a Hindu and Hindus make up 80% of the Indian population.[4]

    [4] Court Book 40-41

Application to the Refugee Review Tribunal

  1. The Applicant applied to the Refugee Review Tribunal on 16th June 2008 for a review of the delegate’s decision. She did not provide any further documentary evidence with her application.

  2. The Tribunal wrote to the Applicant on 9th July 2008, inviting her to attend a hearing on 3rd September 2008. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Hindi language. She produced her Indian passport at the hearing.

The Refugee Review Tribunal Decision

  1. The Tribunal handed down its decision on 30th September 2008, affirming the delegate’s decision not to grant the Applicant a protection (Class XA) visa.

  2. In its Decision Record, the Tribunal set out the Applicant’s claims and evidence, noting her claim that her step-mother was mistreating her and wanted her to be a prostitute and was also trying to get her to marry the step-mother’s brother, who was old. She said they she tried to leave and get a job as a teacher but was unsuccessful. Her father had sent her to Australia.

The Tribunal’s findings and Reasons 

  1. The Tribunal accepted that the Applicant was an Indian national.

  2. The Tribunal noted the Applicant’s claim to have been mistreated by her step-mother but went on to find:

    Even if it accepts her step-mother was as bad as the applicant alleges, the Tribunal finds that given her step-mother has also allegedly mistreated the applicant’s brother also[5], there is no evidence to suggest that a significant and essential reason for the step-mother’s behaviour is for one of the reasons provided in the Refugees Convention.[6]

    [5] sic

    [6] Court Book 64

  3. The Tribunal did not accept the Applicant’s claim that if she were to return to India she would have to undergo the same problems as before. The Tribunal did not think it unreasonable to expect the Applicant to live away from her step-mother and find work in India.

  4. The Tribunal was not satisfied that the Applicant would not be able to find work in India that did not require her to pay for it, “or that even if she was unable to find work, an essential and significant reason for this inability would be for one of the reasons in the Refugees Convention.[7]

    [7] Court Book 65

  5. The Tribunal affirmed the decision not to grant the Applicant a protection visa.

Application for Judicial Review

  1. The Applicant commenced proceedings in this Court on 27th October 2008. She filed an Amended Application on 2nd December 2008, claiming that the Tribunal did not consider her claims.

  2. The particulars of that ground are that the Applicant claimed in her application for a protection visa a fear that she would be politically persecuted and tortured if she went back to India. The delegate found that the Convention ground of political opinion was the essential reason for the harm feared and that this harm involved serious harm and systematic and discriminatory conduct.

  3. Relying on a transcript of the Tribunal hearing which is tendered to the Court on the day of the hearing, the Applicant claims that she claimed three grounds for not wishing to return to India:

    a) For reason of political opinion including the political opinion of her family;

    b) Because she did not want to work as a prostitute as her step mother wanted.

    c) Because she did not want to marry her step mother’s brother.

  4. The Applicant claims that apart from making this statement:

    The applicant stated that she had not included any claims in her protection visa application because she thought the Department would ring her and she could tell them then. When it was put to her that she had not given them any phone number where they could contact her, so how could she have expected them to ring, she stated she forgot[8]

    [8] Court Book 63

  5. The Tribunal did not refer to the Applicant’s claim based on political opinion. The Tribunal made no finding in regard to this claim. The amended application asserts that it is open to the Court to infer that the Tribunal failed to consider this claim.

The Applicant’s Submissions

  1. Counsel for the Applicant, Mr Nair, submitted that the Tribunal did not give realistic or genuine consideration to the Applicant’s claims which was a denial of natural justice and procedural fairness. He claims that the Tribunal concluded its review before giving the Applicant a real and meaningful opportunity to present her case.

  2. He submitted that the Applicant had claimed that she would be “politically persecuted and tortured”[9] if she went back to India and had never resiled from that claim. The delegate had found that the Convention ground of political opinion was “the essential and significant reason for the harm feared”[10] and that “the harm feared involves serious harm and systematic and discriminatory conduct”.[11]

    [9] Court Book 20

    [10] Court Book 34

    [11] Court Book 35.

  3. At the Tribunal hearing the Applicant had described her reason for applying as “Political; for my own family’s problems”. The Applicant described difficulties with her step-mother for several reasons. Mr Nair submitted that one of the Applicant’s grounds for not wishing to return to India was “for reason of political opinion including, possibly, imputed political opinion or the political opinion of her family.”

