SZNFX v Minister for Immigration

[2009] FMCA 416

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFX v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 416

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

Applicant: SZNFX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 320 of 2009

Judgment of: Driver FM

Hearing date: 4 May 2009

Delivered at: Sydney

Delivered on: 4 May 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Warner Knight
Australian Government Solicitor

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 320 of 2009

SZNFX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 16 January 2009.  A corrected copy of the Tribunal's reasons was issued on 2 February 2009.  The Tribunal affirmed a decision of a delegate of the Minister not to grant to the applicant a protection visa.

2. The applicant is from China and made claims apparently related to being forced into sex work.  Before the Tribunal, however, she appeared to resile from those claims somewhat. She only claimed before the Tribunal to be a bar girl and to have been forced into sex with a particular individual who she was afraid of.  The applicant arrived in Australia on 15 July 2008 and applied to the Minister's department for a protection visa on 21 July 2008.  The Minister's delegate refused that application on 18 September 2008.  The applicant sought review by the Tribunal on 15 October 2008. 

3. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing.  She attended with the assistance of a Mandarin interpreter.  The hearing took place on 27 November 2008.  The applicant's claims made orally to the Tribunal conflicted with her written claims reproduced in the court book[1], which I received as evidence.  The Tribunal noted the significant inconsistencies between the applicant's written and oral claims.  The Tribunal concluded that the applicant's evidence was also in part highly implausible and given the inconsistent nature of her evidence the Tribunal did not accept that the applicant was ever employed as a sex worker or prostitute.  The Tribunal was prepared to accept that the applicant was employed in a bar in China during 2004 and 2005.  However, the Tribunal did not accept that her employment was terminated or that she resigned because of her asserted relationship with the individual whom she said she feared.  The Tribunal found no Convention nexus with the limited factual claims it accepted. 

   [1] court book, page 8

4. The applicant relies upon her show cause application filed 11 February 2009. That application is supported by a short affidavit, which I received. That affidavit asserts that the applicant was forced to do sex work although, in her statements from the bar table, the applicant denied that she had ever done sex work for money. The first ground in the application was that the Tribunal did not take account of her situation in China. The applicant asserts again in that ground that she was forced to do sex work. In her oral statements today from the bar table the applicant said that she was merely forced to have sex with a particular individual. Whatever the true situation, the Tribunal did take account of the applicant's written and oral claims. It was the inconsistencies in those claims that led to the adverse outcome for the applicant. No arguable case of jurisdictional error arises from ground 1.

5. The second ground is that the applicant has a bad memory as a result of persecution including imprisonment.  She asserts, apparently due to memory difficulties, that it was hard for her to give evidence to prove her claims.  The applicant asserts that the refusal of her application was not fair.  The applicant's oral submissions suggest that this assertion is no more than disagreement with the outcome of her review application.  There is nothing in the court book to support an assertion of procedural unfairness.  In particular, there is nothing to indicate to the Tribunal was on notice of any claim of a disability affecting the applicant's memory that the Tribunal needed to give special consideration to.  No arguable case of jurisdictional error arises from the second ground.

6. The third ground is simply a repetition of the applicant's fear of returning to China and it cannot support a claim of jurisdictional error.  On my own reading of the material no arguable case of jurisdictional error arises.  The Tribunal appears to have met its statutory obligations. The hearing opportunity afforded the applicant was a real one.  The Tribunal appears to have understood and considered the applicant's claims.  The conclusions reached by the Tribunal were open to it on the material before it. 

7. I find that no arguable case of jurisdictional error arises from the show cause application or from my own reading of the material. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

8. Costs should follow the event in this case.  The Minister seeks costs of $2,500 in accordance with the scale as applied at the time this application was filed.  The Minister's actual costs are in the order of $4,000.  The applicant referred to her protection visa claims but did not make any 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, fixed in the sum of $2,500.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  8 May 2009