  4. He referred the Court to s.54(1) of the Migration Act, which requires the Minister to have regard to all of the information in the application and drew the Court’s attention to the decision of Sackville J in Singh v Minister for Immigration and Multicultural Affairs[12] at [58]:

    Equally, I do not think that s.54(1) is satisfied merely by the Minister, as the decision-maker, being aware of the information in the application. The expression ‘having regard to’ suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.

    [12] [2001] FCA 389

  5. Mr Nair went on to submit in the Applicant’s written submission that that there was a failure by the Tribunal to consider properly the Applicant’s claim of a persecution for reason of political opinion which he characterised as “a failure to consider a critical piece of evidence fundamental to the applicant’s contention of a well-founded fear of persecution for a Convention reason” and referred the Court to “MZBZW at [27][13], WAEE v Minister for immigration and Multicultural and Indigenous Affairs[14] at [46].

    [13] presumably MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 but no citation was provided.

    [14] [2003] FCAFC 184

  6. Mr Nair took the Tribunal to task for what he described as an “erroneous” statement that:

    The applicant stated that she had not included any claims in her protection visa application…[15]

    [15] Court Book 63

  7. He submitted that the Tribunal did not regard the matter as material (see Minister for Immigration and Multicultural Affairs v Yusuf[16] at [5] and [35]) which raises the inference that the Tribunal did not ask itself the right question, leading to jurisdictional error. The Applicant contends that the Tribunal failed to take into account a relevant consideration.

    [16] (2001) 206 CLR 323; [2001] HCA 30

  8. Mr Nair referred the Court to s.420(1) of the Migration Act and the decision of the High Court in NAFF v Minister for immigration and Multicultural and Indigenous Affairs[17] at [26]-[27] and submitted that the Tribunal was aware of the claim based on political opinion but “peremptorily concluded the review’ without taking steps to determine the details of the claim and therefore did not perform its statutory duty under s.425 of the Act.

    [17] (2004) 221 CLR 1; 211 ALR 660; 79 ALJR 397; [2004] HCA 62

The First Respondent’s Submissions

  1. Mr Reilly of counsel, who appeared for the First Respondent, the Minister, submitted that the Applicant had made no political claim at all and that the Tribunal was entitled to treat the Applicant’s oral claims as her claims as ultimately asserted to it. Those claims involved no political component. The Applicant’s one use of the word “political” did not give rise to a “substantial, clearly articulated argument relying upon established facts” (see Dranichnikov v Minister for Immigration and Multicultural Affairs[18] at 394 [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[19] at [68]).

    [18] (2003) 197 ALR 389

    [19] (2005) 144 FCR 1; [2004] FCAFC 263

  2. Thus, he submitted, that the Applicant did not make a claim based on her political opinion even though she used the word “political” at the beginning of the Tribunal hearing so there was no failure by the Tribunal to consider the claim.

Conclusions

  1. The Applicant claims that the Tribunal did not consider one of her claims, namely that she did not wish to return to India for reason of political opinion, including the political opinion of her family. In the Applicant’s submission, this has been extended to:

    For reason of political opinion including, possibly, imputed political opinion or the political opinion of her family.[20]

    [20] Applicant’s Outline of Submissions at paragraph 12

  2. In my view, it is almost impossible to discern any serious claim of a well-founded fear of persecution for the reason of political opinion. True it is that the Applicant submitted an application for a protection visa claiming “political persecution”[21], “I will be politically persecuted and tortured”[22], “The local administration is completely against me. They will get me arrested and I will not be treated lawfully…Political enmity”[23], but the Applicant provided no evidence in her application for a visa or her application to the Tribunal that supported any of her claims. She did not make any reference to the substance of those claims at the Tribunal hearing except to say:

    Political, for my own family’s problem.[24]

    [21] Court Book 19

    [22] Court Book 20

    [23] Court Book 21

    [24] Transcript page 3

  3. Nowhere in the Applicant’s evidence to the Tribunal does she refer to any of the specific claims made in her protection visa application, that she would be politically persecuted and tortured, that the local administration was against her and would get her arrested, and she would not be treated lawfully. Those were all claims relating to her own situation, and it was not until she reached the Tribunal that the Applicant ever mentioned any problem to do with her family.

  4. Counsel for the Applicant has submitted that the Applicant’s claims in her protection visa application and two statements by the delegate  constituted “evidence” before the Tribunal:

    All of the above evidence was before the Tribunal.[25]

    [25] Applicant’s Outline of Submissions at [5]

  5. This submission contains a fundamental misconception of the meaning of “evidence”. All that was in the Applicant’s protection visa application was series of bald assertions that the delegate dismissed as “unsubstantiated”[26] in her reasons.

    [26] Court Book 40

  6. The claim that the statements by the delegate constitute some sort of evidence of the Applicant’s claim is also misconceived.

  7. First, the delegate stated:

    I find that the Convention ground of political opinion is the essential and significant reason for the harm feared as outlined in subdivision AL of the Migration Act.[27]

    [27] Court Book 34

  8. What that statement meant, and all that the statement meant, was that the application contained a claim of a fear of persecution on the ground of political opinion.

  9. Second, the delegate stated that, in answer to the question “Does the harm feared amount to persecution?”

    I find that the harm feared involved serious harm and systematic and discriminatory conduct as outlined in subdivision AL of the Migration Act.[28]

    [28] Court Book 35

  10. What that statement, and all that it meant, was that the application contained a claim that the harm feared was that the Applicant would be ‘politically persecuted and tortured…arrested…not be treated lawfully”.[29]

    [29] Court Book 20-21

  11. Neither of those statements adds anything to the Applicant’s claims in the protection visa application. They are no more than an acknowledgement that those claims were made. The delegate subsequently rejected the claims as unsubstantiated.

  12. Counsel for the Applicant submitted that:

    The applicant never resiled from her claim of persecution for reason of political opinion.[30]

    [30] Applicant’s Outline of submissions at [6]

  13. In my view that statement is incorrect and misleading. What the Applicant actually did at the hearing was to redefine her claim by making claims that were neither connected to anything that was in her protection visa application or to any ground under the Refugees Convention except by the use of the word “political”. The Tribunal asked the Applicant:

    All right, now you put in an application to this organisation; do you know what – do you know what you put in an application for?[31]

    [31] Transcript page 3

  14. The Applicant then replied:

    Political; for my own family’s problem.[32]

    [32] ibid

  15. After agreeing that she had not put any claims in her protection visa application and saying that she had expected the Department to telephone her to ask what her claim was about, the Applicant then proceeded to give an account of being mistreated by her stepmother. This was a claim that was entirely unrelated to anything in the protection visa application and cannot, by any stretch of the imagination, be described as “political”.

  16. The Applicant’s submission refers to the fact that the Applicant is a young woman who does not speak English and did not have the assistance of a migration agent. That does not mean that she is uneducated, unintelligent or unsophisticated. In her evidence to the Tribunal, the Applicant said that she completed the degree of Bachelor of Arts and one year of a Master of Arts and was seeking employment as a teacher.[33] However, the Applicant told the Tribunal that she had entrusted her claim to be a refugee to a person she did not know:

    Q[34]:  All right, so when you did fill in the application to the Department of Immigration did anyone help you?

    A:      Yes.

    Q:         Who helped you?

    A:The place where I was living there one guy he helped me and he knows – he has good…on  English, he knows English  so he helped me.

    [33] Transcript page 8

    [34] The Transcript in each case gives the Tribunal Member’s name, which is not necessary to publish.

    Q:         Who was he?

    A:I don’t know who was he, but he was living nearby, near my house.[35]

    [35] Transcript page 4

  17. Counsel for the Applicant made this submission:

    8. The applicant confirmed at the hearing that while she did not speak English, she had had the questions on the protection visa forms read and interpreted to her and that she had then provided the answers which were then recorded by the person who helped her, in English (transcript page 4-5).

    9. There is nothing to suggest that the application was not completed in accordance with what the applicant had told this “person”.[36]

    [36] Applicant’s Outline of Submissions at [8]-[9]

  18. In my view, with respect, that submission is belied by the Applicant’s very evidence to the Tribunal:

    Q: All right, so when you filled in this application you filled in these forms the forms are in English; the answers are in English; how did that happen?

    A: The person who filled that application, he knows English; he translated all English questions in Hindi, in my language.

    Q: And he wrote – and did you answer him in Hindi and did he write down your answers in English?

    A:Yes.

    Q: Did he translate back what he had written in English to you in Hindi?

    A:   No he did not.[37]

    [37] Transcript pages 4-5

  1. It is clear that the Applicant had no knowledge of what was in the typed documents she signed. This was obviously clear to the Tribunal, which then asked the Applicant to tell her own story. What emerges from the transcript of the evidence is that the Applicant gave an account:

    a)that made no reference at all to the one and only ground in the protection visa application, that of person for the reason of political opinion; and

    b)set out an account of mistreatment by her step-mother, which was not referred to in any way in the protection visa application.

  2. A claim does not become political merely by giving it the label of “political”. It has to relate in some way to political opinion or activity.

  3. Counsel for the Applicant relies on this passage from the transcript in support of the claim that the Applicant in some way advanced a claim of a fear of persecution for a political reason in addition to her claims against her step-mother:

    Q: All right, so you’ve said that you don’t get on well with your new mother and you don’t approve of the kind of work she wants you to do. Is there anything else; are there any other reasons why you can’t go back to India?

    A: Yes.

    Q: What? What? What are the other reasons?

    A: These two reasons and the other reason was she was trying to let me be – to get my wedding with – with her brother and my mum’s brother is – is very old in age and myself, I wanted to…and wedding by my interest.[38]

    [38] Transcript pages 6-7

  4. I note that the transcript immediately proceeds to this question and answer:

    Q:         All right, are there any other reasons?

    A:     No.[39]

    [39] Transcript page 7

  5. Counsel for the Applicant submits that the exchange quoted in paragraph 49 above makes it “clear that the applicant claimed three grounds for why she did not want to return to India, these being:-

    i) For reason of political opinion including, possibly, imputed political opinion or the political opinion of her family.

    ii) Because she did not want to work as a prostitute as her step-mother wanted.

    iii) Because she did not want to marry her step-mother’s brother.[40]

    [40] Applicant’s Outline of Submissions at paragraph 12

  6. The evidence does not support that proposition at all. The meaning of the exchange is clear. The Tribunal put to the Applicant that she had given two reasons for not wishing to return to India, being:

    i)that she did not get on well with her new mother; and

    ii)that she did not approve of the kind of work she wanted her to do.

  7. The Tribunal then asked her if there were any other reasons, and the Applicant answered:

    These two reasons (that is, the two reasons summarised in paragraph 52(1) and (2) above) and the other reason was she was trying to let me be – to get my wedding with – with her brother…[41]

    [41] Transcript page 7

  8. The Tribunal went to ask if there were any other reasons and the Applicant answered “no”.

  9. The Applicant did not mention at any time any of the claims in the protection visa application of a fear of being tortured or wrongly arrested and treated unlawfully by a local authority, even though the Tribunal asked her for the reasons why she did not wish to return to India.

  10. The Tribunal made it clear to the Applicant more than once that it was looking for reasons connected to the Refugees Convention:

    All right, well the application that you put in is for what is called a protection visa and what I’m going to do is I’m going to talk to you about what you need to meet to be a refugee. A refugee is a person who owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a (particular)[42]social group or political opinion is outside the country of her nationality and is unable or owing to such fear is unwilling to avail herself of the protection of that country. Now, not every fear makes a person a refugee. It must be for one or more of the reasons in the definition and these reasons are race, religion, nationality, political opinion or membership of a particular social group and together with that the fear that you have must be well-founded.[43]

    [42] The transcript says “political” but that is clearly a transcription error

    [43] Transcript page 4

  11. Despite this explanation, the Applicant subsequently spoke about being mistreated by her step-mother and her father using his savings so that she could travel to Australia.

  12. Later in the hearing the Tribunal again raised with the Applicant the grounds in the Refugees Convention:

    Q: And even if I accept that you may have difficulty finding work I may not accept that that means you may have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.[44]

    [44] Transcript page 9

  13. The Applicant’s comment in reply to this statement from the Tribunal was:

    Actually due to my new mum’s fear or my religions they were not keeping me at that places for long; only two things that I was allowed to stay with them and that’s now I’m not more than that because they were all relatives they were scared to…[45]

    [45] ibid

  14. Whilst the Applicant’s answer was rather garbled, which may or may not have been due to an interpretation problem, it is clear that the Applicant did not mention anything about her political claim, even though there was a surprise mention of the concept of religion.

  15. The Tribunal again raised the Convention grounds with the Applicant, only to be answered by a further complaint about the Applicant’s step-mother:

    Q: Well, even if your mother is not a good woman, sorry, your new mum is not a good woman and creates trouble I may not be satisfied that that means that you have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    A: Actually my…always she was going against us; myself and with my brother and always she was pressing to like to myself with her brother and always she was saying if you are not going to get married with my brother so my brother would rape you.[46]

    [46] Transcript pages 9 and 10

  16. On two further occasions later in the hearing, the Tribunal raised with the Applicant the necessity to be satisfied that the Applicant’s case had a Convention nexus:

    Tribunal:I’m going to think about what you’ve told me but as I said to you I may not be satisfied that you fear harm for reasons of race, religion, nationality, membership of a particular social group or political opinion…[47]

    All right, well I think my concerns still stand which is I may not be satisfied that you face, if you go back to India you face a real chance of serious harm to you now or in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group or political opinion.[48]

    [47] Transcript page 11

    [48] Transcript page 12

  17. Quite clearly, the Tribunal raised with the Applicant on five different occasions during the hearing the grounds for being found to be a refugee under the Refugees Convention and at no time did the Applicant mention anything about any claim relating to political opinion apart from her early reference to “political” as meaning her own family problem. The Tribunal made it abundantly clear to the Applicant, a university graduate, what needed to be found for the Applicant to be granted a protection visa and the Applicant obstinately kept to her account of her complaints against her step-mother.

  18. The transcript shows that there were other occasions when the Tribunal offered the Applicant the chance to say anything further, and she said there was not. The Tribunal said “All right, is there anything else you would like to say?”[49] and the Applicant said “no”. The Tribunal went to refer to concerns that the Applicant had not raised a case connected to any of the five Convention grounds[50] and all that the Applicant could do was reiterate her complaints about her step-mother. Again, the Tribunal asked the Applicant “All right, is there anything else you would like to say?” and again the Applicant said “No”.[51]

    [49] Transcript page 11

    [50] Transcript page 12

    [51] Transcript page 13

  19. Despite this, counsel for the Applicant makes this submission:

    The Tribunal was aware of the claim based on political opinion but peremptorily concluded the review without taking any steps to determine the details of this claim.[52]

    [52] Applicant’s Outline of Submissions at paragraph 21

  20. There is no basis for this submission whatsoever. It is completely at odds with the evidence of the transcript of the Tribunal hearing.

  21. Counsel for the Applicant also submitted:

    The failure by the Tribunal to properly consider the applicant’s claim of a persecution for reason of political opinion is a failure to consider a critical piece of evidence fundamental to the applicant’s contention of a well-founded fear of persecution for a Convention reason.[53]

    [53] Applicant’s Outline of Submissions at paragraph 15

  22. This submission is misconceived and totally misunderstands the concept of evidence. There was no “critical piece of evidence”. There was no evidence of persecution for a Convention reason at all.

  23. All that there was in the Applicant’s case was an assertion of a fear of persecution for political reasons in the application for a protection visa unsupported by any evidence whatsoever. Moreover, it was a claim of which the Applicant was entirely unaware, except for the use of the word “political”, which the Applicant vainly tried to connect to a story that she had never mentioned in her protection visa application, that her step-mother had mistreated her, wanted her to work as a prostitute and, surprisingly, then wanted her to marry the step-mother’s brother.

  24. Despite the fact that the Tribunal drew the Applicant’s attention to the five Convention grounds six times on five different occasions and kept asking her if she had other reasons for not wanting to return to India, the Applicant stuck doggedly to her account of her problems with her step-mother. The Applicant’s stated reasons quite clearly had no Convention nexus whatsoever.

  25. The Applicant’s case is entirely misconceived. There is no jurisdictional error in the Tribunal decision. It is a privative clause decision (Migration Act 1958, s.474) and there is no basis for relief in the nature of certiorari or mandamus.

  26. The application will be dismissed with costs.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date: 14 April 2009 


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Cases Citing This Decision

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SZMWR v Minister for Immigration and Citizenship [2009] FCA 863